Kingston: The Sad Truth About King vs. Burwell

Editor’s Note: This OpEd was written by former First District Congressman and Senate candidate Jack Kingston.

The Affordable Care Act may be remembered as one of the most disastrous pieces of legislation in modern history. It’s bad for patients, it’s crushing small businesses with more than 20,000 pages of regulations, and it does nothing to address the real problems in our healthcare system like the cost of treatments or access to care. I voted against the Affordable Care Act, I voted to repeal it more than 40 times, I fought to defund and dismantle it, and I strongly believe it must be repealed.

Disappointingly, after Thursday’s King vs Burwell ruling, it’s clear that the Supreme Court is playing favorites by defending and practically rewriting certain laws in order to protect them from legitimate challenges. Thus, Obamacare appears to be the law of the land unless Republicans win the Presidency in 2016, hold onto our majorities in the House and in the Senate, and unite behind a legitimate alternative to keep Americans healthy but protect our freedoms.

That’s the sad truth, at least for another 18 months.

An equally sad truth— and one that says a lot about the times we live in— is that by upholding Obamacare, Chief Justice John Roberts and the five associate justices in the majority probably just saved the Republican Party. Politically.

If the Court had ruled that those who purchase insurance through the federal exchange are not eligible for the same subsidies as those who purchased through state exchanges (as the law objectively and undeniably reads) most exchange enrollees would lose their subsidies and many would not be able to afford to stay on their plan. This puts Republicans in Washington in a very precarious spot.

If we try to address the issue by transitioning these enrollees off of the subsidies, our base would, appropriately, have none of it— prolonging spending related to Obamacare is a concession to the law’s legitimacy.

On the other hand, if we did nothing in response to the ruling, the nanny-state press would have had a field day. I can see the headline now: “Soulless Republicans kicking poor people out of insurance exchanges.” No matter how unwarranted the attack, the coverage would be disastrous for Republicans in an already difficult 2016 election season, where the Presidency appears to be a coin flip and Republicans will be defending 24 seats in the Senate to the Democrats’ 10.

So, while it is clearly a huge loss for conservatives that this law stays in place, politically, the party may actually be better off.

If this is what it takes to stay in the majority, is it worth it?

33 comments

  1. Three Jack says:

    “If this is what it takes to stay in the majority, is it worth it?”

    NO!

    What good is a political majority if the majority is afraid to do anything due to the possible loss of majority status?

    • NoTeabagging says:

      Exactly. Nothing gets done these days unless it can be claimed as a party victory. Sad. Even less gets done as we approach election time. Absurd fear of losing voters 1-2 years from elections. Cycle repeats. This creates a limited “safe zone” where legislation can pass and hopefully be forgotten by the next election “avoid zone”.

  2. jpm says:

    Give us the House and we will defund the ACA.
    We did.
    Give us the Senate to go along with the House and we will defund ACA.
    We did.

    When was the last time the rnc kept a promise to fiscal conservatives or even treated fiscal conservatives as being in the same party?

    3 Jacks asks the right question.

  3. xdog says:

    What an odd article, half boilerplate and half lament for the sad state the gop finds itself in. He lurches from outrage and chest-beating to self-pitying despair for the future soul of the party. It’s enough to make you want to buy him a drink.

    Here’s an idea Jack: if your party’s in a fix, find yourself a new party.

    I’m sure you know plenty of people who are willing to put affairs of the nation over affairs of the party, so sign them up and say goodbye to the goobers and nutters in your base. Instead of whining about the unfairness of Thursday’s SC decision, find some issues based on arguments that go beyond ‘we hate it and maybe this will stick’. Buck up and work to remake your party into something adult and you might find that governing is much more fun than “governing”.

      • xdog says:

        So Perot = Clinton = bad = let the gop continue its path towards irrelevance.

        If you have other ideas about how the gop can resolve the disconnect between the doctrinaire base and those charged with governing, let me know. A party can pander to a small minority only so long before they disappear. I’m merely suggesting that people like Kingston start to guide the re-making process.

