Solicitor General Noel Francisco packs in a string of rhetorical flourishes that may draw cheers at a Federalist Society legal conference but will inevitably appear as factual citations to back up attack ads that Democrats plan to run this fall against vulnerable Senate Republicans, in a redux of the messaging that proved so potent in the 2018 midterms.
The Trump team’s core argument is that every Republican who voted for the tax cuts three years ago knowingly voted to destroy the 2010 law in its entirely, not just to get rid of the mandate that individuals buy health insurance. And, because the Supreme Court previously upheld the constitutionality of the law on the grounds that the individual mandate is a tax, Trump’s lawyers say that the whole system became invalid once Congress got rid of the penalty for not carrying health insurance.
“Nothing the 2017 Congress did demonstrates it would have intended the rest of the ACA to continue to operate in the absence of these ... integral provisions,” Francisco writes in his brief, which is co-signed by four other Trump appointees at the Justice Department. “The entire ACA thus must fall with the individual mandate.”
The brief is full of little gifts like this to Joe Biden and Democrats who hope to ride his coattails down the ballot. Sen. Susan Collins (R-Maine) voted against repealing Obamacare in 2017, which she touts as evidence of her independence, but then she voted for the tax legislation. This brief can also be used as a cudgel to attack GOP Sens. Thom Tillis (N.C.), Joni Ernst (Iowa) and David Perdue (Ga.), who separately each voted to repeal the underlying law. Recent polls show those three senators are locked in tight races as they seek second terms. Appointed Sen. Martha McSally (R-Ariz.), who trails Democratic challenger Mark Kelly in multiple polls, also voted for the tax bill as a member of the House.
From a political perspective, the timing of the Trump administration’s maneuver to get rid of the law, root and branch, is suboptimal for GOP candidates on the ballot this year. The justices are unlikely to make a final decision until after the November election on the legal challenge by Republican state attorneys general, ensuring that this looms as an issue in the fall campaign.
Biden, the presumptive Democratic presidential nominee who was vice president when the law was enacted, began a concerted effort during a campaign stop in Pennsylvania on Thursday afternoon to link Trump’s response to the coronavirus with his bid to uproot the ACA. He argued that having survived covid-19, the disease caused by the coronavirus, could be considered a preexisting condition and said this could be used to deny coverage.
“Those survivors, having struggled and won the fight of their lives, would have their peace of mind stolen away at the moment they need it most,” Biden said. “They would live their lives caught in a vise between Donald Trump’s twin legacies: his failure to protect the American people from the coronavirus, and his heartless crusade to take health-care protections away from American families."
The House joined the opposition to the lawsuit when Democrats took control of the chamber last year. “Trump and the Republicans’ campaign to rip away the protections and benefits of the Affordable Care Act in the middle of the coronavirus crisis is an act of unfathomable cruelty,” Speaker Nancy Pelosi (D-Calif.) said in a statement responding to the new brief. “If President Trump gets his way, 130 million Americans with pre-existing conditions will lose the ACA’s lifesaving protections and 23 million Americans will lose their health coverage entirely.” (The 23 million figure comes from a recent analysis by the liberal Center for American Progress think tank.)
To be sure, Trump’s team maintains that the president still wants to protect people with preexisting conditions but with a new law that replaces the ACA. But he has never presented a plan for how to do so.
White House spokesman Judd Deere said in a statement that “Obamacare has been an unlawful failure” and “the American people deserve for Congress to work on a bipartisan basis with the President to provide quality, affordable care.”
Perhaps the American people do deserve that, but there is no indication it would actually happen if the law got struck down.
In the wake of the killing of George Floyd in police custody, for example, it has become increasingly clear that no meaningful federal legislation will be enacted on police reform before the election. Last night, the House advanced a bill drafted by Democrats that would limit qualified immunity for police officers and ban chokeholds, but Trump has threatened to veto it. And a competing proposal in the Senate was filibustered earlier this week after Republicans in that chamber declined to try to negotiate a compromise with Democrats. Similarly, despite the numerous mass shootings of recent years, the Senate has failed to pass any gun control measures.
