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How Coronavirus Could Reshape Trump's Legal Fight Against the Affordable Care Act

The Trump Justice Department's decision to stop defending the Affordable Care Act in court is coming full circle, as the case heads toward fall arguments before the U.S. Supreme Court, a time when it's all but certain Americans will still feel the impact of the COVID-19 pandemic.

Democratic presidential front runner and former Vice President Joe Biden last week called on President Donald Trump and the Republican attorneys general behind the lawsuit to stop the legal challenge, as millions of Americans lose their jobs and benefits over the pandemic.

"At a time of national emergency, which is laying bare the existing vulnerabilities in our public health infrastructure, it is unconscionable that you are continuing to pursue a lawsuit designed to strip millions of Americans of their health insurance and protections under the Affordable Care Act (ACA), including the ban on insurers denying coverage or raising premiums due to pre-existing conditions," Biden wrote to GOP officials.

Somehow, that letter didn't stick. Republicans show no sign of letting up on their fight against the ACA, especially against its individual mandate, which a three-judge panel on the U.S. Court of Appeals for the Fifth Circuit ruled last year is unconstitutional.

The core legal questions raised in the litigation—whether Republicans' removal of a penalty for the mandate means it's no longer a tax and therefore void, whether the mandate can be severed from the rest of the healthcare law, and whether the parties even have standing in the challenge—are unlikely to be changed by the pandemic.

However, legal experts told me that the health crisis is all but certain to be raised in forthcoming briefs in the case, and could pressure the justices to maintain other parts of the law, like public health protections.

Timothy Jost, an emeritus professor of law at Washington and Lee University who focuses on healthcare, predicted that lawyers for both the U.S. House of Representatives and the coalition of blue states defending the law will raise the impact of the coronavirus as reason to keep the Affordable Care Act intact. A proposed briefing schedule would have the House and Democratic states' lawyers filing their opening briefs in early May, when the pandemic is expected to still be in full swing.

He said amicus briefs filed in the case by medical groups in support of the law will also likely feature details on how ObamaCare played a role in helping Americans during the health crisis.

"There will probably be an emphasis on the public health provisions of the ACA and the fact that those are just completely independent of the individual mandate," Jost said.

Katie Keith, a health law professor with Georgetown University, said think tanks and other groups are probably crunching the numbers on how many Americans used ACA benefits during the pandemic, and that kind of qualitative analysis is likely to be included in future briefs in the case.

Jost also said that, as the justices and the Supreme Court cannot avoid the impact of the COVID-19 pandemic, it may make them more unwilling to strike down a law that helps Americans get healthcare during a massive health emergency.

"The fact that the coronavirus is having such a huge effect on Americans, on their health and on the economy, is going to be something the justices won't be able to simply ignore," he said.

Jost said he was unsure how the Republican plaintiffs would respond to those claims, other than arguing the pandemic is irrelevant to the core legal questions surrounding the mandate and whether it's severable from the rest of the law.

Keith agreed with Jost, saying the justices are "human beings." She also noted that other forthcoming decisions from the court, like that on the Deferred Action for Childhood Arrivals program, could also potentially be colored by the pandemic.

Keith said the ACA lawsuit may even be complicating the administration's response to the pandemic now. She pointed to reports that the Trump administration would not open a special Obamacare enrollment period for those impacted by the pandemic, a decision made as the president reiterated his support for the ACA lawsuit. Several Democratic-leaning states have reopened the enrollment period as the virus spreads and millions of Americans lose their jobs.

"I think the most immediate impact is the behavior of the Trump administration. It seems like the political aspects of this lawsuit could be coloring their ability to give relief to human beings right now," Keith said, describing holding the special enrollment period as "the bare minimum" of care officials could give.

"I'm sure they're doing calculus of, we don't want to be seen as expanding this program at a time when we're trying to get rid of it," she added.

As for Trump himself, he seems pretty committed to the fight against his predecessor's landmark healthcare legislation.

"That was headed up by Texas," Trump told a reporter last week who asked about the ACA lawsuit during a coronavirus briefing. "And what we want to do is get rid of the bad healthcare and put in a great healthcare."

