The Opinion Pages | CONTRIBUTING OP-ED WRITER
The Plot to Kill Health Care
Republicans hate activist judges — those black-robed elites who are willing to upset the lives of millions of people just to further a political cause. Ditto trial lawyers trolling for clients, the ambulance-chasing, "Better Call Saul" guys. They hate them, until they need them.
And in the raw power play that is behind the attempt to kick millions of people off health care gained through the Affordable Care Act, Republicans are attempting one of the most brazen manipulations of the legal system in modern times. To pull it off, they're relying on a toxically politicized judiciary to make law, and to make a mockery of everything that conservative legal scholars profess to believe.
In less than two weeks' time, the Supreme Court will hear oral arguments in King v. Burwell — the net result of a well-orchestrated, well-financed, five-year campaign to kill President Obama's signature achievement by legal assassination. It's a remarkably flimsy case, the plaintiffs may lack standing, and a host of business and health care professionals have said the consequences of backing the right-wing consortium behind this case could be catastrophic.
But none of that matters to at least four justices on the court who would rule in favor of a ham sandwich, if it meant overturning the health care law.If they get a fifth vote, more than eight million people in 34 states could lose their health coverage. Premiums for several million more would rise enough to make insurance impossible. Thousands of people, lacking basic care, may even die prematurely.
"The Supreme Court is going to render a body blow to Obamacare from which I don't think it will ever recover," said Senate Majority Whip John Cornyn of Texas last month. He was licking his chops in anticipation.
This comes at a time when Republicans have recently discovered the working poor. For those holding to the last, slippery rung of middle-class dignity, nothing is harder than having no health insurance. And there is no bigger knockout blow, forcing a family into bankruptcy, than a massive medical bill.
So, consider just who stands to lose most if the health care subsidies for people in two-thirds of the states are denied — as the plaintiffs are demanding of the Supreme Court. More than 80 percent of them are lower- or middle-income people, working part time or full. Most of them are white. And majority of them are in the South. So much for helping your base.
Enrollment for private coverage under Obamacare is surging this year, particularly in red states. In Texas alone, more than a million people have signed up. All the dire predictions — that enough young people wouldn't join the exchanges, that health care expansion would be a job killer, that premiums would soar — have turned out to be bogus.
And so it comes down to this: a legal challenge based on a technicality — specifically, four words. Should subsidies be available only to exchanges "established by the states"? Or were they designed to cover the entire nation, as is obvious in the intent of the law?
The Supreme Court case, to be decided by June, grew out of a gathering in 2010 of far-right attorneys looking for a way to destroy Obamacare.
"This bastard has to be killed as a matter of political hygiene," said Michael S. Greve, a former chairman of the Competitive Enterprise Institute, during a panel discussion. "I don't care how this is done, whether it's dismembered, whether we drive a stake through its heart, whether we tar and feather it and drive it out of town, whether we strangle it."
They found four plaintiffs right out of a Rush Limbaugh ditto-headfest, all of whom have come under withering press scrutiny of late. One is just a half-year shy of eligibility for Medicare. Two others are military veterans who appear to qualify for premium-free federal care. Somehow, they claim to be "harmed" by a technicality in the health care law that allows the federal government to subsidize people who don't get help from the states that did not set up their own markets.The first attempt to strangle it failed by one vote in a 2012 Supreme Court ruling. The next assault is this case, organized by the same Competitive Enterprise Institute, an advocacy group with long ties to climate change denial and tobacco distortion campaigns.
"You are asking us to kick millions of Americans off health insurance just to save four people a few dollars," said Judge Andre M. Davis, in oral arguments before a federal appeals court in Richmond, Va. That court ruled unanimously to throw out the challenge. But the hyperpartisan Supreme Court took up the case on appeal.
One of many ironies here is that at least three of those plaintiffs appear to qualify for the great socialist, single-payer system used by Medicare or by Veterans Affairs. So, they don't really have to worry if their legal assault kills the health care of millions of people who don't have access to the cheaper federal plans.
So long as judges do their dirty work, Republicans don't have a problem with politicizing the judiciary. This week, in a move that dramatically changes the lives of millions of people, a Texas federal judge with a history of animus toward the Obama administration's immigration policy brought a halt to plans to bring people out of the shadows. Before ruling against the president's decision to defer deportation of certain immigrants, Judge Andrew Hanen, an appointee of George W. Bush, had left a trail of comments that could have come out of the mouth of any garden-variety Republican. With a swift blow this week, he did exactly what Republicans in Congress have been trying, but so far failed, to do.
Chief Justice John G. Roberts Jr. once used a memorable phrase to describe this kind of activism. "My job is to call balls and strikes, and not to pitch or bat," he said during his confirmation hearings. By June of this year, we'll see which side of the plate he's on.