Privately, some in the Trump administration have urged the president to argue for preserving some parts of the law to avoid political fallout for Republicans in November, especially amid the pandemic. Attorney General Bill Barr reportedly made that case during a private meeting at the White House last month. But he was overruled.
“If Donald Trump refuses to end his senseless crusade against health coverage,” Biden said Thursday in Lancaster, Pa., “I look forward to ending it for him.”
More on the coronavirus
Blunders by Arizona’s governor turned his state into the new ground zero for covid-19.
Arizona is facing more per capita cases than recorded by any country in Europe or even by hard-hit Brazil. “Maricopa County, which includes Phoenix, is recording as many as 2,000 cases a day, ‘eclipsing the New York City boroughs even on their worst days,’ warned a Wednesday brief by disease trackers at Children’s Hospital of Philadelphia, which observed, ‘Arizona has lost control of the epidemic,'" Jeremy Duda, Isaac Stanley-Becker and Chelsea Janes report. “Physicians, public health experts, advocates and local officials say the crisis was predictable in Arizona, where local ordinances requiring masks were forbidden until Gov. Doug Ducey (R) reversed course last week. State leaders did not take the necessary precautions or model safe behavior … When forbearance was most required, as the state began to reopen despite continued community transmission, an abrupt and uniform approach — without transparent benchmarks or latitude for stricken areas to hold back — led large parts of the public to believe the pandemic was over.
“This week, Arizona reported not just a record single-day increase in new cases — with Tuesday’s tally reaching 3,591 — but also record use of inpatient beds and ventilators for suspected and confirmed cases. Public health experts warn that hospitals could be stretched so thin they may have to begin triaging patients by mid-July. … Still, resistance to health precautions remains pronounced. At an anti-mask rally Wednesday, a member of the Scottsdale City Council, Republican Guy Phillips, shouted the dying words of George Floyd — ‘I can’t breathe’ — before ripping off his mask … At virtually every stage of the state’s pandemic response, the interests of business have held sway … Ducey is a former chief executive of Cold Stone Creamery.”
Ducey didn’t just block local governments from imposing restrictions to protect their own residents. His administration has threatened to cut off state funding in retaliation for such regulations. “The biggest challenge has been Governor Ducey tying the hands of mayors and county health departments,” said Regina Romero, the Democratic mayor of Tucson, who said she weighed an emergency proclamation mandating masks in mid-March but was advised against it by her city attorney. “There’s a real threat with money involved.”
Experts say he planted the seeds of this crisis in early May as the president was pushing states to reopen and coming to Arizona to tour a Honeywell plant. “The day before the president’s visit, Ducey announced plans to accelerate the reopening of his state’s economy, lifting restrictions on salons and barbershops and allowing restaurants to resume dine-in service. A chart displaying the number of new cases, which did not show the 14-day decline recommended by White House guidelines, ‘really doesn’t tell you much,’ Ducey said at his May 4 news conference. That evening, the state ended its partnership with the university modeling team whose projections plainly showed a rising caseload in Arizona. … Two days later, top health officials acknowledged having changed the testing count … with the potential to artificially lower the positivity rate.”
What’s happening in Arizona is playing out to varying degrees across the Sun Belt.
The situation is as dire right now in Florida, Texas and California as at any time since the start of the pandemic. Texas Gov. Greg Abbott (R) paused his state’s reopening yesterday, ordering hospitals in four counties to postpone elective surgeries. Epidemiologists are also seeing a “reverse summer effect.” Warm weather, rather than killing off the virus as hoped, is driving residents into indoor spaces with recycled air, where they’re more likely to catch the contagion.
“Early in the outbreak, Trump told governors they were on their own — for testing, medical supplies and stay-at-home orders. Now, in this new phase of soaring cases and reopenings, the effects of this decentralized decision-making are particularly noticeable and subject to politics, with some states making seemingly arbitrary decisions,” Reis Thebault and Abigail Hauslohner report. “On Thursday, the country reported more than 39,000 new cases, its highest-ever single-day count, according to data gathered and analyzed by The Post. The counties home to Dallas, Phoenix and Tampa all reported record-high averages on at least 15 straight days in June. … Several states — Arizona, Arkansas, the Carolinas, Mississippi, Tennessee, Texas and Utah — have recently reported new highs in the number of coronavirus patients hospitalized… Several states have been accused of manipulating data to make things look better than they are. In Georgia, one of the first states to lift restrictions, officials published a chart claiming to show cases declining over time — however, the data were arranged in descending order, not chronologically.”
