Threat To The ACA Turns Up The Heat On Attorney General Races

By Emmarie Huetteman September 28, 2018

For years, congressional Republicans have vowed to repeal the Affordable Care Act. Now, in a case sending shock waves through midterm election campaigns, Republican attorneys general across the country may be poised to make good on that promise.

The case, Texas v. United States, reveals just how high the stakes are for health care in this year’s attorney general races, elections that rarely receive much attention but have the power to reverberate through the lives of Americans.

“It just shows that nothing is safe,” said Xavier Becerra, California’s attorney general, who is leading 16 states and the District of Columbia in defending the ACA in the case.

Both parties expect record-breaking fundraising for this year’s 30 contested elections for state attorneys general. Democrats aim to translate public outrage over the threat to the ACA into the votes needed to seize a handful of posts currently held by Republicans.

This will be the first major election since Republicans tore up a deal brokered with Democrats roughly two decades ago not to challenge each other’s incumbents in attorney general races. That gentlemen’s agreement acknowledged the need for attorneys general from both parties to collaborate on investigations and lawsuits.

But some of the same partisan forces that have embittered Capitol Hill have spilled into these contests. With Republicans in control of the executive and legislative branches — and close to staking their claim on the Supreme Court — Democratic attorneys general are seen as a check on Trump administration policies. Similarly, their Republican counterparts frequently took the Obama administration to court.

That pressure is likely to increase should congressional Democrats fail to win control of at least one chamber of Congress in November.

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Raphael Sonenshein, the executive director of California State University’s Pat Brown Institute for Public Affairs in Los Angeles, compared the politics invigorating state attorneys general to a bar brawl.

“Two people have a fight, and then it spills out into the street, and 20 people join in,” he said. “Everybody gets off the bench and joins the fight.”

A banner on the Democratic Attorneys General Association’s website captures their mindset, while states are busy challenging the Trump administration on issues like sanctuary cities and family separations at the border: “This office has never been more important.”

Former Vice President Joe Biden recently endorsed six attorney general candidates in races Democrats think they can win, including Ohio and Wisconsin, and the association plans to raise a record-breaking $15 million for November’s elections, said Lizzie Ulmer, a spokeswoman for the group.

By mid-June, the Republican Attorneys General Association had raised $26.6 million, continuing to break its fundraising records.

Of this year’s 30 contested attorney general races, 18 posts are held by Republicans and 12 are held by Democrats. (Another five are in play this year, but those posts are appointed by the governor or state lawmakers.)

Unlike in Congress, there is no inherent advantage to one party claiming the majority of attorneys general posts. It takes just one attorney general to file a lawsuit.

But Democratic attorneys general see themselves as a firewall against an administration and their Republican counterparts dead set on revoking many federal protections. In that arena, every lawyer counts.

That is especially the case with health care, where fights over issues like access to abortion have multiplied since President Donald Trump took office, with others liable to end up in the courts at any time.

California’s Becerra, who is running in November against Republican Steven Bailey, a retired Superior Court judge, has filed several lawsuits since taking over last yearfor former Attorney General Kamala Harris, after she was elected to the U.S. Senate.

In addition to his lead role defending the ACA in the Texas lawsuit, Becerra succeeded in temporarily blocking the federal government from denying access to birth control nationwide. He also filed a lawsuit against Sutter Health, accusing the Northern California health care system of overcharging patients and pushing out competition. And he joined 12 states in a lawsuit against a federal rule that opens the door to health plans that are not subject to consumer protections under the ACA.

Earlier this month, a federal judge heard arguments in the Texas case on the constitutionality of the individual mandate, the ACA’s requirement that all Americans obtain health insurance or pay a penalty.

Citing the law passed late last year that eliminated the penalty, the plaintiffs — a Texas-led coalition of 20 states and two individuals — argued the individual mandate was now unconstitutional. By extension, so was the rest of the ACA, they said. They asked for a preliminary injunction that could halt the sweeping ACA in its tracks — including popular provisions such as protections for people with preexisting conditions.

Ken Paxton, the attorney general of Texas, has defended his decision to challenge protections that have broad support, including among Republicans, saying he has a duty to fight laws that harm Texans and defy the U.S. Constitution.

“The least compassionate thing we could do for those with preexisting health problems is to take away their access to high-quality care from doctors of their own choosing and place them entirely at the mercy of the federal government,” Matt Welch, Paxton’s campaign spokesman, said in a statement.

But the idea that insurers would no longer have to cover those with preexisting conditions has proven explosive, offering Democrats a powerful rallying cry beyond even attorney general races. In Missouri and West Virginia, states that Trump won in 2016 but are represented by Democratic senators, the issue has followed the Republican attorneys general — Missouri’s Josh Hawley and West Virginia’s Patrick Morrisey — as they run for Senate.

“We’re wasting millions and millions of dollars of taxpayer money trying to take away preexisting condition protections not just for all Texans but all Americans,” said Justin Nelson, Paxton’s Democratic challenger, who said he would withdraw Texas from the case should he win his long-shot bid.

In Wisconsin, the Republican attorney general, Brad Schimel, has also taken a leading role in Texas v. United States, as well as a 2016 challenge to a landmark Obama administration rule banning discrimination in health care based on a patient’s gender identity, among other cases.

This year, Schimel has drawn a formidable Democratic challenger, Josh Kaul. He’s a former assistant U.S. attorney who prosecuted federal drug crimes and has promised to focus on the state’s backlog of untested rape kits and take a more aggressive approach to the opioid epidemic. “We’re not going to beat that without ensuring our efforts are targeting large-scale drug traffickers,” he said.

Experts caution a changing of the guard would not spell the end of a big case like Texas v. United States. For instance, even if Paxton were to defy expectations and lose, Texas’ legal and financial backing for the case could easily be picked up by another state.

However, the message voters would send by electing a Democratic attorney general in Texas — where no Democrat has won statewide office since 1994 — could have profound implications for Republican morale.

“Without Ken Paxton leading the charge, many Republicans may soften their opposition to Obamacare,” said Brandon Rottinghaus, a political science professor at the University of Houston.

This story was produced by Kaiser Health News, an editorially independent program of the Kaiser Family Foundation.

Emmarie Huetteman: ehuetteman@kff.org, @emmarieDC

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