Rounding up Trump's latest ACA alterations

Today's edition of the Federal Tap reviews this week's changes to the Affordable Care Act, brings you the latest federal courts update, and reviews th   [View this email in your browser]( [Ballotpedia](   [Facebook](   [Twitter](   [The Tap](   Good morning! In today's email we review this week's changes to the Affordable Care Act, bring you the latest federal courts update, and a review of this week's moves on the Clean Power Plan. For a full download of last week and the week ahead, click below to read the full Federal Tap. [Launch the full Tap]( Trump signs executive order seeking to ease ACA rules - President Donald Trump [signed]( an executive order Thursday seeking to modify some elements of healthcare insurance. - The order directs the secretary of labor to consider expanding access to Association Health Plans (AHPs) and potentially allow the sale of AHPs across state lines. It could expand the ability of small businesses and groups to pool together to buy health insurance plans that would be exempt from some of the ACA’s requirements. - The order also directs “the Departments of the Treasury, Labor, and Health and Human Services to consider expanding coverage through low cost short-term limited duration insurance.” These plans do not have to follow ACA rules, such as the mandate to cover essential health benefits. The Obama administration limited these plans to a coverage duration of three months and made them nonrenewable. President Trump’s order directs his administration to consider allowing these short-term plans to cover a longer period of time and to be renewed. White House confirms that Trump will end ACA cost-sharing reduction payments - In an email to reporters Friday, White House press secretary Sarah Huckabee Sanders [said]( that the Trump administration would end cost-sharing reduction payments to insurance companies selling Obamacare plans. Sanders said, “Based on guidance from the Department of Justice, the Department of Health and Human Services has concluded that there is no appropriation for cost-sharing reduction payments to insurance companies under Obamacare. In light of this analysis, the Government cannot lawfully make the cost-sharing reduction payments. …The bailout of insurance companies through these unlawful payments is yet another example of how the previous administration abused taxpayer dollars and skirted the law to prop up a broken system. McConnell hints at ending use of blue slips for judicial nominees - On Wednesday, Senate Majority Leader [Mitch McConnell]( (R-Ky.) indicated that the current practice of the Senate Judiciary Committee regarding [blue slips]( would no longer be practiced.  A blue slip is just that, a blue slip of paper.  The blue slip, in practice, refers to a courtesy where a home state senator can prevent a judicial nomination from advancing by withholding the blue slip of paper given by the Senate Judiciary Committee chair.  A senator who fails to return their blue slip has effectively prevented the Judiciary Committee from conducting confirmation hearings and a failure to receive a committee hearing typically prevents a nominee from being confirmed by the full Senate.  The United States Constitution does not mandate the use of blue slips and there is no Senate rule mandating their usage.  Senator McConnell expressed his view that Senate Republicans would consider the failure of a senator to return a blue slip "as simply notification of how you’re going to vote, not as an opportunity to blackball."   Traditionally, adherence to the blue-slip courtesy falls within the purview of the [Senate Judiciary Committee]( chair.  The current chair, Sen. [Chuck Grassley]( (R-Iowa), has indicated previously his reluctance to abandon the practice.  A spokesperson for Sen. Grassley stated, "The chairman of the Judiciary Committee will determine how to apply the blue-slip courtesy for federal judicial nominees, as has always been the practice ... Over the years, chairmen have applied the courtesy differently, but the spirit of consultation has always remained."  When asked whether McConnell was speaking for all Senate Republicans or Republicans on the Judiciary Committee, a McConnell spokesperson, Don Stewart, said, "“No, he’s been talking about HIS position on the matter for some time now ... If you mean he’s not announcing a committee position, then yes, he’s not announcing a committee position.”  Home state senators for two of President Trump's judicial nominees, [David Stras]( and [Ryan Bounds]( have indicated they would not return their blue slips for these nominees. - To learn more about blue slips, read [our primer](. Beverly Reid O’Connell, California federal judge, dies in active service - Beverly Reid O’Connell, a judge on the United States District Court for the Central District of California, died Sunday at the age of 52.  