Eighteen members of a North Texas family tested positive for the virus following a family gathering. "We knew this was going to happen, I mean this whole time this has been going on we've been terrified,” said Ron Barbosa, a volunteer EMT who didn’t attend the surprise birthday party. Three of his relatives are now hospitalized: his parents, who are in their 80s, and his sister, who is battling breast cancer. (ABC 8)
- A majority of Americans, 56 percent, believe the country is moving too quickly to reopen, while only 15 percent say it’s moving too slowly, according to a new ABC-Ipsos poll. Seventy-six percent of Americans say they’re worried about catching the virus, seven percent more than just two weeks ago.
- New Mexico paused its next reopening phase, which would’ve allowed for the reopening of more businesses, amid a rise in cases. (Steven Goff)
The head of the CDC said coronavirus cases may be 10 times higher than the 2.4 million cases reported.
Robert Redfield’s estimate, based on antibody testing and shared with reporters during a conference call, indicates that at least 24 million Americans have been infected so far. “Redfield said he believes 5 to 8 percent of the population has been infected so far,” Lena Sun and Joel Achenbach report. “Significantly, that would mean 92 to 95 percent remain susceptible to a coronavirus infection. Experts say this is the critical data point showing that the pandemic remains in its early stages and people need to continue to try to limit the viral spread.”
- A GAO report says the CDC's testing counts have been incomplete and inconsistent. "For example, testing data may not have included all tests performed by laboratories at point-of-care settings, such as physicians’ offices,” the Hill reports.
- The White House coronavirus task force plans on holding its first news briefing in nearly two months today. It doesn’t look like Trump will attend, and it will be at the Department of Health and Human Services. (John Wagner and Colby Itkowitz)
- Trump keeps saying Obama left him “no ventilators.” That’s false, the Obama administration left behind 16,660 working ventilators in the Strategic National Stockpile, enough to deal with the initial outbreak. (Glenn Kessler)
- Education Secretary Betsy DeVos partially retreated from her controversial position that states must share a larger percentage of their pandemic relief funds with private schools. (Laura Meckler)
- Trump campaign manager Brad Parscale and other senior Trump campaign staffers are in quasi-quarantine following the Tulsa debacle. They're working remotely and will get tested before returning to work, the Daily Beast reports, adding that “the campaign plans to step up its coronavirus testing regime going forward in order to avoid similar incidents.”
Biden said he would require Americans to wear masks in public.
In an interview with the Pittsburgh CBS affiliate, Biden said he would attempt to leverage federal power to mandate mask wearing. “The one thing we do know is these masks make a gigantic difference,” he said. “Anyone to reopen would have to make sure that they walked into a business that had masks.” (Matt Viser)
- Fans will be allowed to attend the Kentucky Derby, with certain restrictions. They’ll be “encouraged” to wear masks and wash their hands. Specifics on the attendance reduction will be released in the near future. (Matt Bonesteel)
- A Wisconsin music festival originally billed as a “COVID Herd Immunity Fest” changed its name after people slammed the idea on social media, and at least one band pulled out. The three-day event is now the “Mini July Fest.” (Katie Shepherd)
- Dozens of sheriffs are staging a rebellion against statewide mask requirements. (Teo Armus)
Quote of the day
“The president of the United States is not a civilian,” said a White House spokesman, explaining why Trump will not comply with a state quarantine order when he visits New Jersey. (CNBC)
The Fed is cracking down on big banks to avert a possible financial meltdown.
