2018 MIDTERM ELECTION

Time: D H M S

Halbig: Joey Fishkin supports my "domain/splashpage" fix, Michael Hiltzik notes a parallel w/Dr. Strangelove & Eclectablog on conspiracy theories

Hat Tip To: 
Greg Dworkin, Jonathan Cohn

A whole lot more has been & is being written about the Halbig decision & implications for the future of the ACA exchanges; here's three pieces I find most noteworthy:

First, Joey Fishkin at Balkinization expresses my "domain & a splashpage" workaround solution far more eloquently than I did:

So one important practical question Halbig raises is this: what makes a state exchange a state exchange?  If the view of the 2-1 majority in Halbig were to prevail at the Supreme Court (a prospect I’d still consider unlikely, because the reading of the statute is so wildly implausible), then what is the minimum a state can do that counts as a “state exchange” for purposes of receiving the federal subsidies? 

Can a state pass a statute that says, simply: “We hereby establish a state exchange under ACA Section 1311, to be run by such and such ‘governmental agency or nonprofit,’ which is directed to work with HHS, which in turn will actually administer every aspect of our new state exchange as they have been doing up to now for our existing federal Section 1321 exchange.”   Will that work? 

It’s hard to see why not.  If a state wants to set up an exchange, nothing in the ACA prohibits getting federal help.  All the functions the ACA requires of state exchanges—maintaining a website and a hotline, rating health plans, keeping track of who’s enrolled and who’s getting tax credits, etc.—are things that one suspects HHS would be happy to help out with, if asked.  Especially with a federal exchange up and running and doing all these things already in the state, why reinvent the wheel?

Meanwhile, regarding the "Democrats planned on forcing the states to set up exchanges by threatening to withhold tax subsidies" meme which has become all the rage (especially in light of the Jonathan Gruber video), Michael Hiltzik of the L.A. Times follows up on Nicholas Bagley's essay, which notes that this premise makes no sense when you think about it...because no one in the Obama administration, in Congress or at HHS appears to have actually made any such threat:

If that really was Congress's intent, Bagley observes, the lawmakers would have made the threat explicit, not buried it deep within an obscure provision of a 900-page law. He illustrates the point with a reference from "The Godfather," when Vito Corleone backed up his offer that can't be refused by having a gun held to the head of the guy receiving the offer.

We think the principle is illustrated even better by a line from "Dr. Strangelove." (We celebrated the dark comedy's 50th anniversary here.)

"But the whole point of the Doomsday Machine is lost if you keep it a secret!Why didn't you tell the world, eh?"

As Hiltzik notes:

If Congress really intended to coerce the states into establishing their own exchanges by barring subsidies for insurance purchased through the federal exchange, plainly it would not have concealed the Doomsday Machine in an obscure section of the law, hoping it would be unearthed by a Cato Institute ideologue.

Finally, turning back home to Michigan, LOLGOP at Eclectablog (the Best Goddamned Blog in Michigan®, I should note) has written a couple of excellent entries about what he calls The Vast Right Wing Republican Conspiracy to deny (mostly Republican) voters tax credits:

Democrats and the administration argue that a drafting error resulted in funding for the state exchange’s credits being left out. The majority in Tuesday’s D.C. decision counters that they could find no “intent” in the law for that argument, essentially saying that the law’s drafters meant to force states to build their own exchanges or render the law useless in these states, gutting their own law.

If that argument holds, Republican governors who rejected building an exchange pursued a strategy that would purposely deny their residents tax credits in order to sabotage the law.

In the second entry:

...if Republicans purposely chose a path that would deny middle-class workers tax credits they certainly weren’t honest about it.

...Buono and other Democrats blasted him because this meant the state was denied millions in federal funds that could have gone to outreach. But the tax credits were never an issue.

The governor’s refusal to build an exchange was celebrated by Michael F. Cannon, one of the architects of the strategy of using the law’s language to cancel subsidies for millions.

