[EL] Where have the federalists gone? Obamacare, King, and the Court

Mon Mar 2 11:03:12 PST 2015

Abbe – actually the ‘near certain collapse of 34 state insurance markets’ is probably overstating it – the basic regulations, guaranteed issue and age-modified community rating, would have simply imposed on those states the systems currently in place in New York, New Jersey, and Maine. I’m not a fan of those regulations and think they have indeed damaged the insurance markets, but it wouldn’t be unusual at all in my opinion for Congress to pass regulations that, in fact, had a negative impact. 

As for the argument you make regarding textualism, it seems an excellent one and fits nicely under my contention “There are reasonable arguments about what Congress did or did not intend…” Personally I think Congressional intent is pretty much impossible to determine in this case, given the fairly obvious (to me) conclusion that those writing and voting on this bill had no real clue what they were doing. I’m sure an awful lot of Democrats thought they were voting for a bill that would have given subsidies to everyone. A number of Democrats seem to have thought as well they were voting for a law that would reduce health insurance premiums across the board. The fact that the people writing and voting on a measure didn’t understand the subject matter very well and weren’t capable of drafting a bill that would put into law what they wanted to do does not, in my view, mean we can go back after the fact and simply apply the best wishes of the law’s proponents to correct their errors.

Congress probably did intend to give subsidies to everyone, although the history of holding sticks over states’ heads to get them to comply certainly leaves open the possibility they intended to deny it to states that wouldn’t play ball. But if Congress wanted to pass a law that would give subsidies to people in every state regardless of whether the state established an exchange, then they probably should have passed a law that would do that, instead of passing what they did.

Best,

Sean Parnell

President

Impact Policy Management, LLC

6411 Caleb Court

Alexandria, VA  22315

571-289-1374 (c)

sean at impactpolicymanagement.com

From: Gluck, Abbe [mailto:abbe.gluck at yale.edu] 
Sent: Monday, March 02, 2015 12:57 PM
To: Sean Parnell; 'Rick Hasen'; law-election at uci.edu
Subject: RE: Where have the federalists gone? Obamacare, King, and the Court

Mr. Parnell- The loss of federal funds, while devastating to individuals, is not the loss I was talking about. It is the near-certain collapse of 34 state insurance markets based on a choice the states were making when they read the statute, like everyone else, to give them a choice to run their own exchanges or not without penalty.  This is because the ACA’s insurance reforms apply nationwide, regardless of a state’s choice with regard to exchange management.  As far as the Medicaid language goes, the rule is that conditions or intrusions on the states have to be unmistakably clear from the text of the statute. The King challengers are pressing a textualist offense, but the textualist rules require a clear statement (not merely that it might be plausible that Congress might have intended something but didn’t say so—which I do not think is the case here, regardless. Indeed, as I elaborated below, it is implausible to think that Congress designed the federal fallback here with the intention that the whole thing collapses as soon as it kicks in. ).   Moreover, textualists draw great significance when Congress speaks clearly about an effect of the law in one part of the statute and doesn’t in another part. That’s the textualist doctrine—and that is the doctrine the challengers say they are litigating under.   Happy to discuss more in an individual conversation.

Best regards,

Abbe

Abbe R. Gluck

Professor of Law 

Yale Law School

(203) 432-6703

From: Sean Parnell [mailto:sean at impactpolicymanagement.com] 
Sent: Monday, March 02, 2015 12:41 PM
To: 'Rick Hasen'; law-election at uci.edu; Gluck, Abbe
Subject: RE: Where have the federalists gone? Obamacare, King, and the Court

Whoops, my apologies, for some reason I thought that was Rick. My bad!

Sean Parnell

President

Impact Policy Management, LLC

6411 Caleb Court

Alexandria, VA  22315

571-289-1374 (c)

sean at impactpolicymanagement.com

From: Rick Hasen [mailto:rhasen at law.uci.edu] 
Sent: Monday, March 02, 2015 12:40 PM
To: Sean Parnell; law-election at uci.edu; Gluck, Abbe
Subject: Re: Where have the federalists gone? Obamacare, King, and the Court

It's not me---It's Abbe Gluck.  Please see the author of each post.

