Drudge Goes All in With "Secession" Meme as the Republican War on the Constitution Escalates
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Brendan Fischer reports for PR Watch that “several Republican governors -- Rick Scott (FL), Bobby Jindal (LA), Sam Brownback (KS), Rick Perry (TX), Nikki Haley (SC), Nathan Deal (GA), Robert McDonnell (VA) and Jay Nixon (MO) -- announced they would... refuse to implement the state-based health care marketplace 'exchanges' that are key to reducing health care costs and expanding access.”
Anticipating this kind of intransigence, the Affordable Care Act has a provision that allows the federal government to set up the exchanges in states that refuse to do it themselves. But Fischer notes that the American Legislative Exchange Council (ALEC) – the right-wing corporate front-group – and the Koch-backed libertarian CATO Institute are pushing an obscure legal theory that they say would render the entire health-care scheme inoperable in states that choose not to enact the exchanges.
The online insurance marketplace exchanges are not only where individuals can shop and compare insurance coverage, but also where low-income individuals can qualify for "premium assistance" tax credits from the federal government to offset the costs. Cato's Michael Cannon and Case Western Reserve University School of Law Professor Jonathan Adler have argued the health care law was drafted in such a way that the tax credits are only available through a state-run exchange, but not a federally run exchange -- and without those subsidies, the law would collapse, since many low-income people could not afford coverage.
Additionally, Cannon and Adler argue, because the tax credits trigger the "employer mandate" requiring all companies that employ more than 59 workers to provide insurance, defaulting to a federally run exchange means businesses would not be subject to tax penalties if they fail to purchase coverage for their workers.
The Cannon and Adler position is at odds with that of the IRS, which has interpreted the law to provide tax credits regardless of whether an exchange is run by the states or the federal government.
The State of Oklahoma is relying on Cannon and Adler's theory in a lawsuit challenging those IRS rules and arguing the tax credits are only available for state-run exchanges. Oklahoma's suit has been described as a way for states to "protect job creators from being subject to large and variable penalties." If Oklahoma were to prevail in its suit -- a prospect many scholars believe is unlikely -- the individual mandate could still be in place, but the subsidies for low-income residents would disappear, leaving many individuals in a precarious situation.
This kind of litigation will likely amount to little more than a waste of tax-payer dollars – the chances of this argument surviving judicial scrutiny are slim. But the Supreme Court did give states the ability to opt out of the health-care law's expansion of Medicaid without facing steep penalties. This is where ideology does real damage to real people, as millions of poor people and low-income retirees in deep Red states are at risk of being denied the health-care available to those living elsewhere in the United States.
We've litigated these issues in the past. Consider this description of the view of government that prevails on the Right today:
The progressives believe in strong and effective government that would ensure commercial growth and international prestige; the conservatives saw such goals threatening liberty and preferred local control. The conservatives saw a strong national government as a threat to the liberties of Americans, believing its distance from the people and its extended territory only increased the threat. Not surprising, then, was the fact that progressives tended to reside in coastal areas, where commercial growth was high on the agenda.