On Tuesday, a D.C. Circuit Court panel ruled in the case of Halbig v. Burwell that the subsidies in the Affordable Care Act were illegal if they came through federally-run exchanges, rather than ones specifically set up at the state level. Since 36 states are letting the federal government operate their exchanges rather than running their own, the ruling could invalidate subsidies for millions.
Later that same day, the 4th Circuit upheld the subsidies in a similar suit, and the Obama administration will appeal the D.C. Circuit ruling, so this story isn’t over. But looking at the last few years of Supreme Court action, it’s not hard to be nervous.
If the ruling were to be upheld, it would increase the cost of health coverage by 50 percent or more for people who receive subsidies, all of whom are middle-class or lower-income. It would be a huge burden on families, leading many to drop coverage altogether.
The subsidies are the heart of the Affordable Care Act; they’re what give people the incentive to get into the system, rather than just paying a penalty to avoid the individual mandate. The subsidies don’t just give people access to health care, they make the pools big enough to keep costs down. Destroying them would demolish the law, and the people behind this lawsuit knew that.
The two judges — both Republican appointees — admitted in their decision that the ruling would make the law “unworkable.”
The Republican response was predictable: a resounding “we told you so.” All along, they insisted that the ACA wouldn’t work, that it would raise costs — and when reality didn’t match with their scary stories, they took deliberate action to make the bad outcomes they fervently wished for more likely. In the case of the subsidies, which are helping real people get coverage, it took an extensive lawsuit, some friendly judges, and some twisted legal reasoning to undermine them.
There’s a name for this strategy, and it doesn’t come from the Heritage Foundation (although the individual mandate did). It comes from Soviet Communism: “heighten the contradictions.” The idea is to root for, and even enable, bad outcomes of your ideological opponents’ power, in the hopes that these bad outcomes will convince people to rise up against your opponents. It’s a grim way to look at the world, but here we are.
The Affordable Care Act is working pretty much as intended, and real people are benefiting, so Republicans are obliged to try and impose unnecessary suffering on their constituents so that they’ll demand repeal.
You can see the same thing at the state level, where Republican governors and legislators have done their best to interfere with the positive effects of ACA. That includes, of course, the decision by many governors to push off the process of creating their state exchange to the federal government. Not that there isn’t one big federal exchange; these are federally-administered state-level exchanges, which you’d think the D.C. Circuit Court judges would have considered.
Republican state leaders have numerous ways to sabotage ACA, but the most glaring is the refusal to accept federal funds to expand Medicaid. Much of ACA’s coverage expansion comes from new access to Medicaid to families at or near the poverty level. Thanks to the 2012 Supreme Court decision, many state Republicans opted out — and 4 million people are out of luck.
Conservatives have even had the gall to claim that ACA’s not working because the numbers of people getting covered are too low, when those low numbers are thanks to completely optional decisions made by Republican governors.
If the Halbig ruling is upheld, they’ll have a whole new way to heighten the contradictions. “Just look at how much more it costs now,” they’ll say, with “thanks to our lawsuit” as a whispered aside. It’s like breaking someone’s nose, pointing to the blood on their shirt, and saying, “see, I knew you couldn’t keep your shirt clean.”
In Wisconsin, the situation is even worse: Gov. Scott Walker actually took tens of thousands of people at near-poverty level out of Medicaid and shifted them to the federally-run exchange. What does he plan to do for all those people if Halbig wins at the Supreme Court? It’s a question he ought to answer.
Congress could make the Halbig ruling completely irrelevant with a paragraph-long bill qualifying that state exchanges run by the federal government are equivalent to state-run exchanges. But that would require House Republicans to acknowledge that ACA is the law and it’s providing people with benefits. That would distract them from the very important task of demanding full, unconditional repeal. They’d rather people pay more.
Its hard to escape the conclusion that this isn’t just meant to prove an ideological point. It feels downright punitive.
The punishment impulse in right-wing politics isn’t limited to health care. You see it in the continued refusal to extend unemployment benefits, the constant demands for drug-testing food stamp recipients, and the creepy belief that birth control shouldn’t count as health care because sex needs to have “consequences.”
It seems as though there’s a deep grudge running through right-wing legislators, judges and legal scholars. They can’t seem to get over their anger that America voted to elect and reelect President Obama, and they’ve never gotten over the fact that the Affordable Care Act is the law.
So they’re taking it out on middle-class and working-class families who stand to gain the most from Obama’s biggest achievement. The Halbig decision inspires delight on the right because it looks like a win against Obama, but the nauseating undercurrent of their glee is that it’s really a loss for the people who put Obama in office.
Cheering for bad outcomes that you helped create is a pretty lousy way to behave in a democracy.
Seth D. Michaels is a freelance writer in Washington, D.C. He's on Twitter as@sethdmichaels.