The 5th Circuit Court of Appeals might find this of interest...(OK, probably not, but still worth noting)

I'm neither an attorney nor a Constitutional expert, so this may not have any legal significance beyond confirming what everyone already knew about the Trump Administration. Then again, perhaps it will.

Just a little over two weeks from now, the United States Court of Appeals for the Fifth Circuit will be hearing oral arguments in the Texas vs. Azar case, otherwise known as #TexasFoldEm. As a reminder:

If the entire ACA were to be repealed:

  • 16 million people would lose Medicaid
  • 9 million people would lose subsidized private ACA exchange coverage
  • 850,000 would lose BHP coverage in Minnesota & New York
  • Medicare Part D donut hole? Reopened.
  • Children being allowed to stay on their parents plans until age 26? Gone.
  • Discrimination against those with preexisting conditions? Back.
  • Annual & lifetime limits on coverage? Back.
  • Caps on out of pocket expenses? Gone.

...and much, much more.

Once again, here's the ludicrous argument of both the plaintiffs and Trump's Department of Justice's:

  • The ACA's shared responsibility penalty (aka the "Individual Mandate") is only Constitutional because it was considered a tax by the Supreme Court.
  • The GOP changed the shared responsibility penalty fee to $0.
  • Therefore, that somehow makes not only the mandate unconstitutional, it also means the rest of the law is as well, because reasons.
  • Therefore, the entire law needs to be repealed en masse.

No, it makes zero sense whatsoever. Yet here we are.

Well, earlier today, Axios published a hell of a scoop:

Nearly 100 internal Trump transition vetting documents leaked to "Axios on HBO" identify a host of "red flags" about officials who went on to get some of the most powerful jobs in the U.S. government.

Why it matters: The massive trove, and the story behind it, sheds light on the slap-dash way President Trump filled his cabinet and administration, and foreshadowed future scandals that beset his government.

It's a great scoop and there's all sorts of depressing, disturbing and disgusting findings included, but I'm obviously mostly interested in the documents related to appointees to the Health & Human Services Dept., including the Centers for Medicare & Medicaid. Here's what Axios says about Trump's first HHS Secretary:

Tom Price, who ultimately resigned as Health and Human Services Secretary after Trump lost confidence in him in part for stories about his use of chartered flights, had sections in his dossier flagging "criticisms of management ability" and "Dysfunction And Division Has Haunted Price's Leadership Of The House Budget Committee."

Price, you may recall, was indeed an incompetent jackass who ended up getting kicked to the curb after racking up over a million dollars in taxpayer-funded first class airfare for unnecessary trips.

Here's the entry for CMS Administrator Seema Verma (who's still in charge of that division):

Seema Verma, who Trump appointed as the Administrator of the Centers for Medicare and Medicaid Services, had this paragraph near the top of her vetting form: "Verma was simultaneously advising Indiana ($3.5 million in contracts) on issues impacting how it would spend Medicaid funds while she was also being paid by a client that received Medicaid funds. Ethics experts have called the arrangement a conflict of interest that potentially put Indiana taxpayers at risk."

This is hardly shocking, considering that Verma once allegedly attempted to extort health insurance carriers into publicly supporting the Republican ACA repeal bill in return for the Trump Administration agreeing to pay out the billions of dollars in Cost Sharing Reduction reimbursement payments owed to those same carriers.

However, it's something within the Verma document itself which sparked this blog post. I was tipped off on this by Jesse Ferguson:

In their vetting of Seema Verma (CMS), they affirm... "The repeal of the Affordable Care Act will leave many Americans without insurance and unsure about future insurance prospects"

— Jesse Ferguson (@JesseFFerguson) June 23, 2019

Sure enough, here's a list of HHS-related policy questions Trump's transition team asked Verma:

Policy Questions Department of Health and Human Services Policy

  • How would you go about dismantling the Affordable Care Act and are there any policies or programs that you would want to keep for future plans or as standalone initiatives?
  • What would you prioritize in the formulation of a new healthcare plan?
  • The repeal of the Affordable Care Act will leave many Americans without insurance and unsure about future insurance prospects. What safeguards would you implement to ensure that people who still want coverage are able to get it while new policies are created and implemented?
  • What role do you see HHS as playing with regards to private insurance companies? Is it a regulator or a facilitator?
  • What changes would you make to Medicare to keep costs down while keeping the program intact for those who rely on it?
  • What reforms, if any, would you suggest to the Medicaid program, such as eligibility changes or expansion of coverage, and how would you keep costs down given these changes?
  • HHS oversees the TANF program in addition to other social service programs. What services do you see as most critical to assisting needy families, and would you expand or shrink any?

The document doesn't include Verma's responses, and some of these questions are quite reasonable...but the highlighted one seems pretty significant. My friend Peter Morley pointed out one other thing worth considering: It may seem stupidly obvious to say that repealing the ACA would leave tens of millions of Americans stranded without healthcare coverage, but legally there's often a huge difference between a statement which "everyone already knows" and that same statement being included in an official internal document.

Will this play any role in the impending 5th Circuit #TexasFoldEm oral arguments? Probably not, I'm afraid. It might not be deemed relevant, especially since it's an appeals court, and the issue at hand, as stupid as it may be, is whether setting the tax penalty to $0 somehow means the entire law has to be ruled unconstitutional or not.

Still, it certainly underscores the point: Trump's team knew damned well that they'd be kicking tens of millions to the curb, yet they planned on proceeding without a plan anyway...and if they win their court case (and yes, it's Trump's case even if he didn't bring it, since he instructed his Dept. of Justice to side with the plaintiffs instead of defending against the suit), that's exactly what will happen anyway.