O’Connell was nominated to the federal bench in 2012 by President Barack Obama was she was confirmed on a unanimous 92-0 vote of the U.S. Senate in April of 2013.  O’Connell’s passing created the sixth vacancy on the 28-member court, which currently has 12 judges that were nominated by Republican presidents and ten judges that were nominated by Democratic presidents. EPA administrator issues proposed rule to repeal Obama Clean Power Plan - [Environmental Protection Agency]( (EPA) Administrator [Scott Pruitt]( issued a [proposed rule]( to [repeal]( the [Clean Power Plan]( the Obama administration's regulation that would mandate reductions in [carbon dioxide]( and other [greenhouse gas]( emissions from new and existing power plants. Pruitt [argued]( that the plan "was premised on a novel and expansive view of Agency authority" and "ignored states' concerns and eroded longstanding and important partnerships that are a necessary part of achieving positive environmental outcomes." Specifically, the EPA will change its legal interpretation of section 111 of the [Clean Air Act]( on which the Clean Power Plan was based under the Obama administration, to the interpretation that the plan exceeds the EPA's legislative authority and thus should be repealed. The EPA also estimates that the repeal would provide up to $33 billion in avoided compliance costs. Attorney Generals [Eric Schneiderman]( (D-N.Y.) and [Maura Healey]( (D-Mass.) announced that they would sue the EPA over the repeal. Healey [argued]( that the "decision to abandon the Clean Power Plan violates the law." Schneiderman [argued]( that the repeal involves "putting industry special interests ahead of New Yorkers’ and all Americans’ safety, health, and the environment." - See also: [Clean Power Plan]( - See also: [Clean Power Plan political timeline]( Feinstein running for sixth term in Senate - Incumbent Sen. [Dianne Feinstein]( (D), the oldest member of the U.S. Senate, confirmed that she would seek a sixth term in office. Although she won her 2012 re-election bid by 25 points, she could face a [primary challenge]( from wings of the Democratic Party pushing for more progressive policies in Congress. One frequently mentioned name is California Senate president pro tempore [Kevin de León]( who [showed]( his fundraising prowess when he amassed a $2.8 million war chest for a potential lieutenant gubernatorial run. California utilizes a top-two primary system, which allows all candidates to run and all voters to vote but only moves the top two vote-getters, regardless of party affiliation, to the general election. - See also: [U.S. Senate election in California (June 5, 2018 top-two primary)]( SCOTUS hears arguments in one case on Tuesday - The U.S. Supreme Court heard arguments on Tuesday in [Hamer v. Neighborhood Housing Services of Chicago](. The case addressed an appeal of a judgment of the [U.S. Court of Appeals for the Seventh Circuit](.  Charmaine Hamer, the petitioner, filed a notice of appeal with the Seventh Circuit Court of Appeals after a 60-day extension to file her appeal was granted by a federal district court. The Seventh Circuit, relying on Rule 4(a)(5)(c) of the federal rules of appellate procedure, dismissed Hamer's appeal as untimely and held that the rule limited extensions to file appeals to only 30 days. Federal appeals courts, however, are not uniform over whether untimely appeals could still be considered under Rule 4(a)(5)(c). The D.C. Circuit and Ninth Circuit subject untimely appeals under the rule to what are known as equitable considerations. Equitable considerations are "a recourse to principles of justice to correct or supplement the law as applied to particular circumstances" and are designed to promote fairness and evenhanded dealing in legal matters. Examples of equitable considerations include waivers and forfeitures, and could be considered by a court as to whether, as here, Hamer's reliance on the error of the district court prompted her to inadvertently forfeit her appeal. The Second Circuit, Fourth Circuit, Seventh Circuit, and Tenth Circuit read the rule differently and do not consider appeals under equitable considerations if the appeal is untimely.  Under [Rule 10]( of the U.S. Supreme Court’s rules of procedure, the Supreme Court will often agree to hear a case addressing a split among federal circuit courts in order to resolve the difference. U.S. Supreme Court dismisses one of two legal challenges to Trump’s travel ban - On Tuesday, the U.S. Supreme Court issued an order in [Trump v. International Refugee Assistance Project]( in which the court rejected a challenge to President Donald Trump's [March 2017 executive order]( restricting immigration and refugee admissions into the United States.  The court order, which nullified the judgment of the [U.S. Court of Appeals for the Fourth Circuit]( also sent the case back to the Fourth Circuit with instructions to dismiss the case as moot, meaning the challenge no longer had any practical impact.  