Sunday, June 28, 2015

The Monster Lives!

The Monster Lives! The Exquisite Politics of King v. Burwell

Everybody won.

I know, that’s a statement that, almost by definition, calls upon people who know me to question my sanity, but the Supreme Court has ruled, ACA has survived, and everyone has won.

Let’s take the most obvious winner.  Mr. Obama won big.  This is his healthcare plan, his two terms will largely be defined by it, it has single-handedly destroyed the Democratic majorities in the House and the Senate, it is deeply flawed, one can question his political judgment in pushing for it, and certainly his managerial competence in overseeing its execution, but there it is.  Obamacare is up and running, it has, regardless of whatever people say,  helped millions of people to gain coverage they otherwise couldn’t have, and, because of the multi-faceted way it interacts with patient needs, will help many millions more at different stages of their lives.  I am not going to say it is a positive good for everyone, or that I like it personally, but putting aside the apocalyptic end-of-civilization-as-we-know-it claptrap, it will be judged more kindly by history than its critics would acknowledge.

Republicans won as well:  There’s been a lot of talk about how good it will be for them to be able to run and raise money off of the continuing “offense against humanity” that ACA is, but I think that’s a lesser point.  The truth is they were frightened.  They dreaded the fallout, and the ads that would have run in 2016.   Should the Supreme Court have killed off the exchanges, millions of people would have lost coverage—and many of those millions happen to live in states that are run by Republicans. There were frantic behind-the-scenes discussions about how to bridge the gap long enough to get through the next election season, hoping to distract voters until they could repeal the entire thing in 2017.   But the legitimacy they thought they would gain by having a supportive conservative Supreme Court majority was probably ethereal.  The centrists and the unaligned public (and there is such a thing) clearly understood this was a political dispute being litigated in the courts.  Polling showed that the public did not like the ACA, but, by a very wide margin, did not want to see the Supreme Court effectively repeal it.

The GOP had another problem as well—one that is not fully understood by many Democrats and liberals. Not all conservatives are hard-hearted SOB’s who would personally pull the plug on a child with cancer and then rejoice as the family sobs.  It isn’t just the political fallout that worries many serious Republican lawmakers.  It is the actual impact of repeal.  This is both a practical concern (some GOP governors, including John Kasich of Ohio, have actually embraced certain aspects of ACA, albeit while decrying the entire law) and an intra-party one.  The fact is that there is no “replace” after “repeal” because the GOP cannot coalesce around a set of principles.  Many conservatives are philosophically opposed to any meaningful role of the government in healthcare, and saw King v. Burwell as a starting point toward dismantling the entire entitlement system—including not just Medicaid and SNAP, but also Social Security and Medicare.  A “replace” for that wing of the party would simply be a cap on malpractice awards, a reduction in the role for the FDA, and immunity for the medical device industry.  If you happen to be running a state (or representing one) and aren’t either running for President, or pine to be the next Sam Brownback, the thrilling theory of purity clashes with the reality of constituents dying for lack of access to a doctor.   The GOP must reconcile that, and the smart people there know it.  They need a plan, and this buys them time to come up with one.

Last, but not certainly least, the Supreme Court is probably a winner.  I have read a great deal of commentary about this from across the spectrum, but I suspect that the Chief Justice’s opinion, or, more importantly, his reason for deciding this way, has, at its core, a very important motive.  He doesn’t want to encourage chaos.  Ignoring legislative intent, which has long been a legitimate part of judicial analysis, will create a seismic shift in the way jurisprudence is conducted going forward. Roberts allows that the express language of the ACA contains several examples of poor drafting (and I think it’s amply clear, if he had been in Congress, he would never have voted for it.)  But, he says, despite all that “Anyway, we “must do our best, bearing in mind the fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.”

Why? We know he doesn't like the law, and we know he was excoriated for his previous vote.   I am just speculating as to what was in Robert’s mind, but I have to think he at least considered the possibility that by discarding evidence of the intent of Congress in this case, he would open the floodgates of further litigation, not just on ACA, but on many statutes that had been on the books for decades.  Don’t like a law because of a policy dispute—hire someone to pour over every last word and clause and find something, anything, that you can take before a like-minded Federal Judge, and then you are off to the races.  I would also note that Justice Kennedy, who voted against the Individual Mandate in 2012, joined Roberts this time, and did so without filing a concurring opinion.  It seems that he, too, also agreed with the legislative intent analysis. 

So, here we are.  This isn’t over, by any stretch of the imagination.  GOP governors are still going to resist, the House and Senate are still going to try to repeal, and I expect there will be yet another threat of a government shutdown. And, if you can believe it, there is yet another ACA lawsuit, claiming the statute wasn’t properly enacted.  No lions hanging out with the lambs. 

And yet, I find myself oddly optimistic. ACA itself could also be a long-term winner.  It is a badly drafted law—as Justice Roberts noted quite forcefully.  It was largely written behind closed doors—like a lot of laws that get far less scrutiny.  It is clumsy, has internal contradictions, and needed some serious proofreading.  It desperately needs technical corrections. Republicans ought to get on board with this, sooner rather than later, and use the opportunity to introduce some of their own ideas, and show they know how to govern.  They won’t, at least not right now, because they need to vent some. 

So, I’m going to go out on a limb, and say that the two sides will, sooner or later, have to reconcile, and better legislation is possible.  I get this optimism from a strange direction—a story in the June 24, 2015 edition of The Hill.  It turns out that there is an Obama appointee that Republicans genuinely admire, a person who “could give lessons to the President on how to work with Congress” (Tom Cole (R-OK), head of the House Budget Committee).

That would be Secretary of Health and Human Services Sylvia Matthews Burwell.

The President seems to have picked a winner.

June 28th, 2015

Michael Liss (Moderate Moderator)

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