Your feedback ensures we stay focused on the facts that matter to you most—take our survey

The Federal Tap: Rounding up Trump's latest ACA alterations

From Ballotpedia
Jump to: navigation, search

October 13, 2017Issue No. 85

The-Federal Tap Banner-White-750x191px.png

Week in review
On tap next week

THE WEEK IN REVIEW

Here's what happened in federal politics last week. To see what happened in state and local politics, click here.

Sunday, October 8

Beverly Reid O’Connell, California federal judge, dies in active service

  • Beverly Reid O’Connell, a judge on the United States District Court for the Central District of California, died Sunday at the age of 52. O’Connell was nominated to the federal bench in 2012 by President Barack Obama was she was confirmed on a unanimous 92-0 vote of the U.S. Senate in April of 2013. O’Connell’s passing created the sixth vacancy on the 28-member court, which currently has 12 judges that were nominated by Republican presidents and ten judges that were nominated by Democratic presidents.

Monday, October 9

Stabenow leads Kid Rock by 8 points in Michigan Senate poll

  • In the latest poll out of Michigan by Mitchell/Rosetta Stone, incumbent Sen. Debbie Stabenow (D) leads musician Robert Richie (R), better known as Kid Rock, by 8 points. According to pollster Steve Mitchell, "Kid Rock is getting about ten percent more than the base Republican vote and Stabenow is under 50% against a 'rock star' who has never run for political office."

Feinstein running for sixth term in Senate

  • Incumbent Sen. Dianne Feinstein (D), the oldest member of the U.S. Senate, confirmed that she would seek a sixth term in office. Although she won her 2012 re-election bid by 25 points, she could face a primary challenge from wings of the Democratic Party pushing for more progressive policies in Congress. One frequently mentioned name is California Senate president pro tempore Kevin de León, who showed his fundraising prowess when he amassed a $2.8 million war chest for a potential lieutenant gubernatorial run. California utilizes a top-two primary system, which allows all candidates to run and all voters to vote but only moves the top two vote-getters, regardless of party affiliation, to the general election.

Tuesday, October 10

SCOTUS hears arguments in one case on Tuesday

  • The U.S. Supreme Court heard arguments on Tuesday in Hamer v. Neighborhood Housing Services of Chicago. The case addressed an appeal of a judgment of the U.S. Court of Appeals for the Seventh Circuit. Charmaine Hamer, the petitioner, filed a notice of appeal with the Seventh Circuit Court of Appeals after a 60-day extension to file her appeal was granted by a federal district court. The Seventh Circuit, relying on Rule 4(a)(5)(c) of the federal rules of appellate procedure, dismissed Hamer's appeal as untimely and held that the rule limited extensions to file appeals to only 30 days. Federal appeals courts, however, are not uniform over whether untimely appeals could still be considered under Rule 4(a)(5)(c). The D.C. Circuit and Ninth Circuit subject untimely appeals under the rule to what are known as equitable considerations. Equitable considerations are "a recourse to principles of justice to correct or supplement the law as applied to particular circumstances" and are designed to promote fairness and evenhanded dealing in legal matters. Examples of equitable considerations include waivers and forfeitures, and could be considered by a court as to whether, as here, Hamer's reliance on the error of the district court prompted her to inadvertently forfeit her appeal. The Second Circuit, Fourth Circuit, Seventh Circuit, and Tenth Circuit read the rule differently and do not consider appeals under equitable considerations if the appeal is untimely. Under Rule 10 of the U.S. Supreme Court’s rules of procedure, the Supreme Court will often agree to hear a case addressing a split among federal circuit courts in order to resolve the difference.

