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DOJ will not defend Obamacare provision from states’ lawsuit

Brandon Moseley

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Thursday, U.S. Attorney General Jeff Sessions announced that the U.S. Department of Justice will not defend against a new lawsuit challenging the constitutionality of individual mandate provision in the Patient Protection and Affordable Care Act of 2010 filed in February by Alabama, Texas, and 18 other states.

The National Federation of Independent Businesses filed a lawsuit and were joined by Alabama, Texas, and over 20 other states challenging the constitutionality of Obamacare, but most of the controversial healthcare law remained in place after the Supreme Court ruled largely in favor of the law.

That 2012 decision, written by Chief Justice John Roberts, ruled that Congress, with the power to tax, could indeed force individual citizens to purchase health care insurance whether they wanted it.

In late 2017, Congress passed the Republican Tax Cuts and Jobs Act that among many other provisions made the individual mandate penalty effectively $0 starting in 2019.

In February, Alabama joined Texas, Arkansas, Wisconsin, the Governor of Maine, South Carolina, Nebraska, Florida, Arizona, Georgia, Indiana, Kansas, Louisiana, the Governor of Mississippi, West Virginia, North Dakota, Utah, Missouri, and Tennessee and filed a lawsuit arguing that without the individual mandate Obamacare is not a tax and thus not constitutional under the Roberts ruling in NFIB versus Sebelius.

On April 26, Alabama Attorney General Steve Marshall announced that Alabama is one of 20 states that filed a motion in federal court seeking a preliminary injunction against the Patient Protection and Affordable Care Act.

“The so-called Affordable Care Act has been anything but affordable for both consumers and for states,” Marshall said. “In 2012, Obamacare barely survived a legal challenge when the U.S. Supreme Court determined that the law’s individual mandate was constitutional only because it qualified as a tax penalty for those who chose not to purchase health insurance. However, five years later Congress passed the Tax Cuts and Jobs Act eliminating Obamacare’s tax penalty. Accordingly, Obamacare’s costly individual mandate is no longer legally justifiable.

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“This week, I joined a multi-state motion filed in the U.S. District Court for the Northern District of Texas seeking to halt Obamacare because of the tremendous cost of its individual mandate to individuals and to states.”

Marshall said that the passage of Obamacare transferred a majority of states’ regulatory authority over health insurance to the federal government.

Included in the 20-state motion is a declaration from Alabama Department of Insurance Commissioner Jim Ridling citing Obamacare’s negative impact on health insurance cost and choice to Alabama consumers. In the 38 states, including Alabama, where the federal government administers health exchanges, health insurance premiums have risen an average of over 100 percent from 2013 to 2017.

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When the states or anyone else sues the federal government normally it is normally the duty of the U.S. Department of Justice to defend the government; however, then U.S. Attorney General Eric Holder refused to allow DOJ to defend the Defend of Marriage Act (DOMA) setting a precedent that was not lost on current Attorney General Jeff Sessions.

On Thursday, Sessions sent a letter to U.S. Speaker of the House Paul Ryan, R-Wisconsin, indicating that the Department of Justice will not defend the constitutionality of the Affordable Care Act mandate for individuals to maintain essential health insurance coverage, in the lawsuit brought by Alabama, Texas, et al.

Sessions said he agreed with the plaintiffs because there is no longer a tax that brings in federal revenue, he would not uphold the individual mandate.

“Weighing those considerations here, I have concluded that this is a rare case where the proper course is to forgo defense of Section 5000 (a),” Sessions said of the ACA’s requirement for individuals to have essential health coverage.

Sessions however also said that he agrees with the Department of Justice’s opinion at the time of the 2012 case, that if the mandate is unconstitutional, it is separate from the ACA’s other provisions, except those guaranteeing issuance of coverage in the individual and group market.

“I concur in the Department’s prior determination,” Sessions said. “Outside of these provisions of the ACA, the Department will continue to argue that Section 5000A(a) is severable from the remaining provisions of the ACA.”

