Nel's New Day

June 27, 2015

Subsidies for Healthcare–For Now

The day before the Supreme Court made marriage equality the law of the land, it kept the healthcare subsidies for low-income people in King v. Burwell. Thanks to a 6-3 decision, over 6 million people are able to keep their health insurance because the Supremes didn’t allow four words to restrict subsidies to only the states with their own healthcare exchanges. For the second time in three years, conservatives hate Chief Justice John Roberts for retaining the law that expanded health care to an additional 16.4 million people although Justice Anthony Kennedy also voted with the more progressive block of four justices. Roberts wrote, “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.”

Hospital operators and insurers largely supported the court’s decision to keep the subsidies that remain in the 34 states using the federal exchange as well as the other states that have either their own exchanges or a combination. The lawsuit was financed by a conservative group, Competitive Enterprise Institute, that found four unlikely plaintiffs who are eligible for subsidies but just don’t like the law. GOP members of the House have voted over 50 times to repeal the law and plan to continue the repeals in lieu of passing laws that would help people.

The court’s decision made the law more secure than if the conservatives had not brought the lawsuit because it holds that the subsidies are a permanent part of the ACA that can be changed only by Congress. Before the ruling, a president might have blocked the ACA by executive action; now changes must be made by a majority vote in the House and a 60-vote margin in the Senate.

Two years ago, Scalia used the term “legalistic argle-bargle” for the court’s rationale in keeping the ACA. In this dissent, he maintained that Roberts’ reasoning was an act of “interpretive jiggery-pokery.” A great irony is that dissenters Scalia, Clarence Thomas, and Samuel Alito declared that the ACA intended subsidies for all eligible consumers regardless of state or federal exchanges three years ago in NIFB v. Sebelius. This year the three of them moved 180 degrees away from their earlier position in opposing the ACA.

The conservative viciousness toward the ruling, although not surprising, was still disgusting. Fox host Andrea Tantaros called the “judiciary, John Roberts included, is now just the water boy for the welfare state.” Breitbart editor Ben Shapiro drew his comparison from the erotic novel/movie Fifty Shades of Grey when he tweeted, “The Roberts Court took the ACA to its Red Room of Pain and then alternatively tortured it and made love to it until it complied.” On Glenn Beck’s The Blaze, Wayne Allyn Root wrote that Roberts’ decision shows that he is being blackmailed by the Obama administration.

GOP presidential candidate Sen. Ted Cruz (R-TX) called the Supreme Court decisions to give health care to low-income people and legalize marriage equality as “some of the darkest 24 hours in our nation’s history.” To him, it’s much worse than the Civil War, two world wars, the attacks on the World Trade Center—I could go on and on.

Rep. Brian Babin (R-TX) believes he has found a way to punish the Supreme Court justices for its decision: he has introduced the “SCOTUScare Act,” requiring “the Supreme Court and all of its employees to sign up for Obamacare.” As many other people—including conservative members of Congress—fail to understand, no one “signs up” for the ACA. The law simply protects people from some unreasonable provisions of insurance companies—lifetime caps, denial because of pre-existing conditions, and skyrocketing premiums not used for medical needs.

Former Texas governor and GOP presidential candidate Rick Perry is a classic example of the GOP approach toward health care for low-income people. Called out for having the largest number of uninsured people in his state—one out of five Texans without health insurance—he said, “We make access the real issue.” Texan uninsured are four times less likely to have regular health care and more likely to die of health-related problems. Insurance would improve their overall health by 7 to 8 percent.

“Texas has been criticized for having a large number of uninsured,” Perry said. “But that’s what Texans wanted.” By not expanding Medicaid, 1.5 million Texans, with a median income of $833, are denied health care. In that state, non-disabled parents must earn less than $,500 for a family of four to gain the existing Medicaid. Texas has lost about $10 billion a year for the expanded program with Texas paying only seven percent of the cost, but Perry said that even $1 in the name of “Obamacare” was a dollar too much.

Many GOP members in Congress know that the King ruling saved them from disaster because they had no plans if they had won. Rep. Paul Ryan (R-WI) smiled at the ruling, and a GOP congressional member said “that fight could have killed us.” The candidates now  focus on electing a GOP president to get Congress closer to repealing Obamacare. They talk about putting the patient back in charge of their health care—all patients, that is, except women.

