The Supreme Court shut down an attack on Obamacare in the most dismissive way possible

Buh-bye.

By Ian Millhiser  Jun 17, 2021, 11:50am EDT

Justice Stephen Breyer speaks at a Harvard forum in 2015.

 Paul Marotta/Getty Images

For the third time since the Affordable Care Act became law in 2010, the Supreme Court rejected a call for it to sabotage that law — this time, in an unusually dismissive opinion.

The Court’s brief decision in California v. Texas, issued Thursday, ultimately concludes that the plaintiffs trying to undo the law had no business being in court in the first place.

The case was brought by a bloc of Republican state officials, as well as two individuals who object to Obamacare. Their case centered on the law’s individual mandate: As originally drafted, the Affordable Care Act required most Americans to either obtain health insurance or pay higher taxes, and the Supreme Court famously upheld this so-called “individual mandate” in NFIB v. Sebelius (2012) as a valid exercise of Congress’s power to levy taxes.

In 2017, however, Congress amended Obamacare to zero out this tax. So, under current law, most Americans must either obtain health insurance or pay zero dollars. The Texas plaintiffs didn’t just claim that this zeroed-out tax is unconstitutional (on the theory that a zero dollar tax can’t be an exercise of Congress’s taxing power), they claimed that the entire law must be declared invalid if the zero dollar tax is stuck down.

It was an audacious ask of the Supreme Court — requesting the justices strike down the entire law despite only claiming that a single provision of Obamacare is unconstitutional. Especially since the provision that the plaintiffs challenged literally does nothing at all.

The Court didn’t even reach the question of whether or not the ex-mandate is constitutional. In a 7-2 ruling written by liberal Justice Stephen Breyer, the Court ruled that no one is allowed to bring suit to challenge a provision of law that does nothing. Four Republican appointees — Chief Justice John Roberts and Justices Clarence Thomas, Brett Kavanaugh, and Amy Coney Barrett — joined Breyer’s opinion.

Suits about nothing are not allowed

The idea that no one can challenge a legal provision that does nothing isn’t especially controversial — or, at least, it wasn’t controversial before numerous high-ranking Republicans rallied behind the Texas litigation. As the Supreme Court held in Lujan v. Defenders of Wildlife (1992), no one may file a federal lawsuit challenging a law unless they have suffered an “injury in fact” that is “fairly traceable” to the law that they are challenging.

Yet that didn’t stop 18 Republican state attorneys general from bringing this futile effort to kill Obamacare. In the end, they lost because of a simple fact: No one is injured by a law that requires them to pay zero dollars.

As Breyer writes, “the IRS can no longer seek a penalty from those who fail to comply” with the requirement to buy insurance. Thus, “there is no possible Government action that is causally connected to the plaintiffs’ injury.”

Really, there’s no need to say much more about this lawsuit. It was an absurd case brought under a risible legal theory that was widely mocked even by many outspoken opponents of Obamacare. The Wall Street Journal’s editorial board labeled this lawsuit the “Texas Obamacare Blunder.” Yuval Levin, a prominent conservative policy wonk, wrote in the National Review that the Texas lawsuit “doesn’t even merit being called silly. It’s ridiculous.”

And now the lawsuit is dead. As it turns out, even in a 6-3 conservative Supreme Court, there are some arguments that are too laughable to be taken seriously.

The Supreme Court is likely to uphold the Affordable Care Act for the third time.

 

Chief Justice John Roberts and Trump appointee Brett Kavanaugh signaled they will likely side with the Court’s liberals to save the law.

