Five Things to Watch for When Mueller Testifies

Will Robert Mueller’s testimony before Congress be a public spectacle or a dry reading?

Attorney General William Barr has predicted the former. The former Special Counsel, on the other hand, has indicated that his testimony on July 24 will not exceed the scope of his written report regarding his investigation into links between Russian interference in the 2016 presidential election and the campaign of Donald Trump. As Mueller stated in his only public remarks on the matter, “The report is my testimony.”

Mueller may want to avoid the spotlight, but here are five things to watch for when he testifies:

1. The Russian attack on our country is a serious national security threat

Even if Mueller does not speak beyond what is contained in his report, parts of the document itself are explosive. For the many people who have not read the report, some of the details will elicit audible gasps.

As Mueller wrote, Russia interfered in our election in “sweeping and systematic fashion.” Russia conducted information warfare in the form of a social media campaign “that favored presidential candidate Donald J. Trump and disparaged presidential candidate Hillary Clinton.”

According to the indictment against the Internet Research Agency, the Russian efforts included organizing pro-Trump rallies and hiring “a real U.S. person to wear a costume portraying Clinton in a prison uniform at a rally in West Palm Beach.” A second Russian intelligence operation hacked into computer servers and worked with Wikileaks to disseminate email messages to harm the Clinton campaign.

In another aspect of the Russian operation that has received less attention, the report found that military intelligence attacked state election boards, secretaries of states, county governments and their employees, as well as private technology firms that manufacture and administer voter registration software and electronic polling stations. This aspect of the attack raises questions about the extent to which these efforts might have affected the outcome of the election. And what do we need to do to prevent it in the future?

As Mueller said during his May 31 public remarks, “There were multiple, systematic efforts to interfere in our election. And that allegation deserves the attention of every American.” The public can expect to hear more about these attacks in vivid detail. The more sensitive information about the attacks can be discussed with the House Intelligence Committee in its closed session.

2. Links between the Russian government and the Trump campaign

Far from the cry of “no collusion,” Mueller’s report states that the “investigation identified numerous links between Russia and the Trump Campaign.”  Among these links were the sharing of polling data by Trump campaign chair Paul Manafort with Konstantin Kilimnik, whom the FBI assessed was connected to Russia intelligence. The polling data was shared on August 2016, and related to Wisconsin, Michigan, and Pennsylvania, all states in which Trump won upset victories. Mueller was unable to fully understand why this data was shared. If this data was used to help identify targets for the social media propaganda campaign, to what extent was it successful?

The links also included the June 2016 meeting at Trump Tower between Russians and Manafort, Donald Trump Jr., and Jared Kushner on behalf of the Trump campaign to obtain damaging information about Clinton as “part of Russia and its government’s support for Mr. Trump.” In addition, the report details efforts by Trump Jr. and Trump adviser Roger Stone to communicate with Wikileaks about the release of stolen email messages. The Stone indictment suggests that the campaign attempted to coordinate its own messaging about Clinton’s health with the release of the stolen emails.

While Mueller was unable to establish that these acts amounted to the crime of conspiracy, they can be viewed as disloyal for someone seeking the presidency.

3. President Trump, his associates, and obstruction of justice

Despite Barr’s conclusion that the evidence did not amount to obstruction of justice, Mueller reached a different result. He wrote that while his report did “not conclude that the President committed a crime, it also does not exonerate him.” Members of Congress will no doubt request an explanation for why Mueller did not reach a binary decision regarding whether to charge or not charge, instead declining to reach a traditional prosecutorial decision.

Is it a fair inference that Mueller was deferring to Congress, and its impeachment power, when he wrote that he did not want to “potentially preempt constitutional processes for addressing presidential misconduct”? Mueller is unlikely to offer more of an explanation than the words in his report, which he has said were chosen carefully.

Mueller may not explain his reasoning, but he will no doubt be asked to detail some of the obstructive acts undertaken by Trump and his associates. Even describing out loud the conduct of Trump and other members of his campaign will surprise some Americans who have accepted Barr’s characterization without reading the report. Mueller sets forth 10 separate acts by Trump himself, including asking White House Counsel Don McGahn to fire Mueller, and then directing him to lie about it and create a memo to document that lie. That act would amount to criminal conduct even under Barr’s theory that a president can never obstruct justice as a matter of law when he exercises executive power.

Trump also asked his former campaign chairman Cory Lewandowski, a private citizen, to tell then-Attorney General Jeff Sessions to reverse his decision to recuse himself from the investigation and announce that Mueller would investigate interference only in future elections. If successful, Trump would have shielded himself from investigation and prevented us from learning about how Russia attacked the 2016 election. Look for some member of Congress to point out that this behavior breaches a president’s duty to protect our national security as commander in chief.

The report further details obstructive conduct by others, stating that “several individuals affiliated with the Trump Campaign lied to the Office, and to Congress, about their interactions with Russian-affiliated individuals and related matters. Those lies materially impaired the investigation of Russian election interference.” Congress should demand that Mueller name names of individuals who lied to Congress so that members may pursue contempt.

4. Mueller's interaction with Attorney General William Barr

To what extent will Mueller answer questions about his interactions with Barr?  Will the administration assert executive privilege regarding communications that were part of agency deliberations? Or will Mueller be permitted to answer questions about Barr’s role?