U.S. Supreme Court dismisses one of two legal challenges to Trump’s travel ban

  • On Tuesday, the U.S. Supreme Court issued an order in Trump v. International Refugee Assistance Project in which the court rejected a challenge to President Donald Trump's March 2017 executive order restricting immigration and refugee admissions into the United States. The court order, which nullified the judgment of the U.S. Court of Appeals for the Fourth Circuit, also sent the case back to the Fourth Circuit with instructions to dismiss the case as moot, meaning the challenge no longer had any practical impact. In its order, the Supreme Court held that the challenge to a provision of the executive order, Section 2(c), had expired and "because that provision of the Order 'expired by its own terms' on September 24, 2017, the appeal no longer presents a 'live case or controversy.'" Section 2(c) prevented Iranian, Libyan, Somalian, Sudanese, Syrian, and Yemeni nationals from entering the country for a period of 90 days. The government challenged a nationwide injunction placed in March on Section 2(c) by Judge Theodore Chuang of the District of Maryland, who held the restriction violated the First Amendment's Establishment Clause, which mandates the separation of church and state. A majority of the Fourth Circuit upheld Judge Chuang's order in May. A related challenge to the travel ban from Hawaii is still pending adjudication before the Supreme Court.

EPA administrator issues proposed rule to repeal Obama Clean Power Plan

  • Environmental Protection Agency (EPA) Administrator Scott Pruitt issued a proposed rule to repeal the Clean Power Plan, the Obama administration's regulation that would mandate reductions in carbon dioxide and other greenhouse gas emissions from new and existing power plants. Pruitt argued that the plan "was premised on a novel and expansive view of Agency authority" and "ignored states' concerns and eroded longstanding and important partnerships that are a necessary part of achieving positive environmental outcomes." Specifically, the EPA will change its legal interpretation of section 111 of the Clean Air Act, on which the Clean Power Plan was based under the Obama administration, to the interpretation that the plan exceeds the EPA's legislative authority and thus should be repealed. The EPA also estimates that the repeal would provide up to $33 billion in avoided compliance costs. Attorney Generals Eric Schneiderman (D-N.Y.) and Maura Healey (D-Mass.) announced that they would sue the EPA over the repeal. Healey argued that the "decision to abandon the Clean Power Plan violates the law." Schneiderman argued that the repeal involves "putting industry special interests ahead of New Yorkers’ and all Americans’ safety, health, and the environment."

Senate Leadership Fund is out of the Alabama Senate race between Moore and Jones - for now

  • The Senate Leadership Fund, which spent approximately $9.4 million on the Alabama Senate Republican primary and primary runoff to support Sen. Luther Strange, announced that it did not plan to invest in the general election between former Alabama Supreme Court Chief Justice Roy Moore (R) and former U.S. attorney Doug Jones (D) unless Jones showed that he was a viable challenger in the typically red state. "This is Alabama, not New York or California. Democrats would first need to demonstrate this is an actual race before anything is considered," an SLF spokesperson said.

Wednesday, October 11

Hogan Gidley begins as White House deputy press secretary

  • Hogan Gidley, a longtime communications advisor to conservative politicians, began as deputy press secretary in the Trump administration. Deputy press secretaries typically compose press releases, assist with outreach to the media and public, and brief the press when necessary. Gidley, who was an advisor on Mike Huckabee's presidential campaigns in 2008 and 2016, has advised Elizabeth Dole, Rick Santorum, and Mitt Romney, in the past. During the 2016 election, he worked with now-White House press secretary Sarah Huckabee Sanders on her father's campaign before joining the pro-Trump super PAC Make America Number 1.

