Dems tee up new document fight with DOJ over Obamacare

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House Democrats are mounting yet another confrontation with the Justice Department that could lead to subpoenas, but this time it’s not about special counsel Robert Mueller’s report — it’s about health care.

Five committee chairman foreshadowed a possible subpoena as soon as May 24 if Attorney General William Barr declines to provide documents related to his decision to stop defending the constitutionality of the Affordable Care Act — the health care law signed by President Barack Obama in 2010.

In letters to Barr and White House Counsel Pat Cipollone, the chairmen say they’ve been asking since April 8 for documents connected to the decision, as well as testimony from four key officials involved in the effort. The request, they said, sought a response by April 22 but that the reply fell short. Now, they’ve giving the Justice Department two more weeks to meet the committees’ demands. They’re also asking the White House to make budget director Russ Vought available for an interview.

“If we do not receive a response by this date, we will have no choice but to consider alternative means of obtaining compliance,” the lawmakers wrote.

The letters are signed by Oversight Chairman Elijah Cummings (D-Md.) , Energy and Commerce Chairman Frank Pallone, Jr. (D-N.J.), Ways and Means Chairman Richard Neal (D-Mass.), Education and Labor Chairman Bobby Scott (D-Va.) and Judiciary Chairman Jerry Nadler (D-N.Y.).

Nadler’s committee has already voted to hold Barr in contempt for refusing to provide an unredacted version of Mueller’s report to Congress as well as Mueller’s underlying evidence. But the full House has yet to consider the committee’s effort. Speaker Nancy Pelosi indicated last week that other committees may want to combine similar contempt proceedings into one overarching floor vote that could come in the next few weeks.

Democrats are also locked in confrontations with the Trump administration over accessing Trump’s tax returns — a request made by Neal’s Ways and Means Committee. The House Intelligence Committee has demanded access to Mueller’s report as well on national security grounds and issued a subpoena for his files last week.

The new effort on health care could become part of the broader strategy, if they continue to accuse the Justice Department of stonewalling by the time the new deadline arrives on May 24. But convincing other lawmakers to wait until June — following a weeklong Memorial Day recess — for a comprehensive contempt vote could be difficult. Rank-and-file Democrats have been clamoring for punitive measures against Barr for weeks for his handling of Mueller’s report.

Unlike the other demands, though, Democratic leaders, though, believe that picking a fight on health care is better politics — and it shows their efforts to confront the Trump administration has policy dimensions, not just Trump-focused investigations.

Democrats have attributed the Trump administration’s efforts to overturn the health care law, known familiarly as Obamacare, to “politically motivated forces” in the White House. The Obama White House took a similar step in 2011 when the Justice Department, at Obama’s urging, stopped defending the Defense of Marriage Act, which barred federal recognition of same-sex marriages — a move social conservatives denounced at the time.

The Department of Justice declined to comment.




Justice Dept. now wants the entire ACA struck down

The Justice Department now wants the courts to strike down the entire Affordable Care Act — not just its protections for people with pre-existing conditions.

This is a stunning escalation, raising both the real-world and political stakes in a lawsuit where both the real-world and political stakes were already very high.

Where it stands: Judge Reed O’Connor ruled in December that the ACA’s individual mandate has become unconstitutional, and that the whole law must fall along with it.

  • At the time, the Trump administration argued that the courts should only throw out the mandate and protections for pre-existing conditions — not the whole law.
  • But in a one-page filing last night, DOJ said the 5th Circuit Court of Appeals should affirm O’Connor’s entire ruling.

Why it matters: If DOJ ultimately gets its way here, the ripple effects would be cataclysmic. The ACA’s insurance exchanges would go away. So would its Medicaid expansion. Millions would lose their coverage.

  • The FDA would lose have the authority to approve an entire class of drugs.
  • The federal government would lose a lot of its power to test new payment models — in fact, the administration is relying on some of those ACA powers as it explores conservative changes to Medicaid.

Politically, this makes no sense. Chuck Schumer and Nancy Pelosi must be dancing in the streets.

  • Health care — specifically pre-existing conditions — was overwhelmingly a winning issue for Democrats in 2018.
  • This lawsuit already had Republicans in an unpleasant bind.
  • Now the administration is doubling down, putting even more people’s coverage on the chopping block.

What they’re saying:

  • “The bad faith on display here is jaw-dropping,” pro-ACA legal expert Nick Bagley writes.
  • “I was among those who cheered the selection of William Barr as Attorney General and hoped his confirmation would herald the elevation of law over politics within the Justice Department. I am still hopeful, but this latest filing is not a good sign,” said Jonathan Adler, a conservative law professor who helped spearhead the last big ACA lawsuit.




The Trump Administration Now Thinks the Entire ACA Should Fall

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In a stunning, two-sentence letter submitted to the Fifth Circuit today, the Justice Department announced that it now thinks the entire Affordable Care Act should be enjoined. That’s an even more extreme position than the one it advanced at the district court in Texas v. Azar, when it argued that the court should “only” zero out the protections for people with preexisting conditions.

The bad faith on display here is jaw-dropping. Does the administration really think that the very position it advanced just month ago is so untenable that it must now adopt an even crazier view?

