Progressives heaved a sigh of relief when the Supreme Court ended its term the last week of June with two major decisions — the first that saved subsidies for health insurance under the Affordable Care Act, and the second that recognized that gay Americans deserve the same consideration under the law as heterosexual Americans when it comes to marriage. But two good decisions do not make a moderate court — not when liberals depend on the swing vote of conservative Justice Anthony Kennedy.
Justice Kennedy deserves credit for joining the four liberal justices on King v. Burwell (the Obamacare subsidies) and Obergefell v. Hodges (the constitutional right to gay marriage). Chief Justice John Roberts gets an “attaboy” for joining Kennedy and the libs on King v. Burwell, but he lapsed back with the right wingers in condemning the majority’s decision to order the states to allow gay marriages.
Kennedy also helped the liberals uphold the authority of independent redistricting commissions — usually set up by voter initiatives — to strip legislators of their ability to gerrymander their own district lines. Had the Court ruled in favor of the Arizona State Legislature v. Arizona Independent Redistricting Commission, other independent redistricting commissions, including California’s, would have been imperiled.
And Kennedy helped the liberals uphold the use of the Fair Housing Act of 1968 to prove discrimination using statistics to show that a challenged practice had produced a “disparate impact.” The plaintiffs had tried to find housing for low-income clients, who are mostly black families, in white suburbs but many landlords did not accept the housing vouchers. Landlords receiving federal low-income tax credits are required to accept the vouchers, but the fair housing group argued that state officials had violated the Fair Housing Act by giving a disproportionate share of tax credits to landlords in minority neighborhoods.
But Kennedy returned to the right wing in awarding polluters a victory over the EPA on June 29 when the Court on a 5-4 vote stopped the Environmental Protection Agency from setting limits on emissions of mercury and other toxic pollutants from power plants. The right wingers ruled that the EPA violated the Clean Air Act when it failed to undertake a cost-benefit analysis in deciding whether to set limits on the pollutants.
The EPA has said the economic benefits of reducing mercury from power plants would be between $4 and $9 billion. But the EPA also has estimated that the total health and related benefits of the Mercury and Air Toxins Standards regulation were estimated to reach $89 billion annually, Kamil Ahsan noted at InTheseTimes.com.
Walter Dellinger, the Clinton administration’s advocate to the Supreme Court, told NPR’s Nina Totenberg the split among the conservatives is between “ideological, professorial conservatives” — Clarence Thomas, Samuel Alito, Antonin Scalia — and Roberts and Kennedy, “who are more economic conservatives, which makes them more pragmatic and more realistic about what works.”
Dellinger adds that 3-2 split “in some ways reflects the split within the larger Republican Party politically.”
The court’s right wing has systematically dismantled limits on plutocrats and even corporations exerting control over politicians, and in 2013 struck down the key provision of the Voting Rights Act that Congress had enacted and re-enacted by overwhelming votes.
Chief Justice Roberts might be getting that right-wing team back together for a lawsuit that aims to gut public employees unions. The case, Friedrichs v. California Teachers Assn., attacks agency-shop provisions that are standard in public-employee union contracts nationwide.
Agency-shop provisions stem from the 1977 Supreme Court decision in Abood v. Detroit Board of Education, which addressed the “free-rider” problem of public employee unions—workers who declined to join up but benefited from union bargaining on wages and working conditions.
The unions were required by law to represent all employees in negotiations, so the court held that the nonmembers could be assessed a fee tied to union expenses in negotiating and enforcing their contracts. But they couldn’t be charged for that portion of union dues associated with political activities.
The court set the case for argument sometime in its next term, which begins in October.
Crocodile Tears on Healthcare Mergers
Republican misleaders were disappointed on June 25 when Obamacare survived another right-wing challenge, as the Supreme Court on a 6-3 vote ruled that an apparent drafting error in a reference to the statewide health exchanges did not invalidate the subsidies the Affordable Care Act provides to help 6.4 million lower middle-class Americans buy health insurance.But Republicans, unwilling to make peace with Obamacare, now blame the health reforms for a series of healthcare mergers, saying that new regulations make it tougher for smaller companies to survive.
The biggest proposed merger is a $35 billion deal announced by Aetna and Humana on July 3. The new company would include 33 million members, or roughly 13% of people with health insurance in the US.
The turn toward consolidation is also worrying smaller providers, which fear they might lose leverage to the larger insurance companies, Sarah Ferris noted at TheHIll.com (July 8).
Aetna and Humana are two of the nation’s five biggest health insurers, a group that includes UnitedHealth Group, Cigna and Anthem. Each of the companies have been eying the others for months, exploring potential takeover bids as they navigate the new rules and markets under the Affordable Care Act, Ferris reported.
In June, Anthem Inc. announced a massive $47 billion offer to buy Cigna, which so far has rejected the buyout. July 2, a $6.3 billion deal was struck between two smaller insurers, Centene Corp. and Health Net Inc., which would leave the new company with 10 million members and $37 billion in revenues.
The merger activity is fueling new attacks from Republicans, who believe it supports their longtime claim that the healthcare law would drive up premiums.
Senate Majority Misleader Mitch McConnell (R-Ky.) blasted the proposed takeover of Louisville-based Humana as “the inevitable result of Obamacare’s push toward consolidation as doctors, hospitals, and insurers merge in response to an ever-growing government.”
Still, Edmund Haislmaier, a senior health research fellow at the conservative Heritage Foundation, urged caution when pointing to Obamacare as the sole cause of consolidation.
“You have to be careful not to over interpret it. A lot have other factors involved,” he told The Hill, adding that companies have been looking to trim costs and expand their footprint long before the Affordable Care Act.
The mergers should be fully examined by the Federal Trade Commission and the Department of Justice, and health insurance premiums still are regulated under the ACA. But if Republicans really are concerned that consolidation might harm consumers, there is a simple fix: Allow individuals and businesses to buy into the Medicare system as a public option.
The Congressional Budget Office in November 2013 found that a public option based on Medicare would reduce the deficit by $158 billion through reduced spending and increased revenue—and it would lower premiums for millions of regular Americans and businesses by 7 to 8 percent during the 2016-2023 period, compared with premiums for private plans. CBO estimated that 35% of the people who would get insurance through the exchanges—either individually or through an employer—would enroll in the public plan.
It’s so easy, and makes so much sense that Republicans will never let it happen. — JMC
From The Progressive Populist, August 1, 2015
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