The connection between President Trump’s continued nominations of narrow-minded elitist judges and the GOP’s plan to destroy the Affordable Care Act (ACA) and jeopardize coverage for pre-existing conditions for millions of Americans is becoming all too evident. Many of Trump’s nominees have a history of opposing the ACA and could further jeopardize the law on the bench. As Americans go to the polls in November, this is yet another reason that it is crucial to prevent Republicans who rubber stamp Trump’s nominees from controlling the Senate.
History of Anti-ACA Efforts and the Courts
Even before the ACA was enacted into law, the GOP and its right-wing loyalists were on a mission to destroy it. Knowing any effort at repeal was futile so long as President Obama occupied the White House, their efforts focused on the courts. A first line of attack saw right-wing activists challenging Congress’s very authority to pass the healthcare legislation, while a second line of assault sought to make the ACA unworkable by preventing the Administration from promulgating the regulations necessary to put the law into action. Several of these cases reached the United States Supreme Court, which, by a narrow majority, upheld the law.
Unable to kill the ACA in the courts, given the judges on the bench, the GOP thought its moment had finally arrived in 2017 when Donald J. Trump was sworn in as president and repeal finally seemed in reach—even inevitable. Yet the ACA proved resilient yet again: faced with the prospect of having to explain themselves to millions of constituents who depended on the ACA to access quality care and coverage for pre-existing conditions, the Republican Congress failed to repeal the law.
Having failed in the courts and in the legislature, Trump then took a new line of attack: using the powers of the presidency to undermine the law. Trump ordered agencies to drag their feet in enforcing the ACA wherever possible. He shortened the enrollment period and slashed budgets for advertising it, and he expanded the availability of cheap, poor-quality plans that are not ACA-compliant in an effort to destabilize the insurance market. Indeed, Trump has been so aggressive in these attempts that several major U.S. cities recently joined a federal suit alleging that Trump’s efforts constitute a violation of his Constitutional duty to faithfully execute the laws of the United States.
Meanwhile, Trump’s GOP state allies have initiated a new wave of legal challenges to the ACA, with the Trump administration’s brash assistance: a Trump-appointed DOJ attorney made the highly unusual decision to decline defending the ACA against a legal challenge launched in federal court. Even more outrageously, he took the truly extraordinary step of submitting a brief urging the court to rule that the ACA provision to ensure healthcare coverage for people with pre-existing conditions is unconstitutional. The move was so radical that even loyal ACA foes in Congress have spoken up against it, and one DOJ attorney appears to have resigned in protest.
Having failed in their initial efforts to use the courts to destroy the ACA , Trump is now aggressively using his power to pack the federal bench, most importantly the Supreme Court, with partisan ideologues opposed to the ACA. In newly confirmed Justice Brett Kavanaugh, Trump has someone whose record reflects deep hostility to the ACA. And on the lower courts, he has installed – or is attempting to install –nominees he knows he can count on because many of them have been active in the fight to dismantle the law from the very beginning. Whether representing ACA opponents in court or simply cheering from the sidelines, Trump can trust that they will stand by him and against quality, affordable healthcare for American families. Some have attacked Congress’s very authority to enact the legislation; others sought to make the ACA unworkable by attacking the regulations implementing it. And the “architect” of the administration’s assault from the DOJ? Trump rewarded his efforts with a nomination, too. Below, we look at some of the anti-ACA soldiers.
First Line of Trump Nominees’ Attack: Undermine the Authority of Congress
One of the earliest and most serious legal challenges to the foundations of the ACA can be found in the case of National Federation of Independent Businesses (NFIB) v. Sebelius. In that case, plaintiffs attacked congressional power to require individuals to obtain health insurance and to penalize some who failed to do so. Attorney Greg Katsas represented the main plaintiff in the case, and his arguments were ultimately rejected in a narrow 5-4 decision authored by Chief Justice John Roberts, who upheld the law’s constitutionality under Congress’s taxing authority. Justice Ginsburg, writing in concurrence, expressed concern about plaintiffs’ arguments regarding the scope of Congressional authority under the Commerce Clause, which Roberts embraced, as “alarmingly retrogressive,” and threatening to greatly diminish Congress’s power to enact laws to protect the health, safety, and liberties of American citizens. She noted that these Commerce Clause arguments had a “disquieting resemblance to . . . long-overruled decisions” such as Lochner v. New York, in which a right-wing majority Court ruled that Congress lacked authority to enact a host of key federal worker protections, including setting a minimum wage, establishing maximum working hours, and setting limits on child labor.
