Without Ginsburg, high court support for health law in doubt

Until six weeks ago, defenders of the Affordable Care Act could take comfort in some simple math. Five Supreme Court justices who had twice preserved the Obama-era health care law remained on the bench and seemed unlikely votes to dismantle it. But Justice Ruth Bader Ginsburg’s death in mid-September and her replacement by Amy Coney Barrett barely a month later have altered the equation as the court prepares to hear arguments Tuesday in the third major legal challenge in the law’s 10-year existence. Republican attorneys general in 18 states, backed by the Trump administratio n, are arguing that the whole law should be struck down because of a change made by the Republican-controlled Congress in 2017 that reduced the penalty for not having health insurance to zero. A court ruling invalidating the entire law would threaten coverage for more than 23 million people. It would wipe away protections for people with preexisting medical conditions, subsidized insurance premiums that make coverage affordable for millions of Americans and an expansion of the Medicaid program that is available to low-income people in most states. “No portion of the ACA is severable from the mandate,” Texas Attorney General Ken Paxton told the court in a written filing. The Republicans are pressing this position even though congressional efforts to repeal the entire law have failed, including in July 2017 when then-Arizona Sen. John McCain delivered a dramatic thumbs-down vote to a repeal effort by fellow Republicans. Barrett is one of three appointees of President Donald Trump who will be weighing the latest legal attack on the law popularly known as “Obamacare.” Justices Neil Gorsuch and Brett Kavanaugh are the others. It’s their first time hearing a major case over the health law as justices, although Kavanaugh took part in the the first round of suits over it when he was a federal appeals court judge. Of the other justices, Chief Justice John Roberts and Justices Stepehen Breyer, Elena Kagan and Sonia Sotomayor have voted to uphold the law. Justices Samuel Alito and Clarence Thomas have voted for strike it all down. The case is being argued at an unusual moment, a week after the presidential election, with Democrat Joe Biden on the cusp of winning the White House. Control of the Senate also is hanging in the balance. The political environment aside, the practical effects of the repeal of the tax penalty have surprised many health care policy experts. They predicted that getting rid of the penalty would lead over time to several million people dropping coverage, mostly healthier enrollees, and as a result, premiums for the law’s subsidized private insurance would rise because remaining customers would tend to be in poorer health.

Justices deny fast, new look at Pennsylvania ballot deadline

The Supreme Court on Wednesday said it would not grant a quick, pre-election review to a new Republican appeal to exclude absentee ballots received after Election Day in the presidential battleground state of Pennsylvania, although it remained unclear whether those ballots will ultimately be counted. The court’s order left open the possibility that the justices could take up and decide after the election whether a three-day extension to receive and count absentee ballots ordered by Pennsylvania’s high court was proper. The issue would take on enormous importance if Pennsylvania turns out to be the crucial state in next week’s election and the votes received between Nov. 3 and Nov. 6 are potentially decisive. The Supreme Court ruled hours after Pennsylvania’s Department of State agreed to segregate ballots received in the mail after polls close on Tuesday and before 5 p.m. on Nov. 6. President Donald Trump’s campaign suggested that those ballots will never be counted. “We secured a huge victory when the Pennsylvania Secretary of State saw the writing on the wall and voluntarily complied with our injunction request, segregating ballots received after the Nov. 3 deadline to ensure they will not be counted until the Supreme Court rules on our petition,” Justin Clark, a deputy campaign manager, said in an interview. The court, Clark said, deferred “the most important issue in the case, which is whether state courts can change the time, place and manner of elections, contrary to the rules adopted by the Legislature.” Pennsylvania’s Department of State could not immediately say Wednesday night whether it would revise its guidance to the counties about whether to count those ballots. The Alliance for Retired Americans, which had sued in Pennsylvania state courts for an extended deadline, said the ruling means that ballots arriving during the three-day period after Election Day will be counted. “This is an enormous victory for all Pennsylvania voters, especially seniors who should not have to put their health at risk during the pandemic in order to cast a ballot that will be counted,” Richard Fiesta, the alliance’s executive director, said in a statement. New Justice Amy Coney Barrett did not take part in the vote “because of the need for a prompt resolution of it and because she has not had time to fully review the parties’ filings,” court spokeswoman Kathy Arberg said in an email. Justice Samuel Alito, writing for three justices, indicated he would support the high court’s eventual review of the issue. But, he wrote, “I reluctantly conclude that there is simply not enough time at this late date to decide the question before the election.” Last week, the justices divided 4-4, a tie vote that allowed the three-day extension ordered by the Pennsylvania Supreme Court to remain in effect.

