Policy Updates

On the Hill Updates: November 13, 2020

Federal Courts

Supreme Court hears latest ACA challenge

On November 10, the Supreme Court heard oral arguments in California v. Texas, a lawsuit meant to invalidate the entire Affordable Care Act (ACA). Much of the debate has surrounded the question of severability or whether certain provisions of the ACA could be separated or severed from the rest in order to preserve at least some part of the legislation. The Texas Solicitor General argued that the 2017 changes to the individual mandate made it unconstitutional, claiming that a penalty of zero dollars for not having health insurance could not be a tax, and that the mandate is inseverable from the entire ACA — meaning that if the mandate is unconstitutional, the entire law is unconstitutional. Justice Brett Kavanaugh expressed skepticism that the entire ACA must be invalidated, noting that “it’s a very straightforward case for severability under our precedents, meaning that we would excise the mandate and leave the rest of the Act in place, reading our severability precedents.” Chief Justice John Roberts emphasized that Congress could have repealed the whole of the ACA if they found the individual mandate inseverable and that it was “not our job” to repeal the law for them. NCJW signed an amicus brief arguing that there was no evidence Congress intended to dismantle the ACA by lowering the tax associated with the individual mandate. The California Solicitor General defending the ACA told the justices that “Congress made a single surgical change” and that the rest of the law should remain intact if the individual mandate is struck down.” NCJW was proud to play a role in the enactment of the ACA and urges the Court to protect the landmark legislation which had a transformative impact on health care by increasing the scope of benefits and improving access to coverage for millions of Americans.

SCOTUS weighs in on LGBTQ adoption case

On November 4, the Supreme Court heard oral arguments in Fulton v. City of Philadelphia, a case involving the rights of LGBTQ couples to foster and adopt children. Prior to 2018, the city of Philadelphia worked with Catholic Social Services (CSS), a foster care services provider affiliated with the Roman Catholic Church, in certifying prospective foster parents. After discovering CSS would not certify same-sex couples as suitable parents for children, the city stopped referring the group new children, citing a city law prohibiting sexual orientation discrimination. CSS argues that its exclusion from the city’s foster care system amounts to religious discrimination in violation of First Amendment protections. Oral argument proceedings seemed to indicate support for CSS. Justice Samuel Alito contends that Philadelphia was not concerned “about ensuring that same-sex couples in Philadelphia have the opportunity to be foster parents,” but rather “the fact the city can’t stand the message that Catholic Social Services and the Archdiocese are sending by continuing to adhere to the old-fashioned view about marriage.” Newly-appointed Justice Amy Coney Barrett asked the attorney representing the city of Philadelphia whether a state could force “every hospital has to perform abortions,” including Catholic hospitals. The City Solicitor of Philadelphia said that Philadelphia “proudly respects and protects all of our residents’ religious freedoms, a commitment that we hold dear. But those freedoms do not allow contractors performing a City service to choose which residents they will serve based on their sexual orientation.” NCJW works to eliminate all forms of discrimination, including those undertaken in the name of “religious liberty,” and supports laws, policies, and programs that protect every person’s right to make decisions about whether to have or not have children and to birth, adopt, and parent with dignity.

Courts Matter to Affirmative Action

The First Circuit US Court of Appeals ruled on November 12 that Harvard’s consideration of race as one of many factors in undergraduate admissions does not intentionally discriminate against Asian American students. Agreeing with the lower court ruling, the judges determined that Harvard’s limited use of race in its admissions process in order to achieve diversity “is consistent with the requirements of Supreme Court precedent.” It is possible the case could be appealed to the US Supreme Court.

Mizelle, rated “unqualified,” gets a vote next week

Kathryn Kimball Mizelle, nominated to the US District Court for the Middle District of Florida, is expected to be voted on by the full Senate the week of November 16. Mizelle graduated from law school only eight years ago, spent four years clerking, and has experience in only two trial cases — neither at the senior level. The American Bar Association found Mizelle “Not Qualified” for a lifetime appointment, directly citing her lack of meaningful experience. Furthermore, Mizelle has deep ties to some of the nation’s most conservative legal voices having spent three years on the DC Young Lawyers Chapter Steering Committee of the Federalist Society, an ultraconservative legal group. NCJW believes Mizelle lacks the proper experience required for a lifetime appointment and strongly opposes her nomination.

Senate to vote on extreme nominee for lifetime appointment

Toby Crouse, nominated to the United States District Court for the District of Kansas, is currently awaiting a vote by the full Senate, also scheduled for the week of November 16. Since 2018, Crouse has served as Kansas Solicitor General and proved to be a highly partisan opponent of many important rights — reproductive, voting, and workers, among others. On behalf of the state of Kansas, he urged the Supreme Court to review a case defunding Planned Parenthood, a case that the Tenth Circuit disagreed with and the Supreme Court declined to hear. In private practice, Crouse defended the infamous Kansas Secretary of State Kris Kobach in a case challenging his redistricting plan. Later, as Solicitor General, Crouse supported other restrictive voting laws. He also joined amicus briefs in anti-immigration, anti-worker, anti-gun safety, and other cases challenging fundamental rights. NCJW opposes the nomination of Toby Crouse given his extreme views on issues impacting women, children, and families.

Human Needs

Annual spending battles begin

On November 10, the Senate released all 12 appropriations bills as both chambers scramble to keep the government open past December 11, when current funding expires. The House passed 10 of their 12 appropriations bills in July: HR 7608, which included four bills: State-Foreign Operations, Agriculture-FDA, Interior-Environment, and Military Construction-VA; and HR 7617, which included six measures: Defense, Commerce-Justice-Science, Energy and Water, Financial Services, Labor-HHS-Education, and Transportation-HUD. NCJW supports a federal budget that prioritizes human needs, recognizing that critical investments provide opportunity and security for our nation’s most vulnerable.

Related Resources