SCOTUS concludes October argument sitting with arguments in two cases

  • On Wednesday, the U.S. Supreme Court concluded its argument sitting for October with arguments in two cases. The court heard arguments in 11 cases during its October sitting, which is the first of seven scheduled two-week argument sessions for the court’s October 2017 term. The court will next convene for arguments on Monday, October 30, the first day of the court’s two-week November sitting.
    • In National Association of Manufacturers v. Department of Defense, the court considered an appeal of a judgment of the U.S. Court of Appeals for the Sixth Circuit. In 2015, the Clean Water Rule was published by the Army Corps of Engineers and the U.S. Environmental Protection Agency. The Clean Water Rule was intended to clarify the boundaries of the waters of the United States, which brought those waters under federal regulatory provisions of the Clean Water Act. Several challenges to the 2015 Clean Water Rule were brought in both federal district courts and federal appeals courts as litigants questioned which courts had jurisdiction. Two specific subsections of a federal law, 33 U.S.C. §1369(b)(1), subsections (E) and (F), provide that federal appeals courts may review an action of the EPA administrator "(E) in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345 of this title" or "(F) in issuing or denying any permit under section 1342 of this title ..." A divided three-judge panel of the Sixth Circuit held that federal appeals courts had jurisdiction in this case under subsection (F). Despite this ruling, one of the panel judges, Richard Griffin, argued that the circuit precedent on which jurisdiction in federal appeals courts was established, National Cotton v. Council v. U.S. E.P.A., was incorrectly decided and would have denied appeals courts’ jurisdiction except that a three-judge panel cannot overturn a precedent. Another panelist, Judge Damon Keith, felt the precedent was incorrectly applied and would have also denied jurisdiction.
    • In Jesner v. Arab Bank PLC, the court reviewed a judgment of the U.S. Court of Appeals for the Second Circuit. The question in this case was whether a corporation could be sued for civil damages if they fund terrorist activities. Between 2004 and 2010, Joseph Jesner was one of a number of civil plaintiffs who filed various lawsuits in federal district court against Arab Bank, PLC, under the Alien Tort Statute. The statute is designed to allow federal courts to take jurisdiction in cases filed by foreign nationals in U.S. courts for alleged violations of either international law or a treaty to which the U.S. is a signatory. The lawsuits stemmed from various allegations that Arab Bank, PLC, had financial ties to terrorist bombings that resulted in injuries to the plaintiffs or their family members. A federal district court dismissed the lawsuits, holding that a binding precedent of the Second Circuit, Kiobel v. Royal Dutch Petroleum Company, categorically prohibited corporate liability under the statute. A three-judge panel of the Second Circuit upheld the district court's decision, but acknowledged that the circuit's precedent in Kiobel may no longer be considered good law in light of other circuit court holdings and of the U.S. Supreme Court's affirming the Kiobel decision on other grounds.

McConnell hints at ending use of blue slips for judicial nominees

  • On Wednesday, Senate Majority Leader Mitch McConnell (R-Ky.) indicated that the current practice of the Senate Judiciary Committee regarding blue slips would no longer be practiced. A blue slip is just that, a blue slip of paper. The blue slip, in practice, refers to a courtesy where a home state senator can prevent a judicial nomination from advancing by withholding the blue slip of paper given by the Senate Judiciary Committee chair. A senator who fails to return their blue slip has effectively prevented the Judiciary Committee from conducting confirmation hearings and a failure to receive a committee hearing typically prevents a nominee from being confirmed by the full Senate. The United States Constitution does not mandate the use of blue slips and there is no Senate rule mandating their usage. Senator McConnell expressed his view that Senate Republicans would consider the failure of a senator to return a blue slip "as simply notification of how you’re going to vote, not as an opportunity to blackball." Traditionally, adherence to the blue-slip courtesy falls within the purview of the Senate Judiciary Committee chair. The current chair, Sen. Chuck Grassley (R-Iowa), has indicated previously his reluctance to abandon the practice. A spokesperson for Sen. Grassley stated, "The chairman of the Judiciary Committee will determine how to apply the blue-slip courtesy for federal judicial nominees, as has always been the practice ... Over the years, chairmen have applied the courtesy differently, but the spirit of consultation has always remained." When asked whether McConnell was speaking for all Senate Republicans or Republicans on the Judiciary Committee, a McConnell spokesperson, Don Stewart, said, "“No, he’s been talking about HIS position on the matter for some time now ... If you mean he’s not announcing a committee position, then yes, he’s not announcing a committee position.” Home state senators for two of President Trump's judicial nominees, David Stras and Ryan Bounds, have indicated they would not return their blue slips for these nominees.

