The Affordable Care Act took a potentially serious hit (7/22) when the D.C. Circuit Court of Appeals struck down a rule that extended the law’s health-care subsidies to residents of the three-dozen states where the federal government runs a health insurance exchange because the states were unwilling or unable to do so.

But the fact that another court of appeals upheld the same rule on the same day shows that the legal issue is very thorny and will very likely be ultimately resolved by the Supreme Court. And Tom Goldstein, an appellate lawyer and publisher of SCOTUSblog predicted that the administration probably will come out ahead in the end.

The controversial part of the law says that the government can provide subsidies for health insurance bought on exchanges “established by [a] State,” he noted in a commentary at WashingtonPost.com (7/22).

“The argument against the administration’s rule is straightforward: if a state refuses to set up an exchange, forcing the federal government to operate it instead, then the subsidies aren’t available. That legal reading of the statute makes some sense, because Congress may have wanted to encourage states to create exchanges with the carrot of promising subsidies for the states’ residents.

“But the courts are required to uphold the rule if the law is ambiguous and the administration’s position is reasonable. The Supreme Court will probably uphold the rule under that lax standard.

“Here’s why. Other provisions of the statute reference an exchange ‘established by [a] State,’ but really include the federal government. Another section of the law refers to a state-run exchange when everyone agrees that it means to include the federal government too. Also, the law actually requires every state to set up an exchange, and it refers to all the exchanges as having been established by states. So you can look at the statute as a whole and reasonably read it to extend the subsidies to residents of every state.”

Goldstein also noted that the section of the law cited by the rule’s opponents is a strange place for Congress to have limited the availability of subsidies, because that section states the formula for tax credits rather than core rules on who gets benefits under the Act. There also isn’t much evidence to suggest that Congress actually was intending to use the subsidies to encourage states to create exchanges, he noted.

Ian Milhiser noted at ThinkProgress.org (7/22) that both cases hinge on a “glorified typo” in the law, and “as the Supreme Court has made clear — and as the Fourth Circuit reiterates in its opinion — a federal law should not be interpreted by reading a single line out of context. Rather, ‘a reviewing court should not confine itself to examining a particular statutory provision in isolation’ as the ‘meaning—or ambiguity—of certain words or phrases may only become evident when placed in context.’”

Milhiser concludes, “In the end, the battle between the Fourth Circuit and the DC Circuit is a battle over who gets to make law. Normally, that power rests with Congress, but when a law is ambiguous, the Supreme Court has long recognized that courts should defer to the Executive Branch. This rule achieves two ends. It ensures that agencies with expertise on a particular area of law get to interpret that law, rather than leaving matters to inexpert judges. And it also ensures that the people who make important policy decisions are ultimately accountable to the American people.

“If the electorate does not approve of the Obama Administration’s reading of this law, then the Fourth Circuit’s opinion permits them to vote for a different president who will read the law in a different way. The DC Circuit, however, would steal this decision away from the American people, and place it in the hands of a few unelected officials in black robes.”

IF O’CARE OPPONENTS WIN, WHO LOSES? If the opponents of the Affordable Care Act win the Halbig v. Burwell lawsuit to stop the federal government from subsidizing health insurance in the 36 states with federally-run insurance marketplaces, it would have a catastrophic results for Americans across the country, Tara Culp-Ressler wrote at ThinkProgress.org (7/22).

• 87% of Obamacare enrollees in states with federal marketplaces would lose their tax credits. That number rises even higher in states with higher levels of poverty; in Mississippi, for instance, 94% of people who signed up for Obamacare.

• Premiums in those states could increase by more than 75%, according to a recent analysis by the consulting firm Avalere Health. That would make insurance simply too unaffordable for many low-income Americans.

• The average person with the cheapest plan on a federal marketplace would have to spend a quarter of their income on insurance, according to MIT health economist Jon Gruber.

• The number of uninsured Americans would increase by about 6.5 mln, Gruber projected.