        • jiminga says:

          My idea? Term limits. But I realize that will never happen. We are trapped in an endless cycle of election politics in violation of the Founders vision of citizen lawmakers. The only real solution will come after the collapse of the Republic. Am I a pessimist? Yup.

          • Noway says:

            You’re 100% right. I thought I was PP’s resident pessimist, but I’m willing to share that title with you, Jim. We’re done as a nation. The Constitution is no longer relevant. I may have 20 good years left. The people I worry about are those in their teens and 20’s. Their world will be much worse than mine.

    • Dave Bearse says:

      Kingston’s “majority” is a quirk of circumstances, not an actual majority.

      The GOP House majority is the result of a combination of demographic distribution and gerrymander. (There would be a GOP House majority even without gerrymander.) The present Senate majority is a combination of a 2006 and 2008 wave years, and reaction to the 2009’s economy crash. (It wouldn’t even exist without the Senate system of disproportionate representation relative to population.)

  4. WesleyC says:

    The idea that the law “objectively and undeniably” forbids subsidies on the federal exchange is absurd. Most legal observers found the argument laughable and the only Supremes to disagree were those who would’ve voted against Obamacare no matter what legal reasoning was offered. What the court basically did on Thursday was exercise judicial restraint. They refused to upend a massive piece of democratically enacted legislation because one out of context passage happened to be inartfully drafted.

    • Agreed that objectively and undeniably is a step too far, but nice to see Kingston preach some reality. Georgia is worse off that he lost to Perdue in that primary.

    • This is Chris says:

      From the text of the ACA: “STATE.—In this title, the term ‘‘State’’ means each of the 50 States and the District of Columbia.”

      And the act regularly refers to subsidies for those who register through an exchange “…established by the State” but does not provide subsidies on the federal exchange.

      Of course, nobody expected the federal exchange to become so critical, which it did because many states didn’t open their own exchanges due to negative reaction to the law. And lawmakers probably did mean to include subsidies for those registered through the federal exchange (why wouldn’t they?) but that doesn’t change the fact that IT’S NOT IN THE LAW and the Supreme Court had to shimmy it in there themselves to keep the American healthcare system from collapsing. Even reading the majority opinion, it’s clear this was the case.

      • Scoreboard, bro. The act also regularly refers to how the federal government will establish an exchange if the state doesn’t, and how all the rules that apply to state exchanges will also apply to the ones that the federal exchange establishes.

        But the point is, if you really believe and are so butt hurt about this, call your Republican congressman and tell them to just fix the law so that it complies with what you think. Don’t try to destroy the law because of a typo.

      • ATLguy says:

        @This is Chris:

        Please take a law course. Or a civics course. Or … something. There is this little thing called “intent of the law” or “spirit of the law” that has been long honored in jurisprudence going back to the English common law that our American legal system was based on. And you know what? Conservatives have always 100% fully totally supported that, and relied on “intent of the law/spirit of the law” to give conservatives some of their biggest legal victories. It is, after all, why the ORIGINALIST school of legal interpretation exists anyway … to try to discern the ORIGINAL INTENT of the crafters of the law, especially when it is the founders. And ORIGINALISM is why such things as, you know, SECOND AMENDMENT RIGHTS exist to begin with because the TEXT of the second amendment does depict firearms ownership to members of and/or the purpose of militias! (Because back then militias, national guards and such were volunteer organized and staffed efforts.) It is the notion that the founders had an INTENT for private ownership of firearms that TRANSCENDED the literal meaning of the actual text that forms the reasoning for the existence of the NRA, GOA and similar today.

        So if you are going to be consistent and rely only on the literal meaning of the text and not the original intent or the spirit of the law, then sure end Obamacare on one hand, but you will have to give up your firearms and become a gun grabber on the other. Because simply: the courts know that no law can possibly be written to cover EVERY SINGLE SPECIFIC CASE AND CONTINGENCY. So what judges do is try to figure out what the writers of the law WANTED and WERE TRYING TO ACCOMPLISH in those specific cases instead. Just as it is absurd to claim that the very same people who took up arms to rebel against and overthrow England – and also regularly used guns to hunt to put food on the table and to protect themselves from criminals and angry dispossessed Native Americans – wanted to limit firearms ownership to militia members, it is absurd to pretend as if the writers of Obamacare wanted to limit subsidizes to certain exchanges.