In its order, the Supreme Court held that the challenge to a provision of the executive order, Section 2(c), had expired and "because that provision of the Order 'expired by its own terms' on September 24, 2017, the appeal no longer presents a 'live case or controversy.'"  Section 2(c) prevented Iranian, Libyan, Somalian, Sudanese, Syrian, and Yemeni nationals from entering the country for a period of 90 days.  The government challenged a nationwide injunction placed in March on Section 2(c) by Judge [Theodore Chuang]( of the District of Maryland, who held the restriction violated the First Amendment's Establishment Clause, which mandates the separation of church and state.  A majority of the Fourth Circuit upheld Judge Chuang's order in May.  A [related challenge to the travel ban]( from Hawaii is still pending adjudication before the Supreme Court. - See also: [Federal policy on immigration, 2017-2020]( SCOTUS concludes October argument sitting with arguments in two cases - On Wednesday, the U.S. Supreme Court concluded its argument sitting for October with arguments in two cases.  The court heard arguments in 11 cases during its October sitting, which is the first of seven scheduled two-week argument sessions for the court’s [October 2017 term](.  The court will next convene for arguments on Monday, October 30, the first day of the court’s two-week November sitting. - In [National Association of Manufacturers v. Department of Defense]( the court considered an appeal of a judgment of the [U.S. Court of Appeals for the Sixth Circuit](.  In 2015, the Clean Water Rule was published by the Army Corps of Engineers and the U.S. Environmental Protection Agency. The Clean Water Rule was intended to clarify the boundaries of the waters of the United States, which brought those waters under federal regulatory provisions of the Clean Water Act. Several challenges to the 2015 Clean Water Rule were brought in both federal district courts and federal appeals courts as litigants questioned which courts had jurisdiction. Two specific subsections of a federal law, 33 U.S.C. §1369(b)(1), subsections (E) and (F), provide that federal appeals courts may review an action of the EPA administrator "(E) in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345 of this title" or "(F) in issuing or denying any permit under section 1342 of this title ..." A divided three-judge panel of the Sixth Circuit held that federal appeals courts had jurisdiction in this case under subsection (F).  Despite this ruling, one of the panel judges, [Richard Griffin]( argued that the circuit precedent on which jurisdiction in federal appeals courts was established, National Cotton v. Council v. U.S. E.P.A., was incorrectly decided and would have denied appeals courts’ jurisdiction except that a three-judge panel cannot overturn a precedent.  Another panelist, Judge [Damon Keith]( felt the precedent was incorrectly applied and would have also denied jurisdiction. - In [Jesner v. Arab Bank PLC]( the court reviewed a judgment of the [U.S. Court of Appeals for the Second Circuit](. The question in this case was whether a corporation could be sued for civil damages if they fund terrorist activities.  Between 2004 and 2010, Joseph Jesner was one of a number of civil plaintiffs who filed various lawsuits in federal district court against Arab Bank, PLC, under the Alien Tort Statute. The statute is designed to allow federal courts to take jurisdiction in cases filed by foreign nationals in U.S. courts for alleged violations of either international law or a treaty to which the U.S. is a signatory. The lawsuits stemmed from various allegations that Arab Bank, PLC, had financial ties to terrorist bombings that resulted in injuries to the plaintiffs or their family members. A federal district court dismissed the lawsuits, holding that a binding precedent of the Second Circuit, Kiobel v. Royal Dutch Petroleum Company, categorically prohibited corporate liability under the statute. A three-judge panel of the Second Circuit upheld the district court's decision, but acknowledged that the circuit's precedent in Kiobel may no longer be considered good law in light of other circuit court holdings and of the U.S. Supreme Court's affirming the Kiobel decision on other grounds.   Ballotpedia depends on the support of our readers. The Lucy Burns Institute, publisher of Ballotpedia, is a 501(c)(3) nonprofit organization. All donations are tax deductible to the extent of the law. Donations to the Lucy Burns Institute or Ballotpedia do not support any candidates or campaigns. [Donate Securely Online]( Decide which emails you want from Ballotpedia. [Unsubscribe]( or [adjust your preferences]( →   Ballotpedia The Encyclopedia of American Politics 8383 Greenway Blvd., Suite 600 Middleton, WI 53562   [Facebook](   [Twitter](