Supreme Court issues flurry of last-minute election orders

North Carolina, yes. Pennsylvania, yes. Wisconsin, no. That’s how the Supreme Court has answered questions in recent days about an extended timeline for receiving and counting ballots in those states. In each case, Democrats backed the extensions and Republicans opposed them. All three states have Democratic governors and legislatures controlled by the GOP. At first blush, the difference in the outcomes at the Supreme Court seems odd because the high court typically takes up issues to harmonize the rules across the country. But elections are largely governed by states, and the rules differ from one state to the next. A big asterisk: These cases are being dealt with on an emergency basis in which the court issues orders that either block or keep in place a lower-court ruling. But there is almost never an explanation of the majority’s rationale, though individual justices sometimes write opinions that partially explain the matter There also is a difference in how the justices act based on whether they are ruling on a lawsuit that began in state or federal court. Conservative justices who hold a majority on the Supreme Court object to what they see as intrusions by federal judges who order last-minute changes to state election rules, even in the middle of the coronavirus pandemic. The power to alter absentee ballot deadlines and other voting issues rests with state legislatures, not federal courts, according to the conservative justices. The court also is divided, but so far has been willing to allow state courts interpreting their own state constitutions to play more of a role than their federal counterparts. Last week, four conservative justices would have put on hold a Pennsylvania Supreme Court ruling allowing three additional days to receive and count mailed ballots. Three justices in Wednesday’s order about North Carolina’s absentee ballots would have blocked a six-day extension. The justices did not finally resolve the legal issues involved, but they could do so after the election. A more thorough examination could come either in a post-election challenge that could determine the presidential winner if, for example, Pennsylvania proves critical to the national outcome, or in a less tense setting that might not affect the 2020 vote, but would apply in the future.

Judges: Trump can’t exclude people from district drawings

Saying the president had exceeded his authority, a panel of three federal judges on Thursday blocked an order from President Donald Trump that tried to exclude people in the country illegally from being counted when congressional districts are redrawn. The federal judges in New York, in granting an injunction, said the presidential order issued in late July was unlawful. The judges prohibited Commerce Secretary Wilbur Ross, whose agency oversees the U.S. Census Bureau, from excluding people in the country illegally when handing in 2020 census figures used to calculate how many congressional seats each state gets. According to the judges, the presidential order violated laws governing the execution of the once-a-decade census and also the process for redrawing congressional districts known as apportionment by requiring that two sets of numbers be presented ? one with the total count and the other minus people living in the country illegally. The judges said that those in the country illegally qualify as people to be counted in the states they reside. They declined to say whether the order violated the Constitution. “Throughout the Nation’s history, the figures used to determine the apportionment of Congress ? in the language of the current statutes, the ‘total population’ and the ‘whole number of persons’ in each State ? have included every person residing in the United States at the time of the census, whether citizen or non-citizen and whether living here with legal status or without,” the judges wrote. Opponents of the order said it was an effort to suppress the growing political power of Latinos in the U.S. and to discriminate against immigrant communities of color. They also said undocumented residents use the nation’s roads, parks and other public amenities and should be taken into account for any distribution of federal resources. The lawsuits challenging the presidential order in New York were brought by a coalition of cities, civil rights groups and states led by New York. Because the lawsuits dealt with questions about apportionment, it was heard by a three-judge panel that allows the decision to be appealed directly to the U.S. Supreme Court. The judges agreed with the coalition that the order created confusion among undocumented residents over whether they should participate in the 2020 census, deterring participation and jeopardizing the quality of the census data. That harm to the census was a sufficient basis for their ruling and they didn’t need to rely on the speculation that a state would be hurt by possibly losing a congressional seat if people in the country illegally were excluded from apportionment, the judges said.

