Will Supreme Court Kill Obamacare?

Supremes Take the Case: Nov. 10: As we assumed, the Supreme Court will hear the controversial question of whether the government can offer subsidies to those using the federal exchange. The following article from September explains.
    

Lawsuits, four in total, are wending their way through the appeals system and one, or their composite, is sure to arrive on the steps of the Supreme Court. They are based on a flaw in the wording of the law that plaintiffs hope will be enough to cripple the Affordable Care Act and send it to an early grave. The justices will be handed a clear case of letter of the law versus its intent. Federal courts have so far come down on both sides.

At issue is the text that provides for tax credits — referred to more commonly as subsidies — to be granted to qualified people who sign up for insurance “through an Exchange established by the State”. But for states unwilling or unable to mount their own exchange, the law provides for the federal government to establish and manage an exchange in their behalf. Missing is any explicit wording that says the federal government is also authorized to pay subsidies to persons who sign up on the federal exchange.

A slip of the pen, say those who maintain that the mission is the same no matter who administers the exchanges. The obvious intent is for all Americans to be treated equally.

Not so say opponents. The law is the law and the government must follow its exact wording. Or they say it was not a slip: the omission was deliberate to goad the states to create their own exchanges as the requirement for their residents to be eligible for the subsidies, that this is common practice, just look at Medicaid, which is offered only to cooperating states.

Not the same, goes the counter-argument. Under Obamacare the federal government is charged with the responsibility to serve in the stead of a non-cooperating state. A claim that the government should then penalize the citizens of those states by depriving them of subsidies is outlandish and shameful sophistry on the part of those bent on sabotaging the Act.

Two who claim they “were the first to draw attention” to the President’s illegal action of allowing the federal government to pay subsidies, Jonathan Adler of Case Western University and Michael Cannon of the Cato Institute, claim in a Wall Street Journal op-ed that they “came up empty” in trying to find “some statutory language…or contemporaneous quotes from the law’s authors” to support the claim that the Affordable Care Act intended subsidies to flow from the federal exchange. Those in the opposite camp say surely, a policy that advocated depriving federal exchange applicants from receiving subsidies would have triggered vigorous debate, but there was nary a mention in all the years it took to craft the law.

full court press

On the same day that a federal appellate court in Richmond, Virginia, turned away a letter of the law claim, a three judge panel of an equivalent court in the District of Columbia decided in Halbig v. Burwell that the letter should rule. The author of the majority opinion, Judge Thomas Griffith, a George W. Bush appointee, recognized the damage the ruling would inflict on the Affordable Care Act but wrote, “high as those stakes are, the principle of legislative supremacy that guides us is higher still”.

That the decision is at odds with the goal of the law perhaps explains why Judge Griffiths’ own appeals court set aside his panel’s 2-1 ruling and announced that it would hear the case en banc on December 17 — meaning that all 17 judges of that court will review and decide.

Unless all four cases align with rulings that the intent of the law should prevail, the administration is sure to appeal to the Supreme Court, where the conservative wing will be handed an opportunity to destroy Obamacare by deciding that the letter of the law is to stand. Liberals fear that Chief Justice John Roberts may welcome the opportunity to reverse his apostasy of breaking ranks with conservatives when he allowed the insurance purchase mandate — and therefore Obamacare itself — to go forward. With 36 states defaulting to the federal government to handle their exchanges, prohibiting the federal government from paying subsidies to residents of those states would endanger the survival of the Act.

Those states will be doubly affects because so many also opted out of the government’s offer to pay for expanded Medicaid. The low-income working families that finally have health insurance would see it effectively taken away. Unless those states relent and set up their own exchanges (which could be accomplished quickly by buying a system from another state), they will be left with the full slate of uninsured that existed pre-Obamacare.

As we show in the companion article, a high percentage of the new enrollees are dependent on the subsidy for making their insurance affordable. If the courts prohibit federally paid subsidies, the cost of the least expensive plans would eat up 23% of the average household’s income. It would be unthinkable for the government to insist that everyone in those states nevertheless pay full rate for insurance, while inequitably subsidizing residents of the other states, so no one would be fined for not buying insurance. With the rule still in place that insurers cannot turn anyone away, people would be free to wait until sick before buying insurance. With only the sick buying, premium costs would soar. The system would spiral out of control. The healthcare plan would collapse. That is the chaotic scenario that hinges on the courts’ decisions.

