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The continuing politics of presidential mischief in the COVID-19 age

Practical Politics

David L. Horne, PH.D. | 10/15/2020, midnight

Okay, two things this week: the continuing odyssey of former General Michael Flynn, a Trump ally, and the Republican case against Obamacare in the Supreme Court.

It is well remembered that in the final days of the Obama administration, the POTUS meted out a strong punishment for Russian interference in the 2016 election. That punishment was straightforward and overt, but not meant to be the only action. General Flynn was taped talking to the Russian ambassador to the U.S. at the time, telling him that the incoming Trump administration would reverse those sanctions, so please do not overreact to them. Such a statement to the Russian official was in fact illegal and got added to the subsequent investigations of foreign interference in the U.S. election. Gen. Flynn was not accused of that particular misdeed, but of lying to the FBI about the conversation.

Flash forward to 2019, under Attorney General Bill Barr, the government tried to drop its court case against General Flynn for lying to the FBI. The judge in the case, noted Justice Emmit Sullivan, took the position that dropping the case was a highly unusual action by the Justice Department lawyers, and refused to grant the dismissal sought by them. Flynn’s attorney and the U.S. attorneys filed a brief in a higher court, but eventually lost that appeal, and the case came back to Judge Sullivan’s court.

On September 29, at the sentencing hearing scheduled for Flynn’s case, Judge Sullivan, after hearing from both the government attorneys and Flynn’s lawyer, and the independent prosecutor assigned to the case by Judge Sullivan, decided that he was not sufficiently satisfied yet on all the relevant issues to make his decision. So, the bottom line is that Gen. Flynn, after four years, has still not had a final decision rendered in his case. He can still be sent to jail by Judge Sullivan, or his case can be dismissed, either by Judge Sullivan or by an appeals court.

The attempt by the Justice Department to simply drop the case, in spite of Gen. Flynn pleading guilty twice, has so far not been allowed. I’m betting that Judge Sullivan sentences Gen. Flynn to prison for a short time, and that that action will be upheld on appeal. That would be justice in this case, and another loss for the Trump team.

Secondly, as a dire and direct threat to over 25 million Americans now on healthcare coverages associated with the Affordable Care Act (ObamaCare), the 18 Republican-led states and Donald Trump’s Justice Department, in partnership, have brought another case on the constitutionality of Obamacare before the Supreme Court. That case is to be litigated before the Court in November, a few days after the November 3rd presidential election. The Trump administration is trying to add another Supreme Court pick to the Court in time to hear that case, and thus that is a major issue in the current hearings being conducted to confirm Judge Amy Coney Barrett to the Supreme Court or not.

The bases of the Republican case against the Affordable Care Act’s constitutionality are tough sledding. It will not be an open-and-shut case at all.  The Republican position argues that ObamaCare should be demolished in its entirety, including the law’s Medicaid expansion and  its protection for individuals with preexisting conditions (although the POTUS and other Republicans keep telling the public that their case does not argue for that result—in other words, don’t believe your lying eyes).

Remembering that the Court in 2012 ruled that the Act’s “individual mandate” was a national tax collected by the Internal Revenue Service, and was therefore a legitimate exercise of the power of Congress to tax citizens, a Republican-led Congress then agreed to get rid of that individual mandate by setting the penalty for noncompliance at zero. but they did nothing else regarding the law---they certainly did not kill it (Remember John McCain’s thumbs down vote?).

The current Republican argument is that by zeroing out the tax penalty, Congress, in practical effect, repealed the entire law, and the Court is being asked to declare that to be a fact. The Republicans must also show that they have standing to sue because they are being injured by the law remaining in place, although none of their citizens are being required to buy insurance they don’t want to buy. They must show also that the law is now unconstitutional, even though Congress is not trying to control interstate commerce through it anymore.

In other words, they do not have a strong case, and Obamacare, which has already survived more than two major attempts to destroy it, looks like a better-than-even bet to survive again, and with a new Democratic Congress in 2021, to be made better and stronger.

The losing games people play.

Professor David L. Horne is founder and executive director of PAPPEI, the Pan African Public Policy and Ethical Institute, which is a new 501(c)(3) pending community-based organization or non-governmental organization (NGO). It is the stepparent organization for the California Black Think Tank which still operates and which meets every fourth Friday.

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