Members of Congress should at least try to understand the areas of disagreement between Barr and Mueller and force Mueller to assert the privilege. Members could ask a number of pertinent questions. For example, when Barr sent out his initial letter about the report on March 24, Mueller complained that it “did not fully capture the context, nature and substance of his of his work and conclusions.” What was Mueller concerned about?

With regard to obstruction of justice, Barr’s letter stated that Mueller “leaves it to the Attorney General to determine whether the conduct described in the report constitutes a crime,” and then concluded that it did not.

Did Mueller intend to leave it to the attorney general to decide or did he have something else in mind? One plausible theory is that Mueller thought that it was inappropriate for anyone outside of Congress to decide whether the president had committed a crime so as not to taint public opinion on the impeachment question.

Barr has also expressed the view that a sitting president can never obstruct justice as a matter of law, a theory that Mueller rejected in his report. Did Barr’s unique legal theory cause him to reach the conclusion that the evidence did not amount to obstruction of justice?

Members of Congress should also ask whether Barr forced Mueller to end his investigation. Mueller worked on the investigation for 21 months before Barr took over as attorney general. A little more than three weeks later, Mueller was done, even though 14 investigations remained ongoing, the trial of Roger Stone was pending and grand jury matters involving Stone associate Andrew Miller and an undisclosed foreign entity remained unresolved. Why did Mueller end his investigation without completing those tasks? Was there other work he would have liked to have completed? Did Barr ask him to stop?

Another important question is whether Barr discouraged Mueller from seeking an in-person interview with Trump. Mueller attempted unsuccessfully to arrange for an interview with Trump for more than a year. He wrote that an interview of Trump was “vital” to his investigation, but Trump refused and instead agreed only to submit responses to written questions. Even then, he refused to answer any questions about obstruction of justice. Mueller’s report describes Trump’s responses as “inadequate,” “incomplete” and “imprecise.” Why, then, did he let Trump off the hook?

5. Will members of Congress attempt to discredit Mueller and the FBI?

Trump has at various times indicated that Mueller is a conflicted partisan out to ensnare him in a “witch hunt.” At other times, Trump has said that Mueller’s report offers a “complete exoneration.” Which version will Congress pursue?

Attempting to paint Mueller as a politically motivated hatchet man is unlikely to succeed.  Mueller is a decorated veteran and career public servant, appointed by Republican and Democratic presidents to serve in various high-level positions. He conducted his investigation by the book, and his conclusions showed great restraint, perhaps to a fault.  He has testified before Congress more than 50 times, mostly in his role as FBI Director, and he has always been unflappable. Efforts to attack him are likely to fall flat.

But an area where Mueller’s integrity could shed light is whether he observed anything that caused him to question the validity of the predication for starting the investigation. Barr has stated that he believes “spying” on the Trump campaign occurred. Others have suggested that the FBI abused the process for obtaining authorization to use surveillance under the Foreign Intelligence Surveillance Act. Mueller may be able to explain whether he saw anything to suggest that these allegations have any merit or, instead, whether they are complete nonsense.


Ideology, Not Republican Politics, Makes John Roberts Run – Again

This blog was originally posted on Balkinization.

No less than the Trump administration, Supreme Court pundits felt blind-sided by Chief Justice John Roberts’ rejection, in Department of Commerce v. New York, of the Commerce Department’s rationale for adding a citizenship question to the 2020 census.  They attributed the Chief’s stunner to political calculation, “echo[ing] his surprise affirmation of the Affordable Care Act in 2012,” which in their view had similarly been designed to shield the Court from perceptions of partisanship and to “lower political tensions.” On the left, some saw a more Machiavellian Roberts maneuver, temporarily pausing his Court’s relentless rightward march, merely to “modulat[e] public uproar,” while teaching his White House and congressional allies that, while he is “on their side,” they must “lie better next time” than Commerce Secretary Wilbur Ross’ ham-handed ploy to weaponize the census.

To be sure, the nation’s polarized state, and in particular the current president’s whack-a-mole penchant for defying established legal norms, challenge the Court’s independent stature in circumstances that require deft navigation by its helmsman – necessarily involving artful political judgment.  But to dismiss Roberts’ census decision as simply or even primarily political, is wrong, misleading, and even dangerous – as was the identical, widespread misread of his NFIB v. Sebelius decision to uphold the Affordable Care Act individual mandate as a tax, a point I elaborated in a recent Balkinization post. It is not only more straightforward, but sounder to forgo such unmoored psychological speculation, and, instead, focus on what he actually decided, and, especially, what he wrote.  In that light, DOC v. New York reaffirms, in the mode of NFIB and its too-little-noticed kin, King v. Burwell, that, on those (to date, rare) occasions when conservative, i.e., Republican, political priorities clash with Roberts’ ideological or jurisprudential druthers, he goes with the latter.

In NFIB the ideological itch he scratched was legal and policy favor for incentive-driven safety net programs, salted with another traditional oldie but no longer, on the right, a universal goody – judicial restraint and minimization of interference with congressional enactments.  King re-emphasized both of those ideological Roberts priorities, and also broke new ground on a broader Roberts interest – redefining the judiciary’s mandate for disciplining the “modern administrative state.”  Roberts’ emerging vision appears more engaged than prevalent post-New Deal doctrinal precepts, but also more nuanced than the overtly activist model of the pre-New Deal “Lochner Era” Court, favored by increasing numbers of libertarians and conservatives.  It is this long-term, ideological pursuit – not impromptu political calculation – which drove the decision to sideline Trump’s census machinations.  The breadth of this enterprise, and Roberts’ commitment to it, is evident in several decisions in addition to DOC v. New York, as I’ll explain briefly below.

