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June 9th, 2018:

Justice Department drops out of latest Obamacare lawsuit

Which of course was filed in Texas by our felonious Attorney General.

It’s constitutional – deal with it

The Trump administration said Thursday night that it will not defend the Affordable Care Act against the latest legal challenge to its constitutionality — a dramatic break from the executive branch’s tradition of arguing to uphold existing statutes and a land mine for health insurance changes the ACA brought about.

In a brief filed in a Texas federal court and an accompanying letter to the House and Senate leaders of both parties, the Justice Department agrees in large part with the 20 Republican-led states that brought the suit. They contend that the ACA provision requiring most Americans to carry health insurance soon will no longer be constitutional and that, as a result, consumer insurance protections under the law will not be valid, either.

The three-page letter from Attorney General Jeff Sessions begins by saying that Justice adopted its position “with the approval of the President of the United States.” The letter acknowledges that the decision not to defend an existing law deviates from history but contends that it is not unprecedented.

The bold swipe at the ACA, a Republican whipping post since its 2010 passage, does not immediately affect any of its provisions. But it puts the law on far more wobbly legal footing in the case, which is being heard by a GOP-appointed judge who has in other recent cases ruled against more minor aspects.

The administration does not go as far as the Texas attorney general and his counterparts. In their suit, lodged in February in the U.S. District Court for the Northern District of Texas, they argue that the entire law is now invalid.

By contrast, the Justice brief and letter say many other aspects of the law can survive because they can be considered legally distinct from the insurance mandate and such consumer protections as a ban on charging more or refusing coverage to people with preexisting medical conditions.

[…]

In an unusual filing just before 6 p.m. Thursday, when the brief was due, the three career Justice attorneys involved in the case — Joel McElvain, Eric Beckenhauer and Rebecca Kopplin — withdrew.

The department’s argument, if adopted by U.S. District Judge Reed O’Connor, “would be breathtaking in its effect,’ said Timothy Jost, a retired Washington and Lee law professor who follows such litigation closely. “Of all of the actions the Trump administration has taken to undermine individual insurance markets, this may be the most destabilizing. . . . [If] I’m an insurer, I don’t know what I am supposed to do or not.”

Jost, an ACA supporter, noted that the administration’s decision not to defend the law comes during the season when participating insurers must file their rates for next year with state regulators. It raises new questions about whether insurers still will be required to charge the same prices to all customers, healthy or sick.

And Topher Spiro, vice president of health policy at the liberal Center for American Progress, said the administration’s legal argument contradicts promises by Trump that he would not tamper with the ACA’s protections for people with preexisting medical conditions.

University of Michigan law professor Nicholas Bagley, another ACA defender, went even further in a blog post. “If the Justice Department can just throw in the towel whenever a law is challenged in court, it can effectively pick and choose which laws should remain on the books,” he wrote. “That’s not a rule of law I recognize. That’s a rule by whim. And it scares me.”

See here for the background. The fact that three Justice Department attorneys withdrew from the case rather than be party to this decision is what really stands out to me. Those are the people who believe the most strongly in the Justice Department’s mission. That’s about as loud a statement as they could make.

There’s a coalition of states that was granted standing to the litigation, and they filed a brief in response, so it’s not like the ACA is on its own in the courtroom. But if you’re someone with a pre-existing condition, which is one of the things that is at stake here, or you know someone who has one – and there are some 130 million people who fall into that bucket – then this is what this action means to you. If you need health insurance, the Trump administration and its enablers like Ken Paxton are working to take it away from you. I don’t know about you, but I want to hear a lot more about this between now and Election Day. Washington Monthly, Daily Kos, ThinkProgress, Mother Jones, the Observer, and the Trib have more.

Who’s willing to tell Trump he’s all wet?

Not Greg Abbott or Dan Patrick.

During a visit to Pinkerton’s Barbecue on Friday afternoon, gubernatorial candidate Lupe Valdez said Gov. Greg Abbott failed to forcefully refute the president, who said on Wednesday that some Texans “went out in their boats to watch the hurricane” and that it “didn’t work out too well.”

Abbott told the Chronicle that he had “no information one way or another about that,” comments Valdez said were intended to avoid confronting the president.

“The heck with Trump… what are you doing taking care of somebody else?” Valdez said of Abbott. “Take care of your own people.”

[…]

[Lt. Governor candidate Mike] Collier said Trump’s comments were “one of the more offensive things I’ve ever heard.” He said that Texas’ elected Republican leaders have refrained from criticizing Trump’s comments because they want to protect the president.

See here for the background. Look, this is a layup, even for a craven Republican like Abbott or Patrick. “I’m not sure what the President saw, but the rest of us saw many people going out into the storm to help their neighbors, because that’s what we do in Texas”. Joe Straus got it right. It ain’t rocket science. Now, I do appreciate Abbott and Patrick giving Valdez and Collier a chance to dunk on them, but don’t these guys have advisers? Whatever, keep up the good work, fellas.

More on the Texans’ cheerleader lawsuit

Here’s a story in Vanity Fair about the second lawsuit filed against the Houston Texans by a group of former cheerleaders, who allege wage theft and harassment, among other things. The tale is from the perspective of plaintiff Gabriella Davis, and much of it focuses on the lousy treatment she and her fellow cheerleaders got from the team and specifically its longtime cheerleading director, Altovise Gary. I encourage you to read all that, but I want to highlight the matters relating to money:

Davis said the cheerleaders were frequently reminded that they were replaceable: “We were told, ‘There’s another girl who will do it for free,’” she said.

But they practically did that themselves.

According to both Davis and a copy of the 2017-2018 Texans cheerleader contract, cheerleaders were making $7.25 per hour, the state’s minimum wage, or approximately $1,500 per season. The employment agreement stipulates that the cheerleaders are hired as part-time employees (by day, some were college students, lawyers, or worked in P.R.). But Davis, as well as her former teammates who are suing the Texans, argued that Gary warned them upfront that they would be “part-time employees with full-time hours.” Their time commitment included games, practices, and a required 50 team-sponsored promotional appearances during the season. The cheerleaders said they were not paid overtime for hours of work outside of cheering, including selling calendars and meeting fans after games, plus daily social-media requirements, which included tweeting from the official cheerleader handle and following hundreds of people on Twitter in order to boost the account’s following.

See here and here for the background. The “we can replace you with someone who’d do this for free” attitude is pervasive, and is right there in the comments on the Chron story about the more recent lawsuit. You want to talk about “economic anxiety”, I’m here to say there would be a whole lot less of it if people didn’t internalize that message. I have a hard time understanding why anyone would side with the multi-billion dollar entity that could easily afford to pay these women a salary that’s actually commensurate with the work they do and the value they add. I’m rooting for the courts to see it the same way, but ultimately what we need is better legislation to improve working life for all of us. Here are statements from the plaintiffs and a statement from the Texans on this case. I’m sure we have not seen the last of these in the league.