Candidates may wish to use caution, however, in using anti-healthcare for their platforms. In April, an Associated Press-GfK poll showed that 56 percent of the people wanted a ruling in favor of subsidies in contrast to the 39 percent opposition. Another 51 percent wanted Congress to subsidize premiums in all states. In CBS News/New York Times polling, 47 percent of people approve of ACA, the highest percentage thus far and more than the 44 percent who oppose the ACA.

A question is why so many people are opposed to the ACA when so few people are actually affected by it. The relentless pounding from conservatives against the law is a big reason, but even more, people blame the ACA for any problem in the health care system. Too few doctors? Rising costs of premiums and health care? Deductibles too high? It must be Obamacare. Premiums go up every year, but the cost has increased less since the law went into effect. Out-of-pocket costs are going up faster than wages, but that didn’t start with the law. Higher deductibles began before the law. Most people don’t remember the problems before the ACA’s protections went into effect, and the conservatives work every day to erase their memories.


The SCOTUS ruling helped over 6 million people, but it didn’t do anything for the 4.3 million people prohibited from getting coverage in the 22 states that refuse to expand Medicaid. Ten of these states are former Confederate states, and most are former slaveholding states. About 61 percent of the people in the Medicaid gap live in Florida, Texas, Georgia, and North Carolina. In the states with expanded Medicaid, early detection and treatment of chronic diseases such as diabetes saves money from more advanced costs. Hospitals in states with expanded Medicaid save money by reduced uncompensated costs of treating the uninsured. Baton Rouge General Medical Center Mid Center (Louisiana) recently had to close its emergency room. It’s also notable that many GOP presidential candidates come from states that reject healthcare for low-income people.

Another 36 million people earn too much for Medicaid eligibility and can’t afford health insurance. The solution for this would have been the single-payer system that the Republicans proposed over two decades ago but refused under President Obama because they didn’t want to make him look successful.

Satirist Andy Borowitz wrote a column four years ago, entitled, “Republicans: Trillions Could Be Cut from Budget if We Eliminate Empathy – Humanity Also on Chopping Block.” The problem with satire is that it is sometimes true. Borowitz has brilliantly described the GOP position of 2015. He attributed this statement to then Rep. Eric Cantor (R-VA), who lost his position to another legislator with even less humanity, but the problem remains:

“Once congressional Republicans eliminate such empathy-laden budget items as lunches for poor children, medicine for the indigent and oxygen for seniors, … we can move from cutting empathy to cutting humanity.”

“With humanity removed from the budget, he said, ‘That’s where the real savings come in.’

“By eliminating the food, medicine and oxygen necessary to sustain human life, ‘We will reduce the single biggest drain on the U.S. economy: people.’”

In a supreme touch of irony, Chief Justice John Roberts held up the marriage laws of Kalahari Bushmen, the Han Chinese, the Carthaginians, and the Aztecs as examples of “a social institution that has formed the basis of human society for millennia.” The Bushmen are Botswana’s poorest citizens, the Chinese are hated by most conservatives, the Aztecs believed in human sacrifice, and the Carthaginians followed a polytheistic religion—possibly with infant sacrifices.

With these societies used as models for the conservatives, the GOP has truly lost its humanity.

March 5, 2015

GOP Hopes for Death Spiral

Health care was the focus of the Supreme Court yesterday when nine justices heard King v. Burwell. If the court rules that the subsidies from Affordable Care Act (ACA) can be provided only by state exchanges, millions of people, including five million children, will lose their health insurance because they will no longer have subsidies. If the 7.5 million people from 34 states on the federal exchange lose tax subsidies—and thus their insurance—insurance will raise rates for other policyholders who may then not be able to afford it, etc., a sequence known as the ACA death spiral. The change may cause almost 10,000 annual deaths in the U.S. and destabilize the insurance market in many states.


Charity may be the only solution if the Supreme Court rules against the federal exchange. For example, Richard Mack, a former Arizona county sheriff and Tea Partier opposing the ACA, is now begging the public for money to pay their health costs through a GoFundMe campaign. A board member of the right-wing fringe Oath Keepers, Mack gained fame by hiding behind women on the “front lines of freedom” at the Cliven Bundy Ranch last year.