To begin with, it seems blinkered to dismiss his census decision as merely an adroit maneuver to spur the administration to put a prettier face on its political agenda.  This is true, not simply because, the president’s base-pampering  fulminations notwithstanding, DOC v. New York has effectively killed Trump’s citizenship scheme. As his own attorney general advised him, the practical and legal implications of Roberts’ opinion all but rule out exhumation of the citizenship question in time for the 2020 census, if at all.

More broadly, Roberts’ opinion constitutes a truly stinging censure. Even in these partisan times, one would think there will be reverberations from having a respected conservative chief justice call out a cabinet official, acting at the behest of the president who appointed him, for lying to the public and the courts, including the Supreme Court, “from the time [Ross] entered office,” acting in “bad faith,” spinning a story that appears “contrived,” “incongruent” with what at least two departments, Commerce and Justice, with White House complicity, actually did, a “disconnect between the decision made and the explanation given.”

Most important, the words that Roberts chose can be expected (and must have been expected by him) to frame and establish ground rules for federal judges’ and justices’ approaches to the other, proliferating, legal challenges to alleged Trump overreach. Many of these, like the census case, turn on whether and when courts should credit administration rationales at odds with their expressed motivations.  In that regard, the line from Roberts’ census decision likely to be most often brandished by challengers could be this: “Our review is deferential, but we are [quoting Judge Henry Friendly, for whom he clerked], ‘not required to exhibit a naivete from which ordinary citizens are free.’”  Also handy for Trump challengers could be Roberts’ following riff:

The reasoned explanation requirement of administrative law . . . is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public.  Accepting contrived reasons would defeat the purpose of the enterprise.”  (Emphasis added.)

DOC v. New York would seem to establish a point on a spectrum of deference to agencies’ stated rationales, opposite that of Hawaii v. Trump, the 2018 travel ban case.  There Roberts, for a 5-4 majority, held that the Court could not overturn a facially valid Department of Homeland Security proclamation, on the basis of overtly anti-Muslim statements by Trump, during his 2016 campaign and while in office. While seeming to acknowledge Hawaii’s claim that “this President’s words strike at fundamental standards of respect and tolerance, in violation of our constitutional tradition,” Roberts countered that the Court’s role is not “to denounce the statements  . . . “[W]e must consider not only the statements of a particular President, but also the authority of the Presidency itself.”

In his year-later census decision, Roberts reiterated a similarly deferential perspective, in holding – along with the rest of the conservative bloc – that inserting the citizenship question was within the Department’s statutory authority, and that Secretary Ross’ rejection of contrary recommendations by the Census Bureau was not arbitrary and capricious under the Administrative Procedure Act. But, unlike his conservative colleagues, Roberts set an upper boundary on accepting an agency’s stated rationale –  when the rationale appears “contrived.” Further, he approved going outside the agency’s formal administrative record upon a prima facie showing that the stated rationale was made in “bad faith.”

In other recent cases, Roberts has elaborated additional features of a revised jurisprudence of the respective roles of courts and agencies.  In 2010, in circumscribing Congress’ constitutional authority to limit presidential power to remove agency heads without cause, he first broadcast his concern about “the administrative state, which, he lamented, “wields vast power and touches almost every aspect of daily life.”  In 2013, in an elaborate dissent in Arlington v. FCC, he  signaled his intent to climb aboard the bandwagon of conservatives focused on bolstering judicial checks on the “hundreds of federal agencies poking into every nook and cranny of daily life.”  His specific prescription was that Chevron v. NRDC, which held in 1984 that courts must defer to agency interpretations of ambiguous laws they administer, should be modified or clarified to reserve to reviewing courts exclusive responsibility, before they decide that Chevron applies, to determine whether Congress actually “granted the agency interpretive authority over the [particular] statutory ambiguity at issue.”

In 2015, advancing further his interest in paring back Chevron, in King v. Burwell, Roberts, for a 6-3 majority, ruled that, in cases where the issue is “a question of deep economic and political significance that is central to [the pertinent] statutory scheme,” courts should not follow Chevron at all, and must themselves decide what the law in question means, whether the law is “clear” or “ambiguous.”  Thus, shelving Chevron deference altogether in cases that really matter is another component of Roberts’ emerging approach to managing the administrative state.

Probably, the Chief Justice’s most significant sally into the thicket of judicial review of administrative action came during the present term, on the day before the census decision was announced. The case, Kisor v. Wilkie, invited the Court to overrule a longstanding rule known as Auer, shorthand for the decision in which the rule was established, that generally requires judicial deference to agency interpretations of their own regulations.  But it didn’t happen. Four of the Court’s conservatives voted, as expected, to overrule Auer, joining a lengthy opinion by Justice Gorsuch. Also, as expected, the four progressive justices voted to retain Auer deference, behind a similarly substantial opinion by Justice Kagan. But the Chief Justice struck out on his own, and, as in NFIB and DOC v. New York, deployed an idiosyncratic approach that decided the case, and resolved the contentious issue of principle at stake, on terms of his design.