If she [Bueno] thought Chris Christie was purposely trying deny voters tax credits, Buono would have made it a campaign issue.

Here's the thing. Does anyone remember a few years back when the state of Nebraska passed a "safe haven" law to allow parents of newborns who aren't willing or able to go through the normal process of giving their child up for adoption to anonomously abandon their child at the hospital without fear of facing legal consequences for doing so? The idea was to prevent such infants from being murdered or abandoned under more dangerous conditions. It's a good and decent law to have on the books, and most states have one. The state legislature of Nebraska was trying to do the right thing.

Unfortunately, the version of the law which passed included an unfortunate drafting error: There was no age limit included, nor was there a restriction on the child being born in Nebraska. As a result...

Controversy has arisen out the safe-haven law enacted in Nebraska in July 2008. The Nebraska law has been interpreted to define a child as anyone under 18,[5] and has resulted in the desertion of teenage children.[6] Under this law, at least 35 children were dropped off in Nebraska hospitals in a four month span, at least 5 of them from other US states.[7] The law was changed in November 2008, allowing only infants up to 30 days old to be surrendered.

In the case of Nebraska, the state legislature did indeed make a mistake...but since the legislative process worked properly that time around, they went back and fixed their mistake in reasonably short order (4 months is actually lightning speed for a legislative body) because they recognized that not doing so would cause massive harm to the very people (children) they were trying to help.

I don't know whether the Nebraska safe-haven law was drafted by a Republican, a Democrat or a bipartisan team. What I do know is that neither side (to my knowledge) tried to hold up fixing the law just to embarrass the other side...because the lives of potentially hundreds or thousands of children were at stake.

In the case of Halbig, for all the fuss and bother on both sides of the issue, it's worth noting that no one seems to think that it's even remotely possible that Congress could simply go back and amend the law to read "established by the State or the Federal Government."

Whether it was a drafting error or a deliberate "doomsday device" (which the Dems simply then forgot to tell anyone about...thus negating the point of such a threat), all it would take to resolve the whole thing is 4 words, more or less. Not even an entire sentence, as Jon Stewart noted. Instead of a few dozen children, there are millions of lives involved here, and a solution which would take just a simple change to one line in one paragraph in one subsection of the law.

Of course, the only way that would happen would be if the Republican members of Congress were willing to put the good of the people they serve (the citizens of the United States) above their own hatred of Barack Obama. And everyone agrees that that isn't going to happen, period...which is why silly-sounding workarounds such as slapping up a simple website which then redirects to Healthcare.gov are being taken seriously as an alternate solution to the problem.

You can see it in the comments of this very website: ACA opponents are salivating over the prospect of the Democrats having to "lie in the bed they made" on the ACA, etc etc. Never does the thought cross their petty minds that they could simply stop being assholes for just 5 minutes and Do the Right Thing by agreeing to make that simple change to the language of the law.

Hell, if they played this right, they would see huge political benefits as well, I'd imagine, since they could hype themselves up as having "saved the Democrats from their own incompetence" on Behalf of the American People, bla bla bla.

But of course they won't. The thought of a Democrat trying to bring decent, affordable healthcare to every American regardless of their income--especially one by the name of Barack Obama--is so repulsive to them that they'd rather screw over millions of those Americans (and Americans who are far more likely to vote, mind you, than the poorer folks caught in the Medicaid Gap) rather than help take credit for a law which they were pushing for in the first place...right up until it was actually implemented by that Democrat.

Or, as LOLGOP put it:

The metaphor that comes to mind is an animal that’s caught in a trap and is chewing its own limb off. Except the limb here is tax credits that pay for millions to get health care.

Of course, it's also possible that the full DC Circuit court will rule against the plaintiffs in Halbig anyway (and the SCOTUS will either agree with the full Circuit ruling or refuse to take the case at all).

For all the talk of Democrats being "hoisted on our own petards" this week, come November we'll see which party ends up taking more of the blame: The one which at least tries to help people...or the one which would rather let them drown to punish them for grabbing a line thrown by someone they hate.