Four Virginia plaintiffs are challenging the federal exchange on the basis of four words read out of context that were left in the law after a revision. The standing of these plaintiffs comes from the question of whether these four people suffer “grievous harm by being forced to either buy health coverage or pay a penalty”:

  • David King, 64, a limo driver and veteran who has both low income and a VA card making him eligible for free health care. People can opt out of the insurance mandate if they would have to pay more than 8 percent of their income for health care.
  • Douglas Hurst, 53, a Virginia Beach resident and veteran who would be eligible for large savings and probably veterans’ health care. According to bankruptcy filings, Hurst paid more than $600 a month for his insurance in 2010; with the ACA, he would pay $62 per month. His wife does his speaking for him, but she’s too old to be a plaintiff because she’s on Medicare—a government health care program.
  • Rose Luck, a woman who listed her address as a motel where she hasn’t lived since late 2013. She would also likely meet the low-income opt-out advantage. She thinks President Obama is the “anti-christ” who is only in office because he “got his Muslim people to vote for him.”
  • Brenda Levy, 64, a substitute teacher who couldn’t remember how she’d been recruited for the case and seemed unaware of the possible consequences. She said she doesn’t want anyone thrown off her health insurance. Because her employer listed her annual income as $10,000, she too would not have the mandate. (Her signed affidavit said that her 2014 income would be $45,000.) By the time of the decision, she will also be old enough for Medicare.

King and Hurst have declared that they were “not eligible for health insurance from the government or any employer.” King said he didn’t remember his lawyers’ asking him about his access to veterans care and said his only purpose is to bring down the ACA. One of the lawyers, Yaakov Roth, said the two men weren’t eligible under the legal meaning of the word because they hadn’t enrolled.

Spokeswoman Annie Dwyer for Competitive Enterprise Institute, the libertarian think tank that brought the suit and is bankrolling it, said, “The lawyers are not concerned about standing issues.” They might not be concerned, but Justice Ruth Bader Ginsburg is. She pointed out the legitimacy of the case depends on the plaintiffs having “a concrete stake in the question.” The plaintiff’s lawyer said that the lower courts had not raised any standing issue, but Ginsburg said that “the Court has an obligation to look into it on its own.”

The opposition to the ACA will also have trouble proving that a decision against the law would have minor repercussions. Lawyers have claimed that states will provide for those denied subsidies because the law was intentionally designed to deny subsidies if states didn’t create their own exchanges. They claimed that states refused to establish subsidies only because the IRS didn’t clarify “that subsidies were limited to state Exchanges.” It was actually the Supreme Court decision three years ago that allowed states to opt out. Even more chaos comes from some state laws preventing state exchanges.

During yesterday’s arguments, Justice Anthony Kennedy recognized the seriousness of the situation when he warned that a decision siding with the challengers could lead to the collapse of insurance markets by creating an ultimatum for the states: “Either create your own exchange, or we’ll send your 17 insurance markets into a death spiral.”  He warned Michael Carvin, attorney for the plaintiffs, that “there’s a serious constitutional problem if we adopt your argument [against the ACA].” Protesters gathered in front of the Supreme Court building to show the horrifying impact of an adverse ruling by the court.

ACA Protesters

Chief obstructionist to the ACA, Sen. Chuck Grassley (R-IA) described a lawsuit seeing to gut the Affordable Care Act in the Supreme Court as “ridiculous.” He added, “We obviously meant that the subsidies would go to the federal exchange and not just the state exchange.” Steven Brill, veteran journalist and author of a recent book on the Affordable Care Act, said that he asked “all the Republican staffers” who worked on the bill about this suit, and “they laughed at it.” A short list of ACA opponents who previously indicated that the law provides tax credits regardless of who operates a particular state’s exchange includes Republican Govs. Dave Heineman (R-NE), Nikki Haley (R-SC), Bob McDonnell (R-VA) and Scott Walker (R-WI); Sen. Orrin Hatch (R-UT); former vice presidential candidate Rep. Paul Ryan (R-WI); and the conservative Heritage Foundation.

The Republicans have no idea what they will do if they get their wish. In a Washington Post op-ed, three GOP senators–Lamar Alexander (TN), John Barrasso (WY), and Orrin Hatch (UT)–claimed that they would help everyone who lost their federal health insurance subsidies. They promised they would “provide financial assistance to help Americans keep the coverage they picked for a transitional period” and give states more flexibility to create their own health insurance marketplaces. Yet they had no answers to how much assistance, how long it would last, how they would pay for it, and—most important—how they would overcome GOP naysayers. They may have a plan, but they’re not sharing it.