Roberts’ tack was to join a section of Justice Kagan’s opinion, thereby turning that section into the opinion of the Court.  As he put it in a brief separate concurrence, that section “catalogs the prerequisites for, and limitations on Auer deference.”  As both camps, on and off the Court, recognized, the Kagan-Roberts catalog materially stiffened the Auer protocol, explicitly disowning “mixed messages” in certain prior Supreme Court decisions that had loosely interpreted Auer. As summarized by Roberts:

“The underlying regulation must be genuinely ambiguous; the agency’s interpretation must be reasonable and must reflect its authoritative, experience-base, and fair and considered judgment; and the agency must take account of reliance interests and avid unfair surprise.”

This new litany of boxes judges must check, before deferring to agency interpretations of their regulations, is sufficiently rigorous that it enabled Roberts to “suggest” that, in practice, the majority’s yes-but retention of Auer could prove little different from the no-but approach of Justice Gorsuch’s dissent.  Gorsuch’s opinion qualified its formal burial of Auer  “deference,” by detailing circumstances in which judges should be “persuaded” to concur in agency interpretations. Indeed, Justice Kavanaugh wrote his own short concurring opinion, in which Alito joined, to express their agreement that the difference between the majority and the minority could prove more a matter of spin than substance, “lead[ing] in most cases to the same general destination.”

I summarize Roberts’ opinions in the above cases, not to show-case, endorse, or critique them, but to put DOC v. New York in proper perspective. That perspective shows his actions and words in the census case fitting into a larger enterprise, to which he keeps returning, and for which he assiduously fashions general principles and implementing criteria and procedures, that courts, agencies, and litigants will presumably feel obliged to heed.  Repeatedly, Roberts shows his zest for marching to his own drum: carving out singular approaches to resolving ideologically polarized issues in both the individual mandate and Medicaid expansion sides of NFIB, and in Kisor and DOC v. New York; in King v. Burwell,  opportunistically denting Chevron, enhancing the Court’s power and his power on the Court, and rolling out an original approach to statutory interpretation; and in King and DOC v. New York, striking back at erstwhile political allies, for maneuvers so overtly manipulative that acquiescence would erode the Court’s stature, by making the justices “exhibit a naivete from which ordinary citizens are free,’” in order to promote transparently political agendas.

To anticipate or influence how the Chief Justice will handle future challenges to White House and executive decisions, the place to start is these rulings, and perhaps others, not to imagine him raising a finger to test the direction and velocity of the political winds.

Simon Lazarus is a lawyer and contributor to legal and opinion blogs and journals. He served as Associate Director of President Jimmy Carter’s White House Domestic Policy Staff, and since then with private and public interest law firms in Washington, DC. His email address is

U.S. National Women’s Soccer Team: The Players Blow the Whistle

We are proud of our athletic heroes. We revel in their victory and when they win we like to say they are the best of America. That is, as long as they keep their comments and gestures to the four corners of the playing field. Those who stray from the four corners do so at their own risk. Ask Tommie Smith, the 1968 Olympic Gold Medalist who was sent home from the Mexico City Olympics by the notorious United States Olympic Committee Chairman, Avery Brundage, after Smith gave the black power salute on the medal stand.

Or ask, if you could, the late Cardinals outfielder, Curt Flood, who sat out the 1970 baseball season after challenging major league baseball’s reserve clause by refusing to report to the Philadelphia Phillies after he was traded. No doubt NFL quarterback Colin Kaepernick has a few words to say about this subject; he never played football again after becoming the face of a protest movement symbolized by refusing to stand during the national anthem.

This history of course was surely known to members of the U.S. National Women’s Soccer team a few months back, in March of this year, when 28 of the players allowed their names to be affixed as Plaintiffs to a Federal Court lawsuit against their employer, the United States Soccer Federation. In clear words, the complaint in Alex Morgan, et. al. v United States Soccer Federation, Inc., pending in the United States District Court for the Central District of California, Western Division, states that the “USSF discriminates against Plaintiffs… by paying them less than members of the MNT [Men’s National Team] for substantially equal work and by denying them at least equal playing, training, and travel conditions; equal promotion of their games; equal support and development for their games; and other terms and conditions of employment equal to MNT.”

Now these 28 athletes are world champions and as tradition goes we historically glorify champions with talk of hard work, perseverance, and playing through pain. Think of the 1964 picture of Giants Quarterback, YA Title, kneeling in the endzone at Pitt Stadium in Pittsburgh, blood dripping from his face, after being sacked in a 27-24 loss to the Steelers. That is indeed the stuff of legend - and while we like to think otherwise, it is not uniquely American. As to this team – the 2019 Women’s World Cup Champion’s – there is something more; something that is uniquely American. Something perhaps in the nature betting on the rule of law and risking one’s position in life for the betterment of others.

Our nation is – at best -- a work in progress with positive change driven by the perseverance and guts of those who challenge practices that are widely accepted and yet fundamentally wrong. Those who do so are known as whistleblowers, a term that is quintessentially American. Strides are made not on the heels of the empowered but on the efforts of working-class Americans who persisted through the legal process in cases like Brown v. Board of Education, Loving v. Virginia, and Cleveland Board of Education v. LaFleur. Through these cases, our nation ended the doctrine of separate but equal, eliminated laws barring interracial marriage, and protected women from pregnancy discrimination.