• Obamacare premiums would be sent into a death spiral, as the marketplace would be left with an unbalanced poor of enrollees that is disproportionately older and sicker. According to a brief filed in opposition to Halbig by several economists, that would ultimately put affordable insurance out of reach of more than 99% of the people who are currently eligible for subsidies in the federal exchanges.

PREDICTIONS OF O’CARE PREMIUM SPIKES WERE WRONG. Critics of the Affordable Care Act promised the law would send insurance premiums skyrocketing. They were wrong, Sam Baker noted at NationalJournal.com (7/21). Nearly 20 states have released preliminary information about premiums for insurance policies sold on their insurance exchanges, and the nightmare scenarios have not come to pass. In most of those states, the average increase across all exchange plans is in the single digits.

According to a PricewaterhouseCoopers analysis of 18 states’ initial filings, 10 states will see average premium increases of less than 10% — nominal hikes in line with the standard increases that have happened every year with or without Obamacare.

Outliers so far are Indiana, with an average increase of 15%, and Rhode Island, where the average premium will fall about 1%.

Larry Levitt, vice president for special initiatives at the Kaiser Family Foundation, said he’s surprised by the variation in proposed changes but that on average, premiums are working out to about what he expected: hikes of 7% to 8% in most places.

“Hunter” noted at DailyKos (7/22), “Rises of 7 or 8 percent per year are still nothing to sneeze at, but in the years before Obamacare took effect, I would have been giddy to have our family’s yearly premium increases rise by only 7 or 8 percent instead of the more typical double or triple that.”

MEDICAL JOURNAL: 20M COVERED BY O’CARE. The New England Journal of Medicine (7/17) provided an overview of the Affordable Care Act’s first year, with the bottom line that an estimated 20 mln people are covered by the law.

“Taking all existing coverage expansions together, we estimate that 20 million Americans have gained coverage as of May 1 under the ACA,” the authors wrote. “We do not know yet exactly how many of these people were previously uninsured, but it seems certain that many were.”

The 20 mln total includes 1 mln adults under age 26 enrolled in their parents’ plan; 8 mln enrolled in private coverage through the insurance marketplaces; 5 mln enrolled in private coverage directly through their insurer; 6 mln enrolled in Medicaid.

Some of these people were likely insured prior to the law, the authors noted. But with continuing enrollment, “the numbers of Americans gaining insurance for the first time — or insurance that is better in quality or more affordable than their previous policy — will total in the many tens of millions,” they wrote.

They also noted the disparity — and potential for even greater disparity — between the 28 states that expanded Medicaid under Obamacare, and the others that decided to not to following the 2012 Supreme Court decision.

“Those deciding not to expand Medicaid will benefit far less from the law, and since many of these states have high rates of uninsured residents and lower health status,” they said, “the ACA may have the paradoxical effect of increasing disparities across regions, even as it reduces disparities between previously insured and uninsured Americans as a whole.”

In another report (7/23) NEJM reported that 10.3 mln uninsured Americans obtained health coverage during Obamacare’s first open enrollment period. The study, which included researchers from Harvard University and the US Department of Health and Human Services, found that the number of uninsured Americans had dropped by 5.2 percentage points by the second quarter of 2014.

The findings track with previous estimates. They also gain found that states that expanded Medicaid under the law saw the uninsured rate fell by 6 percentage points among the expansion population; while the those that did not saw uninsured fall by 3.1 percentage points.