These three senators aren’t the only ones who are panicking about the possibility of achieving their goal. Some GOP members of Congress are discussing a bill to take temporary care of the disaster, but that will most likely fail without Democratic help just as DHS funding demanded a bipartisan approach. Nine GOP states are talking about state exchanges. The GOP had promised “death panels” in the ACA, but now they are faced with voters knowing about the “death panels” of eliminating the ACA—not a good lead-in to the 2016 election.

Florida Republicans spent almost $1 million on its own alternative marketplace. It was a failure—perhaps because it didn’t include cover costs of hospital stays and limit out-of-pocket expenses for surgeries. Instead the Florida plan provided discount coupons for prescriptions and eyeglasses. Only 30 of 750,000 eligible people signed up within the first six months with the number swelling to 49 after a year. In comparison, 1.6 million in Florida—the highest number in any state—signed up for ACA during the 2015 open enrollment despite roadblocks set up by the Florida GOP.

Although not all supportive of President Obama, a coalition of state officials, insurance companies, hospitals, physicians, and nurses have filed briefs warning of the consequences if the subsidies are withdrawn. Sign-up for the current year shows the overwhelming impact of a decision against the ACA: about 11.2 million people went to the exchanges for insurance with 87 percent of them receiving subsidies.

As Ian Millhiser pointed out, a big predictor of a judge’s vote can be the political party of the president who appoints each one. Five of the nine justices came from Republican presidents—two from each of the Bushes and one from Reagan. The four justices appointed by Democrats will most likely follow Justice Elena Kagan’s statement from a recent ruling: “We do not ‘construe the meaning of statutory terms in a vacuum.’“  She repeated the sentiment during yesterday’s arguments: “We look at the whole text. We don’t look at four or five words.”

Three others—Samuel Alito, Antonin Scalia, and Clarence Thomas—are even more predictably on the opposite side. Scalia showed his opposition to the ACA in yesterday’s arguments when he assured Solicitor General Donald Verrilli Jr. that Congress would take care of any problems. “This Congress?” Verrilli replied, bringing laughter from the gallery.

Anthony Kennedy, a Reagan appointee, was in favor of eliminating the law three years ago, but he is a federalist. King argues on the side of states rights. In addition, Kennedy is strong supporter of children’s welfare. John Roberts, the Chief Justice, voted almost entirely in favor of the ACA in the last go-round three years ago possibly because he was worried about the image of the court. He might not change his position in King to persuade people that the highest court is not a wing of the GOP.

Millions and millions of people may lose their health insurance thanks to the Koch brothers, who finance the Competitive Enterprise Institute, the organization that planned this debacle from the beginning. Yesterday’s Supreme Court arguments started almost five years ago at a conservative gathering when the wealthy decided that the poor didn’t deserve health care. Nine justices will now make a final decision.

February 5, 2015

GOP Votes to Kill ‘Obamacare’ for 56th Time

Filed under: Health Care — trp2011 @ 2:04 PM
Tags: , , ,

The U.S. House, elected to find jobs for people in the United States, voted this week for the 56th time to eradicate the Affordable Care Act. The bill passed by 239-186 votes with three Republicans siding with the unanimous Democrats. At this time, the GOP has no idea what to do if they succeed. In writing about his disgust for the ACA, conservative Michael Strain, resident “scholar” at the American Enterprise Institute, encapsulates the conservatives’ opinion about humanity. Summary: people could die, and that’s okay.

“A slightly higher mortality rate is an acceptable price to pay for certain goals — including more cash for other programs …; less government coercion and more individual liberty; more health-care choice for consumers, allowing them to find plans that better fit their needs; more money for taxpayers to spend themselves; and less federal health-care spending.”

Actually, the House GOP members have a plan to write a plan, and its bill stated that any plan must

  • foster economic growth and private sector job creation;
  • lower health care premiums;
  • preserve a patient’s ability to keep their health plan;
  • provide people with preexisting conditions access to affordable health coverage;
  • reform the medical liability system to reduce unnecessary health care spending;
  • increase the number of insured Americans;
  • protect the doctor-patient relationship;
  • provide states greater flexibility to administer Medicaid programs;
  • expand incentives to encourage personal responsibility for health care coverage and costs;
  • prohibit taxpayer funding of abortions and provide conscience protections for health care providers;
  • eliminate duplicative government programs and wasteful spending;
  • not accelerate the insolvency of entitlement programs or increase the tax burden on Americans.