The 2019 U.S. Women’s World Cup Soccer Championship had all the makings of classic sports legacy: playing through pain, team work, persistence. All of that is quite special but still not quintessentially American. What is really a big deal is what occurred beyond the four corners of a French playing field in a Federal Court in Southern California; 28 individuals doing what Americans have done for decades: challenging accepted but fundamentally wrong behavior. Whether you are a young school girl in search of a decent education or a world class athlete, a single individual in a land of 300 million people can level the playing field for the ages.

Using their world stage, 28 athletes are putting something American on display: our rule of law. And for those who are following things closely, when the rule of law leads to the elimination of practices that are fundamentally wrong, the process is as electrifying as a go-ahead goal in a World Cup Championship Game.

Texas v. U.S.: Another Day, Another Threat to the Affordable Care Act

Update: In oral arguments on July 9, judges on the Fifth Circuit seem inclined to strike down the ACA’s individual mandate.

On July 9, the U.S. Court of Appeals for the Fifth Circuit is scheduled to hear arguments in Texas v. U.S., the latest state-led challenge to the Patient Protection and Affordable Care Act of 2010 (ACA). Texas and seventeen state attorneys general and governors argue that the ACA should be struck down in its entirety because Congress modified the ACA on December 22, 2017. Specifically, after a year of failed repeal-and-replace bills, Congress enacted the Tax Cuts and Jobs Act of 2017, an appropriations bill that reduced the ACA’s penalty for failure to purchase health insurance to $0. This modification left in place tax code provision 26 U.S.C. §5000A, which requires individuals to maintain minimum essential coverage (the ACA’s “individual mandate”). This legislative oddity – a rule that demands reporting but has no clear mechanism for enforcement – has led to procedurally and substantively unusual litigation that could have far-reaching implications if Texas is successful.

A brief history is helpful here. Congress enacted the ACA primarily to address widespread uninsurance and improve access to care by creating a patchwork of insurance rules designed to facilitate near-universal coverage, though the public law addressed myriad other health care problems (more on this below). Half of the states challenged the ACA on the day it was signed, March 23, 2010. Two years later, in National Federation of Independent Business v. Sebelius (NFIB), the Supreme Court decided the constitutionality of two of the law’s key pillars, the individual mandate and expansion of Medicaid eligibility to nonelderly, childless adults earning up to 138% of the federal poverty level. The Court rejected Congress’s assertion that the commerce power provided authority to regulate and stabilize national health care markets by requiring the purchase of health insurance. But, the Court upheld the individual mandate as an exercise of Congress’s taxing power, reasoning that the penalty for failing to purchase insurance operated like other tax policies that penalize undesirable behaviors (e.g., high taxes on cigarettes) or incentivize desirable ones (e.g., the tax break employers receive when they provide health insurance as a benefit) and noting that the penalty would raise revenue like other taxes. In addition, the Court evaluated Congress’s spending power to expand Medicaid eligibility and held that mandatory expansion unconstitutionally coerced the states. In so doing, the Court effectively determined that the ACA was severable, meaning that parts of the law could be struck down and the rest would remain, as the Court did not strike down the entire ACA but rather rendered Medicaid expansion optional for states.

Texas joined the challenging states in 2010 and ever since has rejected implementing the ACA by opting out of Medicaid expansion—1.4 million people would gain coverage—and refusing to implement a state-run health insurance exchange. So, it was no surprise that Texas led the most recent challenge to the ACA, filed on February 26, 2018 in the U.S. District Court for the Northern District of Texas. These states, and later two individual plaintiffs, claim that zeroing out the tax penalty renders the individual mandate unconstitutional because no tax power is exercised if no money can be collected, and they ask federal courts to strike down the entire ACA because they claim the law is not severable.

Initially, the Trump administration partially defended the ACA, arguing that the $0 penalty meant that the ACA’s rules for guaranteed issue and community rating (which includes preventing insurers from using preexisting conditions to increase premiums or exclude individuals from coverage, despite the President’s claims to the contrary) also must be stricken from the law. To defend the constitutionality of the entire ACA, 16 state attorneys general intervened in the case, led by California Attorney General Javier Becerra.

On December 14, 2018, Judge Reed O’Connor agreed with the challengers, holding that §5000A is unconstitutional and that the law is not severable. Judge O’Connor’s analysis ignored that Congress itself severed the ACA in 2017, expecting it to operate without an enforceable individual mandate. The court also relied heavily on the dissenting opinion’s reasoning in NFIB v. Sebelius, which would have held that the individual mandate and the Medicaid expansion were unconstitutional, found the law non-severable, and would have struck down the ACA entirely. Judge O’Connor stayed his decision pending appeal.

Needless to say, it is unusual for Judge O’Connor to rely on a dissent as the primary source of reasoning for a decision, as it is outside the bounds of trial court authority, especially given that precedent and subsequent congressional acts answer the plaintiffs’ question. Congress debated repealing the ACA in 2017 and was unable to garner enough votes to do so. The compromise was to zero out the individual mandate’s tax penalty while leaving the remainder of the ACA in place. And, Congress could reinstate the penalty, or even strengthen it, with another appropriations bill. Even assuming the individual mandate is rendered unconstitutional by a $0 penalty, and some disagreement exists as to whether §5000A can stand, then not only does NFIB indicate that the ACA is severable, but also Congress itself decided that the ACA is severable by amending one provision but not repealing the entire act.

