April 7, 2023
Dear Interested Readers,
Can You Believe That Both Trump and the ACA are in Court?
This week’s news had some variation from what I expected. First, many of the talking heads of television journalists and the pundits that I read in the New York Times and the Washington Post had suggested that the case against Donald Trump in New York was weak. Now some of those pundits are backtracking now and giving kudos to District Attorney Alvin Bragg, but not David French, the very thoughtful Christain conservative lawyer/ writer who recently switched his writing from The Atlantic to The New York Times. I enjoy French’s writing because even though he is an espoused conservative, like David Brooks, he is very thoughtful. Deep into his post-indictment opinion piece published on Thursday, he writes:
Not everything that’s sleazy is illegal, and the question for Trump isn’t so much whether his conduct was morally wrong but whether it’s unlawful.
It is a sad fact and French points to the cases of other politicians who survived their legal predicaments because of a lack of specificity in the law. French made me flinch with the last paragraph of his well-written piece:
In short, the Trump prosecution faces serious legal questions, and the answers to the legal questions will decide the case far more than any factual dispute. The evidence shows rather clearly that Trump engaged in a scheme to pay off women who said they were his paramours, in order to influence the 2016 election. That is clearly immoral and would be extremely embarrassing to anyone who has shown signs that he is capable of embarrassment. But whether it was unlawful is the key question that will decide Trump’s legal fate.
The only thing that was settled on Tuesday when Former President Trump showed up in Manhattan District Court was that we can no longer say that there has never been a former president who was indicted for a felony. That ice has been broken. Perhaps the benefit of the day is that the other cases that are being considered by the special prosecutor and by the Fulton County Georgia DA can go forward without having to contend with the uncertainty of setting that precedent. The other thing that was established was that we will be well into 2024 and the runup to the next presidential election before any of these cases are tried. I wonder if the country will tire of these legal questions before then.
French’s opinion was not shared by everyone at the New York Times or the Washington Post. David Firestone wrote a piece entitled “Trump’s Day of Martyrdom Didn’t Go Quite as He Expected.” His writing suggested that the case against Trump was better than expected.
…the 34 felony charges, to which Mr. Trump pleaded not guilty, turned out to be more significant and more sweeping than previously suspected. The Manhattan district attorney, Alvin Bragg, described a broad conspiracy, with Mr. Trump at the center, to falsify business records for the purpose of unlawfully influencing the 2016 presidential election.
Over at the Washinton Post, Jennifer Rubin, my favorite Post columnist and a lawyer herself, wrote the opinion piece that most suited my biases. Her piece was entitled “Bragg doesn’t show all his cards in his case against Trump.” She summed up my feelings about the “pundits,” she even called them “pundits,” and all the crepe hanging that had occurred based on speculation when she wrote:
Any pundits who speculated ahead that the case was weak, misreported the “intent” requirement under New York law or ignored obvious “tolling” arguments putting the charges in compliance with the statute of limitations may have been premature in denigrating the case. Once more they’d be wise to hold their fire given some strategic ambiguities apparent in the indictment.
Rubin and Norman Eisen, whom she quotes, see a manifestation of legal strategy where Attorney French sees a thin case.
Brookings Institution’s Norman Eisen, who has written extensively on the case, tells me, “The 44-paragraph recital of the evidence is absolutely damning.” …” Eisen, who served as co-counsel to the House Judiciary Committee in Trump’s first impeachment hearing, adds, “There will undoubtedly be much more to come, both when Trump files his inevitable bill of particulars, and as the case otherwise unfolds through the trial and pretrial process.” There is ample case law for using federal and state election law violations to bump up a records falsification case.
Time, plenty of time, a frustratingly long time most likely, will ultimately demonstrate how the judge and jury see the case. The only thing that is for sure is that Trump was indicted, and for once he has looked a little vulnerable and subdued. I can’t sum up the day any better than Ms. Rubin did:
Tuesday certainly was a sobering day. A former president was reduced to the status of a criminal defendant, looking deflated and a bit overwhelmed. The judge and jury won’t care how loudly Trump and his cultists whine about his plight. They certainly won’t care that the media wants to find out Bragg’s legal strategy. The matter rests with the New York court — which is what equal justice under the law demands.