After taking office, Trump hired Katsas to join the White House Counsel’s office, where Katsas advised the president on a range of topics including the ACA. Katsas has refused to discuss the advice he gave during his time in the White House, but we do know that Trump, acting on counsel’s advice, has been very aggressive in using executive powers to undermine the ACA at every turn. In 2017, Katsas was further rewarded with a lifetime appointment to the D.C. Circuit Court of Appeals—the second-most powerful court in the country, behind only the United States Supreme Court. During his confirmation hearings, Katsas refused to promise that he would recuse himself from future cases challenging the ACA despite his past involvement in trying to shoot it down, making him an ongoing threat to the law.
Meanwhile, a Supreme Court ruling upholding the ACA wasn’t enough to stop Trump’s 7th Circuit appointee Amy Coney Barrett from arguing against its constitutionality. As a professor at Notre Dame Law School, Barrett wrote a blistering criticism of Justice Roberts’ majority opinion in NFIB in which she accused the Chief Justice of “creatively interpreting” the law in order to uphold it. She further adopted the same narrow conception of Congressional authority criticized in Justice Ginsburg’s NFIB concurrence, espousing a view that would greatly limit Congress’s ability to enact legislation protecting the rights and liberties of Americans. Amy Coney Barrett now sits on the Seventh Circuit Court of Appeals
Other Trump federal court nominees who have sought to undermine Congress’ authority with regard to the ACA include:
- David Porter, recently confirmed to a seat on the 3rd Circuit Court of Appeals, whose 2012 op-ed for the Pittsburgh Post-Gazette argued that Congress had exceeded its authority in passing the ACA, calling the mandate an unconstitutional and “unprecedented assertion of federal control that violates the framers’ constitutional design.” Like Barrett, he also belittled Justice Roberts’ majority opinion in NFIB, continuing to argue against the constitutionality of the ACA, even after the Supreme Court had ruled on the matter.
- Michael Truncale, a nominee to the United States District Court for the Eastern District of Texas, awaiting a vote by the full Senate having been reported out on a party line vote by the Senate Judiciary Committee. Truncale gave a talk at a Tea Party forum claiming the ACA was an unconstitutional overreach of federal powers, stating that “there’s no right in the Constitution for the government to tell you what kind of insurance to buy.”
- John Bush, confirmed to the 6th Circuit Court of Appeals, harshly criticised the ACA in a series of blog posts bizarrely posted under a nom de plume on his wife’s right-wing website. In one post, he claimed the ACA “isn’t a good value at all,” and in another, asserted that “individuals in America should make their own decisions as to whether they buy insurance, pay for it out of their own pockets, and not take money out of my pocket to pay for it. I already have health insurance and pay for it handsomely, thank you.” Bush also wrote an amicus brief on behalf of the Center for Constitutional Jurisprudence which, despite primarily dealing with First Amendment issues, indulged in an odd non sequitur to boast that passage of the ACA had harmed the prospects of Democratic candidates in the 2010 and 2014 midterm elections.
Second Line of Trump Nominees’ Attack: Dismantle the ACA by Assaulting the Regulations Enacting It
With the Supreme Court refusing to strike down the ACA, right-wing activists set about trying to dismantle the law by challenging various regulations that federal agencies promulgated to put the law into action. Here, too, we see Trump rewarding those who joined the fray with appointments to the federal bench.