[Vox / Ian Millhiser] At least five members of the Supreme Court appeared likely to reject the latest attempt to convince the justices to repeal Obamacare, during oral arguments that took place Tuesday morning. Though a minority of the Court appeared inclined to strike down the Affordable Care Act — Justice Samuel Alito played his frequent role as the Court’s in-house advocate for conservative outcomes — both Chief Justice John Roberts and Justice Brett Kavanaugh fairly explicitly rejected a key prong of the plaintiffs’ arguments in California v. Texas. The Texas plaintiffs argue that if a single provision of the Affordable Care Act is struck down — a provision, it’s worth noting, that does nothing — then the entire law must fall with it. But both Roberts and Kavanaugh said they were very skeptical of that prong of the argument. As originally enacted, the Affordable Care Act requires most Americans to either carry health insurance or pay at least $695 in additional taxes every year. This provision, known as the “individual mandate,” was upheld as a valid exercise of Congress’s power to levy taxes in NFIB v. Sebelius (2012). In the 2017 tax law signed by President Trump, Congress reduced the tax penalty for failing to buy insurance to zero dollars, effectively repealing the individual mandate. Nevertheless, the law still contains inoperative language saying that most Americans “shall” obtain insurance. The plaintiffs, who include 18 red states led by Republican attorneys general, argue that this toothless mandate is unconstitutional. If the fully operative mandate was valid as a tax, they claim, a zero-dollar tax is no tax at all. There may well be five justices who agree with this argument. But a majority of the Court is likely to reject the plaintiffs’ accompanying and more outlandish claim: that if the zeroed-out mandate is struck down, then the whole law must fall along with it. The bottom line, in other words, is that the Affordable Care Act appears likely to survive — with the possible exception of the non-functional mandate. Severability, briefly explained If a court strikes down one provision of a broader statute, it sometimes must ask whether additional provisions of the statute must fall along with the offending provision. This inquiry is known as “severability,” and it is normally a speculative inquiry. The court must ask what hypothetical law Congress would have enacted if it had known that a specific provision is invalid. But there’s no need to speculate in Texas because Congress already told us what should happen if the mandate cannot function. Members of Congress spent the bulk of 2017 debating how much of Obamacare to repeal, and they eventually decided to repeal only one provision: the individual mandate. Thus, we know Congress, if it had known that the individual mandate would be struck down, would have enacted a law that eliminated the mandate and kept the rest of the law because Congress already eliminated the mandate and kept the rest of the law. This conclusion is bolstered by the Supreme Court’s precedents, which hold that courts must apply a very strong presumption in favor of saving as much of a law as possible. As Alito wrote for the Court in Murphy v. NCAA (2018), “In order for other ... provisions to fall, it must be ‘evident that [Congress] would not have enacted those provisions which are within its power, independently of [those] which [are] not.’” Though the three liberal justices — Stephen Breyer, Sonia Sotomayor, and Elena Kagan — said less about severability on Tuesday than some of their colleagues, it’s hard to imagine any of these Democratic appointees voting to strike down Obamacare. The plaintiffs’ arguments in Texas are so radical that they are rejected even by many leading critics of the Affordable Care Act. Even the Wall Street Journal’s editorial board, a bastion of opinion writing friendly to the GOP, labeled this lawsuit the “Texas ObamaCare Blunder.” That means that if two other justices vote to save Obamacare, the law will survive. Both Roberts and Kavanaugh signaled clearly that they believe even if the zeroed-out mandate is struck down, the rest of the law can be severed and therefore should be upheld. ”It’s hard for you to argue that Congress intended the entire law to fall if the mandate was struck down,” when Congress didn’t repeal the whole act, Roberts told Texas Solicitor General Kyle Hawkins at one point. Similarly, Justice Kavanaugh told former US Solicitor General Donald Verrilli, one of the lawyers defending Obamacare, “I agree with you that this is a straightforward case for severability under our precedents, meaning that we would excise the mandate and leave the rest of the act in place.” So it sure looks like there are five votes to save Obamacare.

DEMOCRATS NEED TO COME TOGETHER

Michael Tomasky, Daily Beast

So this is something that starts happening in an incumbent president’s sixth year, especially after an electoral walloping like the one the Democrats just absorbed: The fissures start to show. Because the president is becoming a lame duck and minds are turning naturally toward the next presidential election, the moment is now for the heavyweights in the party to start defining it in post-Obama terms. And the big fight the Democrats are starting to have, and need to have, is about how to put themselves squarely on the side of the broad middle class.

Of course, to someone who sees the world the way I do, it’s comically pathetic that there’s even a competition here. The Republicans are the party of the 1 percent. Oh, maybe the 5 percent on a good day. But really the 1 percent. No—actually really, the .01 percent. That more people can’t see this is, ah, well, a whole ’nother column really.

But in fact I think most people do see it—they just don’t mind it that much anymore. This is because 1) after 30 years of trickle-down agitprop, they’ve come to accept that what’s good for their bosses is good for them (because most people don’t know, for example, that U.S. wages haven’t really grown in those 30 years while for their bosses it’s been a party practically without rival in recent human history), and 2) most folks would simply rather blame poor people for their problems because doing so requires a lot less connecting of dots and is thus a more comforting narrative for them.

This is the crucial point that Democrats often don’t get. Democrats and liberals are inclined to say to themselves things like “if only most Americans knew X”—X being, say, that George Bush’s or Mitt Romney’s tax plan overwhelmingly benefits the rich—“why, we’d have ’em on our side.” But most Americans do know that, in their bones anyway. And they mind it, a little, but they don’t mind it as much as some of what they see from the Democrats.

Here, my conservative Beast colleague Lloyd Green is not entirely wrong to argue as he did Monday that a lot of middle-class people look at the two major domestic-policy matters the Democrats have placed before them—the Affordable Care Act and Obama’s executive order on immigration—and see a party that is more interested in helping poor people, and even illegally arrived poor people, than it is in serving them.