What ties Trump to my concerns about healthcare was manifestly demonstrated in the other legal effort, and actor, that has recently come back to annoy us. Judge Reed O’Connor, a federal judge appointed by George Bush in 2007, is currently back in the news with another ruling against the ACA. If his name is familiar, it is because it was his ruling in early 2018 that took the ACA back to the Supreme Court for the third time.
Last week’s ruling by Judge O’Connor may mean a fourth trip to the highest court for what many consider to be the most progressive piece of legislation passed so far in this century. If the ACA isn’t the most progressive piece of legislation this century, it certainly holds the record for the bill most frequently tested by the Supreme Court. Each time, so far, the Supreme Court has confirmed the law, but the first time it did do something to reduce its impact. It made the Medicaid expansion an option that the states could reject.
I plan to give you a brief overview of the legal history of the much-attacked ACA, but before we review that heroic history I will remind you that when President Obama signed the law then Vice President Biden was overheard telling him “This is a BFD”, and it was. The thirteenth anniversary of the signing of the ACA passed less than two weeks ago and President Biden did his best to continue to impress us with that same opinion. On the anniversary, March 23, there was a small celebration at the White House and President Biden made some remarks that once again stressed how important the ACA was and continues to be. Some of his words were:
Look, 13 years ago today, we gathered in this room as President Obama signed into law the Affordable Health Care Act. Hard to believe 13 days ag- — 13 years ago. It seems like 13 days ago. (Laughter.)
Most — I think it was the most conse- — I think most people would agree: the most consequential piece of healthcare legislation since the creation of Medicare and Medicaid in 1965.
I talked to the President yesterday. Got a chance to speak with him. We did a little thing together.
And it’s an extraordinary achievement by President Obama. And while the Affordable Care Act has been called a lot of things, “Obamacare” is the most fitting description. (Laughter.) Obamacare. (Applause.)
Many of you joined us that day after fighting for decades to make it happen. And I remember the three words I used at the time. (Laughter.) I thought it was — (applause) — I thought it was a big deal. (Laughter.) And I stand by the fact it was a big deal. (Laughter.)
Joe was on a trip down memory lane that is worth joining before we ask the critical question of why there have been so many efforts to undermine the law in the courts. I will let Joe speak for himself.
Thirteen years later, it’s easy to forget what life was like for hardworking families before the Affordable Care Act.
You know, but all of you remember. Remember when a parent with a heart disease or diabetes or a child with asthma couldn’t get coverage because of a pre-existing condition?
Remember when women had to pay more for insurance because they had pre-existing condition — they were a woman? (Laughter.) Not a joke. It’s — say it today to people and they look at you like, “You’re kidding me.” But that was the case.
Remember when you couldn’t leave a dead-end job because you couldn’t risk losing your health insurance?
Remember when a 22-year-old kid could be kicked off his parents’ plan because he graduated from college?
…Remember when millions of low- and middle-income families, especially who were — particularly those families who were locked out — locked out of health insurance because there was no way they could afford it? None.
The speech goes on for a while. Joe rambles on through the remarkable history of the victories of the last thirteen years with an emphasis on all of the benefits that have been added during his administration with the further expansion of Medicaid benefits and the new drug benefits that were part of the Inflation Reduction Act of 2022.
Joe made multiple references to the attempts of Republicans, and especially MAGA Republicans to repeal or damage the law. The speech is not a long read. I would encourage anyone who cares about healthcare to update their knowledge of what is good about the ACA by reading the president’s remarks. I will warn you that in his usual style, there are references to what he learned from his father and what he experienced as his son Beau died of a brain tumor. He notes that now 40 states have accepted the expansion of Medicaid which was a major part of the effort to provide universal coverage.
It was the Medicaid expansion that was the casualty of the first trip the ACA took to the Supreme Court in 2012. In that decision the court upheld the ACA’s mandate that everyone should have health insurance through individual purchase, employer-provided insurance, the ACA marketplace, Medicare, Medicaid, or pay a penalty. What the majority of the court did decide was that the expansion of Medicaid was unconstitutionally coercive for the states. The court said that the states had the right to refuse the Medicaid expansion and the benefits it offered to their citizens. Most of the “red states” took advantage of the ruling and did not expand Medicaid, thus denying many of their most needy citizens this benefit of which 90% was to be permanently covered by federal payments.