Trump nominates Kirstjen Nielsen as Secretary of Homeland Security

  • President Donald Trump announced his intent to nominate Kirstjen Nielsen as Secretary of Homeland Security. Nielsen is White House chief of staff John Kelly's principal deputy chief of staff. She was also Kelly's top aide when he served as DHS secretary. According to a White House press release, "Nielsen has extensive professional experience in the areas of homeland security policy and strategy, cybersecurity, critical infrastructure, and emergency management. She is the first nominee for this position to have previously worked within the Department of Homeland Security, having served there in two administrations, first as senior legislative policy director for Transportation and Security Administration under President George W. Bush and then as Department of Homeland Security Chief of Staff under President Trump."

Thursday, October 12

Trump signs executive order seeking to ease ACA rules

  • President Donald Trump signed an executive order seeking to modify some elements of healthcare insurance.
    • The order directs the secretary of labor to consider expanding access to Association Health Plans (AHPs) and potentially allow the sale of AHPs across state lines. It could expand the ability of small businesses and groups to pool together to buy health insurance plans that would be exempt from some of the ACA’s requirements.
    • The order also directs “the Departments of the Treasury, Labor, and Health and Human Services to consider expanding coverage through low cost short-term limited duration insurance.” These plans do not have to follow ACA rules, such as the mandate to cover essential health benefits. The Obama administration limited these plans to a coverage duration of three months and made them nonrenewable. President Trump’s order directs his administration to consider allowing these short-term plans to cover a longer period of time and to be renewed.
    • The order also directed the Departments of the Treasury, Labor, and Health and Human Services to consider changes to Health Reimbursement Arrangements (HRAs) that could allow employers to use pre-tax dollars to help pay workers' insurance premiums for individual health plans.
    • The order does not make direct changes to existing health insurance rule; instead, it directs agencies to consider new rules that will be subject to a notice and comment period.
    • Sen Rand Paul (R-Ky.) praised the order, saying, “Today's a big day. President Trump is doing what I believe is the biggest free market reform of health care in a generation. This reform, if it works and goes as planned, will allow millions of people to get insurance across state lines at an inexpensive price. 28 million people were left behind by Obamacare. [They] do not have insurance today. This specifically targets and will help people who don't have insurance, or people for whom insurance is too expensive. I'm very glad to be part of this, and I really want to commend the president for having the boldness and the leadership and the foresight to get this done.”
    • Senate Minority Leader Chuck Schumer (D-N.Y.) criticized the order, writing in a series of tweets, “Having failed to repeal the #ACA in Congress, @POTUS is using a wrecking ball to singlehandedly rip apart & sabotage our healthcare system. This executive order is just the latest in a series of steps he has taken to sabotage health care at the expense of millions of Americans. .@POTUS' exec order couldn't be further from his ‘great health care’ promise. It will up costs for seniors & ppl w/ preexisting conditions. And it will add further chaos to the markets. If the system deteriorates, make no mistake about it, the blame will fall squarely on @POTUS.”

Moore leads Jones by 8 points in Alabama Senate race

  • Former Alabama Supreme Court Chief Justice Roy Moore (R) leads former U.S. attorney Doug Jones (D) by 8 points, 49 percent to 41 percent, in a new Cygnal Alabama Senate poll. This is the third poll released since the Republican primary runoff which shows Moore with a single-digit lead over Jones. For comparison, Sen. Richard Shelby (R-Ala.) was re-elected to his seat by a margin of 28 points in 2016.