The Affordable Care Act was always a short-term political loser with respect to middle-class voters. Most of them have insurance, and only a small percentage face catastrophic illness. And you can explain why the individual mandate is a necessary leg of the three-legged stool until you’re purple in the face and it won’t get through to most voters. If it survives, it may start paying political dividends in a decade or so, when people have gotten used to it and it has increased the amount and type of preventive care insurance companies offer and made us a healthier society. It was the right thing to do for these and other reasons, but I don’t think anyone, including Obama himself, thought it would be a big political winner in his era.

Ditto the immigration executive order. True, a solid majority backs the Democratic position on the substance. But the recent batch of polls shows Americans to be, what else, deeply split on whether Obama was right to do this by fiat. (I’d love to know the percentage of Americans who are actually aware that the House could have spared us all this by passing the bill the Senate passed, which the country supports roughly two-to-one, at any point in the past 18 months; it’s surely single digits.) So Obama is not getting pummeled on this one so far, but he’s not winning it either. Again, the right thing to do, by my lights, but something that will be seen by the broader middle class as not really benefiting them.

In the coming months and up into 2016, Republicans will make sure these two programs stay front and center, because they of course know all this, and they’ll want to paint the Democrats as only looking out for “those people.” So the Democrats, as Chuck Schumer put it in his big speech last week, have to show the middle class that the party is firmly on its side.



The problem is that the Democrats are more divided on the “how” of doing this than they are on any other single question. At least that’s what we’re told. But are they, really? So much is made of the Elizabeth Warren Wing vs. the centrists (they don’t have a figurehead who can equal Warren in stature). And sure, there are differences. Trade is probably the biggest one, and the issue puts Democratic interest groups at each other’s throats, although regular voters don’t care much about trade policy. Whether to attack the deficit is another, but the deficit is going down, and by the way most voters don’t care much about it either. Whether to give a little ground on entitlement reform is a third, and that admittedly is a big one that there is no way to finesse (except to raise the payroll tax cap, which is the most sensible approach and one the Democrats will come around to someday).

But on loads of economic issues, as Schumer suggested in his speech, virtually all Democrats agree—minimum wage, student loans, workplace rules, infrastructure, a tighter link between productivity and wages are just a few of the things that all Democrats agree on and that, with the partial exception of the minimum wage, would benefit huge majorities of voters.

I said “partial” because a higher minimum wage, often thought of as helpful only to those at the very bottom, would have ripple effects for workers higher up the wage chain. In fact, this is a terrific case in point for the way in which the war between the Democrats’ two economic wings can be greatly exaggerated. I have before me on my browser two recent studies on this question, one by the centrist Hamilton Project and the other by the more liberal Economic Policy Institute. Both give estimates of how many U.S. workers would benefit from an increase in the minimum wage.
Only about 3.3 million Americans (pdf)  earn the federal minimum wage of $7.25 an hour or less. The Hamilton paper estimates that an increase would benefit as many as 35 million workers, while EPI puts that number at more like 28 million.

Here’s what I’d like to see. Now that Warren and centrist Mark Warner are both in the Democrats’ Senate leadership ranks, I think the two of them should sit down and hammer out a Warren-Warner Middle-Class Compact that consists of 10 or however many major points that they know they can get everyone from Bernie Sanders to Joe Manchin to agree on (and of course they also need to be confident that Hillary Clinton will agree to most of them). Warren makes one clearly recognizable gesture to the center, and the centrists make one recognizable gesture to the left. But they agree. They have the stature and the position and the power to do so. I don’t know if they’re friends, but they don’t seem to be enemies; Warren helped raise money for Warner this year.



The core problem in Washington is that many both in the center and on the left are just too emotionally committed to a narrative by which the other side’s prescriptions will bring about the certain apocalyptic destruction of the Democratic Party. Warren and Warner have the power to change that narrative. Their chance to do so starts now

IT WAS UGLY BUT OBAMACARE RULES!

JACK KRUGMAN, N.Y. TIMES

Holy seven million, Batman! The Affordable Care Act, a k a Obamacare, has made a stunning comeback from its shambolic start. As the March 31 deadline for 2014 coverage approached, there was a surge in applications at the “exchanges” — the special insurance marketplaces the law set up. And the original target of seven million signups, widely dismissed as unattainable, has been surpassed.

But what does it mean? That depends on whether you ask the law’s opponents or its supporters. You see, the opponents think that it means a lot, while the law’s supporters are being very cautious. And, in this one case, the enemies of health reform are right. This is a very big deal indeed.