Over the ensuing decade, many of those states have come around to accept the extension so that now it is mostly the deep South, plus Texas, Wisconsin, Kansas, and Wyoming that continue to reject the expansion. The Kaiser Foundation has recently published an interactive map that shows the status of each state and tells when it accepted the expansion. Two states, South Dakota and North Carolina are pending.
The second Supreme Court challenge to the ACA was decided in 2015. That case was a 6-3 decision. That challenge was very technical and was based on an idea that an article in the Washington Post tried to explain. We read:
In considering the health-care law, the justices were asked to interpret a passage that said the tax credits are authorized for those who buy insurance on marketplaces that are “established by the state.”
But federal exchanges were authorized for states that did not set up their own, and the Obama administration argued that millions of people served by a federal marketplace were entitled to the subsidies, too.
It seems like a ludicrous effort but was an example of how hard the ACA’s opponents were trying to damage or repeal the ACA. Six justices agreed that the case had no merit. It is interesting to read Chief Justice Roberts’s comment about the decision which I have bolded. It is also good to remember that it was Roberts who probably saved the ACA on its first trip to the Supreme Court.
The court agreed that that was the only way the law would work and that, although the legislation’s wording was problematic, Congress’s intent was clear.
“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible we must interpret the Act in a way that is consistent with the former, and avoids the latter,” Roberts wrote.
There is an old saying that “The third time is the charm.” The ACA’s opponents were probably hoping that their third swing at the ACA would be their charm, but fortunately, it was another miss. We owe Judge O’Connor the credit for the anxiety that the third trip caused those of us who believe that the ACA, even with its imperfections, is better than what existed before 2010 and better than anything that might be passed in an era of divided government.
If you have the time and interest there is an article from HealthAffairs from 2018 that reviews the reasoning through the first two Supreme Court decisions as preparation for understanding the argument against the ACA that came down with Judge O’Connor’s decision in his North Texas District Court that the ACA was unconstitutional.
Trump’s famous tax cut bill of 2017 did not abolish the ACA’s mandate but it reduced the penalty to zero. The HealthAffairs article succinctly lays out the twisted reasoning that led 20 attorney generals and their Republican governors to sue the government in Judge O’Connor’s court saying that the ACA should be invalidated as unconstitutional.
…attorneys general and governors from 20 states filed a lawsuit against the federal government,..to enjoin the Affordable Care Act (ACA) following repeal of the individual mandate penalty. The states are Texas, Wisconsin, Alabama, Arkansas, Arizona, Florida, Georgia, Indiana, Kansas, Louisiana, Mississippi, Missouri, Nebraska, North Dakota, South Carolina, South Dakota, Tennessee, Utah, West Virginia, and Maine (via Governor Paul LePage).
In their complaint, filed in federal district court in the Northern District of Texas, the states argue that the repeal of the individual mandate penalty in 2019 is fatal to the ACA and, as such, the entire law should be struck down. In summary, they argue that the Supreme Court upheld the individual mandate as a tax. Now that Congress eliminated the individual mandate penalty beginning in 2019, the mandate is no longer enforceable as a tax and thus is no longer valid. They further argue that the entirety of the ACA relies on the mandate and, without the penalty, the entirety of the ACA is also unconstitutional.
Fortunately, Judge O’Connor’s ruling was stayed until the case worked its way up to the Supreme Court. There were many articles from progressive lawyers that demonstrated the problems with Judge O’Connor’s opinion, but as we now know, anything can happen in a court that has become politicized. I was worried, but relief came in June 2021 when the Supreme Court rejected Judge O’Connor’s opinion by a whopping 7-2 majority. Even Clarence Thomas, Amy Coney Barrett, and Brett Kavanaugh rejected the convoluted arguments in the case. The two supporting votes came from Samuel Alito and Neil Gorsuch. Unfortunately, the decision was based on “the lack of standing” of the states that had petitioned. An article from NPR at the time explained the decision:
…the majority decision threw out the challenge to the law on the grounds that Texas and other objecting GOP-dominated states were not required to pay anything under the mandate provision and thus had no standing to bring the challenge to court.
“To have standing, a plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief,’ ” but “No plaintiff has shown such an injury,” the court said.
