Wednesday, December 09, 2020

From those wonderful folks who brought you ACA nullification....

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Does the rogue's gallery of state attorneys general asking the Supreme Court to end American democracy by overturning presidential election results in Georgia, Michigan, Wisconsin and Pennsylvania look familiar? Here are the states that joined an amicus brief in support of the suit filed by indicted Texas attorney general Ken Paxton alleging that all of those states' certified election results are the product of massive but utterly undocumented fraud:

All of these states except Oklahoma and Montana* are plaintiffs in California v. Texas, the suit arguing that when the Republican Congress zeroed out the ACA individual mandate penalty in December 2017, they rendered the entire sprawling law unconstitutional, either by accident or by stealth.

The suit seeking to invalidate the electoral votes of four battleground states is beneath contempt, retailing the unsupported fantasy allegations and fraudulent statistical analysis that more than 50 state and federal courts to date have rejected. These false claims are advanced at the behest of a president who has told over 20,000 documented lies in office and alleged that he was cheated in virtually every contest he's ever been engaged in.

That these 18 state AGs would sign onto this farcical fraud spawned by their corrupt colleague in Texas, which if upheld would negate any possibility of free and fair elections in the U.S. going forward, casts retrospective light on the near-equal fraudulence of the suit seeking to nullify the ACA.

The suit's ridiculous premise is based on the Supreme Court’s 2012 ruling that the ACA’s “individual mandate” to purchase insurance exceeded Congress’s powers under the commerce clause -- but is constitutional as an exercise of Congress’s taxing power. In 2017 the Republican Congress zeroed out the penalty for going uninsured but left a zero-penalty mandate in place. The Texas plaintiffs claim that with no penalty, the mandate is no longer a "tax" and is therefore unconstitutional -- and that the entire law has to fall with the unconstitutional mandate. In effect, they, argue, the Republican Congress rendered the ACA unconstitutional by accident or stealth.

The Trump administration has argued that the mandate is "inseverable" from the rest of the ACA. Never mind that the zeroing out of the penalty as of 2019 has had little impact on ACA marketplace enrollment, which the mandate was designed to bolster. While the findings section of the Affordable Care Act text does assert that the mandate is "essential to creating effective health insurance markets," the Republican Congress that zeroed out the mandate penalty plainly disagreed, as it took no action to defund or otherwise alter the markets in which the mandate operates. Moreover, the zeroing out of the mandate penalty in 2019 has had little apparent effect on the ACA marketplace or U.S. health insurance generally. 

In oral argument, Supreme Court justices Roberts and Kavanaugh voiced reassuring skepticism regarding the notion that the mandate is inseverable from the rest of the ACA. Roberts said, "Congress left the rest of the law intact when it lowered the penalty to zero. That seems to be compelling evidence on the question." Um, yes. Almost as compelling as Republican election officials and legislatures certifying their states' presidential vote after multiple audits. 

To step back, the suit seizes on fraudulent technicalities -- a constitutional penalty becomes unconstitutional when its value is zero, the mandate is inseverable despite two years' experience proving otherwise because a 2010 finding posited its essentiality -- in an effort to strip subsidized health insurance from about 25 million people (10 million subsidized in the marketplace, more than 15 million via the ACA Medicaid expansion) in the midst of a deadly pandemic.

That's about what you'd expect from people in positions of power who'd sell out American democracy at the behest of Donald Trump. But it's only in light of the later effort that the full fraudulence of their states' prior assault on a duly enacted law comes into full focus.

* Montana filed a brief arguing that the mandate is unconstitutional but severable. 

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  1. Thank you for the specific list of those 17 states. I did not have the specific list. I will add those states my official list of icky states, being made up now of the 20 states which delayed or have not yet expanded Medicaid.

    (I keep the list as a list of states I just don't want to travel to, or move to in the future.)


    As you are well aware, the handling of health insurance by the Republicans and the Trump administration is contemptible, and full of deceptions.

    Some, like the great plan: (cheap, pre-existing conditions no problem) that was coming for 4 years but never came, and further that the demagogue said would be coming in two weeks (several months ago) are not subtle.

    Not subtle also: the attempt to kill the whole ACA, which is the subject of your blog article. Less subtle even, with the President choosing to join that effort in the middle of a pandemic.

    More subtle: As you know, the great plan, if it came, would by force of what can be engineered for health insurance, be structured roughly like the ACA, or to the left, like Canada single payer or UK NHS. The Congressional Republicans would never approve. (This particular aspect, needing a little technical expertise, has been stated by Paul Krugman, in is column, though it's obvious to others without a Nobel Prize in economics who understand the mechanisms involved.)

    But my favorite, obscure because only aired once, not subtle, is:

    Less subtle, a fave of mine, but relatively obscure because it made its appearance one time only (on the PBS Newshour about a week before the last election):

    3:50 to the end.)

    A Brooke Rollins person that Trump sent indicates that the great plan actually already has been released, and is here:

    (Besides not being a proposal, but an executive order, its last paragraph makes it clear that it is vacuous.)

    That paragraph is:

    " 6(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person." )

  2. The Texas lawsuit is the Hail Mary pass of this election season. It would really be a blockbuster if it's how, from PJ Media:

    "Paxton’s lawsuit asks the Supreme Court to block certification of election results, to direct swing-state legislatures to review the results, and direct the legislatures to award electors based on legal ballots only. Such an order would fall in line with the legislative strategy President Donald Trump’s attorneys Jenna Ellis and former New York Mayor Rudy Giuliani have supported.

    On Monday, Ellis outlined the strategy, predicting that state legislatures in Arizona, Georgia, Pennsylvania, and Michigan will independently investigate the election results and flip the electors from Joe Biden to Trump."

    I suspect that the Roberts court will pull out all the stops to stay away from this invitation to civil war!