Attacking Premium Subsidies for Low-Income Plan Participants
An attorney in private practice, Howard Nielson, Trump’s nominee to fill a vacancy on the U.S. District Court for the District of Utah, awaiting a vote on the Senate floor after being reported out of the Senate Judiciary Committee on a party line vote, made repeated attacks on ACA regulations with the transparent goal of destroying the law by making it unworkable. His most significant effort is found in an amicus brief submitted to the Supreme Court in the landmark case of King v. Burwell. That brief, which Nielson co-authored on behalf of congressional conservatives, argued that the IRS could not provide valuable health insurance premium subsidies to the millions of Americans buying coverage through the federal exchange. Nielson’s argument, if successful, likely would have forced the collapse of the ACA by making insurance prohibitively expensive for most exchange participants. Nielson’s arguments were rejected in a 6-3 ruling upholding the subsidies and helping to keep affordable care within reach for millions of Americans.
Nielson made similar and related arguments in a brief he co-authored for the same group of representatives in the case of Halbig v. Sebelius, which was heard before the D.C. Circuit. That brief also attacked the ACA’s foundation by challenging regulatory agencies’ authority to read the ACA as authorizing federal exchange premium subsidies, despite such a reading being necessary to carry out Congress’s intent to successfully enact the law. The questions raised in that case were ultimately decided in favor of the ACA under the Obama Administration as part of the King v. Burwell ruling.
Britt Grant, a Trump nominee confirmed for a seat on the 11th Circuit Court of Appeals, was also involved in efforts to dismantle the ACA by attacking the federal exchange premium subsidies. Working in the Georgia attorney general’s office, Grant co-authored a brief submitted to the United States Supreme Court on behalf of 12 states in Oklahoma v. Burwell, in which another set of plaintiffs challenged IRS premium grants for plans purchased on the federal exchange. The Court declined to hear the case, and the questions presented were ultimately settled in King.
Attacking the Contraception Mandate
Few elements of ACA implementation have fired up the right-wing base like the Department of Health and Human Services’ regulation requiring that ACA-compliant health plans offer patients certain types of contraception without co-pay. Despite the Obama administration providing an exemption for religious institutions, numerous lawsuits were filed by employers, claiming that they, too, should be exempt from providing ACA-compliant plans to their employees. These employers argued that simply offering group health insurance that includes contraception coverage violates the employer’s religious freedom by making it complicit in behavior it considers immoral.
- Campbell Barker, Trump’s nominee to the District Court for the Eastern District of Texas, awaiting a vote in the full Senate after being reported by the Senate Judiciary Committee on a party line vote, has been very active in the fight to allow organizations to deny their employees access to contraception. As Deputy Solicitor General for the State of Texas, Barker signed an amicus brief that was submitted to the Supreme Court on behalf of his and 19 other states in the case of Zubik v. Burwell. The brief made an extremely broad argument that, if adopted by the Court, would have essentially allowed any organization to opt out of any federal requirement that it finds morally objectionable, claiming that courts have no role in determining whether such objections are reasonable. The brief further suggests that less objectionable alternatives to the contraception mandate might include the creation of “a ‘public option’ for contraception insurance” or “tax incentives to consumers of contraception and sterilization services”—options that would segregate women’s reproductive care from “normal” healthcare services and gravely compromise contraception access. Similar attacks are made in other briefs signed by Barker in cases that were ultimately consolidated with Zubik, including Little Sisters of the Poor. In those cases, the Supreme Court vacated the lower court decisions and remanded the cases to the courts of appeals to afford the parties an opportunity to arrive at a reasonable accommodation of the employers’ religious exercise while ensuring that women covered by the challenged health plans receive full and equal health coverage. It is considered likely that the issue will return to the Court but now with Justice Kavanaugh on the bench instead of Justice Kennedy.