“The Fed ordered the country’s 33 biggest banks, including JPMorgan Chase, Wells Fargo and Bank of America, to suspend their stock buyback programs and limit dividend payments to shareholders in the third quarter. The banks must also submit new plans for maintaining enough of the capital needed to survive a downturn,” Renae Merle and Rachel Siegel report. “A Fed analysis of the banks’ finances showed that they are in good shape now but that some could struggle in the worst-case scenarios of the economic recovery.”
The fallout continues: Macy’s slashed 3,900 white-collar jobs, roughly 25 percent of its corporate workforce. These cuts come on top of the 2,000 layoffs announced in February. Chuck E. Cheese’s parent company filed for bankruptcy. And Apple re-closed 14 stores in Florida because of new case flare-ups.
Virginia's three largest universities proposed a $200 million plan for virus testing during the upcoming school year.
“‘In our shared view, expanded testing and the associated costs are unavoidable. Prompt action will allow both for more effective implementation of such testing and for more efficient management of the potential costs,’ James E. Ryan of the University of Virginia, Michael Rao of Virginia Commonwealth University and Timothy Sands of Virginia Tech wrote on June 8 in a letter to state Health and Human Resources Secretary Daniel Carey,” Gregory Schneider and Nick Anderson report. “The plan asks the administration of Gov. Ralph Northam (D) to cover the expenses with federal coronavirus relief funds and suggests the universities would carry out the tests in coordination with the state health department.”
Maryland’s Prince George County, which was hard-hit by the virus, will move to Phase 2 of reopening on Monday. The move allows recreational establishments, including casinos, bowling alleys and miniature golf facilities, to reopen at half capacity, while amusement parks can reopen at 40 percent capacity. Meanwhile, D.C. Mayor Muriel Bowser urged residents not to go to the Mall on July 4 even though the Trump administration will set off the traditional fireworks display there. (Julie Zauzmer, Rachel Chason and Gregory Schneider)
The virus is jeopardizing a “very, very finite” workforce in Africa: Doctors and nurses.
“The coronavirus pandemic has tightened its grip on much of Africa, where reported cases have more than tripled over the last month, jeopardizing overstretched medical teams as the need for care soars,” Danielle Paquette reports. “Now African health officials and medical professionals are raising concerns about cracks in a crucial armor: Infections among health-care workers have shot up 203 percent since late May, according to the World Health Organization’s Africa arm, following a spike in community transmission and a drop in access to protective gear.”
- The virus is sweeping through Afghanistan’s security forces, “according to senior Afghan security officials from four provinces who report suspected infection rates of 60 to 90 percent among their units," per Susannah George, Aziz Tassal and Sharif Hassan.
- Two U.S. Navy ships just broke the record for days spent at sea – 161 – to avoid outbreaks. (Shepherd)
America's racial reckoning
Protesters demand the removal of a Lincoln statue in D.C. that shows him standing over a kneeling African American.
“Federal and D.C. law enforcement patrolled and erected barriers earlier in the day around the Emancipation Memorial, which stands in Lincoln Park in the Capitol Hill neighborhood. Protesters had announced plans to gather at the statue both Thursday and Friday nights, though it was unclear whether they would seek to topple it or simply rally in favor of a more orderly removal,” Hannah Natanson, Joe Heim, Michael Miller and Peter Jamison report. Bowser “argued for the latter approach at a news conference Thursday, saying the city should debate the fates of statues and ‘not have a mob decide they want to pull it down.’ … Critics say the Emancipation Memorial — which shows Lincoln holding a copy of the Emancipation Proclamation as an African American man in a loincloth kneels at his feet — is demeaning in its depiction of African Americans and suggests that they were not active contributors to the cause of their own freedom.”
U.S. Park Police and the FBI are searching for the protesters who tried to topple the Andrew Jackson statue.
“The Park Police issued a release Thursday night that included photos of 15 individuals on or near the bronze statue and called for community members to contact the department’s criminal investigations unit with identifying information,” Emily Davies reports. “On Thursday evening, as hundreds of people prepared for another night of demonstrations against racial injustice and police violence, fencing erected around Lafayette Square kept protesters away from the Jackson statue.”
St. John’s Episcopal Church is now fenced in and at the center of a new controversy.
“Leaders of the yellow church that has been at the center of the District’s Black Lives Matter demonstrations say they are concerned about how police cleared protesters from the area earlier this week — and upset that the city built a fence around their property in the name of safety,” Marissa Lang, Julie Zauzmer and Michelle Boorstein report. “Up went high fencing, blocking the park all along the south side of H Street, and blocking St. John’s — but not other nearby buildings — on the north side. Episcopal Bishop Mariann Budde and the Rev. Robert Fisher, the church rector, say church leaders gave the city permission to put up fencing but believed the entire block was being cordoned off and didn’t want to be the only structure outside the barrier."
- “D.C. lawmakers on Thursday advanced measures to cut $15 million from the police department budget, a change that defund-the-police activists dismissed as insufficient and the police chief warned could result in the loss of hundreds of officers,” Fenit Nirappil and Peter Hermann report.
- In the Capitol, the House passed a broad bill that would revamp law enforcement practices. With Trump threatening to veto the measure, it passed on a largely party-line vote of 236 to 181. Three Republicans broke ranks: Reps. Will Hurd (Tex.), the lone black GOP member of the House; Brian Fitzpatrick (Pa.), and Fred Upton (Mich.). (Felicia Sonmez, Paul Kane and Rhonda Colvin)
The U.S. military is stepping up efforts to weed out white supremacists in its ranks.
“As Ohio National Guard soldiers were dispatched to help quell unrest in Washington, D.C., one was keeping a secret from his commanders: He had frequently espoused neo-Nazi views among like-minded friends. Pfc. Shandon Simpson had participated in a white supremacist channel on the Telegram messaging app called RapeWaffen Division,” Dan Lamothe and Souad Mekhennet report. “The channel’s members have touted the rape of female police officers, posted images with Confederate battle flags and swastikas and called white women who have children with men of other races ‘traitors.’ … Simpson is now being processed for a separation from the military, said Stephanie Beougher, an Ohio National Guard spokeswoman. …
“On Monday, the Justice Department charged Pvt. Ethan P. Melzer in a plot in which authorities said he worked with the extremist group Order of Nine Angles in an attempt to kill fellow American soldiers abroad. Members of the ‘racially motivated violent extremist group’ have espoused neo-Nazi and satanic beliefs and admiration for both Hitler and Osama bin Laden, the indictment said. … A general recommendation for O9A adherents is to join the armed forces to gain combat experience in anticipation of war."
Meanwhile, the White House is intensifying efforts to install Trump loyalists inside the Pentagon. This comes at a moment when Trump’s relationship with Defense Secretary Mark Esper has become strained, Missy Ryan, Paul Sonne and Josh Dawsey report. White House officials are redoubling their efforts as Trump complains that he has never had a defense secretary who is fully aligned with his foreign policy views and accuses Pentagon officials of trying to undermine him, according to a senior administration official.
NASCAR released a photo of the noose found in Bubba Wallace’s garage stall, saying it can’t determine who tied it.
“NASCAR swept all the stalls at the 29 tracks across the country that host its races. Of those 1,684 stalls, 11 had garage door pull ropes that were tied in knots. Of those 11, just one was tied in a noose: the one in the Talladega (Ala.) Superspeedway stall assigned to the No. 43 team of Bubba Wallace,” Liz Clarke reports. “NASCAR President Steve Phelps shared those findings Thursday in a conference call announcing that the sport had concluded its internal investigation of the incident that the FBI determined was not a hate crime but that nonetheless thrust stock-car racing into an ugly national spotlight and roiled its fan base. … ‘As you can see from the photo, the noose was real, as was our concern for Bubba,’ Phelps said.”
- Disney’s Splash Mountain, based on the controversial 1946 movie “Song of the South,” will get a new theme based on the 2009 movie “The Princess and the Frog,” Disney’s first animated film featuring a black princess. (Hannah Sampson)
- The Dixie Chicks changed their name, dropping “Dixie.” Now they'll just be The Chicks. (NYT)
As fireworks complaints rattle cities nationwide, police departments are promising to crack down.