Rep. Jim McGovern (D-MA) said the GOP plan would be “flown in on a unicorn sliding down a rainbow.” One serious problem with meeting the requirements is the protection of doctor-patient relationship: almost all GOP laws regarding women’s reproductive rights destroy that relationship by forcing doctors to require unnecessary medical procedures and communicate false information to their female patients. A GOP mandate would also require government regulations on private insurers to meet the goals, something that the GOP refuses to do.

Less than two weeks ago, CBS’s Scott Penley interviewed House Speaker John Boehner (R-OH) on 60 Minutes. Boehner claimed that the GOP would be “providing more access … without taking control of the entire healthcare system.” Asked what the plan is, Boehner responded, “We’re working on this. Having discussions amongst our members, [we have] got a lot of divergent views about how best to go back to a doctor patient-relationship that’s revered.”

Republicans are counting on a Supreme Court ruling in King v. Burwell that will do their dirty work for them. The high court will hear arguments in March and issue a decision by the end of June about whether people who live in states without state health exchanges can receive insurance subsidies. GOP House leaders demand to know whether agencies impacted by a negative SCOTUS ruling are preparing for consequences, but the GOP is abdicating its own responsibilities about these consequences. A sane Congress could just spend an afternoon to approve language allowing subsidies in states without state exchanges.

If five justices invalidate these subsidies in about three dozen states, the executive branch has no power to change the situation; only Congress can fix the problem, but the majority won’t want to do this. Republicans could ask states to create their own exchanges, but the majority won’t want to do this. Republicans can’t agree on what to do, and millions of people in the United States would again be without health insurance, driving the economy into the ground.

Three GOP congressional members have proposed an alternative for healthcare while avoiding a calculated cost from the CBO by not presenting a formal bill. They also have no plans for any formal hearings.

  • Preexisting conditions could not be covered if people do not maintain continuous health coverage.
  • People would not receive any aid unless they make less than three times the federal poverty level.
  • Mandates on benefits such as maternity care and annual limits on coverage would be removed.
  • Medicaid would be provided through block grants with fewer requirements in states.
  • People already on Medicaid would be given tax credits to buy private plans.
  • People would not be required to get health insurance.
  • The only funding source for the plan is a tax on employees with health plans worth more than $12,000 for individuals or $30,000 for families.
  • Insurance premiums can be five times as much for older people as younger individuals.
  • Caps would be place on the amount of monetary damages awarded in medical malpractice litigation.

This plan would in all probability increase costs significantly for many consumers, especially those with low income. People would also be forced out of their current health plans, an event that Republicans have criticized in the past.  The same ideas were tossed around last year, but the GOP never agreed on any of them.

A few facts about the results of the Affordable Care Act:

  • The rate of uninsured Americans is down 5.3 percent in the last year.
  • The ballooning of health-care costs has slowed.
  • U.S. hospitals are making fewer errors.
  • Hospital care is improving, saving 50,000 lives between 2011 and 2013.
  • The same hospitals have significantly cut patient readmissions by 1.5 percent since 2011.

CEO David Siegel, who threatened that “Obamacare” would make him fire employees, had a banner year in 2014. During the 2012 presidential race, he had sent all his employees a letter stating the President Obama’s re-election would “threaten your job” because of the “system that penalizes the productive and gives to the unproductive.” Two years later he raised his minimum wage for employees to $10 because “we’re experiencing the best year in our history and I wanted to do something to show my gratitude for the employees who make that possible.” This happened after the president raised Siegel’s taxes, implemented the ACA, kept federal regulations, and left most of Dodd-Frank safeguards.

Sane people know that the conservative view of eliminating subsidies for the 34 states without state exchanges is wrong, both legally and ethically.

Wisconsin Gov. Scott Walker, now the Koch brothers’ choice for GOP presidential candidate, said in 2013 that he spent almost two years studying the law and concluded that “there’s no real substantive difference between a federal exchange, or a state exchange, or the in between, the hybrid, the partnership.”

Sen. Orrin Hatch, one of six Republicans to file an amicus brief in favor of gutting the law, wrote an op-ed in 2010 declaring that a state establishing its own exchange, “[i]s not a condition for receiving federal funds, which would still leave some kind of choice to the states.”

Retired Sen. Ben Nelson (R-NE) said, “I always believed that tax credits should be available in all 50 states regardless of who built the exchange, and the final law also reflects that belief as well.”