Bush Removed Section from Congressional Probe to Protect Saudis

The George W. Bush administration removed and classified an entire 28-page section from a joint Congressional investigation of the September 11, 2001 attacks, reports Lawrence Wright in a New Yorker article. Bush himself said release of the chapter “would make it harder for us to win the war on terror” but two lawmakers — Reps. Walter Jones (R-NC) and Stephen Lynch (D-MA) — who have read the redacted pages say they have nothing to do with national security. They were instead “absolutely shocked” to learn that a foreign state had a high level involvement in the attacks.

That state is Saudi Arabia, from which came 15 of the 9/11 hijackers. The missing section of the report, which sits in a secure underground room in the Capitol building, traces connections between the Saudis’ Ministry of Islamic Affairs and the two hijackers who slipped CIA surveillance in Malaysia and entered the United States undetected at Los Angeles.

The ministry is the same front that we allude to in “No Sign of Arab Nations…” on this page which says, “The Saudis send their emissaries to their embassies and consulates in Muslim and other countries to promote Salafism”, the severe form of Islam at the core of ISIS. There is a law suit brought by the wives of the 9/11 victims which claims that charities managed by the ministry here were in fact conduits for funding al Qaeda with Americans’ donations. The suit claims that money contributed over three years by the wife of the Saudi ambassador to the U.S. — Prince Bandar bin Sultan — found its way into al Qaeda coffers, and the suit therefore names the kingdom of Saudi Arabia as a defendant.

Wright makes the point that the two Saudis — Nawaf al-Hazmi and Khalid al-Mihdhar — had come to Los Angeles to somehow, somewhere learn to fly Boeing jetliners, yet spoke no English, so they clearly needed help. The secret 28 pages say they found it under the wing of a Saudi named Omar al-Bayoumi, who lived in San Diego where he nominally had a job with a Saudi aviation services company for seven years but never seemed to show up for work. Even his Arab circle of friends thought he was a spy. Indeed, he was connected to the Islamic affairs ministry. On the same day that he traveled from San Diego to Los Angeles to call at the ministry al-Bayoumi just happened to connect with the hijackers. He told investigators he overheard the two speaking with a Gulf accent at a restaurant where he and a friend stopped for lunch. Al-Bayoumi struck up a conversation and offered to help, moving them to San Diego and introducing them to the Arab community. The Saudis learned to fly.

There seems to be general agreement that the 28 pages should be declassified, and Jones and Lynch are working to make that happen. They want Congress to pass a resolution to ask President Obama to declassify the document. The heads of the 9/11 commission, former New Jersey Governor Thomas Kean and former Indiana Congressman Lee Hamilton, agree. Their view is there is no justification for holding back whatever we know about those who plotted and executed the 9/11 attacks and the “embarrassment” of the Saudis (who are now offering so little help combating ISIS) is an insupportable reason for suppression. In response to the 9/11 wives’ urgings, President Obama has twice agreed to lift the classification, but has not done so. Given his record for conducting what we have called the most secretive government in U.S. history, we won’t bet that he will.

The relationship between the Saudi royal family and the Bush family has been a controversial subject. Journalist Craig Unger outlined in his
book, “House of Bush, House of Saud”, business deals over decades that exchanged “lucrative oil deals” for American military protection. Prince Bandar “was so close to the President’s father, George H. W. Bush, that he was considered almost a member of the family”. This led to inevitable suspicion of “coddling” when, days after 9/11, the FBI facilitated the departure from the U.S. of some 160 Saudis, including members of the bin Laden family, on specially chartered flights. The Saudis fled in fear of retribution but whereas the FBI said it questioned those taking their leave, documents say several were never questioned. The speedy exodus of so many couldn’t have allowed for very thorough vetting, skeptics point out. The interviews were disparaged as “courtesy chats” by the director of intelligence at Judicial Watch, who had been an Army interrogator.