Of course, you don’t find many Obamacare opponents admitting outright that 7.1 million and counting signups is a huge victory for reform. But their reaction to the results — It’s a fraud! They’re cooking the books! — tells the tale. Conservative thinking and Republican political strategy were based entirely on the assumption that it would always be October, that Obamacare’s rollout would be an unremitting tale of disaster. They have no idea what to do now that it’s turning into a success story.

So why are many reform supporters being diffident, telling us not to read too much into the figures? Well, at a technical level they’re right: The precise number of signups doesn’t matter much for the functioning of the law, and there may still be many problems despite the March surge. But I’d argue that they’re missing the forest for the trees.

The crucial thing to understand about the Affordable Care Act is that it’s a Rube Goldberg device, a complicated way to do something inherently simple. The biggest risk to reform has always been that the scheme would founder on its complexity. And now we know that this won’t happen.

Remember, giving everyone health insurance doesn’t have to be hard; you can just do it with a government-run program. Not only do many other advanced countries have “single-payer,” government-provided health insurance, but we ourselves have such a program — Medicare — for older Americans. If it had been politically possible, extending Medicare to everyone would have been technically easy.

But it wasn’t politically possible, for a couple of reasons. One was the power of the insurance industry, which couldn’t be cut out of the loop if you wanted health reform this decade. Another was the fact that the 170 million Americans receiving health insurance through employers are generally satisfied with their coverage, and any plan replacing that coverage with something new and unknown was a nonstarter.

So health reform had to be run largely through private insurers, and be an add-on to the existing system rather than a complete replacement. And, as a result, it had to be somewhat complex.

Now, the complexity shouldn’t be exaggerated: The basics of reform only take a few minutes to explain. And it has to be as complicated as it is. There’s a reason Republicans keep defaulting on their promise to propose an alternative to the Affordable Care Act: All the main elements of Obamacare, including the subsidies and the much-attacked individual mandate, are essential if you want to cover the uninsured.

Nonetheless, the Obama administration created a system in which people don’t simply receive a letter from the federal government saying “Congratulations, you are now covered.” Instead, people must go online or make a phone call and choose from a number of options, in which the cost of insurance depends on a calculation that includes varying subsidies, and so on. It’s a system in which many things can go wrong; the nightmare scenario has always been that conservatives would seize on technical problems to discredit health reform as a whole. And last fall that nightmare seemed to be coming true.

But the nightmare is over. It has long been clear, to anyone willing to study the issue, that the overall structure of Obamacare made sense given the political constraints. Now we know that the technical details can be managed, too. This thing is going to work.

And, yes, it’s also a big political victory for Democrats. They can point to a system that is already providing vital aid to millions of Americans, and Republicans — who were planning to run against a debacle — have nothing to offer in response. And I mean nothing. So far, not one of the supposed Obamacare horror stories featured in attack ads has stood up to scrutiny.

 

So my advice to reform supporters is, go ahead and celebrate. Oh, and feel free to ridicule right-wingers who confidently predicted doom.

Clearly, there’s a lot of work ahead, and we can count on the news media to play up every hitch and glitch as if it were an existential disaster. But Rube Goldberg has survived; health reform has won.

Seven states that show just how hard it is to measure Obamacare's success

WASHINGTON POST

March 23 marks the Affordable Care Act's fourth anniversary, and March 31marks the deadline for people to sign up for health insurance before fines kick in. That means that people are going to be talking quite a bit about the health care law and how its implementation is going.

The Kaiser Family Foundation has released information about how many people have enrolled in health-care exchanges in each state through March 1. Where people are signing up — and where people aren't — tend to follow an easy political rubric. Out of the entire population eligible to join the health-care exchanges, 15 percent have already signed up, a number likely depressed by the Affordable Care Act's inelegant Internet debut. In conservative states where the exchanges are run by the federal government — 27 in all — only 12 percent of the eligible population has signed up. In the 17 states that built their own exchanges, 20 percent of eligible people signed up. Even when you break down the state-based exchanges by party, the percentage of the population remains the same. ...

.... some of federally facilitated exchanges have had great success in signing up people. In some states where Obamacare has incredibly low approval ratings, people are signing up in extraordinary numbers. In some states where the health-care law is popular, sign-ups are nonexistent.
What gives?
Here's a look at a few states that show how complicated analyzing Obamacare's success can be this early in the game. The law definitely hasn't performed to initial expectations so far, but there's no doubt it's also found success in unanticipated places.

 Hawaii has had the fewest number of sign-ups in the whole nation — 4,661 — mostly due to extended technical problems and little interest from small businesses. Because so few people are enrolled, the state isn't sure it will be able to pay for the exchange when the hundreds of millions of federal dollars run out in 2016.

 Maryland has only signed up 9.1 percent of their eligible exchangers, and has hired 200 additional people to work the phone lines because the Web site still doesn't work quite right. The phone lines are always busy, and the wait has frustrated many potential customers.