The Heritage Foundation, strong supporters of the conservative view about state exchanges, wrote a white paper claiming that subsidies would be available to any enrollee. It stated that tax credits will be available to “who[m]ever controls the AHB exchange.” Over 25 years ago, the same right-wing group created the idea of the individual mandate. Retired Sen. Ben Nelson (R-NE) said, “I always believed that tax credits should be available in all 50 states regardless of who built the exchange, and the final law also reflects that belief as well.”

Business-oriented Republicans need to worry about the consequences of what they consider a “win.” Insurance companies now rely on all the new premiums during the past year. Stripping tax credits will make them more unstable and thereby forced to charge far more for premiums. More people will drop insurance, reducing profits for these businesses.

Congressional Republicans haven’t thought that far ahead. What they want is chaos in health care. Two-thirds of the people in the U.S. think that lawmakers will keep the existing subsidies in place, but GOP members of Congress have declared that they won’t do anything to keep the tax credits if the Supreme Court rules in favor of only state exchanges. Most Republicans support state insurance exchanges to retain subsidies, but GOP legislators won’t do this.

Part of the September 2010 House GOP Pledge to America read, “We offer a plan to repeal and replace the government takeover of health care with commonsense solutions focused on lowering costs and protecting American jobs.” For over 50 months, the GOP House has only passed bills to get rid of the greatest social program in a half century. The estimate of deaths if the ACA is overturned is about 10,000, over three times the number of people who died on 9/11/01. People could die, but that’s okay—if it’s just not all at one time.

November 7, 2014

Obamacare, Marriage Equality at Risk

The voters—or lack of them—have done their damage to the federal legislative branch, and the Supreme Court has decided to see what disaster they can wreak. Today, at least four justices decided to take on a review of King v. Burwell, a case similar to Halbig v. Burwell. Because of sloppy drafting, the ACA law was left with contradictory statements after two chambers agreed on the changes. One provision limits subsidies to “an exchange established by the state,” but the law allows the federal government to run exchanges in states that do not have them. If the Supreme Court were to rule in the former terminology, at least 5 million people would see the cost of their insurance to skyrocket above what they could afford, disenfranchising them in the same way that people lost the right to vote in the most recent election.

ACA states that when a state doesn’t set up its own marketplace, the federal government “shall establish and operate such exchange.” The IRS issued a regulation allowing subsidies whether the exchange is run by a state or by the federal government. A few months ago, however, a conservative three-judge panel from the D.C. Circuit ruled in Halbig that the Obama Administration had rewritten the law and that Congress never intended to allow subsidies to people on a federal exchange.


On the same day, the 4th Circuit Court ruled in King in favor of a federal exchange. Judge Roger Gregory ruled that the law is ambiguous and therefore “applying deference to the IRS’s determination . . . we uphold the rule as a permissible exercise of the agency’s discretion. His precedent is a 1984 Supreme Court ruling in favor of Chevron giving agencies great deference in interpretations of laws. More recently, the Court ruled in Arlington v. FCC that agencies could define their own jurisdiction.


The D.C. Circuit decision is not final: Halbig is on en banc review with all the judges in that specific appeals court with argument set for December. Reversing the original ruling would leave no split in the circuit courts, yet the Supreme Court decided to take on the case before a lower-court ruling was made.


As Brian Beutler wrote in the New Republic, the four justices taking the case have changed a court into a death panel for people in 36 states. Their potential to void health care subsidies in three dozen states would cripple the insurance market and kill people who couldn’t afford insurance. Placing the onus on red states for health care would be worse than the current situation in which these states refuse to allow the federal government to provide Medicaid for most of the poor residents.


Many articles about the problem, particularly ones from conservative writers, broadly quote Jonathan Adler, a law professor at Case Western Reserve University, as an expert who opposes ACA. Adler, who has tie-ins with the Heartland and Cato Institutes, is making a name for himself with the inconsistencies he discovered in the drafting of ACA. Case Western Reserve law school is ranked 64th in the nation.


The Supreme Court is also likely to address the issue of marriage equality after the 6th Circuit Court determined that Kentucky, Michigan, Ohio, and Tennessee can continue to ban same-sex marriage. The court waited three months after arguments to release its opinion. Earlier this year, Justice Ruth Bader Ginsburg had said that the high court would probably not hear any marriage equality cases unless a split on decisions from the circuit courts creates “some urgency” to resolve a circuit split. Now the 6th Circuit has done exactly that.