The 28 missing pages adds another chapter to this story.

Arabs Tell U.S., ‘You Do the Fighting’

A media frenzy erupted when President Obama admitted he didn’t have a strategy to combat ISIS. The ongoing airstrikes he had ordered in
northern Iraq to hold ISIS forces from annihilating the Yazidi sect, to shield the city of Erbil, to drive ISIS from the Mosul dam could not be called a comprehensive strategy, of course, but they didn’t seem to count as anything at all for his critics.

Those demanding that he have a ready strategy to pull from his shirt pocket pointed out that we’ve known about ISIS — which now refers to itself as Islamic State — for a year or more. Why was the administration so unprepared? It has only gradually taken hold that any strategy needs a coalition, just as the enterprises of both Bush presidents were founded on coalitions, and coalitions can only be built when an emergency awakens allies from their complacency.

No sooner had these allies joined the team than they began making their excuses and joined the cheerleading squad. Britain and Germany announced that they won’t be participating in the air war. Turkey, with multiple problems, chief among them that ISIS holds 49 of its diplomats hostage in Raqqa, has denied us airfields from which to launch strikes. Beyond those countries Obama’s strategy is a mix of moderate militias in Syria, the Kurds’ pesh merga, the Iraqi army and Sunni tribes in Anbar province. A hint of this amalgam possibly working came a day before his address to the nation when Iraqi army groups in combination with those tribes and with U.S. air support overhead beat back Islamic State insurgents threatening the Haditha dam.

But counting on somehow “reconstituting” an Iraqi military that, after years and billions of dollars spent training them by the U.S. military, had discarded their uniforms and turned tail and run when it faced ISIS forces this summer, is a wishful foundation for a strategy. And Richard Engel, reporting from the region for MSNBC, says moderate forces in Syria barely exist. They finally gave up when U.S. support was not forthcoming; their officers quit and went home. His family says the moderates sold Steven Sotloff to ISIS.

For allies we also count on the new Iraq government to include Sunni and Kurd representation, another hopeful yearning. With ISIS chewing away their country, the Iraqi government took months to force out prime minister Nouri al-Maliki, select a new prime minister and come up with a list of cabinet appointees. But it has nothing but Shiites, many of the same names as before, even proposes al-Maliki, whose exclusion of all but Shiites from government led to al Qaeda in Iraq metastacizing into the far more violent ISIS.

the missing Arabs

But where are those other allies, the Arab countries, they who have the most to lose as the black flag of ISIS spreads like spilled ink? Theirs is a history of avoiding action, of relying on the U.S. for protection, and once again they have held back.

One would think they would acknowledge some responsibility for this latest crisis. It is the Saudis, as well as Kuwaitis and Qataris, who have all along been funding the growth of Salafism and Wahhabism — the most severe Arabs Step Up?: Sept. 15: Secretary of State John Kerry said a couple of Arab states have said they would assist in the fighting, but he would not say which ones or to what degree.
    

branches of Islam. Those countries are considered “permissive jurisdictions” for terrorist fund-raising by the U.S. Treasury, whether as countries or as wealthy individuals. They fund the madrassas that indoctrinate the children. The Saudis recruit around the world for the University of Medina where students are taught fundamentalist Islam and sent home home to proselytize. Qatar has provided “sanctuary, media, money or weapons” to the Taliban, Hamas, Syrian rebels, Libyan militias and the Muslim Brotherhood. The Saudis send their emissaries to their embassies and consulates in Muslim and other countries to promote Salafism.

Together, these countries have planted the seeds of the invasive species that has burst forth in ISIS’s extreme form of Islam, declaring itself as the Islamic State, the new caliphate, and seeking to turn back the clock a thousand or more years to emulate the rule of the Abbasid caliphs, restoring the barbaric practices of beheading, stoning, amputation, crucifixion and mass execution.