Republicans have repeatedly promised voters that they would repeal the controversial ACA; but efforts to formally repeal the unpopular legislation failed last year in the U.S. Senate where Republicans could not get the fifty votes needed.

(Original reporting by the Atlantic, Healthcare Finance News, and Fox News contributed to this report.)

Brandon Moseley is a senior reporter with eight and a half years at Alabama Political Reporter. You can email him at [email protected] or follow him on Facebook. Brandon is a native of Moody, Alabama, a graduate of Auburn University, and a seventh generation Alabamian.

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Congress

U.S. Rep. Bradley Byrne announces new chief of staff

Eddie Burkhalter

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U.S. Rep. Bradley Byrne

Congressman Bradley Byrne, R-Alabama, on Friday announced that Seth Morrow will serve as his chief of staff.

“As we enter the last half of 2020, my office remains busy assisting constituents and advancing our legislative priorities. I know Seth shares my focus on finishing out my term in Congress strong, and he is well prepared to move into the Chief of Staff role,” Byrne said in a statement. “My staff and I will continue working hard every day to fight for the people of Southwest Alabama and advance our conservative agenda.”

Morrow is a native of Guntersville and has worked for Byrne since June 2014, serving as deputy chief of staff and communications director. 

“I am grateful for this opportunity, and I’m committed to ensuring our office maintains our first class service to the people of Southwest Alabama. Congressman Byrne has always had the hardest working team on Capitol Hill, and I know we will keep that tradition going,” Morrow said in a statement.

Morrow replaces Chad Carlough, who has held the position of Byrne’s chief of staff since March 2017. 

“Chad has very ably led our Congressional team over the last few years, and I join the people of Southwest Alabama in thanking him for his dedicated service to our state and our country,” Byrne said. 

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Congress

Voting rights activist calls for federal Department of Democracy

LaTosha Brown, a Selma native who co-founded Black Voters Matter, issued a statement saying that it is time to reimagine American democracy.

Micah Danney

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(VIA BLACK VOTERS MATTER)

The co-founder of an organization that is working to mobilize Black voters in Alabama and elsewhere used the 55th anniversary of the Voting Rights Act on Thursday to call for a new federal agency to protect voting rights nationwide.

LaTosha Brown, a Selma native who co-founded Black Voters Matter, issued a statement saying that it is time to reimagine American democracy.

“The Voting Rights Act should be reinstated, but only as a temporary measure. I want and deserve better, as do more than 300 million of my fellow Americans,” Brown said.

The U.S. Supreme Court invalidated a key provision of the law in a 5-4 ruling in 2013, eliminating federal oversight that required jurisdictions with a history of discrimination to get approval before they changed voting rules.

“To ensure that the Voter’s Bill of Rights is enforced, we need a federal agency at the cabinet level, just like the Department of Defense,” Brown said. “A Department of Democracy would actively look at the patchwork of election systems across the 50 states and territories. With federal oversight, our nation can finally fix the lack of state accountability that currently prevails for failure to ensure our democratic right to vote.”

She cited excessively long lines, poll site closings and voter ID laws in the recent primaries in Wisconsin, Georgia, Kentucky and Texas as voter suppression techniques that disproportionately affect Black and other communities of color.

Brown said that the July 17 passing of Rep. John Lewis, who was nearly killed marching for voting rights in Selma in 1965, has amplified calls for the Voting Rights Act to be strengthened. That’s the right direction, she said, but it isn’t enough.

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“History happens in cycles, and we are in a particularly intense one. We have been fighting for the soul of democracy, kicking and screaming and marching and protesting its erosion for decades,” Brown said.

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Congress

Negotiations on a bipartisan coronavirus relief bill appear to have broken down

Brandon Moseley

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The United States Capitol Building (STOCK PHOTO)

Both parties in Congress and the White House hoped to have agreement on a bipartisan coronavirus relief bill, but those hopes appear to have been dashed after a Thursday night meeting at the White House.

