Small “d” democracy
By Mark Lurinsky
Two momentous pieces of news in the final weeks of 2019—one, a piece of House legislation and the other a crucial Court of Appeals ruling—tell us what the headline issue of the 2020 national elections should be: once again, healthcare.
By a vote of 230-192, the House passed the single most ambitious legislation to date to rein in out-of-control prescription drug prices. H.R. 3, sponsored by Rep. Frank Pallone (D-NJ-6) would allow Medicare to negotiate the price of expensive prescription drugs with manufacturers, as the Veterans Administration and most other advanced countries already do. The lower, negotiated prices would apply to both all government sponsored Medicare Part D plans, and to Americans covered by private insurance. For the first time, Medicare would also cap the out-of-pocket prescription costs of seniors at $2,000 per year.
However, this long-sought[1] and immensely popular change has been universally opposed by Republicans in the Senate, and GOP leader Mitch McConnell, the self-proclaimed “grim reaper” of legislation, has promised not to allow a vote on it. Moreover, President Trump, who has made a great show of his campaign promise to lower prescription costs, and earlier spoke favorably of the Democratic proposal, has sided with McConnell and the pharmaceutical lobby and has now threatened to veto H.R. 3 should it somehow get through the Senate.
On December 19, two-Republican appointed judges in the New Orleans-based 5th Circuit Federal Court of Appeals ruled, against a vehement dissent of the third judge on their panel, that the Affordable Care Act should now be considered in whole or in part “unconstitutional.”
If you think that the loss of Obamacare might not affect you or your family, you’re probably wrong. In addition to creating the subsidized marketplace for those who lack access to private insurance through their jobs (covering about 12 million households) and expanding Medicaid to some 13 million more people, the ACA allowed adult children to stay on their parents’ insurance until age 26, banned annual or lifetime caps on coverage and required private plans, including employer-sponsored plans, to cap enrollees’ annual costs. The ACA also famously forbade insurers to refuse coverage or charge more for coverage in the individual market for people with “pre-existing conditions”—though the Trump Administration has used its regulatory power to promote an expansion of “short-term plans” that can exclude such coverage. Hundreds of other ACA provisions affecting coverage and provider payment, particularly in Medicare and Medicaid, are now embedded in every aspect of the way healthcare is delivered in our country. These include mandatory free preventive care in all plans, including Medicare; reductions in out-of-pocket costs in Medicare Part D; and cuts in the growth of Medicare payments to hospitals and Medicare Advantage plans that have saved hundreds of millions of dollars.
While immediate action against the ACA was stayed in the State of Texas v. USA case ruling pending further appeal, what the circuit court panel did do is nonetheless ominous. The judges ordered the case to remain in legal limbo for an indefinite period to allow the hard-right Fort Worth, Texas Federal District Court Judge Reed O’Connor (author of the trial-court decision) time to refine his 2018 ruling that the ACA as a whole should be struck down, an opinion that was considered outrageous by the great majority of both liberal and conservative legal scholars and one of the worst instances of extreme right-wing judicial activism in years. In brief, the lawsuit seeking to void the ACA is based on a tendentious reading of Chief Justice John Roberts’s 2012 decision upholding the constitutionality of the ACA’s “individual mandate”—the requirement that everyone who has access to affordable insurance obtain it or else pay a penalty. Since Roberts held that the mandate was a permissible exercise of Congress’s taxing power, the Republican plaintiffs claimed, and O’Connor agreed, that the reduction of the tax penalty to zero, as part of the 2017 Trump tax law, would negate both the constitutionality of the mandate itself and, somehow by extension, the whole of Obamacare. [2]
One immediate concern is that this new veneer of legal validation to the Trump administration’s ongoing attacks on Obamacare would add to doubts about the Act’s future and make the public less likely to continue to enroll in large numbers, prompting insurance companies to increase future premiums out of fear remaining enrollees would be sicker than the current risk pool.
What about the Supreme Court?
The perverse actions of a single federal district courthouse or, for that matter, a single panel of one of the 13 federal circuit courts, doesn’t mean that all hope for survival of the Affordable Care Act is dead. If an appeal of the 5th Circuit ruling reaches the Supreme Court as currently composed, odds are that the court’s four liberal justices, joined at least by John Roberts, will again uphold the ACA’s constitutionality.[3]
US Supreme Court Building
But that presumption hangs by a thread. By directing the Texas case back to Judge O’Connor for an indefinite period of further review, the two Republican-appointed circuit court members have also held the door open for a change in the composition of the high court through the potential death or retirement of its members, so it’s uncertain who would actually be the final legal arbiters.[4]
A Way Forward in 2020
Healthcare is the issue that above all others has the capacity to touch directly on the immediate well-being of all American families. It is also the issue on which the contrast between the two political parties, exemplified by recent events, could not be more stark: Democrats are moving forward to ensure affordable healthcare for all and Republicans are pushing to take away healthcare rights.