The study covered survey data from 420,000 adults from January 2012 to June 2014. (Dylan Scott, TalkingPointsMemo.com, 7/21 and 7/23)

GOP OPPOSITION TO O’CARE: IDEOLOGY OR JUST MONEY? What is it with the conservative opposition to the Affordable Care Act? Jonathan Cohn, in the Q.E.D. section at NewRepublic.com (7/23), writes:

“As Dave Weigel notes [at Slate.com], [Republicans] tried to frame the ruling as proof that the law is fundamentally ‘unworkable’ (even though millions are now getting insurance through it) or that Obama has stretched the limits of executive authority (which is arguable in some cases, but not this one) or that the law’s architects didn’t know what they were doing (which is based heavily on a deliberately misleading interpretation of something Nancy Pelosi once said). But the motives of Republican leaders, like the motives of the individuals who thought up these lawsuits, are no mystery. As I noted yesterday (7/22), they simply don’t believe in universal health care. They don’t believe it’s the job of government to make sure every person can pay for medical care without going bankrupt. That’s one reason the Obamacare wars still haven’t stopped.”

Dean Baker suggested an alternative. “Suppose they don’t have deep convictions about universal health care insurance, but do have deep convictions about money leaving the pockets of rich people. Of course taxes were raised on the rich to cover part of the cost of subsidies in the exchanges.

“Suppose also they like a cheap docile labor force. The type that fears unemployment and also needs a full-time job just to get health care insurance. (This makes it easier to get good help.)

“In this respect it is worth noting that the number of people working part-time by choice has increased by 800,000 over the last year. This is consistent with a story where people who don’t need to work full-time to get health care insurance will work less. This is great news for workers and bad news for ‘it’s hard to get good help’ crowd.

“If my suppositions are true then the Republican leaders would hate Obamacare even if they never gave a thought to universal health care and the government’s obligations to individuals. It’s a question of taking money from rich people, end of story.”

ELIZABETH WARREN ISN’T RUNNING FOR PRESIDENT. And that’s a good thing, Markos Moulitsas opines at DailyKos (7/23). “If you want someone to push the party to the mainstream left, then Elizabeth Warren is exactly where she needs to be,” the “Kos” in DailyKos wrote.

“It’s kind of comical. Sen. Elizabeth Warren has repeatedly said, over and over again, that she’s not running for president. She’s said so emphatically: ‘I am not running for president. Do you want to put an exclamation point at the end of that?’

“Yet people continue to cling to the hope that she is playing coy. ‘She spoke in the present tense, which means she’s open to changing her mind in the future!’ Um, no. She’s not.”

Among the reasons Kos said Warren won’t run:

1) She’s not narcissistic enough to run;

2) We had to drag her kicking and screaming into the Senate race;

3) She would get crushed (ABC News recently had a potential primary matchup at 69-7, with Hillary Clinton crushing Warren. Fox News had it at 69-6. Quinnipiac has had the most pessimistic numbers for Hillary, at 58-11);

4) She won’t push Hillary to the left or anywhere else, since “the safest bet and approach for any candidate sporting 40-50-point leads isn’t to engage with minor opposition, it’s to ignore them. So what would happen if Warren ran and, say, optimistically managed to pick up 15-20 percent of the vote?”

5) She would be marginalized as a fringe figure;

6) She would lose all effectiveness in the Senate.

The good news, Moulitsas writes, is that:

1) She is part of a new progressive Senate corps moving the party to the Left, with colleagues like Tammy Baldwin, Al Franken, Sherrod Brown, Jeff Merkley, Barbara Mikulski and a handful of others;

2) The Senate is all the perch she needs, as she is already a national figure with a national following who has been firing up the base in places like Kentucky and West Virginia;

3) She’s a great legislator who has brought over Republican votes for the student loan and other legislative initiatives, which shows skill at legislating;

4) She can still move Hillary to the left, from the Senate. “What do you think will scare Hillary Clinton more? An opponent lagging far behind in the polls, or a liberal icon calling her out on the sidelines, potentially impacting base intensity?”

“Does Rush Limbaugh need to run for president to have an impact on GOP presidential candidates? This notion that you have to be in the presidential race to impact it isn’t borne out by reality. When Warren speaks, people listen. And if we have her back, sign her petitions, and make it known that she speaks for us on many issues, then Hillary will have no choice but to adapt.

