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Dem AGs weigh rapid Supreme Court ACA appeal; Congress boosts NIH, FDA funding

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Dem AGs weigh rapid Supreme Court ACA appeal; Congress boosts NIH, FDA funding

The cadre of Democratic attorneys general who are defending the Affordable Care Act are pondering whether to try to get an expedited review by the U.S. Supreme Court of an appeals court ruling that has left the 2010 healthcare law in limbo — a state of ambiguity that could go on for years.

"It's time to stop this uncertainty," said California Attorney General Xavier Becerra. Becerra told reporters during a Dec. 19 briefing that he was ready to move forward with the appeal but wanted to first deliberate with other members of his Democratic coalition.

SNL ImageCalifornia Attorney General Xavier Becerra
Source: AP Photo

On Dec. 18, the U.S. Court of Appeals for the 5th Circuit said the ACA's requirement for eligible Americans to buy health insurance — the individual mandate — was unconstitutional after the Republican-controlled Congress in December 2017 zeroed out the tax penalty to enforce it.

The 5th Circuit, however, sent the case back to a Texas judge to determine what, if any, portions of the law could survive without the individual mandate.

In December 2018, Judge Reed O'Connor of the U.S. District Court for the Northern District of Texas declared that the ACA invalid in its entirety. The case was brought by a group of Republican attorneys general and state governors. The Trump administration later sided with them.

In a Dec. 19 op-ed in The Atlantic, Nicholas Bagley, a University of Michigan law professor, said the lawsuit has been "roundly condemned by lawyers on both sides of the aisle."

The Democratic attorneys general must make a decision soon if the coalition wants to get the case onto the Supreme Court's docket for the current term and get a ruling by the end of June, Becerra said, adding that the justices will stop taking new cases in mid-January.

The California attorney general noted that the Supreme Court has recently taken up and expedited other challenges, including whether to permit the Trump administration to add a citizenship question to the 2020 census — a case the White House lost.

But Michigan Attorney General Dana Nessel, a member of the coalition, told reporters on the Dec. 19 call that it was unlikely the Supreme Court would hear the ACA case this term.

"I wouldn't be surprised if they wanted the district court to rule before it went back up the chain," Nessel said.

NIH, FDA score in funding bill

Congress gave the U.S. National Institutes of Health a $2.6 billion boost for fiscal 2020 in the $1.4 trillion funding bill signed into law Dec. 20.

"This increase is integral to faster medical progress, providing a spark that will ignite more lifesaving, job-producing research and development across our nation's medical and health research ecosystem," Mary Woolley, president and CEO of the advocacy group Research!America, said in a Dec. 17 statement.

The U.S. Food and Drug Administration also got a $91 million increase over what it was allotted in fiscal 2019. But that amount falls short of closing the "gap between resources and responsibilities," Woolley said.

Nonetheless, she said, it was a "welcome sign Congress recognizes the need to align FDA's budget with the breadth and significance of the agency's contributions to public health and safety."

New FDA chief takes predecessor's Twitter followers

Meanwhile, newly sworn-in FDA Commissioner Stephen Hahn raised some eyebrows last week after he put his name on his predecessor's Twitter account, deleting all of the more than 9,600 tweets posted by Scott Gottlieb and laying claim to his 44,000 followers.

SNL ImageFormer FDA Commissioner Scott Gottlieb
Source: AP Photo

The move was a departure from how the current and past administrations have handled other Twitter accounts when leadership changed hands, including when Health and Human Services Secretary Alex Azar took over that agency after Tom Price resigned seven months into the job amid a scandal. Those accounts have been kept intact and available online.

In a Dec. 20 blog on the e-PluribusUnum website, Alex Howard, director of the Digital Democracy Project, questioned whether the FDA had violated any federal records rules or ethical requirements by deleting Gottlieb's tweets.

Howard noted that the nonprofit Internet Archive had collected Gottlieb's tweets in its Wayback Machine digital library. The nonprofit journalism organization ProPublica also had collected the tweets.

FDA spokeswoman Heather Janik said the decision to put Hahn's name on Gottlieb's former account was a "logistical" move "made at the staff level that is in compliance with all applicable law."

After criticism, the FDA later quietly posted a link on the agency's news website to a downloadable, but difficult to read, Excel file with the text of the tweets.

"But keeping and publishing a spreadsheet of the text of tweets on a website falls short of the standards the public should reasonably expect from government agencies [in] 2019," Howard said. "They have an affirmative obligation to preserve these digital records, ideally in the interactive formats and context they were created in."

In a Dec. 20 tweet from his personal account, Gottlieb said he hoped the public would be able to access his FDA tweets.