 Massachusetts' Web site is also not working well, and is unlikely to be fixed by March 31. The state has the smallest percentage of sign-ups in the country.

 Wonkblog called Oregon's Web site the "nation's worst Obamacare site" yesterday. They just completed a $228,000 review of their technology, and are trying to figure out what to do next. Joining the federally-run HealthCare.gov is an option. There are many state-run exchanges that have been far more successful. California and New York — which have two of the largest uninsured populations — have together signed up over 1.1 million people. Idaho has the fifth highest percentage of sign-ups by eligible population, although only 36 percent of its residents have a favorable opinion of Obamacare.

Hisham Uadadeh walks out of Leading Insurance Agency after enrolling in a health insurance plan under the Affordable Care Act on February 13, 2014, in Miami. (Photo by Joe Raedle/Getty Images)

The conservative state government of North Carolina decided not to build a state-run exchange — which would usually mean a small number of sign-ups, if you were to look at most of the states that followed the same course. But North Carolina, Maine and Florida have managed to sign up a significant number of people — when adjusting for the across- the-board decreased standards following the messy November rollout — despite the fact the state government hasn't been as aggressive in pushing sign-ups as states running their own exchanges. In North Carolina and Florida, the number of sign-ups looks promising to the Obama administration since they are two of the ten states with the highest number of uninsured residents. If the Obama administration's last-minute advertising blitz in these states — which also include California, Texas, New York, Georgia, Illinois, Ohio, Pennsylvania and New Jersey — they will get the national tally of sign-ups to go up considerably, too. And that national number is the one everyone will be looking at to give the Affordable Care Act the first semester grades that will define it for November elections.

Maria Burciaga (left) shops for health insurance with the help of navigator Anna Ray at a Houston art gallery. Texas ranks the lowest among states for Obamacare sign-ups.

Texas — where one in four people are uninsured — is likely a lost cause for sign-ups in the near future. The state passed laws this January that makes it difficult to become a navigator, the people who walk enrolees through the complicated sign-up process. Only 39 percent of Texas residents have a favorable opinion of Obamacare. Conservative candidates who have been all over television commercials the past few months have focused much of their attention on the law.
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Cedric Anthony and Alysia Greer are two of the navigators working in Houston neighborhoods for United Labor Unions Local 100.

Who knows how these successes and slip-ups will change in the next years, but it's important to note that there's no one story to tell about the Obamacare rollout, as we learn more data about premiums and sign-ups and Medicaid enrollment in the upcoming months. With such a complex law, there's probably no way we'll know what to make of Obamacare by November. The only thing we have for sure is a crash course in what's working in some states, and what's bombing in others, regardless of whether people like what's happening or not. With such a confusing portrait, it's especially easy for politicians to spin the law every which way. This election, you're going to hear a million different things about Obamacare, and as the above snapshots show, about half of them could even be right.

AFFORDABLE CARE AND MEDICAID

PAUL KRUGMAN N.Y. TIMES

For now, the big news about Obamacare is the debacle of HealthCare.gov, the Web portal through which Americans are supposed to buy insurance on the new health care exchanges. For now, at least, HealthCare.gov isn’t working for many users.

It’s important to realize, however, that this botch has nothing to do with the law’s substance, and will get fixed. After all, a number of states have successfully opened their own exchanges, doing for their residents exactly what the federal system is supposed to do everywhere else. Connecticut’s exchange is working fine, as is Kentucky’s. New York, after some early problems, seems to be getting there. So, a bit more slowly, does California.

In other words, the technical problems, while infuriating — heads should roll — will not, in the end, be the big story. The real threat remains the effort of conservative groups to sabotage reform, especially by blocking the expansion of Medicaid. This effort relies heavily on lobbying, lavishly bankrolled by the usual suspects, including the omnipresent Koch brothers. But it’s not just money: the right has also rolled out some really lousy arguments.

And I don’t just mean lousy as in “bad”; I also mean it in the original sense, “infested with lice.”

 

Before I get there, a word about something that, as far as we can tell, isn’t happening. Remember “rate shock”? A few months ago it was all the rage in right-wing circles, with supposed experts claiming that Americans were about to face huge premium increases.

It quickly became clear, however, that what these alleged experts were doing was comparing apples and oranges — and as Ezra Klein of The Washington Post pointed out, oranges that, in many cases, you can’t even buy. Specifically, they were comparing the premiums young, healthy men were paying before reform with the premiums everyone — including those who previously couldn’t get insurance because of pre-existing conditions — will pay under the new system. Oh, and they also weren’t taking into account the subsidies many Americans will receive, reducing their costs.

