On December 20th, the Fifth Circuit Court of Appeals ruled on the Republican-led lawsuit to repeal the Affordable Care Act (ACA). Two Republican-appointed judges, Jennifer Elrod and Kurt Engelhart (whose records our sister organization, Alliance for Justice, scrutinized prior to their confirmations) sided with President Trump to declare a portion of the law unconstitutional, while the one Democrat-appointed judge on the panel dissented. This has kept alive an attack on the ACA in its entirety, including protections for people with preexisting conditions. The case now returns to the same lower court judge who previously declared the entire law invalid.
Crucial health care coverage for millions of Americans hangs in the balance, and no entity is more responsible for this potential pending catastrophe than the Republican-led Senate. Republican senators have aided and abetted the president in his takeover of the federal courts, voting to confirm nearly every one of his unqualified and extremist nominees who openly oppose the ACA — many in contradiction of their campaign promises to protect access to healthcare.
Take Arizona Senator Martha McSally, for example. In a 2018 campaign ad, she claimed she was “leading the fight” to “force insurance companies to cover pre-existing conditions.” In reality, McSally has voted to confirm every single one of Trump’s judges, many with documented records of hostility to the ACA.
Senator Susan Collins also claims to be “very concerned” about coverage for pre-existing conditions. And yet, she routinely votes to award Trump’s extremist nominees with lifetime seats to the federal bench, where they can gut the ACA with impunity.
The same goes for Senators Cory Gardner, Joni Ernst, and Thom Tillis, among countless other Republican senators who claim to support protections for pre-existing conditions, but whose actions tell another story. The fact is all of these senators — and the entire Republican Senate — are totally complicit in the current attacks on our health care system in the courts. None of these senators who have allowed Trump to pack the courts with ideologues can purport to care about protecting patients with life-threatening pre-existing conditions.
Among the many nominees with explicit records opposing the ACA is Brett Kavanaugh, who the Republican-led Senate confirmed to a lifetime seat on the Supreme Court. There, he will make decisions regarding our care for decades to come. While a D.C. Circuit judge, Kavanaugh dissented from two rulings upholding the ACA, and according to his own law clerk Justin Walker (recently confirmed as a federal judge), he wrote the “roadmap” for repealing the ACA through the courts. Another of Kavanaugh’s former clerks, Sarah Pitlyk (also recently confirmed as a federal judge) said of Kavanaugh, “No other contender on President Trump’s list is on record so vigorously criticizing the [Affordable Care Act].” And yet, the same Republicans who are “very concerned” about pre-existing conditions voted to confirm him anyway.
The Republican Senate also confirmed Chad Readler to the Sixth Circuit Court of Appeals. In the very lawsuit currently being considered, Readler filed the brief on behalf of Trump’s Department of Justice (DOJ) arguing that the entire ACA was unconstitutional, including protections for people with preexisting conditions. Three other DOJ lawyers refused to sign the brief; a veteran lawyer even resigned in protest. But Readler was happy to sign his name to it, and Republicans were happy to confirm him to a lifetime appointment on the federal bench, where he can further dismantle our care.
Justin Walker, Kavanaugh’s former clerk discussed above, was also confirmed to the district court in Kentucky, despite a “Not Qualified” rating from the American Bar Association and a clear hostility to laws that protect access to health care. Walker called the Supreme Court’s decision to uphold the ACA “indefensible” and praised then-Judge Kavanaugh for his “thorough and principled takedown” of the ACA. Despite their assertions that they want to protect patients with pre-existing conditions, Republicans in the Senate voted to confirm him.
The GOP Senate has been willing to aid and abet Trump’s court-packing scheme because it allows them to achieve their unpopular policy goals without having to face accountability from their constituents. They rely on their unelected judges in the federal courts to do their dirty work for them. Republican Senators cannot plausibly claim that this is an unintended consequence of their votes, since Trump explicitly promised to appoint anti-health care judges, stating, “My judicial appointments will do the right thing unlike Bush’s appointee John Roberts on Obamacare.” We believed him when he said he would dismantle our care through the courts. Are these Republican senators really surprised that Trump has done exactly that?
From the second the ACA took effect, Republicans have been dead set on dismantling it. They found a perfect leader in Donald Trump, who made repealing the ACA a legislative priority. Republican Congressmembers gleefully worked with Trump on a bill to kick millions of Americans off their health care. When the bill passed in the House, Trump and the GOP literally celebrated with a party in the Rose Garden. Americans responded with overwhelming activism, holding rallies and protests all around the country, demanding that Senate Republicans vote against this destructive bill, and it worked. The GOP’s efforts to destroy the ACA ultimately failed when Senator John McCain famously voted “no,” killing the bill in the Senate.
That should have been the end of the story, but of course, Republicans have never been ones to let the will of the American people stop them from pursuing an unpopular agenda. The lawsuit decided last week was brought by a group of Republican Attorneys General, and the Trump Justice Department has joined them in attacking the ACA. Led by California AG Xavier Becerra, a group of Democratic Attorneys General are doing the work that the Justice Department is supposed to do: defending the laws of the United States.
The Republican argument has no merit — even conservative legal scholars who opposed the ACA think the lawsuit is frivolous, and Republican Senator Lamar Alexander called the Justice Department’s argument “as far-fetched as any I’ve ever heard.” And yet, Republicans continue to support Trump’s anti-health care nominees, handing them lifetime appointments to the federal bench, where they can continue to dismantle the democratically-passed laws that protect our care.
Make no mistake about this lawsuit working its way through the courts — this IS the Republican health care plan. The Trump Administration and its Republican allies have attacked the ACA, including its protections for people with preexisting conditions, packed the courts with extremists, and brought this lawsuit before the Fifth Circuit, believing their dirty work would go unnoticed. It is no surprise that health care remains the top issue for voters heading into 2020 — this is literally a matter of life and death for many families. Republicans must be held responsible for the consequences of their dangerous assault on our health care.
In 2020, voters across the country can save our health care — by voting out the Republicans intent on destroying it.