Police in Lansing, Mich., said they’ll deploy resources to target fireworks activity, like officers in New York City. In San Bernadino, Calif., police have seized about 3,270 pounds of illegal fireworks. In Denver, police said they received 750 calls about fireworks in one week, more than 10 times what they received during the same period last year. Boston police said people threw fireworks at officers responding to complaints. (Shayna Jacobs and Mark Berman)
- Philadelphia officials announced a moratorium on the use of tear gas and apologized for their response to a June 1 protest. The announcement by the city’s mayor and police commissioner came hours after the New York Times published an investigation into the use of force by police.
- The school board in Oakland, Calif., will bar police officers from schools. Meanwhile, school boards in Chicago and L.A. voted to keep police in public schools despite protests. (Guardian)
- Atlanta Mayor Keisha Lance Bottoms (D) has seen her stock fall in the veepstakes after her police department became the center of national debate after video showed a white police officer shooting and killing Rayshard Brooks, a black man. (Vanessa Williams and Haisten Willis)
Other news that should be on your radar
Trump is racing to open more than two-thirds of the largest swath of U.S. public land to drilling.
The Trump administration issued a proposal yesterday to remove wildlife protections for a tract of land in Alaska that have been in place for more than four decades. Indeed, Presidents Bill Clinton, George W. Bush and Barack Obama all enlarged the protected areas. But Trump appointees at the Bureau of Land Management are pushing to allow fossil fuel extraction in roughly 82 percent of the National Petroleum Reserve-Alaska on the state’s North Slope. “Less famous than the nearby Arctic National Wildlife Refuge, it is one of the most ecologically valuable tracts of federal property — providing a critical refuge to polar bears as well as tens of thousands of migrating caribou and waterfowl,” Juliet Eilperin and Steven Mufson.
“The reserve, about the size of Indiana, is also one of the most promising onshore oil prospects in the country. A recent analysis by the U.S. Geological Survey offered a mean estimate of 8.7 billion barrels in undiscovered oil and 25 trillion cubic feet of natural gas. The BLM posted notice of its Final Environmental Impact Statement on Thursday, and is expected to issue a final Record of Decision within 30 days. Environmentalists and some Alaska Natives, who have lived on the North Slope for millennia and depend on its game for subsistence, are likely to challenge the decision once it’s final.”
- Trump’s pick to replace the U.S. attorney for the Southern District of New York refuses to commit to recuse himself from probes of the president’s associates. (Shayna Jacobs)
- The Supreme Court sided with the Trump administration on limits for asylum seekers, saying those who are quickly turned down by U.S. immigration officials do not have a right to make their case in federal court. The decision validates the Trump administration’s moves to deport people who enter the United States illegally, Robert Barnes and Nick Miroff report. The ruling was 7 to 2. Justices Sonia Sotomayor and Elena Kagan dissented.
- Trump is considering ending a decades-old practice of informally notifying Congress of major arms sales to foreign countries. (Foreign Policy)
- Disgraced lobbyist Jack Abramoff was charged with illegally lobbying for a fraudulent cryptocurrency project, AML BitCoin. Abramoff is the former GOP insider who was at the center of a scandal in the aughts that led to 20 convictions, including two officials in George W. Bush’s administration, a member of Congress and other lobbyists. He served 43 months in prison. (Bloomberg)
- Clues to Mary Trump's dark view of Donald Trump can be seen in lawsuits, and interviews with former colleagues and teachers, academic papers and a series of now-deleted tweets, including one that said her uncle’s election was the “worst night of my life.” A Queens court judge dismissed a petition yesterday by the president's brother, Robert, to get a temporary restraining order to halt publication. (Michael Kranish)
Social media speed read
Democrats dunked on Sen. Tom Cotton (R-Ark.) for suggesting that only lobbyists and politicians live in D.C.:
And here's a chilling update from the front lines of the coronavirus fight in Arizona:
Videos of the day
On what would have been Tamir Rice’s 18th birthday, his mother addresses PTSD and police reform:
Stephen Colbert blamed Trump for starting a culture war over wearing face masks:
Seth Meyers said Trump is living in a different reality where the virus is gone: