“Striking the entire ACA … because of a single unconstitutional provision is going to deny the law’s protections for all those Ohioans and that unquestionably is the highest-visibility impact,” Yost told me in a phone interview last week.
The high-stakes lawsuit, which the U.S. Court of Appeals for the Fifth Circuit is expected to rule on within the next two months, has pitted 18 GOP-led states and the Trump administration against nearly three dozen Democrat-led states over the nearly 10-year-old health-care law.
The Republican AGs are trying to get the entire law struck down, hinging their arguments on the fact that Congress zeroed out the basis for its constitutionality — its penalty for being uninsured.
But two Republican AGs – Yost and Montana’s Tim Fox – are bucking the party line, joining a wide circle of conservative legal experts who are skeptical of the whole effort.
The two have filed a brief with the appeals court asking it to uphold the ACA by reversing a federal district judge’s December decision blocking its large health coverage expansions and consumer protections.
There’s a huge practical concern here for Yost and Fox. They’re both from states that accepted the ACA’s Medicaid expansion for people earning slightly above the federal poverty level. Add in marketplace enrollees in both states, and a total of nearly 1 million people in Ohio and Montana have health coverage because of the ACA.
Still more Ohio and Montana residents have more comprehensive coverage because of the law’s requirements and are protected against higher premiums or rejection of coverage based on preexisting conditions. If the courts ultimately strike down the ACA, these people could be suddenly stripped of health coverage they’ve now relied on for several years.
Yost was initially considering whether to join the other GOP attorneys general opposing the ACA, he told me. But as he and his team looked more closely at their arguments, he decided the district court that agreed with them got it wrong, very wrong.
“As we looked at the law, we concluded we thought the district court didn’t have a right,” Yost said.
So Yost directed his staffers to write a legal brief laying out the reasons the ACA should stay law even without the mandate. His staff then shopped it around to other states, and Fox was the sole AG to sign on.
“The District Court’s decision purports to invalidate the Affordable Care Act for the entire nation — from Big Bend country to Big Sky and Big Ten country,” the brief says. “The court’s decision, if affirmed, will deprive millions of non-elderly Ohioans and Montanans of coverage for pre-existing conditions.”
Concerns about expanding judicial power form the crux of Yost and Fox’s argument. Their brief warns that if judges sided with Republicans and knocked down the entire ACA, it would create a dangerous new precedent giving courts much broader ability to nullify laws passed by Congress.
“I don’t like judicial activism in its liberal or its conservative forms,” Yost said. “The AG’s job is to make sure the courts aren’t activist in upending the constitutional order.”
Yost and Fox stressed they don’t entirely agree with the position of the Democratic AGs defending the law. The Democrats say the penalty for being uninsured is constitutional, while the two Republicans say it’s not. That’s the first question the appeals court will have to answer.
If the court decides the now-extinct penalty was, in fact, unconstitutional, that raises a second question. Can the remainder of the law be “severed” from it, and stand without it? And that’s where Yost and Fox agree with Democrats.
“My concern is in the rule of law,” Fox told me. “Ultimately my job is to defend and protect the rule of law. As we’ve stated in our brief, the jurisprudence is such the individual mandate should be declared unconstitutional and severable.”
The arguments here are confusing, because they have to do with a 2012 case challenging the constitutionality of the individual mandate. The Supreme Court found the mandate constitutional by defining its accompanying penalty as a tax. But now that penalty is gone, repealed by Congress, so the Republican-led states say the rest of the law has no constitutional basis on which to stand.
But here’s the catch: By repealing the mandate penalty while leaving the rest of the law in place, Congress showed it’s just fine with a mandate-less ACA. The judicial branch would essentially be thumbing its nose at Congress by throwing out the entire law, Yost and Fox argue.
In their brief, they warned their follow Republican AGs that “what goes around comes around.”
“If one court can ignore the strict rules and precedents governing non-severability for the Affordable Care Act, what is to stop others from doing the same when some other law is at issue?” they wrote. “Absolutely nothing.”
Yet both AGs seemed reticent to directly criticize their colleagues from other states. Yost said he spoke over the phone last week with Texas AG Ken Paxton, who is leading the arguments against the ACA.
“There was a wonderful, cordial conversation,” Yost said. “He understands we have a disagreement here and it was very amicable.”
AHH, OOF and OUCH
AHH: As Democrats prepare to take on Trump in the 2020 presidential election, there’s concern about just how far to the left candidates have shifted on issues like health care and immigration, our Post colleague Matt Viser reports.
On health insurance, for example, some leading presidential candidates have expressed support for eliminating private insurance coverage, which is something upon which most Americans depend. Just former vice president Joe Biden has vocally opposed ending private insurance coverage among the top four Democrats in national polls. The 10 candidates onstage during the second night of the first presidential debate last month also all raised a hand when asked if they would support offering health insurance to undocumented immigrants (though some candidates later said they didn’t support full coverage).
Shifts like that are “triggering new worry that it comes at a cost: confirming Republican arguments that Democrats are far out of the mainstream, a threatening posture when moderate suburban voters have been the linchpin to winning general elections and down-ballot races,” Matt writes.
He points to Sen. Michael Bennet (D-Colo.), one of the Democratic presidential candidates, who has expressed particular concern about eliminating private health insurance.