 

Now people are signing up for policies on state exchanges and, to a limited extent, on the federal exchange. Where are the cries of rate shock? Anecdotal evidence, which is all we have so far, says that people are by and large happily surprised by the low cost of their insurance. It was telling that when Fox News eagerly interviewed some middle-class Americans who said they had been hurt by the Affordable Care Act, it turned out that none of their guests had actually checked out their new options — they just knew health reform was terrible because Fox News told them so.

 

      

Now, about those lousy Medicaid arguments: Last year’s Supreme Court decision upholding the Affordable Care Act did strike down one provision, the one that would have forced all states to accept an expansion of Medicaid, the already-existing program of health insurance for the poor. States are now free to reject that expansion. Yet how can states justify turning down a federal offer to insure thousands of their citizens, one that would cost them nothing in the first year and only trivial amounts later? Sheer spite — the desire to sabotage anything with President Obama’s name on it — is the real reason, but doesn’t sound too good. So they need intellectual cover.

 

Enter the same experts, more or less, who warned about rate shock, to declare that Medicaid actually hurts its recipients. Their evidence? Medicaid patients tend to be sicker than the uninsured, and slower to recover from surgery.

O.K., you know what to do: Google “spurious correlation health.” You are immediately led to the tale of certain Pacific Islanders who long believed that having lice made you healthy, because they observed that people with lice were, typically, healthier than those without. They were, of course, mixing up cause and effect: lice tend to infest the healthy, so they were a consequence, not a cause, of good health.

The application to Medicaid should be obvious. Sick people are likely to have low incomes; more generally, low-income Americans who qualify for Medicaid just tend in general to have poor health. So pointing to a correlation between Medicaid and poor health as evidence that Medicaid actually hurts its recipients is as foolish as claiming that lice make you healthy. It is, as I said, a lousy argument.

 

And the reliance on such arguments is itself deeply revealing, because it illustrates the right’s intellectual decline. I mean, this is the best argument their so-called experts can come up with for their policy priorities?

Meanwhile, many states are still planning to reject the Medicaid expansion, denying essential health care to millions of needy Americans. And they have no good excuse for this act of cruelty.

Millions of Poor Are Left Uncovered by Health Law

Claretha Briscoe, left, of Hollandale, Miss., with family. She earns too much to qualify for Medicaid but not enough to get subsidies on the new health exchange.


N.Y. TIMES

A sweeping national effort to extend health coverage to millions of Americans will leave out two-thirds of the poor blacks and single mothers and more than half of the low-wage workers who do not have insurance, the very kinds of people that the program was intended to help, according to an analysis of census data by The New York Times.

Because they live in states largely controlled by Republicans that have declined to participate in a vast expansion of Medicaid, the medical insurance program for the poor, they are among the eight million Americans who are impoverished, uninsured and ineligible for help. The federal government will pay for the expansion through 2016 and no less than 90 percent of costs in later years.

Those excluded will be stranded without insurance, stuck between people with slightly higher incomes who will qualify for federal subsidies on the new health exchanges that went live this week, and those who are poor enough to qualify for Medicaid in its current form, which has income ceilings as low as $11 a day in some states.

People shopping for insurance on the health exchanges are already discovering this bitter twist.

 

Gladys Arbila of Houston with her son, Christian Vera. Texas chose not to expand the Medicaid program, so Ms. Arbila does not qualify for it or for new federal insurance subsidies.
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The 26 states that have rejected the Medicaid expansion are home to about half of the country’s population, but about 68 percent of poor, uninsured blacks and single mothers. About 60 percent of the country’s uninsured working poor are in those states. Among those excluded are about 435,000 cashiers, 341,000 cooks and 253,000 nurses’ aides.
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The disproportionate impact on poor blacks introduces the prickly issue of race into the already politically charged atmosphere around the health care law. Race was rarely, if ever, mentioned in the state-level debates about the Medicaid expansion. But the issue courses just below the surface, civil rights leaders say, pointing to the pattern of exclusion.

Every state in the Deep South, with the exception of Arkansas, has rejected the expansion. Opponents of the expansion say they are against it on exclusively economic grounds, and that the demographics of the South — with its large share of poor blacks — make it easy to say race is an issue when it is not.

In Mississippi, Republican leaders note that a large share of people in the state are on Medicaid already, and that, with an expansion, about a third of the state would have been insured through the program. Even supporters of the health law say that eventually covering 10 percent of that cost would have been onerous for a predominantly rural state with a modest tax base.

“Any additional cost in Medicaid is going to be too much,” said State Senator Chris McDaniel, a Republican, who opposes expansion.