At the Fifth Circuit, the Trump administration shifted from its cabined defense of the ACA to supporting Texas’s position. This abandonment of Article II responsibility to “take care that the laws be faithfully executed” left the California-led states (now 21 attorneys general, including the District of Columbia), joined by Democratic members of the House of Representatives, to defend the ACA. In light of the Trump administration’s refusal to defend, and the Supreme Court’s June 17, 2019 decision in Virginia House of Delegates v. Bethune-Hill, the Fifth Circuit sent new questions on June 26, 2019 to the litigants asking whether the intervenors have standing. Jurisdictional questions are not unusual, and Bethune-Hill’s relevance is not clear given the particular Virginia law at issue in that case. If the intervenors do not have standing, no party remains in the litigation to defend the ACA, and the case could become moot. Usually, this would lead an appellate court to vacate the lower court’s decision (called “Munsingwear vacatur”). But the Fifth Circuit could let Judge Reed’s opinion stand, leaving an open question as to the status of the ACA nationwide. On July 4th, 2019, the DOJ urged the Fifth Circuit to hear the case because the U.S. implements the ACA despite the ongoing litigation, meaning that a live “case or controversy” continues to exist between the plaintiffs and the U.S.

What are the potential implications of this litigation? The ACA touches every corner of health care, but we can start with the law’s primary goal of near-universal insurance coverage. 19.1 million people have gained insurance coverage under the ACA, despite NFIB altering its implementation, with uninsurance decreasing from nearly 20% of the population in 2013 to just under 13% of the population in 2016. (Trump administration efforts to undermine the ACA, such as limiting open enrollment on the federal exchange and creating general confusion about the law’s status, have contributed to a slight increase in uninsurance, around 15.5% of the population in 2018.) Those targeted by the ACA’s reforms, such as part-time workers and those making less than 400% of the FPL (who are much less likely to be offered employer-sponsored health insurance) would be impacted immediately.

But also, the number and percentage of uninsured individuals would increase dramatically because the groups targeted by the ACA’s universal coverage reforms are not the only ones who would be affected. For example, the ACA extended family coverage to children up to age 26, which benefits many students in higher education. Also, studies show that those who were already eligible for coverage regardless of the ACA’s reforms have been enrolled in greater numbers due to the ACA’s welcome mat effect. These populations stand to lose coverage if the ACA is repealed; one important example of this possibility is that children are less likely to be covered when parents are not.

For those who retain insurance coverage, the insurance markets would likely return to some version of pre-ACA practices. To name a few: the ten essential health benefits the ACA requires qualified health plans to provide would no longer be the baseline, so plans would become more unpredictable and offer fewer benefits; coverage limits like lifetime caps would likely return; and, preventive services would likely no longer be copayment-free. Some protections for pre-existing conditions would still exist under HIPAA, but those with pre-existing conditions (most people) could expect to be excluded from private insurance plans. Health care providers would be deeply affected too. Without the ACA’s insurance market reforms, hospitals would see increased numbers of uninsured patients and likely higher use of emergency departments, with a corresponding increase in bad debt. Rural hospitals are likely to struggle even more. Community health centers would see many more uninsured patients, stretching already thin resources. The ACA also covered other ground, such as closing the Medicare Part D donut hole; funding innovation in health care delivery; addressing discrimination through §1557; promoting public health research and creating new rules such as menu labeling; requiring nonprofit hospitals to serve communities better; requiring open notice and comment processes for Medicaid demonstration waivers; and many other provisions that are less-visible components of the ACA.

And what if the law survives these latest challenges? As for the individual mandate, the CBO has revised estimates as to whether individuals will purchase insurance without the mandate and predicts some people will drop coverage. But, CBO also estimates that many will not, because low-income populations that gained coverage under the ACA would continue to receive financial support to purchase insurance and qualify for Medicaid expansion, and insurance market reforms still make everyone insurable. Whether insurance reforms without a mandate will produce an insurance death spiral remains to be seen. Congress chose to test that policy question by severing the penalty from the rest of the ACA. The challengers’ theory does not hold legal water. But, ACA litigation has been known to reach surprising results.

This Year’s Top Five Reasons They’re Attacking Your Right to a Day in Court

This blog was originally posted on Public Justice.

Here’s the sad truth: Throughout America, corporations and government officials are violating the law, cheating people, discriminating against people, injuring people, even killing people – and they don’t want to be held accountable. They know the courts are the one place they can be held accountable. So they are taking the next predictable, unconstitutional step. They are trying to limit and eliminate the rights to a day in court and a jury trial.

Those rights are protected by the U.S. Constitution and the constitutions of every state. We must preserve them. To demonstrate how important they are, Public Justice annually recognizes and publicizes the work of the trial lawyers who tried or settled the cases that made the greatest contribution to the public interest in the past year by naming them finalists for its nationally- prestigious Trial Lawyer of the Year Award.

This year’s finalists will be honored and the winner will be announced at Public Justice’s Annual Gala & Awards Dinner on Monday, July 29, 2019, onboard the USS Midway Museum in San Diego. Their cases, summarized briefly below in alphabetical order by case name, show why corporations and government officials are attacking your right to a day in court.