Friday, October 13

Club for Growth backs Blackburn in Tennessee Senate race

White House confirms that Trump will end ACA cost-sharing reduction payments

  • In an email to reporters, White House press secretary Sarah Huckabee Sanders said that the Trump administration would end cost-sharing reduction payments to insurance companies selling Obamacare plans. Sanders said, “Based on guidance from the Department of Justice, the Department of Health and Human Services has concluded that there is no appropriation for cost-sharing reduction payments to insurance companies under Obamacare. In light of this analysis, the Government cannot lawfully make the cost-sharing reduction payments. …The bailout of insurance companies through these unlawful payments is yet another example of how the previous administration abused taxpayer dollars and skirted the law to prop up a broken system.”
    • Under the ACA, insurers participating in the health insurance exchanges are required to offer low-income consumers reductions in their cost-sharing burden. Cost sharing refers to the division of payments for healthcare services between insurers and the individuals they cover. Under the ACA, individuals earning between 100 percent and 250 percent of the federal poverty level are eligible for a reduction in their share of these costs, paying as little as 6 percent of a plan's costs, compared to 30 percent under a standard silver-level plan. The law intended to reimburse insurers for these reductions in cost sharing.
    • House Minority Leader Nancy Pelosi (D-Calif.) and Senate Minority Leader Chuck Schumer (D-N.Y.) criticized the move in the following statement: “Sadly, instead of working to lower health costs for Americans, it seems President Trump will singlehandedly hike Americans’ health premiums. It is a spiteful act of vast, pointless sabotage leveled at working families and the middle class in every corner of America. Make no mistake about it, Trump will try to blame the Affordable Care Act, but this will fall on his back and he will pay the price for it. President Trump has apparently decided to punish the American people for his inability to improve our health care system.”
    • House Speaker Paul Ryan (R-Wis.) praised the move, saying, “Under our Constitution, the power of the purse belongs to Congress, not the executive branch. It was in defense of this foundational principle that the House, under the leadership of former speaker John Boehner, voted in 2014 to challenge the constitutionality of spending by the Obama administration that was never approved by Congress. The House was validated last year when a federal court ruled that the Obama administration had indeed been making unauthorized and therefore illegal payments through Obamacare. Today’s decision by the Trump administration to end the appeal of that ruling preserves a monumental affirmation of Congress’s authority and the separation of powers.”

Trump de-certifies nuclear deal, but declines to leave the agreement or reimpose sanctions

  • President Donald Trump said that he would not certify that Iran is complying with the nuclear deal, saying that Iran “has committed multiple violations of the agreement" and is "not living up to the spirit of the deal.” He called on members of Congress to strengthen the agreement by addressing the deal’s sunset clauses that will eliminate some restrictions on Iran’s nuclear program and by strengthening enforcement and oversight on Iran’s missile programs. Trump said if the deal cannot be strengthened, he will end it. Decertifying does not mean the deal is terminated. Under the Iran Nuclear Agreement Review Act (INARA), Congress now has 60 days to decide whether it should reimpose sanctions on Iran or take no action. A simple majority could vote to reimpose sanctions. If Congress reimposes sanctions, Iran could walk away from the deal. If Congress decides to do nothing, the deal will remain in place, although Trump has said that he will terminate the deal if Congress does nothing. Republican members of Congress are trying to amend the INARA to address Trump's concerns with the deal. Sens. Bob Corker's office said the legislation would “address the major flaws of the Joint Comprehensive Plan of Action (JCPOA) by requiring the automatic ‘snapback’ of U.S. sanctions should Iran violate enhanced and existing restrictions on its nuclear program.”

Congress is in session

The Senate will be in session Monday through Friday. The House will not be in session.

SCOTUS is NOT in session

The U.S. Supreme Court is between argument sessions and will reconvene for the first week of its two-week argument sitting for November on Monday, October 30. The November sitting is the second of seven scheduled two-week argument sittings during its 2017 term. The justices heard arguments in three cases this week and met at their weekly conference on Friday. Orders from that conference are expected on Monday of next week. As of October 13, 2017, the Supreme Court has agreed to hear arguments in 43 cases. Of those, the court has heard arguments in 11 cases so far this term. This week, the court also issued a summary disposition in one unargued case on Tuesday, Trump v. International Refugee Assistance Project. To learn more about this term, read our overview.