The law was written to require all Americans to have health coverage. For lower and middle-income earners, there are subsidies on the new health exchanges to help them afford insurance. An expanded Medicaid program was intended to cover the poorest. In all, about 30 million uninsured Americans were to have become eligible for financial help.
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Poor people excluded from the Medicaid expansion will not be subject to fines for lacking coverage. In all, about 14 million eligible Americans are uninsured and living in poverty, the Times analysis found.       

The federal government provided the tally of how many states were not expanding Medicaid for the first time on Tuesday. It included states like New Hampshire, Ohio, Pennsylvania and Tennessee that might still decide to expand Medicaid before coverage takes effect in January. If those states go forward, the number would change, but the trends that emerged in the analysis would be similar.

 

Mississippi has the largest percentage of poor and uninsured people in the country — 13 percent. Willie Charles Carter, an unemployed 53-year-old whose most recent job was as a maintenance worker at a public school, has had problems with his leg since surgery last year.

His income is below Mississippi’s ceiling for Medicaid — which is about $3,000 a year — but he has no dependent children, so he does not qualify. And his income is too low to make him eligible for subsidies on the federal health exchange.

“You got to be almost dead before you can get Medicaid in Mississippi,” he said.

He does not know what he will do when the clinic where he goes for medical care, the Good Samaritan Health Center in Greenville, closes next month because of lack of funding.

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Blacks are disproportionately affected, largely because more of them are poor and living in Southern states. In all, 6 out of 10 blacks live in the states not expanding Medicaid. In Mississippi, 56 percent of all poor and uninsured adults are black, though they account for just 38 percent of the population.

Dr. Aaron Shirley, a physician who has worked for better health care for blacks in Mississippi, said that the history of segregation and violence against blacks still informs the way people see one another, particularly in the South, making some whites reluctant to support programs that they believe benefit blacks.

 

Dr. Shirley said: “If you look at the history of Mississippi, politicians have used race to oppose minimum wage, Head Start, all these social programs. It’s a tactic that appeals to people who would rather suffer themselves than see a black person benefit.”

 

Where Poor and Uninsured Americans Live

The 26 Republican-dominated states not participating in an expansion of Medicaid are home to a disproportionate share of the nation’s poorest uninsured residents. Eight million will be stranded without insurance.  

 

OBAMACARE BEGINS!

BUSINESS WEEK

Today begins the biggest expansion of health insurance since Medicare. According to the Congressional Budget Office (PDF), an estimated 7 million Americans will buy private health plans through the new online marketplaces known as insurance exchanges, which are now opening nationwide. That number is expected to more than triple in the years ahead.
It could be a bumpy launch, with technical problems and public confusion. Here are four big things to keep in mind as partisans on each side rush to render verdicts on the law’s success or failure:

The Affordable Care Act won’t expand coverage overnight. Medicare automatically helped millions of seniors with their hospital bills a year after it was signed. The ACA is more complex, and it won’t expand coverage as quickly. The law relies on a combination of incentives for people to buy insurance, marketplaces to shop for plans, and regulations to keep those markets functioning. It may be tempting for healthy people to skip buying insurance next year: The penalty for not complying is just $95, or 1 percent of income, whichever is higher. That ratchets up significantly in the next two years, to $695 or 2.5 percent of income. Expect more people to enroll as the penalties increase.

More states may come around. Almost half the states wanted nothing to do with Medicaid, which uses a combination of state and federal money to provide basic health coverage to poor families, when the program began in 1967, according to the Kaiser Family Foundation. Three years later, nearly every state had signed on. (Alaska joined in 1972 and Arizona did in 1982.) The Affordable Care Act is intended to expand Medicaid to encompass some low-income people who don’t currently qualify—for example, a family of four earning up to $31,322. Though about half the states are sitting on the sidelines, they may decide to expand Medicaid in the years ahead.

Glitches are inevitable, but they’ll get sorted out. Republicans point to delays and software problems as evidence that the Affordable Care Act is not ready for prime time. There’s a precedent for this: the GOP-led expansion of Medicare drug benefits a decade ago. In the first week of the new plan, patients were turned away from pharmacy counters. Some states declared public health emergencies and President George W. Bush ordered insurers to approve patients for a month’s worth of drugs for $5 while authorities sorted out the confusion.

The window for trying to undo the law is now closed. Opponents of Obamacare may not be ready to admit it, but the fight is over. Even with a government shutdown, the exchanges will still open. Their funding isn’t covered by the spending bills Congress halted. And, as Obamacare foe Senator Ted Cruz (R-Tex.) has said, once people begin to get insurance and subsidies through the Affordable Care Act, the law will be impossible to undo. “If we don’t do it now, in all likelihood, Obamacare will never, ever be repealed,” he told Sean Hannity.