Ecological Rights Foundation v. Pacific Gas & Electric Co. – Stopping Pollution of SF Bay

Pacific Gas & Electric generates and provides power throughout wide areas of California, but has been polluting the San Francisco Bay in the process. The Ecological Rights Foundation discovered that storm water discharges and dust tracking from at least thirty-one PG&E facilities in northern California contained levels of dioxins and pentachlorophenol (PCP) from utility pole treatments that dramatically exceeded regulatory agency standards, often by a factor of 10,000 or more. The dioxins discharged are known to cause birth defects, immunotoxicity, and harmful impacts on reproductive health, even at extremely low exposure levels. PG&E’s dioxins and PCP releases often went directly into adjacent public waterways and wetlands.

So ERF sued PG&E under the citizen-suit provisions of the federal Resource Conservation and Recovery Act (RCRA) and Clean Water Act (CWA). But the district court held that the Environmental Protection Agency excluded facilities like PG&E’s from regulation under the CWA because they did not constitute industrial activities under the Act. It also found that, under the RCRA’s “anti-duplication” provision, the EPA’s exclusion precluded regulation of PG&E’s water runoff from regulation under the RCRA. For those reasons, it ruled in PG&E’s favor.

On appeal, the Ninth Circuit reversed. It held that the CWA exemption did not automatically preclude regulation under RCRA. As a result, RCRA may now be used to hold corporations accountable for solid waste disposal not previously remedied because of regulatory gaps left by other laws.

After prevailing on appeal, through nine months of intensive settlement negotiations and mediation, ERF’s team won a consent decree requiring PG&E to develop and implement pollution controls at its Northern California service centers. These controls will curb future PCP and dioxin releases from the sites, and ensure that any future releases are below what the law allows.

LEAD COUNSEL: Christopher Sproul, Environmental Advocates, San Francisco, CA; Jason Flanders, Aqua Terra Aeris Law Group, Oakland, CA. CO-COUNSEL: Fredric Evenson, Ecology Law Center, Santa Cruz, CA; William Verick, Klamath Environmental Law Center, Eureka, CA; Brian Orion, Jodene Louise Isaacs, Environmental Advocates, San Francisco, CA.

 Englund v. World Pawn Exchange – Holding Online Gun Sellers and Buyers Liable for Illegal Sales

On April 28, 2013, Kirsten Englund was shot to death by Jeffrey Boyce at a scenic overlook on the Oregon coast. Boyce was a mentally ill man armed with guns he purchased from an online dealer. The dealer sent them to a local pawn shop, where his mother got them for him in an illegal straw purchase (where someone other than the true purchaser provides her or his name, completes the background check, accepts the gun, and hands it off to the true purchaser).

Boyce was able to purchase these guns because the online dealer, J&G Sales, had no systems in place to verify the true purchaser’s identity. Federal and state firearms regulations require a background check on the true purchaser and allow the firearm to be transferred only to that individual. The dealer defendants sought to avoid this responsibility by arguing that neither could be liable for the online straw sales because one entity screened and sold the gun and the other entity did the background check and transferred the gun. This argument, if adopted by courts, would mean that a straw sale is impossible when one dealer supplies another dealer.

Englund’s team, however, defeated that argument, and the case proceeded to trial. On the eve of the start of proceedings, the defendants settled.  The financial settlements totaled $750,000, including a $400,000 payment from Boyce’s mother, the largest monetary settlement from an individual straw purchaser, and the only monetary settlement ever from an online gun dealer. The settlements also included business reforms aimed at reducing online straw purchases. The in-state firearms dealer agreed to stop transferring guns purchased online, and the online retailer agreed to modify its online ordering process, allowing it to better identify the actual purchaser and prevent straw purchases.

LEAD COUNSEL: Julie Goldsmith Reiser, Cohen Milstein Sellers & Toll PLLC, Washington, DC. CO-COUNSEL: Raymond M. Sarola, Cohen Milstein, Chicago, IL; Molly J. Bowen, Sally Handmaker Guido, Cohen Milstein, Washington, DC; Erin Davis, Jonathan E. Lowy, Josh Scharff, Brady Center to Prevent Gun Violence, Washington, DC; Thomas D’Amore, D’Amore Law Group, Portland, OR.

 Gloria G. v. City School District of the City of Mount Vernon – Forcing Schools to Protect Students from Bullying and Rape

On December 19, 2011, a 13-year-old mentally disabled girl – ultimately the plaintiff in this case – was raped by an older male student after leaving her public school to go home. She was supposed to be placed on a school bus to travel to and from school, but instead walked home with her rapist. Incredibly, soon after her rape, the student was subjected to months of bullying by other students.

Evidence in the lawsuit proved the school was supposed to ensure the plaintiff was on a school bus on the day of her rape, but failed to do so. After the plaintiff faced months of bullying in the wake of her rape, the school promised on March 15, 2012, that she would not be unsupervised. Four days later, however, a teacher’s assistant told the plaintiff “I don’t care where you go,” and the plaintiff went to use the bathroom in the girls’ locker room. Four girls then attacked her, slamming her head against a bench and the floor. The attack resulted in brain damage and resultant memory impairment.

The school claimed that the girl was a willing participant in the altercation in the restroom, and further contended that she had fabricated the rape. It maintained this position despite evidence she lacked the cognitive skills necessary to fabricate such a claim, and that the substance of her rape allegations have been consistent over the years.