The panel striking down same-sex marriage included Judge Jeffrey Sutton, a former law clerk to Scalia and a George W. Bush appointee. Adler described another judge on the panel, Deborah Cook, as “not likely to recognize a constitutional right that the Supreme Court has not yet recognized.” In arguments Sutton called any problems caused by banning gays and lesbians from being married—such as not being able to get drivers’ licenses or adopt children—as an “inconvenience.” Only senior Judge Martha Craig Daughtrey seemed supportive of constitutional rights for LGBT people who cannot be legally married in the state where they live.


The panel ruled that same-sex couples can neither be married in its jurisdiction nor be considered married if they wed in a state where marriage equality is legal. It used the Supreme Court’s ruling upholding a state ban on same-sex marriage in the 42-year-old case, Baker v. Nelson (1972) and rejected any reasoning in other federal court rulings that struck down state bans. Sutton claimed that the rational foundations are to regulate sex between men and women to establish stable family relationships. Neither judge could find any hostility toward gays and lesbians in denying them the same marriage rights as heterosexuals have. The solution to marriage equality, according to Sutton’s opinion, is for gay rights advocates to achieve “greater acceptance” so that people will legalize it.


In his analysis of Sutton’s ruling, Mark Joseph Stern wrote:


“Instead of analyzing the 14th Amendment’s dual guarantees of liberty and equal protection, he simply states that gay people have no business fighting for their civil rights in court. After a while, Sutton’s repeated insistence that it’s not a federal judge’s duty to enforce the constitution makes you want to grab him by the shoulders and ask, then what in the world were you hired for?”


Stern described Daughtrey’s dissension as “a scorching, bitterly funny, profoundly humane excoriation of Sutton’s sophistry.” In her opening, she writes:


“The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy. But as an appellate court decision, it wholly fails to grapple with the relevant constitutional question in this appeal. … Instead, the majority sets up a false premise—that the question before us is “who should decide?”—and leads us through a largely irrelevant discourse on democracy and federalism. In point of fact, the real issue before us concerns what is at stake in these six cases for the individual plaintiffs and their children, and what should be done about it. Because I reject the majority’s resolution of these questions based on its invocation of vox populi and its reverence for ‘proceeding with caution’ (otherwise known as the ‘wait and see’ approach), I dissent.”


She continues by objection to Sutton’s opinion because he fails to view “the plaintiffs as persons” and instead perceives them as “mere abstractions” with no concern for the plaintiffs’ children. According to Daughtrey, the children of gays and lesbians are punished by the parents’ inferior status thrust on them by law from an irrational animus simply because they are gays and lesbians. Such a situation violates the equal-protection clause of the U.S. Constitution.


In conclusion, she wrote:


“More than 20 years ago, when I took my oath of office … I solemnly swore to ‘administer justice without respect to persons,’ to ‘do equal right to the poor and to the rich,’ and to ‘faithfully and impartially discharge and perform all the duties incumbent upon me … under the Constitution and laws of the United States.’ If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.”


Even the conservative Washington Post found Sutton’s arguments to be “weak” and worse.


Rights for same-sex couples did advance in two states this week. On Tuesday, the 10th U.S. Circuit Court of Appeals denied a request from the Kansas attorney general to stop same-sex marriages because doing so violated the equal-protection clause of the U.S. Constitution.  Kansas is appealing to the Supreme Court through Justice Sonia Sotomayor. In Missouri, U.S. District Judge Ortrie Smith struck down that state’s marriage ban but delayed his ruling pending appeals to either the 8th Circuit Court or the Supreme Court.

Smith wrote:


“There is no hardship in requiring that public officials adhere to the Constitution, and the public interest is always served when the Constitution is obeyed.”


Despite the delay, same-sex couples began getting licenses and married in St. Louis.


Before the Supreme Court decided Windsor v. United States, it was estimated that about 130,000 same-sex couples were married in the United States in a little over half the number of states that now have legalized marriage equality. That number must have doubled or tripled by now although no one is keeping statistics. If the Supreme Court rules that the people can decide to take away this right, many of these marriages could be dissolved because most of the 34 states recognizing same-sex marriage have done so through judicial or legislative action. These people will join the 7 million disenfranchised voters and the 5 million people losing health insurance. Such is the power of the “high court.”


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