The Morning Jolt

Law & the Courts

Obamacare Continues to Crumble

A man walks past the Supreme Court building in Washington, D.C., June 25, 2020. (Al Drago/Reuters)

On the menu today: The Trump administration asks the Supreme Court to invalidate the entire Affordable Care Act now that the individual mandate is no longer in effect, the Senate passes a bill to sanction China for eroding the limited autonomy of Hong Kong, and a quick refresher on a couple of the biggest Supreme Court decisions still outstanding this term.

Trump Administration Takes Aim at Obamacare

Late last night, officials for the Trump administration sent an 82-page brief to the Supreme Court, joining officials from nearly two dozen states in a lawsuit arguing that the erasure of the Affordable Care Act’s individual mandate has made the entire law unconstitutional.

In 2017, when Republicans in Congress failed to repeal and replace Obamacare, they settled for removing the individual mandate, the penalty levied against those who have no health-insurance coverage. Now, the administration is throwing its weight behind the argument that the removal of that key portion of the law invalidates the rest of it.

“Nothing the 2017 Congress did demonstrates it would have intended the rest of the A.C.A. to continue to operate in the absence of these three integral provisions,” solicitor general Noel Francisco wrote in the brief. “The entire A.C.A. thus must fall with the individual mandate.”

One Republican strategist recently told the New York Times that it’s “pretty dumb to be talking about how we need to repeal Obamacare in the middle of a pandemic.” And Nancy Pelosi has already hit the Trump administration for the brief, issuing a statement late last night: “President 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.”

Here’s some more detail from the Times on the origins of the administration’s decision to formally oppose the entire ACA:

The case the court will hear grows out of a lawsuit that Republican officials in 20 states, led by Texas, filed against the Department of Health and Human Services in February 2018, seeking to have the health law struck down. After Democratic victories in the 2018 midterm elections, two states, Wisconsin and Maine, withdrew.

When the case was argued in the trial court, the Trump administration, though a defendant, did not defend the law, siding instead with the plaintiffs. But unlike Texas and the other states, the administration argued at the time that only the law’s protections for people with pre-existing conditions should be struck down, but that the rest of the law, including its expansion of Medicaid, should survive.

Last year, however, the administration expanded its opposition, telling a federal appeals court that the entire law should be invalidated. In the meantime, another 17 states, led by California, intervened to defend the law, as did the House, now controlled by Democrats.

And here’s how the Wall Street Journal helpfully summarizes the arguments of those opposing the law:

A coalition of Republican-leaning states, led by Texas, then sued to strike down the entire health-care law, arguing that by eliminating the penalty, Congress implicitly destroyed the law’s constitutional basis in the congressional tax power. A federal district court in Texas agreed, in a decision upheld by the Fifth U.S. Circuit Court of Appeals, in New Orleans.

Officials from Democratic states, meanwhile, are lobbying the Supreme Court to ensure that the ACA remains constitutional, arguing that, according to the WSJ, “even if Congress’s power to impose an insurance mandate ended with the elimination of the tax penalty . . . the rest of the law should stand, including a ban on insurers denying coverage based on pre-existing conditions and other provisions intended to expand the number of Americans with health care.”

Repealing and replacing Obamacare has long been one of Trump’s key promises and talking points, and this roundabout attempt to somehow take apart what remains of the law might represent a last-ditch effort from an administration facing reelection. It remains an open question whether that gamble will pay off, especially considering that Democrats are all too happy to use the issue to portray Republicans as heartless for targeting the ACA during a pandemic.

This Bloomberg column from our own Ramesh Ponnuru last summer cautioned Republicans about the ways in which this lawsuit could actually be quite damaging to the GOP, and our editorial view here at NR is that the lawsuit is a mistake. Seeing the administration jump on the bandwagon isn’t the best development.

Senate Sanctions China for Violating Hong Kong’s Autonomy 

By unanimous consent, the Senate has passed legislation mandating sanctions on Chinese officials who attempt to curb Hong Kong’s already limited autonomy, an effort to protect human rights in the region. The bill would also place sanctions on companies that do business with those same officials.