Despite the defense’s victim-shaming, after four weeks of trial and a full day of deliberation, the jury found the Mount Vernon City School District 99% liable for the plaintiff’s injuries, and one of her classmates 1% liable. She was awarded $8 million for past pain and suffering, and $20 million for future pain and suffering for 60 years. This is reportedly the largest verdict for a single-plaintiff sexual assault case in New York history.

LEAD COUNSEL: Andrew Buzin, Buzin Law, New York, NY; Jordan Merson, Merson Law, New York, NY.

Hale v. State Farm – Exposing Corporate Corruption of the Judicial System

When Justice Lloyd Karmeier was elected to the Illinois Supreme Court in 2005, one of his first actions was to break the deadlock in a case against State Farm, overturning a $1.2 billion verdict in favor of 4.7 million policyholders who were given car repairs with inferior, non-original parts. The legal team representing the policyholders suspected that State Farm had financed Karmeier’s campaign, but State Farm denied this and Justice Karmeier refused to recuse himself.

Even after a 2009 U.S. Supreme Court decision held that large contributions to a judicial campaign coupled with a refusal to recuse could constitute a violation of due process, the Illinois court refused to reconsider its decision. Plaintiff’s counsel, however, renewed their efforts to find evidence that State Farm funded Karmeier’s campaign. Their investigation revealed the company had funneled millions of dollars to the Karmeier campaign through intermediaries like the U.S. Chamber of Commerce, the Illinois Chamber of Commerce, and the Illinois Republican Party.

Using this new evidence, in 2012, counsel filed a new lawsuit alleging that State Farm had participated in a conspiracy to violate the Racketeer Influenced and Corrupt Organizations (RICO) Act by committing mail fraud when it denied in pleadings that it had not funded the campaign directly or indirectly. After six years of litigation, including briefings on more than 100 contested motions and depositions of 68 witnesses (including Chief Justice Karmeier), the plaintiffs’ team won a $250 million settlement days after the trial began, and mere hours before Justice Karmeier was set to testify.

The settlement includes a state-of-the-art distribution process that will pay nearly 1.5 million class members automatically, without the need to submit a claim form. By litigating this case as hard and as long as they did, these lawyers shined a spotlight on, and brought critical attention to, the problem of dark money and corruption in judicial elections.

LEAD COUNSEL: Robert Clifford, Kevin Durkin, Clifford Law Firm, Chicago, IL. CO-COUNSEL: Elizabeth Cabraser, Robert Nelson, Kevin Budner, Lieff Cabraser Heimann & Bernstein LLP, San Francisco, CA; Steve Blonder, Much Sehlist, Chicago, IL; Tom Thrash, Thrash Law Firm, Little Rock, AR

In Re Swine Farm Litigation – Making Factory Farms Pay for Poisoning Poor and Minority Communities  

In the 1980s and 1990s, a building boom by the swine industry resulted in southeastern North Carolina counties being filled with large factory farms, often built without consideration of the rights and needs of families who lived in existing rural communities. The industry had a stranglehold on the state legislature and beat back efforts to increase regulation. As a result, rural areas, including low-income communities of color, suffered for years. They faced noxious fumes from swine waste, bouts of flies, and extraordinarily heavy truck traffic. Massive amounts of contaminants, bacteria and pathogens, ammonia, and other contaminants were released into the environment. The sites used giant gun sprayers to distribute and supposedly dispose of the waste, which caused waste mist to drift into the surrounding neighborhoods.

Research by faculty members of NC State, UNC, Duke and other institutions documented the adverse effects of contaminants on the health and quality of life. Despite this evidence, rural families had difficulty finding local lawyers willing to take on the massive industry.

Mona Lisa Wallace and her law firm, Wallace & Graham, P.A., however, decided to take on the representation of these residents. After five years of scorched-earth litigation in federal court, the trials of the first selected bellwether plaintiffs began in April 2018. The series of trials resulted in unanimous jury verdicts holding the Smithfield Hog Production liable for causing a substantial and unreasonable interference with the plaintiffs’ use and enjoyment of their homes, under a common law claim of private nuisance. Four of the five juries also found liability for punitive damages.

After the third verdict resulted in the largest damages award in North Carolina history, Smithfield issued press releases promising to institute changes to its waste handling practices and implement green energy initiatives. If the company follows through on its new commitments, that should help reduce the impairment of quality of life of nearby community members and help alleviate the public health risks. The company continues to contest the damages verdicts on appeal, where a variety of public interest groups, including Public Justice, have filed amicus briefs in support of the plaintiffs.

LEAD COUNSEL: Mona Lisa Wallace, Wallace & Graham, P.A., Salisbury, NC CO-COUNSEL: Mark Doby, John Hughes, Daniel Wallace, Wallace & Graham; Lynn Bradshaw, Michael Kaeske, Kaeske Law Firm, Austin, TX; Lisa Blue, Baron & Blue, Dallas, TX.

What’s at Stake

These five cases demonstrate the extraordinary power people can have when they exercise their constitutionally-protected rights to a day in court and a jury trial. They can hold the powerful accountable and make sure justice is done.

These cases also show what trial lawyers and our system of justice can do every day: expose the truth and make wrongdoers pay.

That’s why corporations and government officials are trying to use mandatory arbitration, federal preemption, class action bans and abuses, secrecy agreements and orders, expanded immunity doctrines, and other legal barriers to limit and eliminate the rights to a day in court and a jury trial.

We cannot let them succeed. Please share these stories and spread the word.