This poses a threat to the lavish and absolute rule of the monarchies in those countries. Yet they are waiting to see just what military and financial resources the United States will commit before considering assisting us. They seek “a White House pledge to more aggressively pursue Islamist militias in other countries” besides Syria and Iraq. Their effrontery of actually making demands of the United States is jaw-dropping yet doesn’t seem to stir any outrage from either the administration or the media. Nor has the Saudis’ incessant criticism of the U.S. over the last three years for our not intervening in Syria. While their hundreds of F-16s sat on the tarmac, they say the rise of Islamic State is our fault for not supporting the moderate rebels. Are we certain that chutzpah isn’t also an Arabic word?

The Saudis have also said they want first to be assured that the new Iraqi government will be accommodating to Sunni concerns before they will consider any action, but their wait for circumstances to be just-so leaves it up to us and others to hold back the barbarian horde.

Saudi Arabia has some “250 combat-ready aircraft” by their own count. They sport the AWAC surveillance system that we sold them over Israel’s objections. There are “at least 20,000 air-force personnel” says an op-ed in the Wall Street Journal by a Saudi expert. But just as they left it to America in 1991 to eliminate the threat of Hussein sending his army down the road to add Saudi Arabia’s oil fields to those taken from Kuwait, the kingdom thinks America should do the fighting for them.

As for the United Arab Emirates, that the UAE can
attack militias in Libya, flying from bases in Egypt in late August, shows they have the capability to back up the United States. So why haven’t they presented themselves to the coalition?

What does it say about our timidity when, literally on the 13th anniversary of the 9/11 attacks, we see Secretary of State John Kerry, hat in hand, in Saudi Arabia — the country that produced 15 of the 19 suicide hijackers — trying to persuade the Saudis and Arab Gulf leaders to join when we should be laying down “or else” conditions. They have pledged to stop the flow of of fighters and money to Islamic State and ever so magnanimously will allow us to train Syrian fighters on their soil. But as for committing their show horse military? They evasively say they would join only “as appropriate”.

In his speech, we welcomed Obama saying “we cannot do for Iraqis what they must do for themselves nor can we take the place of Arab partners in securing their region”. But what if the Arab nations again choose to be spectators? Does Obama have a hidden clause in his strategy which says, we’re outa here Arab world, we’ll tuck in at our borders and leave you to chaos and carnage?

With Control of Congress in Sight, Republicans Float New Policy for the Poor

Republicans realize they have a problem arising from their seeming indifference to those on the lower economic rungs. Since the 2012 election they
Dorothea Lange’s iconic
face of the poor
have been looking for ways to moderate their disdain for programs that deal with poverty while not ruffling the more extreme elements of the Party that advocate deep cuts.

Which explains the proposal put forth by Rep. Paul Ryan, at once the Party’s fiscal guru and a victim as vice-presidential candidate of those very same non-inclusive policies. In a Wall Street Journal op-ed describing his plan, Ryan says “I’ve learned I was wrong to talk about ‘makers and takers’”.

Simultaneously, Arthur Brooks, the president of the right-leaning American Enterprise Institute, acknowledged the problem in a New York Times op-ed and asked members of either party to give reasonable consideration to the ideas of the other before segueing into an introduction of the Ryan plan.

With Republicans looking ever more likely to gain control of the Senate in the upcoming election, and thus control of the entire Congress, in Ryan’s plan we may be looking at reforms the Party actually intends to make.

Ryan wants to replace 11 sources of aid to those in poverty — those that deliver food stamps, housing assistance and cash welfare, for example — with a single payment stream. If he were to stop right there, it would be the fulfillment of a libertarian’s dream — leaving it to the individual family to decide how to allocate a single sum of money according to priorities it gets to set. And the efficiency of getting rid of multiple layers of bureaucracy, each duplicating the other in vetting a given family’s applications for aid, each maintaining its own records and processing its own payments, has great appeal.

But instead, Ryan goes well beyond. Hewing to the conservative creed of shrinking the federal government, the funding would go to the states to allocate as they see fit. The federal role would be reduced to oversight to make certain that the money is not re-routed to purposes other than aiding the poverty-stricken.

Ryan’s idea would have state case workers meet with individual families to work up what he calls an “opportunity plan” that provides for a household’s needs and delivers financial counseling meant to put aid recipients on a path to self-sufficiency through work. The session concludes with a contract that a family must sign that offers incentives to achieve stipulated goals and sanctions should they fail. This follows the conservative belief that there are jobs out there for the asking if only people would make the effort.

How then to explain the contradiction of Ryan denouncing the “liberal progressive mindset that seeks a larger, more active government and lets bureaucrats decide what’s best for everyone instead of allowing citizens to govern themselves” in that Journal op-ed just before he introduces a plan which does just that. He goes on to say that the liberal “response to every social problem is more government, more bureaucracy and more taxpayer money”, at the same time proposing a plan that would create 50 bureaucracies, spread all across each state, and needing the creation of 50 separate payment systems to issue the (assumed) monthly checks. This would surely aggregate to a size greater than the federal government counterpart owing to the hugely time-consuming family-by-family consulting essential to his plan.

Reagan’s favorite

Ryan’s plan is an outgrowth of ideas proposed earlier by Marc Rubio and others that would expand the Earned Income Tax Credit. The EITC is a formula-base benefit paid to low-income individuals and families that phases out as income rises. Meant to encourage people to seek work, it was passed during the Reagan administration (he called it the “best anti-poverty, the best pro-family, the best job creation measure to come out of Congress”) and is paid only to those who work. There’s bipartisan agreement that those with children benefit disproportionately, and Ryan’s plan would double the benefit to the childless to fix that. But those on the right would like to see the EITC increased as a means to do away with the minimum wage in the belief that more jobs would be created if wages were free to sink lower. This page has viewed that as an astonishing gift to low-wage businesses that asks the taxpayer to make up the difference. (Our entirely different view of the minimum wage can be found here, here and here.)

Democrats wary

Democrats are skeptical of block grants to states, especially Ryan’s that would wrap what are now 11 programs into a single bundle, because the grants would be too easy to cut en masse, with devastating effects on millions of people, whereas 11 different programs at least require 11 congressional struggles. And block grants are fixed, in contrast to food stamps, for example, which flex according to need.

There is also concern for the inequitable policies that would arise in the different states. Would the unfortunate be treated well in some and poorly in others? Nearly every Republican-controlled state has rejected the Affordable Care Act’s offer to pay 100% of Medicaid expansion leaving some five million adrift. How would those states be allocating Ryan’s “Opportunity Grants” were they the law today?

austerity budgets

The proposal is a significant departure for Ryan. In April he issued a budget harsh enough to barely pass in the House, 219 to 205, with no Democratic votes, 12 Republican defections and no possibly of consideration by the Democrat-controlled Senate. It was perhaps more a statement of conservative principles that Republicans could tell the folks in home districts they had voted for. But it does signal what fiscal policy could become if Republicans win control of Congress.

Ryan promises a balanced budget after ten years through spending cuts of $5.1 trillion (but an increase in military spending of almost $500 billion). To get there he would repeal Obamacare, channel new generations of seniors away from Medicare into buying their own insurance with a government check, slash the tax rate for the top bracket from 39.6% to 25%, cut $732 billion from Medicaid and $791 billion from other social programs from education to food stamps. Even so, to reach its goal, Ryan’s assumptions rely on a supposed burst of economic growth from these cuts that lead to vastly increased tax revenues, a persistent yet discredited Republican theory that has never proven true.

That budget is his seventh, all similarly severe, which makes his anti-poverty proposal suspect to Democratic eyes. But it at least shows that Republicans are stirring with the prospect of controlling Congress on the near horizon and are exploring new ideas. Democrats, on the other hand, show no inclination to explore fresh approaches to deflate the bloat of overlapping social programs &#0151 Ryan says there are 80 overall — and they refuse to budge on Social Security and Medicare entitlements that are on course to break the economy, if not dealt with.

Obama Collaborating with CIA to Hide Torture Report Findings

The Senate has spent five years and an estimated $40 million to lay bare the true extent of the Bush administration’s policies of rendition, detention and interrogation conducted by the Central Intelligence Agency in the wake of the 9/11 attacks. The Senate’s probe is a vital process of confronting our own history that should not be impeded or abridged, yet this president has appointed himself as the supreme arbiter of what truths may be told us. Not only is the White House tampering with the work product of the legislative branch, but it is doing so in collaboration with the CIA. The same agency officials who have been investigated for their part in the torture program have been given access to the classified Senate report and are permitted to redact findings not to their liking.