The Senate also passed yesterday a resolution sponsored by Senator Josh Hawley (R., Mo.) specifically condemning the new national-security law that China has imposed on Hong Kong. “Beijing must know that its actions have consequences,” Hawley said.

Though some in the Trump administration have argued that these sanctions might make it more difficult for the U.S. government to conduct effective diplomacy with China, officials now say that the text of the bill gives the White House a great deal of flexibility in how the sanctions are levied.

The WSJ has more on why the Senate took this step:

The sponsors say China’s introduction of new national-security laws in Hong Kong made the legislation more urgent. Those laws, they say, dealt a blow to the territory’s autonomy as Beijing moves to stop pro-democracy protests that have challenged Chinese President Xi Jinping. . . .

Besides creating potential diplomatic tension as Chinese officials and government entities are blacklisted, the bill has additional teeth by targeting the financial sector. Banks found knowingly doing business with blacklisted officials and agencies would also be placed under sanctions.

One of the Trump administration’s remaining points of contention is a provision in the bill that gives Congress the ability to override a president’s decision to waive or terminate sanctions through a joint resolution of disapproval, according to people familiar with the matter. Such a resolution would have to pass both the House and Senate by a veto-proof two-thirds majority.

Meanwhile, a spokeswoman for the Chinese embassy said that “Hong Kong affairs are China’s domestic affairs that allow no external interference” and asked the U.S. to “immediately stop meddling with Hong Kong affairs and China’s domestic affairs as a whole before it is too late.”

Though congressmen have already introduced a companion bill in the House, and it is expected to pass on a bipartisan basis there as well, it remains an open question how aggressively Trump administration officials will choose to enforce these sanctions if and when the legislation is passed.

Waiting on the Supreme Court

I mentioned at the end of my Morning Jolt on Monday that we could see some big decisions coming down from the Court over the course of the week. That turned out not to be the case, at least for the couple of remaining cases that I have my eye on.

There are still more than a dozen cases pending that have been argued before the Court since January, but only a handful had arguments before April, and those are most likely the ones that we can expect a decision on early next week. Here’s a quick refresher on a couple of the most significant remaining cases.

One of them, Espinoza v. Montana Department of Revenue, has to do with school choice, specifically a tax-credit scholarship program enacted by Montana in 2015. The program offers a tax credit to taxpayers who donate to an organization that offers scholarships to students so they can attend private schools.

The case before the Court is a challenge to the ruling from Montana’s Supreme Court, which determined that the tax-credit program violates the state’s Blaine amendment. Montana is one of more than three dozen states that still has such an amendment in effect — holdovers from a period of intense anti-Catholic bigotry — blocking public funding for any “sectarian purpose,” including religious schools.

The petitioners argue that the Montana Supreme Court ruling violates the First Amendment’s religion clauses and the 14th Amendment’s equal-protection clause. The case presents a great opportunity for the Court to overturn the unconstitutional Blaine amendments once and for all.

The second case of interest is June Medical Services v. Russo, in which abortion providers are challenging a Louisiana regulation that requires abortionists to have admitting privileges at local hospitals in order to perform surgical abortions. The policy seeks to level the playing field, requiring abortion clinics to follow the same admitting-privileges regulation that currently applies to all other surgical centers in the state.

Of particular interest in the case are two questions. First, the regulation at issue is quite similar to the Texas law that the Court struck down in 2016 in Whole Woman’s Health v. Hellerstedt. For a Court looking to begin slowly reversing ludicrous decisions on abortion policy, June Medical might present the perfect opportunity. And second, the case deals with a sub-question of whether abortion providers have standing to challenge regulations on behalf of women; the state argues, quite convincingly, that the interests of abortion providers are actually distinct, and perhaps contrary to, the interests of women.

For more clarity on that and more, we’ll have to wait at least until Monday.

ADDENDUM: It’s been great filling in for Jim this week. See you all next time.

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