Commentary

Now that the Supreme Court has ruled — again — that the structure of the Affordable Care Act is constitutional, it is time to move forward with making the law work better in our state.

The first, and most important, step is accepting federal funds to extend the benefits of affordable health insurance coverage to 500,000 more people in our state. Gov. McCrory said last year that his staff was assembling options to expand coverage and that he would make an announcement about his recommendation after the Supreme Court ruled in King v. Burwell. The ruling has arrived.

When asked about expansion today McCrory was sort of squishy and said he wants a North Carolina plan. We all do. But first we need the Governor to draft and release such a plan. Conservative Governors in Ohio, Indiana, Utah, Michigan, Tennessee and other states have either closed the coverage gap or assembled a strategy to accomplish a coverage expansion. There’s no reason our Governor can’t do the same.

Legislators are still critical of expansion. Sen. Ralph Hise says that he doesn’t think the federal government will be flexible enough to allow a state option. His wish list includes wanting to expand using private insurance and imposing co-pays on recipients above the federal poverty level.

Of course, the federal government has approved even more conservative measures than Hise mentions. Several states including Arkansas, Iowa, and Michigan do use private insurance to expand coverage. Some states are charging co-pays and premiums even on enrollees earning less than the federal poverty level. The federal government has shown a degree of flexibility that makes many advocates uncomfortable. The idea that our hands are tied is, to quote Justice Scalia, pure applesauce.

Recently released data from the National Health Interview Survey show the dramatic impact of expanding coverage. In Kentucky the adult uninsured rate dropped from 24.1 percent in 2013 to 15.6 percent in 2014. In Arkansas the rate went from 27.5 percent to 15.6 percent. And, most stunningly, in West Virginia the adult uninsured rate went from 28.8 percent in 2013 to 12.2 percent in 2014. These numbers reflect only the first year of expansion and states nearly cut their adult uninsured rates in half. In North Carolina the adult uninsured rate moved from 25.6 percent to 22.5 percent.

A majority of states are expanding coverage while reforming their Medicaid programs. More states will join their ranks now the Supreme Court has ruled that the Affordable Care Act is here to stay. The Governor must show leadership on this issue and ensure that all of our citizens have access to comprehensive, affordable health insurance.

News

Education reporter Lindsay Wagner was kicked out of a North Carolina Business Committee for Education (NCBCE) annual meeting today, a press event listed on McCrory’s public schedule that was sent out to media outlets, including N.C. Policy Watch.

McCrory-public-schedule-6-25-2015

When pressed for an explanation, a representative who appears to be from NCBCE — which operates under the Office of the Governor — explicitly said that no one from N.C. Policy Watch was “invited” to this press event.

Wagner was at the PNC Arena to cover the governor’s comments to NCBCE during this event.

Wagner had already sat down when a representative approached her with questions about her “credentials.” After hushed discussions among NCBCE representatives, Wagner was escorted out by PNC security with no clarification on the credential issue and was denied a request to speak with someone from the governor’s office.

Listen here for Wagner’s exchange with PNC security and an NCBCE representative.

This move by the governor’s office left some scratching their heads.

But it wasn’t the first time an N.C. Policy Watch reporter was denied access to a McCrory presser.

Courts and law reporter Sharon McCloskey was barred from entering a press conference McCrory held pardoning Leon Brown and Henry McCollum just two weeks ago.

After showing her N.C. Policy Watch staff press credential, McCloskey was told by a communications representative from the Office of the Governor Greg Steele that only Capitol Press Corps members were allowed access. Shortly afterwards, a reporter from the Wall Street Journal, not a member of the Capitol Press Corps, was let in.

Despite numerous attempts seeking clarification of what “credential” is necessary for the media to cover a press event on McCrory’s public schedule, N.C. Policy Watch has yet to hear back from the governor’s office.

Terry Stoops, K12 education researcher for the John Locke Foundation, sums it up quite succinctly.

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UPDATE 6/26/2015

N.C. Policy Watch reporter Lindsay Wagner has since received an email response from Communications Director Josh Ellis from the Office of the Governor. This is the first time N.C. Policy Watch has heard from the McCrory administration on the matter. The text of the email response is below.

Lindsay,

I wanted to follow up on your email to Eric about the NCBCE event.

The public schedule clearly lists this event as open to credentialed press. The North Carolina Association of Broadcasters, North Carolina Press Association, Capitol Press Corps or members of a widely-recognized media cooperative such as the Associated Press make the decisions about who should or should not receive credentials. Simply put, we let the press determine who should be identified as credentialed press. For more information about obtaining those credentials, you can contact the organizations listed above or visit: http://www.ncpress.com/nc-capitol-press-corp.