I would have preferred a decision that said that Judge O’Conner’s opinion was bogus and that the ACA was the law of the land until something better was passed by Congress, but a win is a win, and we all heaved a sigh of relief, and hoped that a 3-0 record at the Supreme Court would ensure the safety of the ACA until that time when we had true universal access to care with healthcare ruled a right and not a privilege. It is interesting that if you read President Biden’s comments on the thirteenth anniversary of the ACA, you know that it is his opinion that healthcare is a right. Near the end of his speech which is an excellent review of all the recent healthcare enhancements since his election, he stated his ultimate goal which I have bolded for emphasis:
We made history when the Affordable Care Act became law. And we changed America. We gave millions of people peace of mind. We did something else. We also took a giant step toward realizing the fundamental principle that we hold as Democrats and as Americans: that healthcare is a right and not a privilege.
Folks, we’re not all the way there yet. But there’s more to do, so let’s finish the job.
President Biden’s celebration of the ACA and his concluding wish for the future was on March 23rd. A week later on the 30th, Judge O’Conner took his latest shot at the ACA. Sarah Kliff, one of our best healthcare journalists, now writes for the New York Times. Last Friday she wrote an article entitled “Health Plans No Longer Have to Cover All Preventive Care at No Cost. Here’s What to Know. A ruling by a federal judge this week could set up yet another Supreme Court challenge to the Obamacare health law. In her article, she explains Judge O’Conner’s most recent attack on the ACA. Ironically, the judge went after one of the things the president heralded as a great accomplishment of the ACA, the coverage of preventive care. The president said:
Because — because of the Affordable Care Act, millions — millions of Americans can get free preventive care, like cancer screenings. And, by the way, saves the country millions and millions of dollars if they detect it early.
I have long had the opinion that those of us who had healthcare coverage through our employers before the passage of the ACA were not very aware that the ACA was a benefit to us. Policies before the ACA that did not provide preventative care were the reason that many people who had cheap and minimally protective coverage before the ACA had their policies canceled when the ACA was activated. You might remember that one of the “errors” President Obama made when trying to sell the ACA to those who were covered was the idea that, “If you like your plan you can keep it.” I have always thought, and the first volume of his memoirs confirms, that he should have said, “If you like your plan you can keep it, if it meets the standards of coverage stipulated in the bill.” I would have added, “And if the ACA is not passed you will discover someday that your policy is junk.”
As Ms. Kliff explains:
Health policy experts describe free preventive care as one of Obamacare’s most transformative policies because it took away a financial barrier to needed care for tens of millions of Americans. It is also one of the law’s more popular provisions, with 62 percent of the public recently saying it is “very important” that it stay in place.
Judge O’Connor seems to always be looking to find new issues upon which to build his case that the ACA is unconstitutional.
In this new case, Judge O’Connor found that having a panel of outside experts determine which preventive services should be covered violated the Constitution’s appointments clause, which says that legally significant decisions must be made by people who are part of a chain of authority up to the federal government. “The argument is that this is a body of private experts who serve in a volunteer capacity, who are not federal officers and are not properly appointed,” said Nicholas Bagley, a professor of law at the University of Michigan who has followed the Texas case closely.
She offers a more complete description of what is at stake:
The Texas ruling means that insurers no longer have to provide free coverage for any care the United States Preventive Services Task Force has recommended since 2010.
In that time, the federal task force has endorsed at least four new types of preventive care. This includes three new type of screenings: one for anxiety in children, another for unhealthy drug use and a third for weight gain in pregnant women. It also includes a recommendation for PrEP, a daily pill that is highly effective at preventing the transmission of H.I.V.
The task force has also updated much of its older guidance. For example, it has repeatedly updated its recommendations on heart disease to endorse the use of statins in certain adult populations. Under the Texas ruling, insurers would not have to follow the newer guidance and could instead provide free coverage for whatever recommendations were made in 2009 or earlier.
My unfair assumption about MAGA conservatives has always been that the America that they were hoping to regain was the one where we tried witches and lived in log cabins with our muskets at the ready in case of attack. It seems that if Judge O’Connor has to accept the ACA it will be in its original 2009 form. I am no expert, but the winners would be the employers who don’t want to buy policies that cover the advancements in care. The judge must not accept the established facts that diagnosing and treating illness early leads to better outcomes at a lower cost, and it may be true that he does not care that many people who could benefit from preventative care will not be able to afford it if it is not a covered benefit.
What happens next? The Biden administration will appeal the ruling. They will ask for a stay of the implementation of the decision until it is heard by a higher court. It is quite likely that the ruling will be getting to the Supreme Court about the time of the next election, and if it is still around by then it will be another reason to elect a Democratic president, a Democratic majority in the House, and a filibuster-proof Democratic majority in the Senate that would enable the restoration of a woman’s reproductive rights, protect preventative care, and establish that healthcare is a fundamental right and not a privilege.
It seems that like it or not, we are all going to be watching the courts to discover a lot more than what happens to our indicted former president. Judge O’Connor remains a rock in our healthcare shoe. Once again, we will need the courts and victories at the ballot box to protect the majority of Americans who want better care from his worldview that is shared by people I really don’t understand. We must be vigilant to protect the fragile gains we have made toward better healthcare for everyone.
Bonus: After finishing the editing of this piece this morning, I opened my email and discovered that the Commonwealth Fund had just posted an excellent review of Judge O’Connor’s decision and the impact it could have on 150 million Americans. It is entitled “Coverage of Preventive Services Without Cost Sharing in Jeopardy as Texas Court Strikes Down ACA Protection.” Click on the link to read it and ponder the damage to the health of many Americans that Judge O’Connor is willing to inflict to defend the profit margins of businesses that care more about their bottom line than the health of their employees. The only way that I see that we can ever get out from under the reality of the tension between corporate profits and the health of Americans is to pass publically funded health insurance that is supported by tax, not employer, dollars. Publically funded healthcare in other countries does not preclude the option that progressive employers would have to attract skilled workers with even better benefits.
Where the Weather Better Fits My Mood
My wife and I flew out to the West Coast last Thursday to visit our California son, our daughter-in-law, and our two grandsons. We returned home yesterday with mixed feelings. It was school week vacation and we were able to provide a little reprieve for working parents although they were left to fend for themselves for Thursday and Friday.
The Santa Cruz area has been battered this winter by about a dozen “atmospheric rivers,” But we were lucky to have arrived in sunny weather and enjoyed sunshine every day of our stay. I am usually worried about fires and water shortages when I go to California because of the brown dusty environment of the last few years, but not so this year. Everything is jungle green and the reservoirs that were dry during our last trip to California in December 2021 and now filled to overflowing. The only negative remnants of the heavy weather are some spots where neighborhood roads are completely unpassable by cars and places where Highway Nine is down to one way. The San Lorenzo River has now receded into the confines of its banks and the homeless encampments along the river near Santa Cruz are populated once again. The Santa Cruz area is one of those places where most of the time “the weather fits your clothes.”
Today’s header was taken during a “boardwalk adventure” with our grandsons. The Santa Cruz Boardwalk opened in 1907 when I assume it was really a boardwalk. You can get a great perspective on the size of the amusement area from the nearby Santa Cruz Pier which at one-half a mile long is the longest wooden pier in the country.
These days the “boardwalk” is a well-maintained concrete walkway along the beach that is about a quarter of a mile of rides and attractions that make me dizzy. Thirty years ago, at a time when my judgment was not so good, I did the giant rollercoaster with my two older sons and vowed never to do it again. I have made good on my pledge over many visits since that one time when I succumbed to the taunts of my sons, I am a guy who likes to have both feet placed firmly on the ground. I don’t do bungy jumps, Ferris wheels, or rollercoasters.
We did not go to California for the rollercoasters or for the weather. Our family like almost every other family anywhere in the world has been impacted by COVID. My wife and I are the only family members to avoid it so far. Perhaps our success is due to our vaccinations and boosters, but I must believe our relative isolation has been a big factor. It has come at the price of disrupting our usual family interactions. It was high time to go to California again, but with the fear of being a late acquirer of COVID, the trip was probably even scarier than a rollercoaster ride!
Our return to the world continues in a few weeks with a short trip to South Carolina for my sixtieth high school reunion and then in late May and early June with a trip to France. I hope that you are getting out from under the fear of COVID and have your own plans for a full return to the world this summer.
Be well,
Gene