George Tenet, who presided over the “enhanced interrogation” program as CIA director under George W. Bush and who insisted in a “60 Minutes“ interview that “We don’t torture people”, has been engineering a counterattack against the report’s findings. John Brennan, the current CIA director, was a senior official at CIA under Tenet and was one of his closest advisors. Yet “the White House allowed the CIA to wield the black pen on a report that exposes its own misconduct and falsehoods”, said The Nation. “The administration also reportedly redacted crucial information that refutes claims about the value of information obtained through brutal interrogations”, claims the CIA has made to justify its use of torture. The Senate Intelligence Committee, which authored the report, is persuaded that the White House is pulling out all stops to protect the CIA.

The Senate’s findings show that torture was more widespread and brutal than the Bush administration assured the public, and that the CIA repeatedly misled the government and the public about the effectiveness of those methods. The report found little intelligence of value gained from torture, which agrees with what actual interrogators such as the FBI’s Ali Soufan have said all along (the FBI refused to use torture).

When allegations of torture became a heated topic, Vice-President Cheney told us that only three detainees had been waterboarded. If you found that suspect, the report will show you to have been correct, that Cheney lied, yet the media unquestioningly repeated it as fact thereafter (for a rueful laugh, visit Pulitzer winner PolitiFact’s “Truth-o-Meter”).

now or never

There are some decisions a president should realize are not for him to make. When the report is released, it should be the complete story of how America, which has long championed and lectured the rest of the world on human rights, panicked after 9/11, immediately discarded its values and succumbed to torturing suspected terrorists. We need somehow to purge our descent into immorality by confessing all.

Obama’s acknowledgement that “We tortured some folks. And we have to, as a country, take responsibility for that so that, hopefully, we don’t do it again in the future” was not only anemic, but hypocritical in what we now know about his shunning that responsibility with that pen he wields along with his phone.

That the exhaustive Senate report runs to 6,300 pages says it is an effort that will not be repeated. It is the one chance to expose the truth of that sorry chapter of our recent past, a confessional akin to South Africa confronting its apartheid past by its Truth and Reconciliation Commission. But in our version, “the White House, at the highest levels, is basically going through and editing what the American people can and can’t read”, according to investigative reporter Jeremy Scahill.

Mr. Obama campaigned for the presidency denouncing the secret prisons and torture policies of his predecessor and immediately upon taking office signed an executive order that halted the practice. But he signaled what we now witness when he refused to investigate the Bush-Cheney practices, saying he had “a belief that we need to look forward as opposed to looking backwards”. We see today that that extends to the actual suppression of the truth. He also demurred from any inquiry into Bush administration programs like domestic eavesdropping, which we would see manifest in his complicity in the NSA spying on the entire citizenry.

The new president had also run on the promise of unprecedented transparency. In his first inaugural address he said, “My administration is committed to creating an unprecedented level of openness … to ensure the public trust and establish a system of transparency”. He issued this memorandum to all departments and agencies stressing that “a democracy requires accountability, and accountability requires transparency”.

Instead, his administration is considered the most secretive in history and his office is now hiding those portions of the report that undoubtedly contain the worst findings.

The White House in conjunction with CIA officials has blackened 15% of the report’s 480-page executive summary. The positive spin by White House Press Secretary Josh Earnest, who invoked national security, is that “more than 85% of the report was un-redacted”. Committee member Senator Martin Heinrich (D-NM) fired back that “Redactions are supposed to remove names or anything that could compromise sources and methods, not to undermine the source material so that it is impossible to understand. Try reading a novel with 15% of the words blacked out”.

Intelligence committee member and Colorado Democrat Mark Udall called the CIA’s redactions “excessive” and believes they are intended “to cover up acts that could embarrass the agency.”

The Senate report has been going through a slow-motion process of vetting and declassification for a year and a half but Sen. Feinstein says, “I have concluded that the redactions eliminate or obscure key facts that support the report’s findings and conclusions”. The release of the report is now expected to be imminent, although what can be learned from it between those redactions is uncertain.