White House “Talking Points” on Decision in Florida Challenge to PPACA

Today or tomorrow, we are expecting a ruling on the government’s motion to dismiss the lawsuit against the Patents Protection and Affordable Care Act in Florida district court. Someone sent me what purports to be the “talking points” memo being circulated by Jeff Cruz of the White House “Office of Public Engagement.” I figured that I would do my part by providing these talking points directly to the public without any filter. Given its substance, there is no reason to question its authenticity, and it will enable you to anticipate the government’s reaction to the decision. There is nothing at all surprising, scurrilous, or embarrassing here (except maybe calling these “talking points”), and the memo does provide an overview of some of the other cases now pending,

Of course, there is the continued refrain that all legal challenges to the Act are “frivolous,” a claim even law professors who have been following these suits no longer make. (For my take on why the lawsuits are not frivolous see here.)

In his summaries of the lawsuits, Mr. Cruz fails to mention that the Virginia lawsuit survived the government’s motion to dismiss (as did some counts in the Michigan lawsuit)–which constituted a legal ruling that the challenge was not frivolous–and that the Michigan lawsuit found there was standing to challenge the law.

Also, Mr. Cruz writes “The new law doesn’t work without this requirement,” which is the government’s position as to why it is “necessary” under the Necessary and Proper Clause. But if that claim is accepted, and the mandate is found to be “unnecessary” under existing doctrine, or is otherwise improper, then given the absence of a severability clause, the regulations imposed on the insurance clause should also fall.

[NOTE: I have deleted the phone number and a portion of the return email address of Mr. Cruz]


From: Cruz, Jeffrey N. [mailto:____@__.eop.gov]
Sent: Thursday, October 14, 2010 12:40 PM

Today we are expecting a decision in Florida on whether a legal challenge to the Affordable Care Act can move forward. As of today, three legal challenges against the Affordable Care Act have been decided by federal district courts, and all three cases have been dismissed. Attached and below you will find background information and talking points on these legal challenges.


· Thanks to the health care law, Americans no longer have to worry about being denied coverage because of a pre-existing condition, being dropped from insurance or going bankrupt if they get sick. If the plaintiffs get their way, it will all be undone.
· Judges in Maryland, California, and recently Michigan have dismissed cases challenging the constitutionality of the Affordable Care Act.
· The people pushing these cases are politically motivated and outside of the legal mainstream.
· Five of the politician-plaintiffs in these lawsuits are or were running for higher office at some point during the 2010 election cycle.

Nevada Example:
· Nevada Attorney General Catherine Cortez Masto called the legal challenge “futile,” and did not join the lawsuit.
· In an unprecedented move, Nevada Governor Jim Gibbons protested the Nevada AG’s refusal to join a lawsuit by issuing an executive order naming an “all-volunteer” legal team to challenge the law.
· At the time Governor Gibbons was locked in a reelection primary race, which he lost.

[Las Vegas Review Journal, 8/6/10]
· These irresponsible and partisan suits will cause real harm to real people. The Affordable Care Act has already helped millions of Americans, their families, and their businesses.

This law has:
- ensured that kids with cancer have access to coverage;
- given tax-credits to small-businesses that provide insurance to their workers;
- allowed recent college graduates looking for jobs to stay on their parents plans;
- sent checks to seniors to help pay for their prescriptions.

Individual Mandate:
· This is about individual responsibility, putting an end to free-riders and making sure everyone pays their fair share.
· American families shouldn’t have to shoulder the additional cost of the uninsured. Right now, the average American family with insurance pays over $1,000 a year in higher premiums to cover the cost of care for the uninsured.
· The law will ease the cost burden on those who have insurance and make it more affordable for those who don’t by providing financial help to families earning up to eighty-eight thousand dollars a year.

Overturning the Individual Mandate:
· The new law doesn’t work without this requirement. People need to take responsibility for their health coverage so that we can rein in costs and provide access to insurance for everyone including those with pre-existing conditions.
· The minimum coverage requirement prevents people from abusing the system, and procrastinators from jacking-up premiums. Allowing people to delay getting insurance until they are sick in new non-group exchanges will increase premiums by 27 percent in 2019.

Court Cases
At a time when states are making tough choices about budget cuts, opportunistic politicians are wasting taxpayer dollars on a frivolous lawsuit that is bound to fail.
· The Attorneys General, Governors, and state representatives named in these lawsuits are attempting to overturn more than two hundred years of well-established legal precedent.
· The Coverage Provision is absolutely constitutional. Last week a Michigan Federal Court judge rejected a challenge to the coverage requirement, ruling that the law was within Congress’ constitutional right to regulate interstate commerce.


As of October 13, three cases have been decided by federal district courts, and all three cases have been dismissed. The plaintiffs include: four Republican governors, 15 Republican state attorneys general, 17 right-wing advocacy groups.

Maryland District Court – July 28:
The Outcome: The Court dismissed the challenge
The Challenger: Several physicians opposed to “socialized medicine.”
· This case, Anderson v. Obama, was swiftly appealed to the Fourth Circuit Court of Appeals
· September 8, the Fourth Circuit Court of Appeals rejected the appeal and affirmed the District Court’s dismissal.

California District Court – August 27:
The Outcome: The Court dismissed the challenge
The Challenger: The Pacific Justice Institute
· The Court held that the Institute “already provides health insurance to its employees,” who therefore may well be in compliance with the personal responsibility provision when it takes effect in 2014. Therefore, they cannot point to a “threatened or actual injury” and have no “standing” to bring the suit.
· This decision, Baldwin v. Sibelius, has been appealed to the Ninth Circuit Court of Appeals.

Michigan District Court – October 7:
The Outcome: The Court dismissed the challenge
The Challenger: The Thomas More Law Center
· The Court upheld the individual mandate or personal responsibility provision. The Judge agreed that, in order to guarantee insurance protection for all, even those with pre-existing conditions, a personal responsibility provision is needed to prevent additional “cost-shifting” and “even higher premiums,” and to avoid “driving the insurance market into extinction.”
· Thomas More Law Center v. Sibelius, will be appealed to the Sixth Circuit Court of Appeals.

Virginia District Court – Pending:
The Outcome: In Progress – October 18 oral arguments
The Challenger: Virginia Attorney General Kenneth Cuccinelli
· October 18, the Court will hear oral arguments as to the claim that personal responsibility provision is unconstitutional, and therefore the entire health reform law should be struck down.
· The Justice Department will argue that Cuccinelli’s claim has no legal basis and should be dismissed, in line with the Michigan Court’s October 7 decision.

Florida District Court – Pending:
The Outcome: In Progress – October 14 decision to on DOJ motion to dismiss
The Challengers: 21 Republican state attorneys general and governors (Full list below)
· September 14, oral argument was heard on Justice Department’s motion to dismiss the case, Florida et al. v. DHHS et al. The Florida District Judge has promised a decision on the motion October 14.
· If the judge permits some or all of the attorney generals’ claims to proceed, there will be further proceedings and a final decision later this year or early next year.
· This case is notable because the attorneys general challenge, not only the individual mandate or personal responsibility provision, but also the expansion of Medicaid coverage to all adults up to 133% of the federal poverty line, and its establishment of “exchanges” for persons not covered by employer-sponsored group health plans.

Jeff Cruz
Associate Director
White House | Office of Public Engagement

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