    • jiminga says:

      Laws that are “inartfully crafted” are usually corrected by legislation. It happens all the time at every level of government. But as we know the ACA was passed by democrats over the objection of the American people, and the GOP has feared changing it for political reasons. The SCOTUS wrote law, which is unconstitutional. But if you believe the SCOTUS has replaced Congress, so be it.

      • Andrew C. Pope says:

        The Democrats were able to pass the ACA because they had a majority in the House, a majority in the Senate, and a Democrat in the White House. You don’t get that kind of trifecta without the support of the American people. So please, save me this b.s. about how ACA was passed over the objection of the American people.

        Elections have consequences. Everyone knows this.

        • saltycracker says:

          Now that is passed they can read it and see that it has some flaws and loopholes to fix. The healthcare industry is way ahead of the curve influencing legislators, consolidating and getting their ducks in a row so that medical costs and worker share will continue to increase in a less competitive and more controlled environment. Then there are the millions of working healthy still opting/excepted out.

  5. jiminga says:

    Our elected representative no longer represent us, they represent themselves. Politics above all.

  6. northside101 says:

    Wesley C says the Court refused to upend a massive piece of democratically-elected legislation. Maybe we should use the “big” D—Democratically-enacted legislation. At least the voters woke up the following November, rewarding those “walk the plank” Democrats with years in the political wilderness. Oh well, at least Nancy Pelosi has had time to find out what was in the bill…..

    • ATLguy says:

      “At least the voters woke up the following November, rewarding those “walk the plank” Democrats with years in the political wilderness.”

      Yes, Republicans won the House in 2010 but lost the White House in 2012. Why? Because the GOP was able to exploit the state-level gerrymandering that they indulged in during the 2000s to get control of the House back. Evidence of the gerrymandering: more people voted for Democratic candidates for Congress in 2010, 2012 and 2014 than for Republicans. An explicit example: Georgia, a state that is at least 45% Democrat (Jason Carter got that despite being a very bad candidate) yet only 4 of 14 seats, 28%, are held by Democrats. Texas did the same in order to arrive at a delegation of 25 Republicans and 11 Democrats in a majority-minority state where even the hapless Wendy Davis got 41% of the vote. And the GOP won the Senate in 2014 because the Democrats were defending a lot more seats than the GOPers were, and most of those seats were in red or swing states that the GOP only lost in the first place because of the disaster that was George W. Bush depressed GOP turnout and inflamed Democrat turnout in 2006 and 2008.

      So claims that the Obamacare backlash elected the GOP are at best overstated. Instead, Obamacare and Obama gave the GOP an enemy that could be used to increase conservative turnout in already Republican-leaning districts from their historic lows in 2006 and 2008. But if you look deeper, the GOP didn’t do nearly so well in non-GOP areas. If anything, they have lost ground. As recently as the 1990s, there were GOP senators and governors in the Pacific Northwest, in upper midwestern states like Michigan and Illinois, and in the northeast. Now with the exception of Chris Christie, Mark Kirk and Scott Walker, the GOP is practically dead in not only those areas, but has also lost formerly deep red Virginia.

      The first real test of Obamacare was the race for the White House in 2012 that saw Obama crush Romney, who despite what revisionist history claims was a guy that a lot of conservatives preferred to McCain in 2008, and might have actually won the nomination in 2008 had Mike Huckabee dropped out earlier. The next test for Obamacare at the ballot box will be in 2016. Republicans can run on that at their risk. But be forewarned: they will have to do so without A) appearing to be shills for the much-despised insurance companies and B) in a way that addresses the tens of millions of people who will lose their coverage if Obamacare is repealed. And before you ask: a good chunk of those tens of millions of people are loyal Republican voters who didn’t turn out for Mitt Romney because he offended them with that 47% remark. Lots of them are Republican and swing voters who received insurance under Obamacare even in red states that didn’t set up exchanges. Half-a-million Obamacare signups in Kentucky alone, and Kentucky only has 4.4 million people in it total.