Much as it may dislike the fact, the Trump administration has an obligation to defend acts of Congress. Absent that obligation, the sitting administration could pick and choose which laws it wants to defend, and which it wants to throw under the bus. Indeed, the decision not to defend is close cousin to a decision not to enforce the law. If the ACA really is unconstitutional, wouldn’t continuing to apply the law would violate the very Constitution that empowers the President to act?

Even apart from that, the sheer reckless irresponsibility is hard to overstate. The notion that you could gut the entire ACA and not wreak havoc on the lives of millions of people is insane. The Act  is now part of the plumbing of the health-care system. Which means the Trump administration has now committed itself to a legal position that would inflict untold damage on the American public.

And for what? Every reputable commentator — on both the left and the right — thinks that Judge O’Connor’s decision invalidating the entire ACA is a joke. To my knowledge, not one has defended it. This is not a “reasonable minds can differ” sort of case. It is insanity in print.

Yet here we are. An administration that claims to support protections for people with preexisting conditions has now called for undoing not only the parts of the ACA that protect such conditions, but also the entire Medicaid expansion and parts of the law that shield those with employer-sponsored insurance from punitive annual or lifetime caps. Not to mention hundreds of rules having nothing to do with health insurance, including a raft of new taxes, mandatory labeling of calorie counts at chain restaurants, and rules governing biosimilars.

Maybe you think this level of disdain for an Act of Congress is to be expected from the Trump administration. Maybe it’s too much to process because of Russia and immigration and North Korea. But this is not business as usual. This is far beyond the pale. And it is a serious threat to the rule of law.



Where is Dr. King now? A Civility Emergency

As the well-known, dramatic story unfolds, “Humpty Dumpty sat on the wall, Humpty Dumpty had a great fall. All the king’s horses, and all the king’s men, couldn’t put Humpty Dumpty together again.” Coincidentally, this nursery rhyme has me thinking about an important leadership issue.

During this Independence Day season, I’m concerned that our freedom is being threatened. Now is the time for honorable patriots to speak up and do our part on this issue. We must take a stand for civility in our culture, and it’s a basic responsibility as fellow colleagues and citizens.

What is Civility and why is it important?  

The word “civil” ties back to the Latin word for citizen, and the core meaning is the idea of people living together as a society under a government. The other well-known and related definition of the word civil is being courteous, respectful and considerate of others. To have and maintain freedom requires a degree of civility and tolerance for each other.

Just over fifty years ago Dr. Martin Luther King set the standard for civility when debating highly contested issues. Out of that era, our society learned a lot about respectful tolerance for others—it has been a foundational ethos over the past 30 years in the issues of race, gender, and religion, and it’s made us a better nation because of it. We had our differences in the past, but there was a general attitude of civility in debating them.

Today though, the tragic change is tolerance for being intolerant of others who have different ideas and views.

“When people reach a point of hate for each other because they have different perspectives, then you have a serious problem.”

Emotions are Contagious

From my past work in human behavior and performance, I know that emotions are contagious. Positive emotions give positive energy and make it easy to live and work together. Negative emotions bring negative energy and make it difficult to work together. We all know this principle from time spent with our work teams as well as relationships with family and friends. And the same thing applies to our culture.

Now we’re seeing intolerant and rude conversation on a mass scale. Some media outlets and politicians ignore the boundaries of civility, aggressively promoting disrespectful personal attacks on others who don’t share their views on politics or social issues. And social media has provided a layer of protection, allowing individuals to lash out in vicious ways at people they don’t even know. These actions aren’t illegal, but they are certainly anti-social and attack the civility needed to maintain a free society where we can live and work together.

Another Civil War?

A recent Rasmussen Poll showed that “thirty-one percent (31%) of U.S. voters say it’s ‘Likely’ that the United States will experience a second civil war sometime in the next five years, with 11 percent saying it’s ‘Very Likely.’[i]” This poll seems to confirm what I’m feeling—that we’re crashing over the boundaries needed in a civil society.

Underneath this breakdown in civility is the subtle mindset that “the ends justify the means”.

This is the bone-chilling Communist manifesto that we experienced in the POW camps, so I’m highly sensitive to this type of attack on freedom and independence. This abandonment of truth and civility can happen in our American culture, a business boardroom, a dysfunctional family relationship, or a dispute with a neighbor. No one can escape it, but we have an opportunity to do our part in arresting it.

What can we do?

If you’re agreeing with this article, then you’re part of the tribe that has decided to live and lead with honor! Regardless of your personal and professional perspectives or your allegiance to your like-minded group of people, you know that the true essence of influence and courage is taking a stand in a civil way regardless if that civility is returned in kind.  For more on this challenge, see my coaching video this month and hear my personal story.

Here are four things that we can do –

  1. Guard your own character first. Avoid using uncivil tactics to advance your arguments.
  2. Be direct and honest, but keep strong boundaries on your words and actions. Set an example of someone who can disagree politely and factually with those with whom you disagree.
  3. Speak up when you experience the intolerance of others, those who resort to negative name-calling that is hateful and viscous. Consider how we can respectfully not tolerate those who use incivility as a weapon to advance their ideology.
  4. Get a free copy of the Honor Code and share it with others. Pay special attention to Articles 2, 6, and 7.

If Humpty Dumpty takes a fall, it will be very difficult to put him back together again. Take a stand for our freedom and independence, stand and advocate for civility…in a civil way.