In this situation, we have to accomplish three things in 2020: (1) protect Democratic gains in the House of Representatives, (2) install a Democratic Senate and (3) put a Democratic president in office.[5]
Activists in New Jersey should start the new year by making space in their calendars for the hard work this will entail in the coming months, including canvassing in the vulnerable districts of our newly elected House reps that we helped elect in 2018, and joining bus trips to support the Democratic presidential nominee in neighboring Pennsylvania for as many times as it takes. Letters to the editor and contributions to BlueWaveNJ and to the candidates here and around the country will be particularly important as well.
Let’s resolve to fight for the healthcare that Americans deserve.
Mark Lurinsky has been an activist on matters of public policy since 1968. He is currently a member of BlueWaveNJ’s Electoral Reform Working Group and is co-chair of the Healthcare Committee.
Under the blog title Small “d” democracy, Mark will continue to weigh in on the current issues that define how our country can become a more just, equal, and democratic society.
[1] The proposals for prescription drug coverage for seniors under Medicare Part D were first advanced by Congresswoman (not-yet-Speaker) Nancy Pelosi and Senator Tom Daschle in the 1990s and then by President Bill Clinton. However, the George W. Bush administration blocked the provisions to empower Medicare to negotiate with pharmaceutical companies when the Medicare Modernization Act of 2003 was passed.
[2] Amazingly, the 5th Circuit ruling disregarded a precedent decided by its own circuit in 1994, which a friend of the court brief filed by the American Medical Association and others cited in their opposition to Texas: The power to tax a transaction under a statute does not constitutionally go away even if it becomes federal policy not to collect any of the permitted tax. It’s broadly understood, moreover, that the rates of tax and tax penalties are constantly changing through modifications in the tax laws that are put through every few years, so setting the current rate of penalty to zero should not give rise to fundamental changes in non-tax aspects of enacted statutes. The public record makes it clear, in fact, that the Republican-dominated 115th Congress could never have expected to strike down the entire ACA in its end of the year 2017 tax bill, for the simple reason that it’s leadership couldn’t muster the votes for an actual repeal after John McCain joined his Democratic colleagues and two other Republicans on the Senate floor to give his dramatic “thumbs down” to the last significant repeal bill earlier that year.
Constitutional law scholars like University of Michigan Professor Nicholas Bagley have also pointed out that the O’Connor decision, and now the 5th Circuit ruling, also chose to completely ignore the fact that the plaintiffs had no legal standing to sue, since the 2017 tax law they cited prevented anyone from actually being harmed by incurring any tax penalty.
GOP attorneys general and governors in 20 states (now down to 18) resorted to what’s commonly known in the legal profession as “venue shopping” by filing their suit in the location where Judge O’Connor, a George W. Bush appointee who is known to reliably rule against Obama-era federal policies, is the only justice who isn’t semi-retired, and O’Connor, predictably, found 100% for the anti-ACA case. The 5th Circuit ruling substantially supporting O’Connor’s opinion was itself also bizarre for a shockingly partisan reference that favorably cites a Congressional Tea Partyer’s characterization of the ACA as a “fraud on the American people.”
[3] As of this writing, California’s attorney general Xavier Becerra, with a coalition of 20 states supporting the ACA in the case and including the U.S. House of Representatives, has asked for a fast-track hearing in the case from the Supreme Court, but it would be unusual for the high court to step in before all lower court matters related to the case have been completed.
[4] President Trump and his supporters are clearly hoping that a retirement or death of Ruth Bader Ginsburg and/or Steven Breyer, now 86 and 81, respectively, the two oldest jurists on the Court, could give him another opportunity to make an appointment that alters the ideological composition of that body, either during 2020, or, should our democracy fail to stop it, during a second Trump term.
A recent Washington Post story reminds us, ominously, that Donald Trump, relying on Mitch McConnell’s control of the Senate, has already installed 187 judges to the federal bench, including 50 appellate court justices, a new record for a president with only three years in office. In fact, about one-fifth of the nation’s federal trial judges and one-fourth of the appellate judges are now Trump appointees, and three appellate circuits (including the New York-based 2nd) have been flipped to GOP dominance. According to Slate legal columnist Mark Joseph Stern, this has been particularly devastating in the 5th Circuit, where Trump has now appointed 5 of the court’s 17 active judges, who have immediately allied themselves with the most ideologically extreme previously GOP-appointed members of the circuit (including Judge Elrod, the principal author of the Texas case appellate decision). This shift has sidelined both the remaining minority of Democratic-appointed justices and the several moderate conservatives still on the circuit who leaned right but nonetheless supported the tradition of judicial restraint and adherence to precedent. A high proportion of the Trump/McConnell–appointed judges are relatively young, which creates an immense problem for the federal courts for perhaps a generation or more.
[5] It would clearly not be enough, for example, to elect a Democratic president and leave McConnell to rule over the Senate, which would predictably give him complete power to block appointments to the courts as he ruthlessly did in the last two years of the Obama administration. The necessity of a three-pronged strategy in 2020 may seem perfectly obvious, but I suggest that it needs to be continually reiterated, since so much of the media’s attention focuses us exclusively on the presidential candidates.