      So yeah, go ahead and make 2016 a referendum on Obamacare. That is exactly what Hillary Clinton wants you to do. And before you ask, no, I am not a supporter of Obama, Hillary or Democrats generally; I am more of an independent. But the numbers are what they are, and guys on your side need to stop filtering them through whatever it was that had Mitt Romney absolutely certain that he was going to be president of the United States right up until the first exit poll results came in on election day.

      • John Konop says:

        Nothing you wrote is news to the GOP insiders….It is a balancing act….I would bet no way did the the leadership of the party privately, wanted this bill overturned….It would of been a political disaster for the GOP…It is a real catch 22….anti obamcare plays well to the base….bad nationally and statewide on a macro….similar problem with RFRA type politics….You are right…if the next election is about ending Obamacare over fixing it, and RFRA type issues…..Hillary will be the next president.

        • ATLguy says:

          One other thing about the balancing act: the GOP cannot win a general election without the base turning out. We saw this in 1992, 1996, 2008 and 2012. So keep the base at arm’s length and you lose. Use the wrong issues to engage the base and you lose. The key is to find the right issue to engage and turn out the base on. Obamacare is the wrong issue. But RFRA might be the right one IF the GOP presents it as protecting religious people from having to violate their consciences in order to earn a living and especially as protecting religious institutions from having to violate their doctrines in order to keep from being shut down. Keep in mind: Barack Obama has supported conscience clauses and RFRA type policies in the very recent past, including providing some allowances for conscience and religious institutions in the ACA. He was actually in no man’s land as he did so, as the Sandra Fluke contingent resented any exceptions in the ACA at all, and the Hobby Lobby people felt that the protections didn’t go far enough. As the same court that sided for Hobby Lobby a few years ago legalized gay marriage now, I would say that the GOP has much more wiggle room on the RFRA than you are willing to acknowledge. Especially since a lot of the moderates in the gay marriage fight are now saying that now is the time to extend a hand to the RFRA crowd and work for consensus in hopes for heading off the decades of legal and political battles that accompanied Roe v. Wade. It is the extremists on the margins that want to press forward and crush all opposition, and if Hillary Clinton casts her lot with those (i.e. to fend off Bernie Sanders and others running to her left) then her fate will be the same as that of Michael Dukakis and John Kerry.

          • Three Jack says:

            If the GOP nominee runs on a platform built around irrelevant social issues like RFRA, the dem wins and it won’t matter who controls the congress.

            The GOP can expand it’s majority and win the White House (or Rainbow House as it was last night) by simply running on an upbeat message of restoring America to a country of prosperity and prominence.

            • ATLguy says:

              All right. Articulate a GOP path of victory that excludes white evangelicals and conservative Catholics. You may think that social issues like RFRA are irrelevant, but the people who vote on issues like that aren’t.

              But go ahead. Tell me how a GOPer is going to win Ohio, Wisconsin, Michigan and Pennsylvania without conservative Catholics. Tell me how a GOPer is going to win Florida, North Carolina and Virginia without Southern Baptists. And when you are done, tell me how a GOPer is going to win the presidency without Ohio, Wisconsin, Michigan, Pennsylvania, Florida, North Carolina and Virginia when the Democrat will carry California, Illinois and all areas northeast of Pennsylvania (except maybe New Hamsphire and their 4 electoral votes) automatically.

              Without social issues, social conservatives not only stay home, but some actually vote Democrat because of economic issues. Or have we forgotten that most socially conservative voters were New Deal/union Democrats in the midwest or were yellow dog Democrats in the southeast before Reagan? You can keep pretending that a socially liberal Republican can win a nationwide election when the truth is that a socially liberal Republican can’t even win a general election for governor or senator in deep red Georgia.

              • Three Jack says:

                Note I wrote, “…a platform built around irrelevant social issues”. If the eventual nominee has those irrelevant issues as his/her primary focus, then the GOP loses no matter how many of the fringe socons show up.