On 3/2/15 8:23 AM, Sean Parnell wrote:

Rick suggests below that the reading of plaintiffs in King v. Burwell would amount to “the most draconian modern statute ever enacted by the U.S. Congress that included a role for the states.” The draconian-ness, presumably, would be regarding the loss of $25 billion in annual subsidies distributed through the federal exchanges. Perhaps. But I think it’s worth noting the more draconian nature of the original Medicaid expansion language in PPACA, namely that states who failed to comply with the expansion would lose ALL of their current Medicaid funding, which if memory serves correct is roughly $235 billion each year at stake.

The fact the PPACA explicitly, in regards to Medicaid expansion, told states to get on board or lose all of their funding, also suggests it’s hardly beyond the pale that a similar thought process led them to include a punishment for states that don’t establish their own exchanges, such as making them ineligible for federal subsidies.

There are reasonable arguments about what Congress did or did not intend (my favorite being that Congress did not intend PPACA to become law as written in the first place, so let’s enforce that intent), but I have a hard time putting much stock in the argument that Congress would never have dreamed of denying a benefit to some citizens if their state didn’t go along, given that Congress did exactly that in drafting the Medicaid section of the law.

Sean Parnell

President

Impact Policy Management, LLC

6411 Caleb Court

Alexandria, VA  22315

571-289-1374 (c)

sean at impactpolicymanagement.com

 <https://urldefense.proofpoint.com/v2/url?u=http-3A__electionlawblog.org_-3Fp-3D70582&d=AwMFaQ&c=-dg2m7zWuuDZ0MUcV7Sdqw&r=XJoWt5LwJt1HGsOr51wB5jWjOgMqFLQmkek4VzvNPps&m=n1EUghKkX-38QolfY0jLFAYBGSVjMCoSnJuxNFlCFCs&s=wEQoJl2d1ZsJqcuWn2EjSdd6NXP0gQ_L0He6g1pOl6Q&e=> Where have the federalists gone? Obamacare, King, and the Court

Posted on  <https://urldefense.proofpoint.com/v2/url?u=http-3A__electionlawblog.org_-3Fp-3D70582&d=AwMFaQ&c=-dg2m7zWuuDZ0MUcV7Sdqw&r=XJoWt5LwJt1HGsOr51wB5jWjOgMqFLQmkek4VzvNPps&m=n1EUghKkX-38QolfY0jLFAYBGSVjMCoSnJuxNFlCFCs&s=wEQoJl2d1ZsJqcuWn2EjSdd6NXP0gQ_L0He6g1pOl6Q&e=> February 27, 2015 7:14 am by  <https://urldefense.proofpoint.com/v2/url?u=http-3A__electionlawblog.org_-3Fauthor-3D15&d=AwMFaQ&c=-dg2m7zWuuDZ0MUcV7Sdqw&r=XJoWt5LwJt1HGsOr51wB5jWjOgMqFLQmkek4VzvNPps&m=n1EUghKkX-38QolfY0jLFAYBGSVjMCoSnJuxNFlCFCs&s=oU2mqsKuIyzjRFFKDYxAGWvQGcMdW6QZLqF3TGN_xiA&e=> Abbe Gluck

The Obamacare case, King v. Burwell, which the Court will hear next week, has deep importance not only for health care but also for law.  I have previously detailed why the case is <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.scotusblog.com_2014_11_symposium-2Dthe-2Dgrant-2Din-2Dking-2Dobamacare-2Dsubsidies-2Das-2Dtextualisms-2Dbig-2Dtest_&d=AwMFaQ&c=-dg2m7zWuuDZ0MUcV7Sdqw&r=XJoWt5LwJt1HGsOr51wB5jWjOgMqFLQmkek4VzvNPps&m=n1EUghKkX-38QolfY0jLFAYBGSVjMCoSnJuxNFlCFCs&s=nHVWDiHuJvSC_w-cnGABGppMgrneAqaE_r0HFZ-rNP4&e=>  textualism’s big test. Today, in Politico, I explain why the case is also fundamentally about state rights.  The question is whether the Court’s federalism doctrines–which, let’s not forget, the Court applied against the Government in the last Obamacare case–whether these federalism doctrines, like the Court’s  textualist rules, are sufficiently legitimate and objective such they will apply regardless of which side they happen to support, even in a case as politicized as this one.  After all, isn’t that the point of have a rule of law in the first place?