Black Democrat urges governor to drop Black court nominee

A Black Democratic state lawmaker who is challenging the appointment of a Black woman to the Florida Supreme Court contended Thursday that Republican Gov. Ron DeSantis is engaging in “racial tokenism” by choosing someone the court itself has already ruled is not eligible for the position. State Rep. Geraldine Thompson said in an online news conference that DeSantis only chose Renatha Francis for the high court because she shares his conservative ideology, not because he is trying to achieve racial diversity. Thompson says Francis doesn’t meet the constitutional requirement of being a Florida Bar member for at least 10 years, a point the Supreme Court noted two weeks ago when it ruled DeSantis had exceeded his authority by appointing an ineligible candidate. The court did not undo the appointment, however. “He wants to throw the rulebook out the window and do whatever he wants to do,” Thompson said. “That’s not what our country is supposed to be about.” Thompson wants the governor to rescind the appointment. She spoke a day after DeSantis defended his choice at an event Wednesday alongside several Black elected officials who support Francis' appointment. The governor appointed Francis in May with the understanding that she would not actually sit on the court until she is eligible. She will complete 10 years in the bar in two weeks. DeSantis accused Thompson of blocking the appointment for political reasons. He noted that no other Blacks currently serve on the court. But Thompson argued that DeSantis only wanted the “right" Black person on the court. “It was clearly about ideology and sharing the same perspective he had," she said. “This is one of the worst and most egregious examples of racial tokenism that I have seen in my life.” Francis, currently a circuit judge in Palm Beach County, would not be the first Black woman to serve on the Supreme Court but would be the first Caribbean-American to do so. She operated a bar and trucking company in Jamaica before moving to the United States as an adult and working her way through law school. Thompson represents portions of the Orlando suburbs, including Disney World and Universal Studios. At the event Wednesday, DeSantis accused Thompson of hypocrisy, saying that she had been among those pushing for a Black justice and now that he has appointed one, she doesn't like her. He said her opposition would force him to choose from a list that includes no Black candidates. Thompson countered that a governor can't simply ignore the Florida Constitution.

Germany calls for US to back off from world court sanctions

Germany on Friday added its voice to criticism of U.S. sanctions against two top officials of the International Criminal Court, appealing to Washington to withdraw the measures and describing them as “a serious mistake.” The comments by Foreign Minister Heiko Maas followed calls Thursday for the U.S. to reverse course from his French counterpart and European Union foreign policy chief Josep Borrell. U.S. Secretary of State Mike Pompeo announced sanctions Wednesday against the chief prosecutor of the court, based in The Hague, and a top aide, for continuing investigations into the United States and its allies. The sanctions include a freeze on assets held in the U.S. or subject to U.S. law and target prosecutor Fatou Bensouda and the court’s head of jurisdiction, Phakiso Mochochoko. Pompeo had previously imposed a travel ban on Bensouda and other tribunal employees over investigations into allegations of torture and other crimes by Americans in Afghanistan. The U.S. has never been party to the court. Pompeo said the U.S. would not tolerate “its illegitimate attempts to subject Americans to its jurisdiction.” Germany's Maas said that “we have full confidence in the work of the International Criminal Court and consider it a serious mistake that the U.S. has decided on this further step.” “We are continuing to work for the International Criminal Court to be able to fulfill unhindered its indispensable role in the the international fight against impunity, and appeal to the United States to withdraw the measures,” Maas said in a statement.

Court upholds health order fines for New Mexico businesses

The New Mexico Supreme Court on Tuesday unanimously upheld the governor’s authority to fine businesses up to $5,000 a day for violating state emergency health orders aimed at slowing the spread of COVID-19. The court heard arguments from a group of business owners who claimed the administration of Gov. Michelle Lujan Grisham overstepped its authority in imposing fines higher than $100 citations. The five-member court ruled without dissent against the business owners who sued. Chief Justice Michael Vigil said the “Legislature has clearly given the governor that authority.” The court did not make a decision on another claim that the restrictions in response to the pandemic may require government compensation for businesses. Carter Harrison, an attorney for several business owners, contended that the health order violations could be sanctioned with fines of up to $100 and up to six months in jail. But Matthew Garcia, a lawyer for the administration, said Lujan Grisham has the authority to impose steep fines. “What we’re trying to get here is immediate compliance because the only tool we currently have to stem the transmission of COVID-19 is social distancing,” Garcia told the justices. State officials have issued the $5,000 daily fines to 16 businesses amid a backlash against the public health orders affecting restaurants and other establishments. State Republican Party Chairman Steve Pearce condemned the court’s decision and promised to make it an issue in November elections as two appointed Democratic justices defend their seats. Justice Shannon Bacon is confronting Republican Ned Fuller, a deputy district attorney in San Juan County, while Justice David Thomson is running against Republican former prosecutor Kerry Morris of Albuquerque. Lujan Grisham was an early adopter of hard-line stay-at-home orders and business restrictions that still prohibit indoor restaurant service, require face masks in public, ban public gatherings of more than four people and suspend classroom attendance at public schools. Major steps toward reopening the economy have been delayed until at least the end of August amid a July surge in cases in New Mexico and the neighboring states of Arizona and Texas.