                My point is to stay out of the weeds discussing no win social issues from RFRA to min wage. Stay above it, talk about prominence in the world and prosperity here at home.

                This thread is about holding the majority and whether that will mean anything after the 2016 election cycle. Getting the same old 1 issue voters to the polls may win a few local elections, but not the presidency or expanding the majority in congress. This has been proven time and again for the past decade, but far too many in the GOP keep seeking out the freak vote.

                • ATLguy says:

                  You said “If the GOP nominee runs on a platform built around irrelevant social issues like RFRA” but I was addressing what you meant. You want the GOP candidates and the nominee to completely ignore social issues; to not engage them AT ALL. Do that and most of the conservative Catholic and white evangelical voters in the south and midwest will stay home because on the issues that they really care about and motivates them to get to the polls there won’t be any difference between the Democrats and the GOP. Even worse, some of those voters, especially white evangelical women and Catholics, will shift from the GOP to the Democrats because they are socially conservative and fiscally liberal.

                  Think about Catholics who are members of unions in the midwest and mid-Atlantic, and then consider deep south single female evangelical hourly workers whose kids now have insurance because of Obamacare. I don’t think that you even want to consider how many people there are like that.

                  But go ahead and nominate the next Gerald Ford or Bob Dole and let them run on economic issues – which would be ridiculous because the current economy is much, much better than the one that Obama inherited, and this is true even if conservatives are not allowed to publicly acknowledge it … where Obama entered an economy teetering into a great depression now unemployment is consistently below 5.5%, the stock market is booming, the labor force participation rate is increasing and even wages are increasing slightly, and this is despite oil prices increasing and the energy sector taking a huge bite out of Texas, Oklahoma, Louisiana and the Dakotas as a result … note that no one is talking about the Keystone XL pipeline anymore – and see how far that gets you. Your side would be lucky to get to 20 states, with most of those being single digit electoral college states like Idaho.

        • Rich says:

          Everyone forgets Hillary Clinton finished third in the Iowa caucus of 2008. She isn’t simply going to be coronated in 2016. In 2007 Clinton polled high (parallel with 2015).

          Forgetting Benghazi and e-mail “scandals”, her voting record does not reflect the democratic base, starting with her supporting the Iraq war. She is out of touch with the middle class. Once the debates begin the dynamics will change, again. My $ would be on Bernie Sanders. Elizabeth Warren as VP would be good.

          http://www.nytimes.com/2015/05/28/upshot/the-senate-votes-that-divided-hillary-clinton-and-bernie-sanders.html?_r=0&abt=0002&abg=1

          • ATLguy says:

            First off, I was using Hillary Clinton as shorthand for “the Democratic nominee.” That nominee will either be Clinton or someone who was able to beat Clinton (meaning a very good politician that will actually be tougher to beat in a general election than Clinton will be). Second, Clinton finished third in Iowa because of her support of the Iraq War during a time when the issue was toxic and her support of Wall Street right after Wall Street took down the economy and threatened to send us into a great depression. Right now, with us not being actively at war with ground troops and unemployment below 5.5%, neither is going to be a factor. Meanwhile, the large number of female voters who want to see a female president and realize that this may be their best shot in their lifetime (Elizabeth Warren is the same age as Hillary Clinton) WILL be a factor. In 2008, it was generally understood that Clinton would run again if she lost and by making her secretary of state Obama acted to retain her political viability for that purpose. But if Hillary loses this time and with other well known female Democrats like Dianne Feinstein and Barbara Boxer retiring, female Democrats will see it as Hillary or nothing.

            Another thing: Obama took the black vote that would have gone to Hillary. I cannot see black voters supporting Sanders. They MIGHT have supported O’Malley had it not been for the Baltimore riots, but now that is done with.

  7. northside101 says:

    So ATL guy wants to complain about gerrymandering in Georgia’s congressional map.

    Well…

    There is that thing called the Voting Rights Act—you know the no-retrogression part? That ensured the preservation of 3 majority-black districts—the 4th (Johnson), 5th (Lewis) and 13th (David Scott). Yes, Sanford Bishop’s 2nd CD was made majority-black, but he probably appreciated that, given that he barely won re-election in 2010 even while representing what was then a 47% black (registration) district. Think part of that was due to that thing called….Obamacare. So Ok, 4 majority-black districts the Republicans will never win.