Amy Coney Barrett, now sitting on the 7th Circuit, has also spoken out on behalf of organizations seeking to deny their employees contraception access. In 2012, she signed a letter titled “Unacceptable,” assailing the Obama Administration’s efforts to find a compromise that would preserve contraception coverage without offending the sensibilities of conservative religious employers. Barret’s letter calls the contraception mandate “a grave infringement on religious liberty,” and further describes the administration’s good-faith effort at compromise as a “cheap accounting trick” that is “an insult to the intelligence of Catholics, Protestants, Eastern Orthodox Christians, Jews, Muslims and other people of faith and conscience.”
Other Trump judicial nominees who have spoken out against the contraception mandate include:
- Kyle Duncan, who was confirmed to the 5th Circuit Court of Appeals in 2018. As general counsel for the right-wing Becket Fund for Religious Liberty, he told a 2015 gathering at the Catholic Information Center that the contraception mandate is so intrusive of employers’ religious liberty that it means “you don’t have any right to practice your religion if you’re in a business.” He further claimed that business owners have been consigned to “coach-class religious liberty.”
- Jeff Mateer, nominated to the District Court for the Eastern District of Texas, whose nomination ultimately failed, due in part to his blatant anti-LGBTQ bias. During guest appearances on the radio show “Chosen Generation with Pastor Greg,” he compared the contraception mandate to policies in Nazi Germany. In one appearance, he said of the Obama administration, “What they want to do is take away your ability to practice your religion” because “all the other freedoms are hinged off religious beliefs.”
- Matthew Kacsmaryk, nominated to the District Court for the Eastern District of Texas, and awaiting a vote in the full Senate following a party-line vote in the Senate Judiciary Committee, represented the First Liberty Institute in its hard-line stance against the contraception mandate.
Protections for LGBTQ Patients
While representing the First Liberty Institute, Texas trial court nominee Matthew Kacsmaryk also signed an extraordinary letter opposing ACA regulations proposed by the Office of Civil Rights, which were intended to ensure that LGBTQ patients would not be subjected to discrimination in healthcare. Kascmaryk’s letter claims the prohibition on discrimination based on sex stereotypes, gender identity, and sexual orientation violates the rights of religious employers, insurers, and healthcare providers by “substantially burdening their religious exercise.” Among its most outrageous claims, the letter argues that prohibiting discrimination based on gender identity may force healthcare providers to “collaborate with and promote a mental disorder” and that gender transition therapy cannot be considered healthcare because it “mutilates” patients’ bodies.
Last-Ditch Trump Nominee Effort: Using Executive Powers and Agency Action to Attack the ACA’s Coverage of Pre-existing Conditions
When Trump took office in 2017, a new front opened up in the war on the ACA, as the GOP can now use the powers of the executive in their efforts to kill affordable healthcare. Indeed, as discussed above, Trump has been so aggressive in using executive orders and instructions to federal agencies to attack the ACA that questions have been raised as to whether his efforts constitute a violation of his Constitutional duty to faithfully execute the laws.
Chad Readler, acting assistant attorney general of the Department of Justice Civil Division and Trump’s nominee to fill a vacancy on the 6th Circuit, has been an exceedingly eager player in the plan to dismantle the ACA from within the administration. When several states instigated a new round of litigation challenging the ACA’s pre-existing conditions coverage mandate earlier this year, Readler not only took the exceedingly unusual step of declining to defend the law, he further took the opportunity to make his own novel attack. In an extraordinary brief, he urged the federal court in Texas to rule that the ACA’s requirement that insurers offer coverage to people with pre-existing conditions is unconstitutional. Readler’s baseless, radical argument proved so controversial within the DOJ that three veteran DOJ attorneys withdrew from the case, one of whom later resigned in apparent protest. Readler’s argument has even found blistering criticism among ACA foes in Congress: Republican Senator Lamar Alexander called his argument “as far-fetched as anything I’ve ever heard,” and even Senate Majority Leader Mitch McConnell was compelled to speak up, saying that “everyone” supports preserving protections for people with pre-existing conditions.
Trump, however, was clearly impressed: Readler’s nomination to the 6th Circuit was announced the very day after he filed the brief.