What We're Reading:

>> US House Can't Sue or Arrest Don McGahn in Subpoena Fight, DOJ Tells En Banc DC Circuit: "Justice Department lawyers on Monday argued that the House lacks the authority to arrest executive branch officials if they do not comply with congressional subpoenas, saying the Constitution does not explicitly grant lawmakers that power. In a supplemental brief filed in the U.S. Court of Appeals for the D.C. Circuit's en banc rehearing of the lawsuit seeking former White House counsel Don McGahn's testimony, the DOJ lawyers came out against the argument made by House lawyers that not allowing the House to sue over the subpoena would result in more extreme actions, like the arrest of noncompliant officials." [National Law Journal]

>> Coronavirus Complaints Against Feds Start Piling Up in DC Trial Court: "The federal docket in Washington, D.C., is quickly becoming a hotbed for litigation seeking to force officials to protect detained immigrants and inmates during the COVID-19 pandemic. Lawsuits challenging actions by the federal government are often filed in the U.S. District Court for the District of Columbia. As detained individuals and advocacy groups criticize the federal government for not doing enough to protect those in their custody during the pandemic, they're beginning to take legal action to try and force authorities' hands." [National Law Journal]

>> 'Powerless': NY Federal Judge Calls for Congress to Act to Protect Inmates From COVID-19: "A Manhattan federal judge on Tuesday implored Congress and the Trump administration to take 'swift' and 'systemic' action to protect inmates against the growing threat of the novel coronavirus in the nation's jails. In a striking ruling, U.S. District Judge Jesse M. Furman of the Southern District of New York said he was 'powerless' under federal law to order the release of a 67-year-old former doctor from the Metropolitan Detention Center in Brooklyn, where at least one inmate has contracted COVID-19, the potentially deadly illness caused by the virus." [New York Law Journal]

>> Virus Pandemic Delays Judge's Review of Unredacted Mueller Report: "The coronavirus pandemic's disruption of the federal courts will delay a judge's review of a full, unredacted copy of former Special Counsel Robert Mueller III's report on Russian interference in the 2016 presidential election. U.S. District Judge Reggie Walton of the District of Columbia had ordered the Justice Department to turn over the report, in a ruling that sharply criticized U.S. Attorney General William Barr's handling of the more than 400-page document…. Justice Department lawyers submitted the report Monday, only to have Walton note that he will not be able to review the unredacted version until at least April 20, in light of an order issued by Chief Judge Beryl Howell that drastically limited the court's operations amid the coronavirus crisis." [National Law Journal]

>> How Far Can Donald Trump Actually Go in Responding to COVID-19?: "The U.S. Supreme Court in 1902 upheld local officials' authority to issue statewide quarantines, unless superseded by Congress. Georgetown University professor Lawrence Gostin said Congress would have to approve an order blocking people from leaving or entering states, as it's the only body with the power to regulate interstate travel. Gostin said some of the actions Trump has taken, like closing the borders, are well within his rights as president. But, he said, the president could have taken other steps outside of the legal sphere to unite the country's governors in combating the pandemic. 'He's not provided any guidance to governors about whether they should do aggressive social distancing, many of the red states that support Trump, they're not doing enough. So he's not really coordinating governors and mayors to row with a single oar,' Gostin said." [National Law Journal]

>> Texas's Ban On Abortions During The Coronavirus Outbreak Can Go Back Into Effect Following An Appeals Court Ruling: "Texas will be allowed to instate a temporary ban on abortion in nearly all cases during the coronavirus outbreak, the Fifth Circuit Court of Appeals ruled Tuesday. The court overturned a decision released just hours before, on Monday afternoon, when a federal judge put a hold on the ban, saying it would cause "irreparable harm" to patients in the state….Planned Parenthood and the Center for Reproductive Rights quickly sued the state over the order, asking the judge for an emergency stay. On Monday, US District Court for the Western District of Texas Judge Lee Yeakel granted the reproductive rights groups a temporary restraining order that would prevent the ban from going into effect while the case was argued. That order was set to expire April 13, though it could be extended. Texas appealed the decision, and the appeals court reversed the order Tuesday afternoon." [BuzzFeed News]

Thanks for reading. I will be back with more Trump Watch next week.