Thanks
Josh

News

With a nod to the role the Fair Housing Act has played in reducing segregation, the U.S. Supreme Court ruled today that housing discrimination cases can proceed in court upon a showing that a challenged practice disproportionately affects minorities, rejecting the argument that such cases turn upon proof of discriminatory intent and handing an important win to fair housing advocates and civil rights groups.

“The court acknowledges the Fair Housing Act’s continuing role in moving the nation toward a more integrated society,” Justice Anthony Kennedy wrote for the 5-4 majority in Texas Dep’t of Housing v. Inclusive Communities Project. He was joined in that decision by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

Justice Samuel Alito wrote a dissenting opinion, joined by Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas.

A Texas non-profit filed the case before the court in 2008, alleging that the state housing agency distributed affordable housing tax credits in a way that thwarted integration efforts — disproportionately granting them to minority areas while denying them in white areas of Dallas.

But Texas argued that the group had to show that the government intended to discriminate — a hurdle that’s difficult to get over given that most companies and agencies don’t openly announce their intentions.

Over time all 11 federal appeals courts recognized such “disparate impact” claims under the Act and, as Justice Kennedy noted, developers and governmental bodies had begun considering them when developing plans and practices so as to avoid unnecessary harm to minority communities.

“Recognition of disparate impact liability under the FHA also plays a role in uncovering discriminatory intent: It permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment,” Kennedy said.

Despite the consensus in the appeals courts, though, the Supreme Court has in recent years twice agreed to take cases challenging that view, only to see them settle before a ruling issued — both sides appreciating the risk associated with a ruling against their interests.

That willingness to take the cases had many in the fair housing world concerned that the justices were primed to reverse what had become an accepted and critical tool.

Today’s ruling brought both relief and hope for those advocates.

“We are pleased that the Supreme Court recognized decades of long-standing precedent in today’s ruling, ensuring the survival of an important tool to combat discrimination in America’s housing market,” Michele Jawando from the Center for American Progress said in a statement. “Equal opportunity and diverse, thriving communities are crucial to our national prosperity. Even unintentional housing discrimination denies families access to the social, economic, and health benefits of appropriate housing opportunities. We are at our strongest when our communities are more diverse and inclusive.

The court’s full opinion is here.

NC Budget and Tax Center

State legislators are expected to pass a stop-gap measure today to address the expiration of the current spending plan, which runs through June 30 or next Tuesday. The measure, known formally as a Continuing Resolution, would allow North Carolina to avoid a shutdown and keep state government operating. The measure would give the leadership in the state Senate and House additional time to iron out the stark differences between their respective spending plans and approve a final budget.

Absent the stop-gap spending measure, the governor would only be authorized to spend money on “essential” programs and services.

It is not uncommon for state lawmakers to pass a stop-gap spending measure, which can last as long as they choose. In the recent past, the measures have lasted between two weeks and thirty days. Lawmakers last approved a stop-gap spending measure in 2013. That resolution permitted state agencies to spend up to 95 percent of their authorized budgets from the current fiscal year. The Office of State Budget and Management determined how to trim the other 5 percent. Before that, lawmakers approved the measure three times in 2009.*

If lawmakers miss the deadline at the beginning of the second year of a two-year budget, that budget simply continues unless the governor provides further instructions. That’s what happened last year when Governor McCrory directed budget cuts. Read More

News

In a 6-3 decision released today, the U.S. Supreme Court upheld the availability of subsidies to health insurance purchasers on both state exchanges and the federal exchange, affirming the Fourth Circuit’s decision in King v. Burwell.

“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” Chief Justice John Roberts  wrote for the majority. “If at all possible, we must interpret the act in a way that is consistent with the former, and avoids the latter.”

Joining the Chief Justice were Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. Justice Antonin Scalia wrote a dissenting opinion, joined by Justices Samuel Alito and Clarence Thomas.

Plaintiffs who brought the case contended that the language of the statute only authorized subsidies for purchasers on state-run exchanges, relying on language in the Act which appeared to limit subsidies to people buying insurance on “an exchange established by the state.”

North Carolina, like three dozen other states, did not set up its own health care exchange.  More than 560,000 state residents purchased health insurance on the federal exchange instead, with more than 90 percent doing so with the help of subsidies designed to make coverage affordable for middle- and low-income purchasers.

The majority had plenty to say about the sloppiness of the drafting of the Act, but in the end found that the language at issue was ambiguous and could be interpreted in several ways. As such, the words should “be read in their context and with a view to their place in the overall statutory scheme.”

Scalia’s dissent was far less staid, calling the majority’s logic “jiggery-pokery” and “pure applesauce” and labeling the Act “SCOTUScare.”

“Under all the usual rules of interpretation, in short, the Government should lose this case,” Scalia wrote. “But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.”

Read the full court opinion here.