The Three Men Trump Is Using to Strip Health Care from 52 Million People
There is a lawsuit creeping forward in the Northern District of Texas that seeks to eliminate a key provision in the Affordable Care Act that prohibits insurance companies from denying health care coverage to people because of their medical history (preexisting conditions).
The lawsuit (filed by the state of Texas and 19 other states) alleges that the individual mandate requirement in the ACA can no longer be described as a tax because the penalty for failing to purchase insurance was eliminated in the massive tax break for the rich that Congress passed last year. Therefore, the plaintiffs argue, the individual mandate (with no penalty) is “untethered to constitutional authority.” The plaintiffs argue that the provisions that protect consumers from being denied health care coverage (or having to pay more) for a preexisting condition are invalid because those provisions are not severable from the individual mandate.
It is likely that the Texas judge assigned to the case will issue a declaratory judgment holding that the Affordable Care Act’s protections against denying coverage based on preexisting conditions are invalid beginning on January 1, 2019. The decision will then be appealed to the Fifth Circuit Court of Appeals, where it will likely be affirmed. President Trump has repeatedly stated that he would appoint judges who would strike down the ACA, and he has already confirmed five judges to the Fifth Circuit. Eventually, the lawsuit could wind up before the Supreme Court, with — if he is confirmed — Justice Kavanaugh providing the swing vote.
If the lawsuit prevails, one in four people living with preexisting conditions (such as diabetes, asthma, and cancer) will be forced to empty out their bank accounts or simply forgo health care altogether.
Last June, the Department of Justice joined this lawsuit. The lawyer spearheading the effort for the DOJ is Chad Readler, a Trump political appointee who is the Acting Assistant Attorney General.
Mr. Readler has had his fingerprints on almost every DOJ policy targeting vulnerable communities. He choreographed the DOJ’s Muslim Travel Ban, has been deeply involved in the work to permanently rescind the DACA program, has defended the Trump administration’s policy of separating immigrant children from their parents at the border, and has led the litigation seeking to ban open military service by transgender people.
As the Acting Assistant Attorney General, Mr. Readler was well placed by Donald Trump to file the lawsuit that would remove life-saving protections for 52 million people with preexisting conditions. After the DOJ decided to join the lawsuit, three DOJ lawyers assigned to the case promptly withdrew. One DOJ attorney even resigned over the move, which — according to reports — highlighted internal frustration generated by the decision to eliminate the ACA’s protections for people with preexisting conditions.
Mr. Readler is being rewarded by President Trump for his work to undermine civil rights protections and eliminate life-saving health care coverage with a nomination for a lifetime appointment to the Sixth Circuit Court of Appeals.
The lawsuit, which was filed in the Northern District of Texas, has been assigned to Judge Reed O’Connor.
Judge O’Connor is the go-to judge for ultra-conservative causes, especially ultra-conservative causes hostile to the LGBTQ community. Judge O’Connor has issued three nationwide injunctions that have had devastating consequences for the LGBTQ community.
After Obergefell v. Hodges was decided in 2015, Judge O’Connor issued a nationwide injunction prohibiting same-sex couples from enjoying equal access to the Family and Medical Leave Act. Then, in 2016, he issued a nationwide injunction halting the enforcement of President Obama’s Title IX guidance on transgender students. The DOJ and the Education Department rescinded that guidance and justified the rescission with Judge O’Connor’s injunction.
Judge O’Connor followed that injunction a few months later with another nationwide injunction halting any enforcement of the nondiscrimination regulations of the Affordable Care Act because the regulations protect transgender people. As a result of this nationwide injunction, the Department of Health and Human Services is issuing new regulations that will eliminate existing regulatory language clarifying that the ACA protects transgender people.
Most recently, Judge O’Connor presided over a case that resulted in a significant revision of the Federal Bureau of Prison’s Transgender Offender Manual, which eliminated key provisions clarifying that transgender people should be classified and housed in accordance with their gender identity.
Enter Judge Brett Kavanaugh.
Judge Kavanaugh has frequently argued that the individual mandate in the ACA violates the Commerce Clause in the Constitution, and has asserted that the mandate is inextricably linked to the preexisting (guaranteed issue) provision, which, he has said, “won’t work without the individual mandate attached.” With the elimination of the penalty for the individual mandate, it is clear that Judge Kavanaugh would easily find that the individual mandate does not fall within Congress’s taxing power, and he certainly would not hold that it was a proper use of Congress’s Commerce Clause.
What is most probable is that he would rule to affirm Judge O’Connor’s upcoming decision to eliminate the health care coverage for 52 million people.