Some 40 million Americans are uninsured, and getting those people, particularly the healthy and the young, into the insurance pool is critical to the ability of the Affordable Care Act to deliver on its promise of affordability. About 7 million people are expected to gain coverage through the exchanges over the next year, according to the Congressional Budget Office.
If those in the 18-to-34 age group—the young invincibles, as they’re known—stay away, insurance premiums could rise overall and the critics of Obamacare will declare the whole effort an epic example of misguided liberal social policy.

How will we know if Obamacare has a real shot of succeeding? Watch Hispanic enrollment, according to a recent analysis by the Kaiser Foundation. If this powerful and growing demographic group buys insurance in a big way, the president will have reason to be optimistic about the future of his landmark legislation.
America’s 52.2 million Hispanics represent about 17 percent of the total U.S. population—and nearly half (47 percent) are under the age of 26. For the overall population, only about 35 percent are under 26.

Some 15.5 million Hispanics have no health insurance. That’s about 32 percent of America’s total uninsured population, if you exclude the elderly.
 The states to watch are Arizona, California, Colorado, Florida, Nevada, New Jersey, and Texas—all states where Hispanics account for more than 20 percent of the population.



WASHINGTON POST
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If the exchanges implode, the ACA will fail and be repealed. That is, if healthy people on the individual market choose to go without health insurance, it will mean the math won’t work, and the program will be a disaster. But people aren’t going to decide whether to get health insurance based on their politics. If there’s a good product, relatively easy to buy, at a good enough price, then they’re going to purchase it. If not, they won’t, and the political support for Obamacare will disappear relatively quickly.

However, if people do sign up — if the program works at a basic level — then it will be game over.

There’s just no way that anyone is going to take away health insurance from millions of mostly middle-class people. It jst isn’t going to happen.

HOUSE GOP ISN'T BLINKING: SHUTDOWN LOOMS

N.Y. TIMES

The federal government barreled toward its first shutdown in 17 years after the Republican-run House, choosing a hard line, voted to attach a one-year delay of President Obama’s health care law and a repeal of a tax to pay for it to legislation to keep the government running.

The votes, just past midnight, followed an often-angry debate, with members shouting one another down on the House floor. Democrats insisted that Republicans refused to accept their losses in 2012, were putting contempt for the president over the good of the country and would bear responsibility for a shutdown. Republicans said they had the public on their side and were acting to protect Americans from a harmful and unpopular law that had already proved a failure.

The House first voted 248-174 to repeal a tax on medical devices, then voted 231-192 to delay the law’s implementation by a year — just days before the uninsured begin enrolling in the law’s insurance exchanges.

But before the House had even voted, Senator Harry Reid of Nevada, the majority leader, declared the House bill dead. Senate Democrats are planning to table the Republican measures when they convene on Monday, leaving the House just hours to pass a stand-alone spending bill free of any measures that undermine the health care law.       

The House’s votes early Sunday all but assured that large parts of the government would be shuttered as of 12:01 a.m. on Tuesday. More than 800,000 federal workers deemed nonessential faced furloughs; millions more could be working without paychecks. A separate House Republican bill passed unanimously Sunday morning to ensure that military personnel continued to be paid in the event of a government shutdown, an acknowledgment that a shutdown is likely.

 

Speaker John A. Boehner of Ohio faced a critical decision this weekend: Accept a bill passed by the Senate on Friday to keep the government financed and the health care law intact and risk a conservative revolt that could threaten his speakership, or make one more effort to undermine the president’s signature domestic initiative and hope that a shutdown would not do serious political harm to his party.
With no guarantee that Democrats would help him, he chose the shutdown option. The House’s unruly conservatives had more than enough votes to defeat a spending bill that would [defund the Affordable Care Act for a year] unless Democrats were willing to bail out the speaker. And Democrats showed little inclination to alleviate the Republicans’ intraparty warfare.

“By pandering to the Tea Party minority and trying to delay the benefits of health care reform for millions of seniors and families, House Republicans are now actively pushing for a completely unnecessary government shutdown,” said Senator Patty Murray of Washington, the Democrat who leads the Budget Committee.

As provocative as it was, the move by House Republicans was an expression of their most basic political goal since they took control in 2010: doing what they can to derail the biggest legislative achievement of Mr. Obama’s presidency.

 

After the shutdowns of 1995 and 1996, Republicans were roundly blamed. Their approval ratings plunged, and President Bill Clinton sailed to re-election. This time they say they have a strategy that will shield them from political fallout, especially with the bill to keep money flowing to members of the military. According to a recent CNN/ORC poll, if there is a federal government shutdown over Obamacare, Congressional Republicans would bear the brunt of the blame (46 percent).

 

Republicans readily acknowledged that the difficulty is what is next. If the Senate sends back a bill, it will most likely not have a yearlong delay. Then Mr. Boehner must decide whether to put that measure on the floor, which would anger his conservative members.