Verbatim Fact Checks

West Virginia Attorney General Patrick Morrisey and U.S. Rep. Evan Jenkins are running in the Republican primary for the chance to challenge Democratic Sen. Joe Manchin in 2018. A Jenkins campaign ad claims that Morrisey was #NeverTrump and refused to endorse the presumptive GOP nominee for 70 days following the West Virginia primary.

Determining whether Jenkins' claims are true requires tangible evidence. When asked to provide it, the Jenkins' campaign referred to content in the ad. However, that content does not support Jenkins’ claims against Morrisey.

The Jenkins’ ad refers repeatedly to the fact that Morrisey in 2016 ran as an unbound delegate to the GOP convention. Being an unbound delegate does not equate in any way to being #NeverTrump or to refusing to endorse Donald Trump.

In a recent news roundup, Sun-Sentinel reporter Dan Sweeney cited two articles about cutbacks in federal funding for teen pregnancy prevention programs. According to Sweeney, “Given both these stories, it now seems we're in the middle of a nationwide crackdown on programs to prevent teen pregnancy."

This is not accurate. The president’s fiscal year 2018 budget proposal does not request funding for the Teen Pregnancy Prevention Program administered by HHS—a cut of $101 million from the previous year. The president’s budget does request more than $350 million for both FYs 2018 and 2019 for other programs to prevent teen pregnancy.

WHAT'S ON TAP NEXT WEEK

Here's what is happening in federal politics this week. To see what happened in state and local politics, click here.

Tuesday, October 17

Five Trump judicial nominees to get confirmation hearings

  • The Senate Judiciary Committee will hold confirmation hearings on five of President Donald Trump’s judicial nominees. The hearings are used to examine a nominee's record and to ask questions related to that record. After a nominee's hearings are conducted, at a later date the committee may vote to report that nomination to the full Senate for final confirmation. A nomination that is not reported out of committee is unlikely to proceed to a final confirmation vote. The five nominees with hearings on Wednesday are:
    • Greg Katsas, nominee to the U.S. Court of Appeals for the District of Columbia Circuit
    • Jeffrey Beaverstock, nominee to the U.S. District Court for the Middle District of Alabama
    • Emily Coody Marks, nominee to the U.S. District Court for the Middle District of Alabama
    • Brett Talley, nominee to the U.S. District Court for the Middle District of Alabama
    • Holly Lou Teeter, nominee to the U.S. District Court for the District of Kansas

Where was the president last week?

  • On Tuesday, President Donald Trump met with former Secretary of State Henry Kissinger at the White House. He then had lunch with Secretary of State Rex Tillerson and Defense Secretary James Mattis. He also welcomed the Pittsburgh Penguins, who won the 2017 Stanley Cup, to the White House.
  • On Wednesday, Trump met with Canadian Prime Minister Justin Trudeau at the White House for NAFTA discussions. Trump then delivered remarks on tax reform in Pennsylvania.
  • On Thursday, Trump signed a healthcare executive order and participated in ceremony where he announced Kirstjen Nielsen as his nominee for secretary of homeland security.
  • On Friday, Trump spoke at the 2017 Values Voter Summit in Washington, D.C. He then delivered a statement on the Iran strategy. He concluded his day by visiting the United States Secret Service (USSS) training facility.

Federal Judiciary

  • 144 judicial vacancies in life-term, Article III judicial positions
  • 50 pending nominations to life-term, Article III judicial positions
  • 17 future vacancies to life-term, Article III judicial positions


About

The Tap covered election news, public policy, and other noteworthy events from February 2016 to February 2022.

Back to top • More articles

Retrieved from "https://ballotpedia.org/wiki/index.php?title=The_Federal_Tap:_Rounding_up_Trump%27s_latest_ACA_alterations&oldid=8441533"