“If you really pin your 2016 presidential hopes on Elizabeth Warren, you will be disappointed. And there’s no reason to be! We have an incredible champion, already working to shape the debate from her Senate perch. Be happy we’ve had that opportunity, because it almost didn’t happen.

“Elizabeth Warren will not run. And that makes her more powerful and influential than she ever would as an electoral also-ran.”

OBAMA OPENS EASTERN SEABOARD TO OIL DRILLERS. While the world was distracted by the shootdown of the Malaysian airliner and the Israeli incursion into Gaza, the Obama administration on Friday (7/18) announced that it was reopening the Eastern Seaboard to offshore oil and gas exploration, approving seismic surveys using sonic cannons that can pinpoint energy deposits deep beneath the ocean floor.

The announcement could create thousands of jobs to support a new energy infrastructure, but Jason Dearen of the Associated Press reported that it dismayed environmentalists and people who owe their livelihoods to fisheries and tourism.

Some exploratory wells were drilled before the US Atlantic seabed was closed to exploration in the 1980s, but they never produced much. The latest seismic technology might change that, but Charles P. Pierce commented at Esquire.com (7/22) that the move “is utterly reckless. If you’re serious about climate change being the national security challenge of the next 100 years, why are you out there looking for more oil anywhere you can find it? The technology being used simply to find the oil and gas off the Eastern seaboard — sonic cannons fired into the ocean floor — is guaranteed to kill all sorts of marine life. So many dolphins will die before they get the opportunity to choke to death on oil from the inevitable spills.”

GA. GOP TAPS PREDATORY CAPITALIST AS SENATE NOMINEE. Georgia Republicans chose a major-league skinflint as its nominee for US senator in David Perdue, who narrowly defeated US Rep. Jack Kingston in the runoff (7/22).

During his business career, American Bridge 21st Century PAC noted, Perdue outsourced thousands of jobs overseas as an senior vice president at menswear manufacturer Haggar; he tanked textile company Pillowtex, overseeing a $27.6 mln loss and leaving 7,500 workers out to dry while he pocketed $3.1 mln; and while he was CEO of Dollar General, the Equal Employment Opportunity Commission found that female store managers were discriminated against and were paid less than men. Dollar General ended up paying $15.5 mln toward the members of the class action lawsuit, and in a separate case, it was forced to pay nearly $74,000 to a former employee after a district court found that she was fired for taking time off under the Family Medical Leave Act.

Perdue rounds this record out by opposing a minimum wage increase, wanting to cut Social Security and Medicare, and wanting to replace the federal income tax with a national sales tax, a policy that would benefit the rich, Laura Clawson noted at DailyKos.com (7/23).

Perdue will face Democrat Michelle Nunn, who polls show as competitive or even leading Perdue in some polls.

LOST WEEKEND AT NETROOTS NATION. Charles P. Pierce writes for Esquire.com from Detroit (7/21):

“I do not know what to make of the Netroots Nation hootenanny that just passed. I met some nice people, heard some interesting discussions (the great Nina Taylor of Ohio presided over a barnburner about voter suppression), watched Joe be Biden, watched Senator Professor Warren get treated like the pope on parade, and heard Rev. William Barber bring the thunder. But the edge and the urgency simply were not there. It seemed more like a jobs fair for the professional left than anything else. The interesting panels on actual issues were passing rare; there was an appalling lack of attention paid to environmental concerns. There was more apparent interest in Building Your Brand than there was even in our old pal, the Keystone XL pipeline, which is coming down to the wire on its possible approval, and which has served — symbolically and every way else — to energize the environmental movement like nothing has since the first Earth Day.”

Pierce also noted that very few major Democrats showed up at the meeting.