    Now lets look at the number of split counties—only 16 of the 159 counties are located in 2 or more districts. Compare that to 34 with the infamous Barnes congressional map in 2001…

    Yes, CD 12, represented by John Barrow for 12 years, got less black in redistricting in 2012. But it was still about one-third black in voter registration—the type of districts won at another time by Democrats such as Charles Hatcher in southwest Georgia, Roy Rowland in middle Georgia and Lindsey Thomas along the coast. Why can’t someone like Barrow win a district that has a fairly high minority percentage? Perhaps that is the question you should be asking.

    Is Tom Graves’ district gerrymandered? He has only 1 split county—Pickens. Otherwise he represents the northwest corner of the state. Looks pretty normal to me. What about Doug Collins in the adjoining 9th CD? Northeast corner of the state. Don’t see any strange lines there—in fact his district would have voted for LBJ 50 years earlier when much of the rest of Georgia was backing Barry Goldwater. Why can’t a Democrat win that district today?

    As for the national scene, Pennsylvania isn’t likely to vote Republican for president next year, because the Philadelphia area—even with suburbs included—is overwhelmingly Democratic, part of the increasingly secular, very, very liberal Boston-Washington corridor. And Southern Baptists are becoming less relevant by the day in Virginia, which probably in a few more years will be considered part of the liberal Northeast corridor anyway, for political purposes. All comes down to Florida and Ohio—GOP loses either one, lights out…

    • ATLguy says:

      I am not complaining about gerrymandering. I am one who fully believes that “elections have consequences.” Sanford Bishop didn’t nearly lose his election because of Obamacare. If you believe that, you need to check out the Obamacare enrollment numbers in rural Georgia, the area of the state where tons of hospitals are going out of business! He nearly lost his election due to personal scandal.

      But the fact remains: a state that is 45-47% Democratic has only 28% of its delegation as Democrats. That’s gerrymandering, plain and simple.

        • benevolus says:

          And I would say that people tend to congregate, and as they do they become more aware of and tolerant of others that are unlike themselves.

  8. northside101 says:

    Agree with Fran—Democratic vote is concentrated, especially in Clayton, DeKalb and Fulton. Republican vote more spread out.

    As for the assertion that the ACA passed because of the “support of the American people”, well no, it passed because it was one of those rare times that the Democrats had control of both branches of Congress and the presidency. Obama won in 2008 because of (understandable) dissatisfaction with the second Presiden Bush. Health care was not a major issue, but as Rahm Emanuel said, never let a crisis go to waste, right? So we get this mess of a bill that probably no one read in its entirety—because as not so sweet Nancy Pelosi said, we have to pass it in order to know what is in there. Scott Brown even won Ted Kennedy’ s seat in Massachusetts by running against Obamacare, which should have been a clear warning to Democrats to not go too far. But no, one after one drank the Kool Aid. The idea that Sanford Bishop was not harmed by Obamacare is laughable—his Republican opponent Mike Keown made it a centerpiece of his campaign. Jim Marshall of Macon, who opposed the legislation, was still tainted by his party label.

    Of course Jay Bookman praises the legislation for all the coverage these days, neglecting to mention it is cohersive—now the IRS can snoop in our tax returns and see if we have not just coverage, but the “right amount” of coverage, and employers over 50 employees have to provide the “right amount” of health coverage of pay fines. Sure Jay, when you include penalties and fines and subsidies, it is amazing how many people will like their coverage. But someone has to pay the bill…

    As for Roberts, I have no idea what his jurisprudence is in terms of consistency. He opposes same-sex marriage on states’ rights grounds (since marriage is not mentioned in the US Constitution) yet upholds Obamacare–the first time on grounds that the mandate is a “tax”. Perhaps he is one of those “living, breathing document” types—you know, the meaning of the Constitution “evolves” with the times. I don’t know. That is how we got Roe V Wade 60 million abortions ago…

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