The Washington Post reports that the White House and Democrats failed to reach an agreement late Thursday night on the fifth virus relief bill. White House officials and Democratic leaders ended a three-hour negotiation with no agreement and both sides far apart on basic issues.

House Speaker Nancy Pelosi, D-California, has insisted on a $3.4 trillion package. The White House wants a $1 trillion relief package.

“We’re still a considerable amount apart,” said White House chief of staff Mark Meadows after emerging from the meeting with Pelosi, Senate Minority Leader Chuck Schumer, D-New York, and Treasury Secretary Steven Mnuchin. Trump was called into the meeting several times, but they were unable to resolve key issues.

Pelosi said that the meeting was “consequential,” but blamed Republicans for the breakdown in negotiations.

“They didn’t take the virus seriously in the beginning, they’re not taking the consequences of the virus seriously at this time, and that’s why it’s hard to come to terms,” Pelosi said.

Mnuchin said that if the administration decides that further negotiations are futile, Trump would move ahead unilaterally with executive orders to address things like unemployment aid. Schumer said Democrats were “very disappointed” in how the meeting went and that any White House executive orders could be challenged in court.

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Pelosi claimed that Meadows pounded the table at one point. Meadows denies the allegation.

“We are very far apart,” Pelosi said. “It’s most unfortunate.”

Over 30 million unemployed Americans will see their unemployment checks dramatically cut next week without an extension of benefits. Trump has suggested that he could increase the benefits through unilateral executive action. Critics suggest that would be unconstitutional.

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Democrats want about $1 trillion in aid for cities and states, but Trump has dismissed that demand as a “bailout” for mismanaged states and has agreed to just $150 billion in aid for states.

Meadows said that the White House has agreed to go above $1 trillion, but that Democrats still have refused to go below $3.4 trillion. Democrats are also pushing for more money for food stamps, child care and the U.S. Postal Service as part of the plan. All of this would be paid with more deficit spending.

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Corruption

Arrest warrant issued for Rep. Will Dismukes for felony theft

Dismukes is charged with first-degree theft of property in connection with a theft that occurred at his place of employment between the years 2016 to 2018.

Eddie Burkhalter

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Alabama State Rep. Will Dismukes, R-Prattville, has been accused of theft of property, a Class B felony. (WSFA)

An arrest warrant has been issued for Alabama State Rep. Will Dismukes, R-Prattville, for felony theft from a business where he worked, Montgomery County District Attorney Daryl Bailey said Thursday.

Dismukes is charged with first-degree theft of property in connection with a theft that occurred at his place of employment between the years 2016 to 2018, Bailey said during a press conference.

Bailey said the charge is a Class B felony and levied when a person steals in excess of $2,500 and that “I will tell you that the alleged amount is a lot more than that.” 

“The warrant has just been signed, his attorney has been notified and we are giving him until late this afternoon to turn himself in,” Bailey said.

Bailey said the employer contacted the district attorney’s office with a complaint about the theft on May 20, and after reviewing bank records and interviewing witnesses, the decision was made to charge Dismukes with the theft. 

WSFA reported Thursday that the theft occurred at Dismukes’ former employer, Weiss Commercial Flooring Inc. in East Montgomery. Bailey did not provide any more specifics on the charge but said the employer signed the arrest warrant after countless hours of investigation on the part of the DA’s office.

While the charge stems from a complaint filed months ago, Dismukes been in the headlines recently and faced a torrent of calls for his resignation in recent weeks after posting to Facebook an image of himself attending a birthday celebration for the first grand wizard of the Ku Klux Klan, Nathan Bedford Forrest.

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The event was hosted by an individual with close ties to the League of the South, a hate group, according to the Southern Poverty Law Center.

In response, Dismukes stepped down from his post as a pastor at an Autauga County Baptist church but defiantly refused to step down from the Legislature.

If convicted of the felony, Dismukes would be immediately removed from his seat in the Alabama House, to which he was elected in 2018.

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In June, the Alabama Democratic Party called for his resignation over previous social media posts glorifying the Confederacy.

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