“Again, having attended both CPAC and Netroots this year, the difference between the power of the two gatherings over the respective political parties to which they generally gravitate was more startling this year than ever before. Certainly, there was loud rumbling of internal discontent at CPAC, too, but there wasn’t a prominent Republican in the country that dared not show up. (And there were several panels about the severe mistreatment of the Keystone pipeline by environmental extremists, wah-dee-doo-dah.) CPAC was loud and noisy and fun. Netroots was simply dead-assed. One convention felt like a movement. The other felt like a trade show. If you are a Democratic politician, and you’re hoping just to ride out the 2014 midterms, this is not a hopeful thing.”

A fracture also appeared at the end of the conference when Markos Moulitsas, founder of DailyKos, who helped build the event in the first place, announced that neither he nor his DailyKos community would participate next year, because the event is being held in Arizona, and Moulitsas is boycotting the state until the odious Arizona SB 1070 — the ‘Papers, Please’ statute — is off the books entirely.

“On Sunday, a representative of the Netroots board explained that having the convention in Arizona was ‘taking the fight’ right into the belly of the beast,” Pierce wrote. “Me? I feel strongly both ways, but I would like to say that holding a convention in Arizona in the middle of fking July is not my idea of fun. Or of proper hydration, for that matter.”

LUXURY APT. BUILDING WILL HAVE ‘POOR DOOR.’ A luxury condo building on New York City’s Upper West Side has gotten clearance from the city to have a separate entrance, or a “poor door,” for low-income tenants, according to the New York Post.

Extell, which is building the 33-story complex, will build a specific door for the 55 affordable housing units it’s including in order to be allowed to build a bigger building. The low-income units, which are available to people making 60% of median income or less, will also be in a segment that only contains affordable apartments and that faces the street while the luxury apartments will face the river.

In New York City, this arrangement is relatively common. Luxury builders get credits to use up more square footage than they normally could by promising to build affordable units as well. Those developers can then sell the credits to cover the costs of building the low-income housing. Because Extell considers the affordable segment to be legally separate from the rest of the building, it says it is required to have different entrances.

Besides being made to use a separate entrance, some low-income residents in luxury buildings are prohibited from using the amenities offered to the wealthy tenants, which in the case of this particular building include swimming pools and regulation-sized basketball courts. Several buildings in the city ban affordable housing or rent-regulated tenants from using perks like gyms, rooftops, and pools, and the practice is on the rise.

Two New York City Council members are working on legislation that would expand the city’s anti-discrimination protections to include rent-regulated tenants. A state assemblywoman has introduced legislation that would require buildings to let low-income renters use all the amenities.

The ability to afford rent is out of reach for more and more city residents. Median rent is nearly 40% of median income in New York City, much higher than what is considered affordable. And as in the rest of the country, rents are rising, with the median Manhattan apartment going for $3,247 a month, the second highest level in more than five years. At the same time, the panel that determines how much landlords can raise costs for rent-controlled tenants rejected a proposed freeze and approved a 1% uptick. Building more affordable units could help ease that squeeze for some families, but will come with some stigma if they’re kept separate from the better off. (ThinkProgress.org, 7/21)

CONGRESS HITS NEW LOW. We already knew Americans rank Congress below cockroaches, but a new poll provides further evidence of how little love the public has for the legislative branch: its ratings are worse than Jar Jar Binks, Ariel Edwards-Levy reported at HuffingtonPost.com (7/22).

FiveThirtyEight asked an online SurveyMonkey poll of Star Wars watchers to rate the films’ characters. The least popular, reviled Gungan representative Jar Jar Binks, had a 29% favorable rating, with 37% viewing him unfavorably, for a net -8 (the rest were neutral or undecided).

By contrast, public polling gives Congress an average net rating of about -57, with 12.6% approval and 69.6% disapproval.

However, Edwards-Levy noted that for all the comedic potential Congress’ low approval ratings provide, most of its members are likely to be reelected. In 2010, when just 21% of Americans approved of Congress, 85% of House incumbents seeking reelection held onto their seats.

From The Progressive Populist, August 15, 2014


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