Here is an excerpt and a  <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.politico.com_magazine_story_2015_02_king-2Dv-2Dburwell-2Dstates-2Drights-2D115550.html-23.VPCGCU0o-5FDc&d=AwMFaQ&c=-dg2m7zWuuDZ0MUcV7Sdqw&r=XJoWt5LwJt1HGsOr51wB5jWjOgMqFLQmkek4VzvNPps&m=n1EUghKkX-38QolfY0jLFAYBGSVjMCoSnJuxNFlCFCs&s=1r3M4wFqTfqb3Yw9QRnnY0fcpqovZpBT4zKDbr65PHo&e=> link.

The issue in King is whether the ACA penalizes states that opt out of setting up their own health insurance exchanges and, instead, let the federal government do it for them. The challengers have seized on four words in this 2,000-page law that, they contend, contain a dramatic consequence for the 34 states that have made this choice and allowed the federal government to step in: the loss of critical insurance subsidies that make health insurance affordable and sustain the insurance markets under the law. Without the subsidies—which are estimated at $25 billion across the 34 states—more than eight million Americans will likely lose their insurance. And, as a result, the insurance markets in those states will face near-certain collapse.

The challengers maintain that the case is simply about reading plain language. (I have detailed <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.scotusblog.com_2014_11_symposium-2Dthe-2Dgrant-2Din-2Dking-2Dobamacare-2Dsubsidies-2Das-2Dtextualisms-2Dbig-2Dtest_&d=AwMFaQ&c=-dg2m7zWuuDZ0MUcV7Sdqw&r=XJoWt5LwJt1HGsOr51wB5jWjOgMqFLQmkek4VzvNPps&m=n1EUghKkX-38QolfY0jLFAYBGSVjMCoSnJuxNFlCFCs&s=nHVWDiHuJvSC_w-cnGABGppMgrneAqaE_r0HFZ-rNP4&e=> elsewhere why their hyper-literal reading of four words out of context is anything but plain and is not how the Supreme Court usually reads statutes.) But King is about a lot more than this. The case is about federalism—the role of states in our national democracy. The reason the challengers don’t want anyone to realize that is because the very text-oriented justices to whom they are appealing are the exact same justices who have consistently interpreted federal laws to protect states’ rights. And the challengers would read the ACA in the opposite way—as having devastating implications for the states.

The challengers’ interpretation turns Congress’s entire philosophy of states’ rights in the ACA upside down. Congress designed the exchanges to be state-deferential—to give the states a choice. But under the state-penalizing reading that challengers urge, the ACA—a statute that uses the phrase “state flexibility” five times—would be the most draconian modern statute ever enacted by the U.S. Congress that included a role for the states. What’s more, if interpreted as the challengers hope, the ACA would have been debated, enacted and implemented for two whole years under intense public scrutiny, including the scrutiny trained on it during the last major constitutional challenge in the Supreme Court in 2012, without anyone—no state, congressman or blogger—noticing these consequences or objecting to them.

A  <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.americanbar.org_content_dam_aba_publications_supreme-5Fcourt-5Fpreview_BriefsV5_14-2D114-5Famicus-5Faffirm-5Fva.authcheckdam.pdf&d=AwMFaQ&c=-dg2m7zWuuDZ0MUcV7Sdqw&r=XJoWt5LwJt1HGsOr51wB5jWjOgMqFLQmkek4VzvNPps&m=n1EUghKkX-38QolfY0jLFAYBGSVjMCoSnJuxNFlCFCs&s=fzVOUWIM-kwWGPyZq_X-vEDQFPUQ5SwuHZxcC-E_lxE&e=> brief filed by Virginia and more than 20 other states attests that any clue of the dramatic penalty the challengers have read into the statute was entirely lacking. In the end, King is about whether an invented narrative that only emerged for purposes of this case should be permitted to work the greatest bait and switch on state governments in history.

Read more:  <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.politico.com_magazine_story_2015_02_king-2Dv-2Dburwell-2Dstates-2Drights-2D115550.html-23ixzz3SxSbOrL4&d=AwMFaQ&c=-dg2m7zWuuDZ0MUcV7Sdqw&r=XJoWt5LwJt1HGsOr51wB5jWjOgMqFLQmkek4VzvNPps&m=n1EUghKkX-38QolfY0jLFAYBGSVjMCoSnJuxNFlCFCs&s=DxMSShOPJtpoq-jC5ExdMu16jfq8rKrVe67A7FKkG7o&e=> http://www.politico.com/magazine/story/2015/02/king-v-burwell-states-rights-115550.html#ixzz3SxSbOrL4

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-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
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