“If we nominate someone that is for that plan, we will not win the presidency, and we will have no hope of winning a majority in the Senate,” Bennet said, referring to ending private insurance. “We should be on offense on health care. But if we’re going to go into this election talking about taking away [employer-based] health insurance for 180 million people, I guarantee we will be on defense.”
— Biden has unveiled a proposal that will expand the ACA and include a public option, presenting an alternative to the Medicare-for-all system some of his rivals for the nomination have embraced, our Post colleague Sean Sullivan reports.
“I understand the appeal of Medicare-for-all, but folks supporting it should be clear that it means getting rid of Obamacare, and I’m not for that,” Biden said in a video released by his campaign. “I was very proud the day I stood there with Barack Obama, and he signed that legislation. . . . Starting over makes no sense to me at all.”
“Biden’s plan, which campaign officials estimate would cost $750 billion over 10 years, would also expand tax credits to pay for health premiums, and it would create a new coverage option to help people living in states that have resisted the ACA’s expansion of Medicaid,” Sean writes.
He adds: “The dispute between Biden and [Bernie] Sanders, who in many ways represent the ideological poles of the Democratic field, has ramped up is recent days. Biden said he had ‘profound differences’ with Sanders and another candidate on health care and suggested their approach could imperil people’s coverage, prompting Sanders to forcefully rebut him. And Sanders plans to deliver a speech Wednesday to confront opponents of the single-payer, government-run plan he has long championed.”
OOF: At least 18 migrant children under the age of 2 were separated from their parents and “kept apart for 20 days to half a year,” according to a report released by the House Oversight Committee. Nine of the infants were under 1-year-old.
“Friday's report, based on data obtained by the committee under subpoena from the Trump administration, provides new information about at least 2,648 children who were separated from their parents,” CNN’s Priscilla Alvarez reports.
More than 80 of the children separated from their families were transferred to multiple facilities run by the Department of Health and Human Service’s Office of Refugee Resettlement, the report found. More than 400 were moved around to numerous Customs and Border Protection facilities and at least five children were moved to several Immigration and Customs Enforcement facilities.
OUCH: Health officials in Congo have confirmed the first Ebola case in the city of Goma, which has more than a million people, The Post’s Max Bearak reports.
The emergence of the virus in Goma could be a sign of the outbreak’s escalation – the virus is now located in two cities with more than a million people, including Butembo.
“The new case in Goma traveled there from Butembo by bus, according to the Health Ministry. All the passengers of the bus are set to be given an experimental vaccination that has proven largely successful. Then health workers will follow up with all contacts made by the confirmed case as well as all the passengers,” Max reports. “…The new case in Goma traveled there from Butembo by bus, according to the Health Ministry. All the passengers of the bus are set to be given an experimental vaccination that has proven largely successful. Then health workers will follow up with all contacts made by the confirmed case as well as all the passengers.”
— A pregnant woman was shot in Virginia last week, just five miles from the state capitol, where the Republican-controlled legislature adjourned a special legislative session on gun control after an hour and a half without considering any bills.
“Less than two hours after the lawmakers adjourned, gunfire ripped through a courtyard at Lafayette Gardens, an affordable-housing complex next to the train tracks in south Richmond,” our Post colleague Michael E. Miller reports. “…Police swarmed the complex as the critically injured woman was rushed to VCU Medical Center, where she and her baby were stabilized. Police have not released her name or made any arrests.”
The shooting was one of many that residents of the apartment complex say have occurred in recent months in a city that has seen homicides decline but is “still menaced by criminals with illegally obtained guns.” “Last year, 284 people were slain with a firearm in the Old Dominion, according to state police, down slightly from 302 in 2017. But many people also use guns to kill themselves. In 2017, more than 1,000 Virginians died from some form of gun violence — more deaths than those caused by motor vehicle accidents,” Michael writes. “Again and again, however, the state legislature has shied away from imposing new restrictions on access to guns.”
—An Oklahoma judge upheld a state ban on a second trimester abortion method.
The judge did not to strike down a 2015 state law that bans the procedure known as dilation and evacuation. The Guttmacher Institute, which supports abortion rights, says the procedure is the most common in second-trimester abortions and accounts for an estimated 95 percent of the 11 percent of abortions across the United States that take place after the first trimester of pregnancy.
Julie Rikelman, Litigation Director at the Center for Reproductive Rights, told CBS News’s Kate Smith the group plans to appeal Friday's decision to Oklahoma’s state Supreme Court.
"There really is no other standard method of care for women at that point in their pregnancy," Rikelman told Kate. "It really puts doctors and women in an impossible situation."
“A handful of other states — including Arkansas, Kansas, Kentucky and Texas — have passed similar bans on the specific procedure method, but all have been struck down by judges, according to the Center for Reproductive Rights,” Kate reports. “In June, the Supreme Court decided not to review a lower court's ruling that struck down an identical ban in Alabama that prohibited dilation and evacuation abortions.”
— And here are a few more good reads:
HEALTH ON THE HILL
- The House Judiciary Subcommittee on Immigration and Citizenship holds a hearing on overcrowding and prolonged detention at CBP facilities.
- The House Energy and Commerce Subcommittee on Oversight and Investigations holds a hearing on the spread of fentanyl on Tuesday.
- The House Education and Labor Subcommittee on Civil Rights and Human Services holds a hearing on strengthening federal support to end youth homelessness on Tuesday.
- The Bipartisan Policy Center holds an event on surprise medical bills on Wednesday.
'He knows better': Trump tweet targeting minority, liberal congresswomen prompts outcry: