12 August 22
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On the 2020 campaign trail, Joe Biden and much of the rest of his party promised to pursue a public option for health care. We haven't heard a word about the public option since.
The idea of creating a government-run health insurance plan that people could buy into has completely disappeared from the political conversation in Washington. Instead, Democrats have opted to deliver tens of billions of dollars of new government subsidies demanded by private health insurers that have funneled millions of dollars into Democratic campaign coffers.
In their latest spending bill, Democrats once again chose to give $42 billion in additional subsidies to private health insurers to help steer people into plans that feature high out-of-pocket costs and routine claim denials, as those insurers continue to raise premiums.
The move further entrenches Democrats’ 2010 health care law, the Affordable Care Act (ACA), and the corporate health insurance industry — rather than bringing the country closer to achieving universal coverage and saving the federal government substantially more money in the long run.
While pundits frequently raise questions about how much money a single-payer health care system would cost, no one in Washington ever seems to consider the cost of the subsidies being used to prop up the health insurance industry. The total cost of the ACA subsidy scheme would likely exceed $800 billion over a decade if these expanded subsidies are renewed down the road, according to a Lever review of government analyses.
On Sunday, the Senate passed the Inflation Reduction Act (IRA), a spending bill that — among other key health care provisions — would extend expanded federal health insurance subsidies for another three years. The expanded subsidies were first enacted last year in Democrats’ American Rescue Plan Act to lower premiums in 2021 and 2022 for people buying individual health insurance plans through the ACA marketplaces.
For much of its history, the ACA’s premium tax credits only went to poorer families, creating what was known as a “subsidy cliff” that made it difficult for middle-class households to afford exchange plans. The American Rescue Plan expanded the eligibility criteria for these subsidies, with the policy halving monthly premium payments for millions of Americans.
Those subsidies are set to expire soon; without their extension, millions of marketplace enrollees would receive notices about sharp premium increases in October, shortly before the November midterm elections. Making matters worse: Insurers are preparing to hike premiums more than they have in recent years, with a median proposed increase of 10 percent for Americans on individual plans, according to a recent review by the Peterson Center on Healthcare and the Kaiser Family Foundation.
According to the Center on Budget and Policy Priorities, the IRA proposal would prevent 3.1 million Americans from losing coverage, while lowering premiums for millions more. And thanks to the expanded subsidies, 2.8 million more people received the tax credits in 2022 than in 2021.
While the subsidies are clearly helping millions of Americans gain or keep health insurance coverage during the COVID-19 pandemic, they are also a costly and remarkably inefficient giveaway to the health insurance industry at a time when such companies are raking in sky-high profits — all while health care costs remain the top financial concern for US adults.
“The First Thing I Would Do as President”
During his presidential campaign, Biden pledged to build upon the ACA, commonly known as “Obamacare,” by providing Americans with a “choice to purchase a public health insurance option like Medicare.”
In 2019, Biden said: “The first thing I would do as president is say, look, here’s the deal: We’re going to eliminate all the changes that [the Trump] administration made trying to kill Obamacare, number one, and we’re going to add to it a public option.”
Democrats previously debated including a public option in the ACA in 2009 and 2010, before dropping the idea at the behest of the health insurance industry and conservative Democratic senators who all went on to become corporate lobbyists or join Washington’s lucrative influence industry.
Biden and the Democratic establishment once again pitched a public option during the 2020 campaign, as a compromise measure that could satisfy progressive voters demanding Medicare for All, and one that would stand a better shot at passage in Congress.
However, Biden has failed to push for such a vision since becoming president, with Democrats instead rallying around expanded subsidies for ACA plans — an idea ripped straight out of a list of recommendations offered by health insurance lobbyists.
In fact, since becoming president, Biden has not publicly uttered the phrase “public option” or “public health insurance option,” according to Factba.se, a website that maintains a searchable database of all of Biden’s speeches and interviews.
There was a brief mention of “creating a public option” in a White House fact sheet for Biden’s proposed American Families Plan last year, though Biden ultimately omitted the idea in his budget. As the Hill reported at the time, “While Biden supports a public option for health care, the budget did not assume the passage of any such proposal, leaving out key questions about costs and how to pay for it.”
And while it seemed for a moment like congressional Democrats were poised to introduce a public option bill, it wasn’t long before even progressive lawmakers gave up on the popular idea, despite long touting Senator Bernie Sanders’s (I-VT) Medicare for All legislation that would offer every American government-run health coverage.
Just five months into Biden’s presidency, Congressional Progressive Caucus chairwoman Pramila Jayapal (D-WA) deemed the idea “much more difficult than lowering the Medicare eligibility age and expanding benefits.” Democratic proposals to lower the age of eligibility for Medicare and add dental and vision benefits to the program have now also been shelved.
In the 2020 election cycle, Biden’s campaign and Democrats’ Senate and House party committees received more than $4.7 million in donations affiliated with six major health insurers, including UnitedHealth Group, CVS Health (which owns Aetna), Anthem and Blue Cross Blue Shield, Cigna, Centene, and Humana. Those insurers all offer plans on state marketplace exchanges.
America’s Health Insurance Plans (AHIP), the insurance industry lobbying group that spent more than $100 million to kill a public option in 2009–10, lauded the Senate’s recent vote to extend the enhanced ACA subsidies.
“Every American deserves access to affordable coverage and high-quality care, and the Senate’s action will continue vital support that millions of hardworking American families need to purchase their own health coverage in the years to come,” said Matt Eyles, president and CEO of AHIP, in a statement.
As the Lever reported last year, an AHIP-led front group called the Partnership for America’s Health Care Future (PAHCF), led by lobbyists for AHIP, drugmakers, and hospital chains, quickly signaled its opposition to the “Medicare-X Choice Act,” a limited public option proposal introduced last year by Democratic Senators Michael Bennet of Colorado and Tim Kaine of Virginia.
PAHCF spent $60 million in 2019–20, according to its tax returns. The group’s activities appear to have grown more sporadic in recent months.
Saving Money and Lives
Last week, the Health and Human Services Department (HHS) announced that the national uninsured rate hit a record low of 8 percent in early 2022, in part thanks to the ACA subsidies.
While this may qualify as an accomplishment, a relatively small percentage of people get their insurance through the ACA marketplace, since most Americans are insured through their employer or public coverage. Enrollees in ACA plans also tend to experience high rates of claim denials, in addition to steep deductibles and out-of-pocket costs.
Besides, the news out of HHS means that tens of millions of Americans still lack health insurance, while many millions are still underinsured, meaning they cannot afford health care services despite paying for coverage.
Millions more Americans could lose Medicaid coverage when the designated COVID public health emergency ends. Worse still, Senate Democrats failed in the IRA to close the Medicaid coverage gap for low-income adults in states that have not yet expanded the program since ACA passage.
Some states have taken matters into their own hands. Colorado, for instance, is creating, through an approved federal waiver, a public option plan that will be sold on the ACA exchange and could lower premiums by an average of 22 percent.
However, Congress has not made any earnest effort to advance Medicare for All legislation, or even a federal public option proposal, despite the fact such a plan could be significantly more affordable for Americans and the federal government alike.
The new ACA subsidies will surely help millions, but it’s a very expensive way to expand coverage. If you consider the cost of the existing ACA subsidy program as well as the new subsidies, assuming they are made permanent, the total cost to the federal government would be roughly $825 billion over a ten-year period.
By contrast, an April 2021 report from the nonpartisan Congressional Budget Office (CBO) found that a public option, depending on how it’s designed, could increase federal revenue — not to mention lower people’s monthly premiums and reduce administrative costs. Going a step further, as the Lever previously reported, a single-payer health care system like Medicare for All would confer several significant benefits, including eliminating premiums, increasing longevity, and boosting the overall economy. And, according to the CBO, such a system could generate as much as $650 billion in federal savings annually.
A hydrogen bomb explodes above the Enewetak Atoll in the Pacific Ocean in 1952. (photo: Reuters)
ALSO SEE: Trump Raid Documents Could Reveal Informants on US Payroll
When it comes to nuclear weapons, basically everything is classified.
I reached out to several nuclear weapons experts, and they all told me the same thing: They had no idea what it was, and the list of possibilities was enormous. The category of “classified documents relating to nuclear weapons” is so broad as to be meaningless.
“I've seen other experts speculating it could be anything from the ‘biscuit’ that held the nuclear codes during his presidency (and that would have been changed when Biden assumed office), to information about another country's nuclear program in the form of briefing materials or other documents, to information about design or basing,” Emma Claire Foley, a senior associate in policy and research at Global Zero, a nonprofit that seeks the elimination of nuclear weapons, told me. “As things stand, there's no way of knowing, and there's a huge range of things it might be.”
Jeffrey Lewis, director of the East Asia Nonproliferation Project at the Middlebury Institute of International Studies, concurred. “It could be anything,” he said. “That document could contain information that you would find totally unremarkable but still be marked restricted data, known as Q.”
Q Clearance refers to Top-Secret Restricted Data related to America’s nuclear programs. It’s also where the QAnon conspiracy gets its name. “I once gave a talk about Iran’s centrifuge program and the person next to me kept whispering, ‘That’s Q,’ thinking that I was disclosing ‘information related to nuclear weapons,’” he said. “I felt bad when I told her that I didn’t have a clearance but it was nice the government was also aware of the issues that Iran was having with its enrichment program.”
One of the problems with narrowing down what the FBI was looking for is the nature of how the U.S. handles information related to its nuclear program. According to Alex Wellerstein, a historian of science and author of the book Restricted Data: The History of Nuclear Secrecy in the USA, anything related to nukes in the U.S. is classified by default.
According to Wellerstein, the Senate committee drafting the Atomic Energy Act in 1946 got worried about losing the secret of the bomb.
“The problem is, the same committee did not want to give the federal government the power to classify the entire world of science and technology. They feared too much classification, AND too little classification,” he said on Twitter. “So to square this circle they created a concept called ‘restricted data,’ which was defined as essentially all information about nuclear weapons and nuclear power that had not been removed from that category explicitly.”
Wellerstein also told me he wouldn’t speculate on what Trump could have taken, but he did say it’s not the first time a president has run afoul of the FBI over nuclear secrets. An FBI memo from November 1956 showed the FBI fretting over what to do about former President Harry Truman.
“In August of 1956, during the discussion at the Democratic National Convention regarding the Democratic platform, Truman made the statement that the first atomic bomb contained [redacted] of fissionable material,” an FBI memo said. “[Redacted] advised that this information had been checked thoroughly by the [Atomic Energy Commission] people, and that its present classification is ‘Secret—Restricted Data.’”
Wellerstein had the whole story. “In November 1956, the FBI became aware that Truman was apparently telling people how much fissile material was in the atomic bomb,” he said. “After the Trinity test, Truman was given a short initial report on it, at Potsdam. According to the people there, he sort of read it out loud as he walked around the room, many times, triumphantly. Throughout his life, you can find him still quoting bits from that report, like he burned it into his memory.”
Wellerstein said one piece of the report that amazed Truman was that the bomb used only 13 and a half pounds of plutonium. “And there's something about that ‘thirteen and a half’ but he wrote it down at Potsdam, and it HAS to be what the FBI report is about,” he said. “Harry Truman was telling people about the atomic bomb and spat out that phrase without probably having the slightest clue it was classified.”
On Twitter, Wellerstein pointed out that the AEC doesn’t contain provisions for a president to declassify Restricted Data. “It’s a different category of law and classification altogether,” he said. “But this is real bleeding-edge of presidential powers and classification law. I have certainly never seen it discussed in the long history of nuclear secrecy in the USA.”
This isn’t the first time people have raised concerns about how Trump handles nuclear secrets. Allegations of mishandling plagued him during much of his presidency. In 2019, whistleblowers raised concerns that Trump was trying to transfer sensitive nuclear data to Saudi Arabia. In 2019 Trump was also the first U.S. president to confirm that U.S. nuclear weapons are housed at an air base in Turkey, long considered an open secret, and tweeted out a classified satellite photo of an explosion at a space launch facility in Iran, despite pushback from aides. So far he has not faced consequences for any of these actions.
The nuclear secrets the FBI is looking for could be innocuous, or they could be world-shattering. The possibilities are so large that there’s no way to know. Historically, the consequences for stealing nuclear secrets in America are pretty dire. Early Trump lawyer and mentor Roy Cohn made his career by prosecuting Julius and Ethel Rosenberg for stealing nuclear secrets and passing them to the Soviet Union. Cohn won the case, and the Rosenbergs were executed in the electric chair.
Russia seized Europe's biggest nuclear power plant in March, soon after it invaded Ukraine. (photo: AP)
Russian and Ukrainian officials have repeatedly accused each other of shelling the Zaporizhzhia plant since the invasion began.
Ukraine’s Energoatom agency said the Zaporizhzhia complex was struck five times on Thursday, including near where radioactive materials are stored.
Russian-appointed officials, meanwhile, said Ukraine shelled the plant twice, disrupting a shift changeover, according to Russia’s TASS news agency.
In a statement ahead of a UN Security Council meeting called by Russia, Secretary-General Antonio Guterres warned that any damage could lead to “catastrophic consequences” in the region and beyond.
“The facility must not be used as part of any military operation. Instead, urgent agreement is needed at a technical level on a safe perimeter of demilitarisation to ensure the safety of the area,” Guterres said in a statement.
UN nuclear chief Rafael Grossi told the Security Council that the military activity around Zaporizhzhia was “very alarming” and called on Ukraine and Russia to immediately allow nuclear experts to assess damage as well as evaluate safety and security at the complex because the situation had “been deteriorating very rapidly”.
Grossi, the director general of the International Atomic Energy Agency (IAEA), pointed to shelling and several explosions at Zaporizhzhia last Friday that forced the shutdown of the electrical power transformer and two backup transformers, leading to one of the nuclear reactors being shut down.
He had earlier warned that the situation at Zaporizhzhia, which was seized by Russia in March, soon after the February 24 invasion, was getting more perilous every day.
While the plant in southeastern Ukraine is controlled by Russia, its Ukrainian staff continues to run its operations.
Grossi said statements received from Russia and Ukraine were “frequently contradicted” and that the IAEA could not corroborate the facts unless its experts visited the site, a call that was backed by the United States.
Plant shelled again
At the Security Council meeting, Russia’s UN Ambassador Vassily Nebenzia accused Kyiv of “criminal attacks on nuclear infrastructure … pushing the world to the brink of nuclear catastrophe”.
He said Ukrainian armed forces had repeatedly used heavy artillery and multiple-launch rocket systems to shell the Zaporizhzhia plant, including on Thursday.
“The background radiation at the nuclear power plant at the moment is within limits, but if the strikes continue it is only a question of time,” Nebenzia said. “We call on states that support the Kyiv regime to bring their proxies into check to compel them to immediately and once and for all stop attacks.”
Ukraine’s UN ambassador, Sergiy Kyslytsya, accused Russia of using “elaborate plans of deceit, sabotage and cover-ups” to stage the shelling at Zaporizhzhia, including on Thursday, which poses “an unprecedented threat to nuclear security for Ukraine, to Europe and the world as a whole”.
Kyiv has also accused Russia of firing rockets at Ukrainian towns from around Zaporizhzhia, knowing it would be dangerous for Ukraine to return fire.
Ukrainian President Volodymyr Zelenskyy called on Russia to return the plant to Ukraine.
“Only a full withdrawal of the Russians … and the restoration of full Ukrainian control of the situation around the station can guarantee a resumption of nuclear security for all of Europe,” he said in a video address.
‘More catastrophic than Chernobyl’
The Russian capture of Zaporizhzhia has renewed fears that the largest of Ukraine’s 15 nuclear reactors could be damaged, setting off an emergency on the scale of Chernobyl in 1986. The world’s worst nuclear disaster began with the failure of a routine systems test and took place about 110km (65 miles) north of the capital Kyiv, when Ukraine was part of the Soviet Union.
Zelenskyy said the consequences of a radiation accident at Zaporizhzhia “could be even more catastrophic than Chernobyl, and essentially the same as the use of nuclear weapons by Russia, but without a nuclear strike”.
The Moscow-installed temporary head of the Zaporizhzhia region said on Thursday that the Russia-backed administration stood ready to ensure the safety of any IAEA delegation sent to investigate the situation.
“We are fully ready to accept the IAEA, we will ensure security,” Yevhen Balytskyy said in an interview on Russian state TV. He added that the Kremlin-backed authorities had prepared armoured vehicles for the international envoys.
Grossi said in a statement on Wednesday that he would personally lead an expert mission to inspect the nuclear plant “in the very near future,” without elaborating on the timeline.
Sen. Kyrsten Sinema, D-AZ, arrives at the Capitol for a vote on Aug. 3. (photo: Drew Angerer/Getty)
In the final stretch, the Arizona centrist secured two big changes to the Inflation Reduction Act affecting investment funds, including preserving the "carried interest" tax break.
The Inflation Reduction Act, released July 27 after an unexpected deal between Manchin and Senate Majority Leader Chuck Schumer, D-N.Y., blindsided Sinema, D-Ariz. It included a policy she had quietly objected to — limiting what critics call the “carried interest loophole,” which lets private equity managers pay a much lower tax rate on their earnings than most people do on ordinary income.
Lobbyists sprang into action. Sinema stayed silent for about a week, making some Democrats nervous that she might torpedo the entire bill. Behind the scenes, she was fighting to protect the $13 billion tax break. And she succeeded, with Schumer ultimately releasing a revised version of the package to win her critical vote.
"We have agreed to remove the carried interest tax provision," Sinema said in her Aug. 4 statement announcing her support.
Sinema also secured a change to the 15% corporate minimum tax under the Manchin-backed legislation that would exempt entities owned by private equity funds, which estimates project would save the industry $35 billion.
The changes are “certainly a gift to private equity and investment funds,” said Kim Clausing, a former Treasury Department official who worked on tax analysis and helped develop the Biden administration’s positions from 2021 to this June.
The preservation of carried interest break stands out, particularly as Joe Biden is the third consecutive president to have called for its elimination. The tax break is now poised to survive its second major tax overhaul by the two parties in five years after some modest limitations in the 2017 Republican tax law.
“Those special interests get special tax treatment because they find susceptible politicians who accept their arguments,” Clausing said. “In this case Sinema.”
Apart from the last-minute changes, Sinema’s long-standing objection to raising tax rates on upper earners and corporations means the Democratic bill would largely preserve the Trump tax cuts of 2017, known as the Tax Cuts and Jobs Act, or TCJA, even though Biden ran on undoing them.
“This bill largely preserves the TCJA,” said Kyle Pomerleau, a senior fellow who studies tax policy at the conservative American Enterprise Institute.
In response to questions from NBC News about why she favors the carried interest tax break and opposes rate increases, Sinema spokesperson Hannah Hurley said in an email the senator “makes every decision based on one criteria: what’s best for Arizona.”
“She has been clear and consistent for over a year that she will only support tax reforms and revenue options that support Arizona’s economic growth and competitiveness,” Hurley said. “At a time of record inflation, rising interest rates, and slowing economic growth, disincentivizing investments in Arizona businesses would hurt Arizona’s economy and ability to create jobs.”
‘Showing her true colors’
The bill passed 51-50 on Sunday, with Vice President Kamala Harris breaking the tie. It is expected to pass the House on Friday. Overall, Clausing and many Democrats said, it’s a strong bill that would beef up corporate taxes, mitigate climate change and fund health care.
The American Investment Council, which lobbies for private equity, took credit for saving the tax break, saying its team “worked to ensure” that lawmakers “understand” the upsides of current law.
“Our advocacy helped prevent punitive tax increases that would make it harder for investors to continue to support jobs, small businesses, and pensions in every state,” the group’s president and CEO, Drew Maloney, said in a statement.
Other experts see carried interest as a special perk for wealthy fund managers and say eliminating it would have little impact on the economy.
“I don’t really get the argument at all for why people who work for a living and earn their living by doing investing for other, very wealthy people should pay taxes at half the rate that the rest of us do,” Larry Summers, the former Treasury secretary who held powerful positions in the Clinton and Obama administrations, said Wednesday on MSNBC. “That just seems wrong to me, and that’s the effect of the carried interest loophole.”
Summers, a business-friendly moderate who was heavily critical of Democrats’ American Rescue Plan last year, said the preservation of carried interest wasn’t an “inspiring” example of democracy at work. He suggested its survival was less about merit and more about “campaign contributions received by some of the major actors here.”
A Financial Times analysis found that Sinema has gotten more than $500,000 in campaign contributions from executives of private equity groups during the 2022 election cycle.
In lieu of the revenue from carried interest, the Sinema-backed version included a 1% excise tax on stock buybacks. She also secured the addition of $4 billion in drought relief funding, which numerous Democrats in western states have since touted.
Samantha Jacoby, a senior tax legal analyst at the Center on Budget and Policy Priorities, a liberal-leaning think tank, said it's "especially appalling there was a special carve-out after the carried interest provision fell out of the bill." She said it "further shows the power of private equity as a special interest group and their ability to lobby for benefits, even in the final hours."
Sinema’s move has also drawn criticism from progressives in Arizona who were already eying a Democratic challenge in 2024, when she would be up for re-election.
“She is showing her true colors,” said Luis Ávila, a community organizer in Phoenix and volunteer with the group Primary Sinema.
Texas Attorney General Ken Paxton, second from left, and Missouri Attorney General Eric Schmitt, right, walk out of the U.S. Supreme Court after arguments in their case about the "Remain in Mexico" immigration policy on April 26. (photo: Chip Somodevilla/Getty)
It’s easy to secure court orders blocking major policies when you can choose your own judges.
In August of 2021, for example, a Trump-appointed judge named Matthew Kacsmaryk ordered the Biden administration to reinstate a Trump-era immigration policy, known as “Remain in Mexico,” which forced many migrants to live in awful conditions on the Mexican side of the US/Mexico border. Although the Supreme Court eventually determined that Kacsmaryk egregiously misread federal immigration law, it left his order in place for nearly a year — and the Court’s most recent decision concerning Remain in Mexico makes it very easy for Kacsmaryk to seize control of federal border policy once again.
Indeed, the status of this case, known as Texas v. Biden in Kacsmaryk’s court, is changing almost by the hour. On Monday, Kacsmaryk lifted his original order requiring the Biden administration to implement Trump’s policy — something he had to do given the Supreme Court’s decision — and the administration swiftly announced that it would wind down the program.
But almost as soon as Kacsmaryk lifted his original order, Texas Attorney General Ken Paxton filed a new motion asking Kacsmaryk to seize control of federal border policy once again.
This one Trump judge’s ability to override an elected president’s policies and assume the powers of a Cabinet secretary is just one aspect of a much larger problem. With the Supreme Court’s tacit blessing, Texas officials and other right-wing litigants can handpick the trial judge who will hear their challenges to Biden administration policies. And when those handpicked judges overreach in ways that even this Supreme Court deems unacceptable, decisions by men like Kacsmaryk can remain in place for as much as a year — effectively replacing governance by an elected presidential administration with rule by unelected Republican judges.
In another, similar case, the Supreme Court allowed a Trump judge named Drew Tipton to temporarily strip Homeland Security Secretary Alejandro Mayorkas of much of his authority over Immigration and Customs Enforcement (ICE). This is the same Drew Tipton who issued a legally dubious order six days after Biden took office, which blocked the Biden administration's call for a 100-day pause on deportations while the new administration was figuring out its immigration policies.
And then there’s Judge Reed O’Connor, the Fort Worth, Texas, judge known for rubber stamping nearly any legal outcome requested by Republicans. O’Connor is best known for his order in Texas v. United States, holding that Obamacare must be repealed in its entirety. That decision was so poorly reasoned that seven justices — including four Republican appointees — eventually ruled that no federal judge had any business hearing Texas’s anti-Obamacare lawsuit in the first place.
But that experience did nothing to humble the Rubber Stamp of Fort Worth. In January, O’Connor forced the US Navy to deploy personnel that it deemed unfit for deployment because they are not vaccinated for Covid-19. The Supreme Court blocked most of O’Connor’s ruling in March, with Justice Brett Kavanaugh writing that the highly partisan judge “in effect inserted [himself] into the Navy’s chain of command, overriding military commanders’ professional military judgments.”
Meanwhile, O’Connor is widely expected to strike down the Affordable Care Act’s provisions requiring health insurers to cover a wide range of vaccinations and preventive care in a pending case called Kelley v. Becerra.
The fact that all these cases — and this is just a sample of the many policy-setting lawsuits being shunted to a handful of the most conservative judges in Texas — are winding up before a few GOP-appointed judges is not a coincidence. It is a deliberate strategy, made possible by procedural rules that effectively allow litigants to select which judge will hear their lawsuits, and by all appearances, intentionally pursued by the Texas attorney general’s office.
These Texas federal judges’ orders, moreover, appeal to the US Court of Appeals for the Fifth Circuit, almost certainly the most conservative federal appeals court in the country, which tends to regard those orders with the same level of partisanship that is a feature in Kacsmaryk, Tipton, and O’Connor’s courtrooms.
So the Biden administration’s policies are routinely blocked, not because an impartial judge gives those policies a fair hearing and determines them to be illegal, but because Republican litigants can ensure that lawsuits seeking to undermine President Biden are heard by some of the most partisan judges in the country.
Why Texas gets to choose which judges hear its lawsuits
Chance normally plays a big role in federal litigation. When a plaintiff files a lawsuit, that suit is typically assigned to a district judge at random from among the federal trial judges who sit in the same geographic region. On appeal, the overwhelming majority of cases are heard by three-judge panels selected at random from among an appeals court’s judges. Only at the Supreme Court level, where a fixed panel of nine justices hears all cases, are litigants normally sure which judges will hear their case.
In Texas, however, things work a little differently. Texas is divided into four large geographic regions known as “districts,” each overseen by a federal district court. These districts are further subdivided into smaller “divisions.” Anti-Obamacare Judge O’Connor, for example, sits in the Fort Worth Division of the Northern District of Texas.
A problem arises, however, because federal law permits each federal district court to determine how cases are divided among the court’s judges, and Texas’s district courts divide their work in ways that make it easy for plaintiffs challenging a federal policy to choose which judge will hear their case.
When a plaintiff files a lawsuit in a division of one of Texas’s federal district courts, their case will typically be heard by one of the judges in that division. Some divisions, however, are fairly small and may have a single judge who hears all or nearly all of the cases. In the Amarillo Division of the Northern District of Texas, for example, 95 percent of all civil cases are assigned to Kacsmaryk. In the Victoria Division of Texas’s Southern District, Tipton hears virtually all civil cases.
To be clear, it’s unlikely that these geographic case assignment rules arose from an intentional effort to let litigants choose their own judges — they are most likely a response to the fact that Texas is very large, and litigants don’t want to travel hundreds of miles to a federal courthouse in a distant part of the state every day for a lawsuit — but they’ve certainly had that effect. While the Texas case assignment rules would be benign in a world where federal judges can be trusted to be fair and impartial, they take on a much more sinister cast in a world where judges like O’Connor exist. It’s the combination of well-known judges who act as rubber stamps for a political party, and local court rules that frequently allow plaintiffs to select which judge will hear their case, that effectively rigs Texas’s federal court system for the GOP.
Many normal litigants still file at their closest federal courthouse. But if you are a plaintiff determined to undermine Biden, why would you file a lawsuit in Austin or Dallas when you can drive a few hours to a courthouse presided over by a Kacsmaryk or a Tipton?
The Texas attorney general’s office is particularly ruthless in doing just that, manipulating the rules to ensure that its lawsuits will be heard by the GOP’s allies on the bench.
As Steve Vladeck, a law professor at the University of Texas, documented in a recent amicus brief filed in the Supreme Court, “the Texas Attorney General appears to have filed 19 cases in the Texas district courts” against the Biden administration. Of these 19 cases, “judges appointed during Republican presidencies are presiding in all but one.”
Texas achieved this feat by being very selective about where it files lawsuits. As Vladeck writes, Texas filed 12 of its 19 lawsuits against the Biden administration “in divisions where judges appointed during Republican presidencies preside over 100 percent of newly filed civil cases.” The remaining seven “were filed in divisions where judges appointed during Republican presidencies preside over 95 percent of new civil cases.”
Notably, the Texas AG’s office has not filed a single case in Austin — the city where that office is actually located — a choice that most likely can be explained by the fact that half of all federal cases filed in Austin are heard by Judge Robert Pitman, an Obama appointee.
The Supreme Court has largely encouraged this behavior
Although the Supreme Court has, at times, disagreed with the judges Texas’s Republican leaders selected to hear their lawsuits, it’s done nothing to discourage the Texas AG’s judge-shopping. Indeed, if anything, it’s encouraged it.
Recall, for example, the Supreme Court’s decision in Biden v. Texas, which determined that Judge Kacsmaryk mangled federal immigration law when he ordered the Biden administration to reinstate the Remain in Mexico program. While that was a victory, both for Biden and for the rule of law, it was an exceedingly narrow one.
Ten months before the justices handed down their decision rebuking Kacsmaryk, the Biden administration asked the Supreme Court to block his order while the case was making its way through the appeals process. But the Court refused to do so, with only its three Democratic appointees registering their dissent. That meant that Kacsmaryk wielded much of DHS Secretary Mayorkas’s policymaking authority for nearly an entire year.
Then, even when the Court did rule against Kacsmaryk in its Biden decision, it explicitly left open several legal questions which Kacsmaryk could easily latch onto to seize control of federal border policy once again. Texas has already asked Kacsmaryk to do so.
Just a few weeks after its decision in Biden, moreover, the Court issued a similar order to the one allowing Kacsmaryk to set border policy for 10 months. In this case, Judge Tipton effectively placed himself in charge of ICE’s decisions about which immigrants to target for enforcement actions by striking down a memo from Mayorkas that set enforcement priorities for the agency.
Tipton’s order is egregiously wrong — among other things, a federal statute explicitly gives Mayorkas the power to establish “national immigration enforcement policies and priorities.” Nevertheless, the Supreme Court voted 5-4 to leave that order in place, at least until the justices can fully consider the case later this year. Even if the Court does correct Tipton’s error in this case, it could feasibly not hand down its decision until June of 2023 — leaving Tipton as the de facto head of ICE for nearly a full year.
Notably, the Court was far quicker to intervene when lower court judges blocked Trump administration policies. In early 2020, liberal Justice Sonia Sotomayor warned that her GOP-appointed colleagues were “putting a thumb on the scale in favor of” the Trump administration in cases asking the Court to temporarily block lower court decisions while a case was still on appeal.
Around the same time, conservative Justice Neil Gorsuch complained about a system where any one of the “more than 1,000 active and senior district court judges, sitting across 94 judicial districts” could block one of the Trump administration’s policies. Although liberal litigants typically did not engage in judge-shopping to the same degree that Texas now does, litigants suing the Trump administration would often file lawsuits in left-leaning districts such as the Northern District of California.
In any event, Gorsuch appears to have lost interest in solving the problem of judge-shopping and nationwide injunctions after a Democrat moved into the White House.
So what can be done?
Every year Chief Justice John Roberts releases a “year-end report on the federal judiciary.” The document is normally quite brief; his 2021 report was only nine pages long, and three of those pages were charts and statistics describing the workload of the federal courts.
And yet, Roberts devoted a considerable amount of that report to what he described as “an arcane but important matter of judicial administration.” Patent litigators throughout the country were taking advantage of the same judge-shopping rules that Texas uses to its advantage in order to shunt a high percentage of patent infringement suits to a single federal trial judge in Texas (not one we’ve discussed here). And Roberts announced that he’d asked one of the federal judiciary’s internal governing bodies to look into this problem of judge-shopping in patent litigation.
In what was likely a response to Roberts’s rebuke, the Western District of Texas recently announced that it would randomly assign patent cases to one of 12 judges, thus ending this one judge’s monopoly over so many of these cases. But Texas’s federal courts have not taken similar action to stop Texas Republicans from shopping around for sympathetic judges. And Roberts has not urged them to do so.
If the courts want to solve the problem of judge-shopping, it would not be hard for them to do so. One solution is to apply the same rule to Texas’s anti-Biden litigation as the Western District of Texas now applies to patent litigation — if a party seeks an order blocking a federal policy, that case will be randomly assigned to any judge within the entire district court where it is filed, not just one in the smaller division.
Alternatively, a court could assign lawsuits seeking a nationwide injunction against a federal policy to a panel of three judges. That’s the solution Fifth Circuit Judge Gregg Costa proposed in a 2018 piece published by the Harvard Law Review’s blog.
In any event, the details of such a solution don’t matter all that much. The important thing is that litigants who are actively trying to sabotage the United States government should not be allowed to handpick judges who share their agenda. For the moment, however, the courts seem to lack the will to address this problem. Texas Republicans can shop around for the judges they want, and that seems to suit a Supreme Court dominated by Republican appointees just fine.
While the U.S. military has used burn pits in other conflicts, one expert says they were exceptionally large in Iraq and Afghanistan. (photo: Scott Nelson/Getty)
These were massive piles of uniforms, equipment, computers, and other things the U.S. military incinerated to prevent them from falling into the hands of the wrong people.
American veterans, including those who served in Iraq and Afghanistan, will be able to access VA support for a variety of medical problems they likely suffered because of their exposure to burn pits.
But soldiers aren't the only people still struggling with their damaging effects.
Kali Rubaii is an assistant professor of anthropology at Purdue University and studies the toxic legacies of the U.S. war in Iraq.
While the U.S. military has used burn pits in other conflicts, Rubaii said they were exceptionally large in Iraq and Afghanistan.
"Taxpayers funded the U.S. occupation, but the people who were actually spending that money were private contractors and they had no bid contracts," she said. "That means that when a computer or a tank or a uniform was damaged, it was more profitable to actually throw the whole thing into a burn pit, then sell a brand new one to the U.S. military."
While the PACT Act opens new possibilities for American veterans seeking treatment for medical problems they sustained after serving near burn pits, it does not address the harm suffered by civilians living in areas close by.
Rubaii's research has brought her in contact with Iraqis who are struggling with the intergenerational impacts of their exposure.
This interview has been edited for length and clarity.
Interview highlights
On how Iraqis were impacted by burn pits
Veterans saw acute short-term exposure, and they were at peak health. Iraqi people were in all stages of their life course when they were exposed to burn pits, and they were exposed for over 10 years. Even those who live at a distance and downwind face a lot of health effects, and they're varied.
Farmers who live downwind noticed a lot of birth defects and fertility issues with their crops and their livestock. And then children report symptoms of dizziness, balance problems. There have been many cases of brain cancer near and around burn pits.
On possible intergenerational impacts
In a way, burn pits are the least of the violence done to Iraqi people. For example, in 2004, around 70% of Fallujah was leveled. That means no water, no electricity, no hospital, massive injury and death, lots of pollution released into the air. So in Fallujah today, the longstanding effects of that level of bombardment are there is still only a few hours of electricity. My tap water living there is brown. It's undrinkable. The hospitals still lack essential equipment.
So it's in the wake of all of this destruction that doctors at Fallujah Hospital started noticing, around 2004, all of these babies that were born with birth defects. And they started cataloging it, because it just was anecdotally noteworthy that there were more and more. And the tragedy here is that it's unclear what the cause is, but it definitely indicates there's an environmental factor and people notice that the timeline indicates something about U.S. occupation.
On the damage of war when it comes to environment
One of the common problems that people face is that during sandstorms, the air quality is very poor and every single micro particle that can be picked up into the wind is entering people's lungs, lining your teeth, and it's everywhere. And this is a climate change issue. Of course, we have more and more sandstorms and dust storms in Iraq. And the more war detritus that is lying around, the more people are inhaling war. They're inhaling the past of war.
On the families that she has met and the impact that war has had on their lives
I had to watch a child die a few months ago. And she was just this dynamic, inquisitive baby who was born in Fallujah with multiple congenital anomalies. Some of her organs were outside of her body. She had a gap in her heart. She lived for about a week. She made really deep eye contact with everyone, and she was really fighting for her life.
The cause of her birth defects were likely environmental and linked with burn pits, but the cause of her death was the destroyed hospital infrastructure. Had she been in a place where the hospital hadn't been bombed several times, it's possible that she would have survived her birth defects. And I think maybe one of the toughest legacies in Iraq is that environmental damage to people's bodies doesn't have to be fatal if there is also infrastructure to contend with it.
I feel that now that the PACT Act has been passed, it would be up to U.S. health justice organizers to reach out to Iraqi people who are managing incredible burdens and who would be very keen to engage in a joint struggle for extending the kind of reparative care that's available to veterans now to the Iraqi people who've been living in the wake of these burn pits.
Highly toxic rare earth mining has rapidly expanded in northern Myanmar, fueling human rights abuses, deforestation and environmental contamination, an investigation by the NGO Global Witness has found. (photo: Creative Commons)
The report, based on a six-month-long investigation of satellite imagery and local community interviews, shows that the number of rare earth mines in Myanmar’s Kachin state proliferated from a handful in 2016 to more than 2,700 mining collection pools spread across almost 300 separate locations by March 2022. The area of forested hills impacted by intensive mining encompasses an area the size of Singapore.
According to the report, Myanmar has supplanted China as the world’s largest source of rare earth heavy metals, a group of elements commonly used in smartphones, home electronics and clean energy technology, such as electric cars and wind turbines. Due to the global ubiquity of products in which rare earth minerals are used, there’s a risk of minerals mined illegally in Myanmar making their way into household brand products, the investigation says.
Risks displaced across the border
While rare earth mining doesn’t involve the same razing of mountains as other types of extraction, such as mining for precious stones, its byproducts are highly toxic. The extraction process involves injecting potent chemicals such as ammonium sulfate into mountainsides, then precipitating the minerals out in bright blue collection pools.
Due to the toxicity of the industry and related human health problems, China has curbed rare earth mining within its borders over the past six years. But with a thriving rare earth processing industry to sustain, China has essentially outsourced its mining activity across the border to a remote corner of Kachin state in northern Myanmar, according to the report.
“Our investigation reveals that China has effectively offshored this toxic industry to Myanmar over the past few years, with terrible consequences for local communities and the environment,” Mike Davis, CEO of Global Witness, said in a statement.
The mining areas in Kachin state are poorly regulated, undocumented, and “illegal under Myanmar’s laws,” says the report. Moreover, many mining areas are run by militias affiliated with the country’s military junta, which raises the risk of industry revenues providing income for the junta’s activities.
“Since the 2021 coup, the regime has relied on natural resources to sustain its illegal power grab and with demand for rare earths booming, the military will no doubt be spotting an opportunity to fill its coffers and fund its abuses,” Davis said. Rare earth mining in Kachin state reportedly ramped up significantly during the immediate aftermath of the February 2021 military coup as unscrupulous companies took advantage of the ensuing breakdown of the rule of law.
The Global Witness investigation also traced illegally mined minerals from Myanmar into global supply chains. The minerals are partially processed near mining sites in Myanmar, then trucked across the border to Yunnan province in China and further processed in state-owned facilities that account for 80% of global rare earth refining.
According to the report, the refined minerals are then passed down the supply chain to manufacturers who supply permanent magnets to some of the world’s best-known makers of electronic goods and clean energy products, including General Motors, Mitsubishi Electric, Siemens, Tesla and Volkswagen.
Davis said the risk of illegal minerals from Myanmar finding their way into global supply chains demonstrates the need for governments to broaden sanctions against the military junta to include rare earth minerals.
Harm to health and environment
People living close to the rare earth mines in Kachin state told Global Witness that the ecosystems and resources on which they depend have been impacted. Hazardous mining waste reportedly flows directly into tributaries of the Irrawaddy River, Myanmar’s major waterway, severely limiting many communities’ access to safe drinking water.
The investigation also found that human health issues once reported in proximity to mining sites in China, such as osteoporosis, respiratory diseases, and gastrointestinal, skin and eye problems, are now surfacing among communities living near mines in Myanmar.
Notwithstanding the impacts on local communities, there is little they can do to counter the industry. The militias that control the industry are “fostering a violent and repressive environment,” the report says. For instance, testimonies of intimidation gathered during the investigation included a reported incident of militia personnel threatening to shoot village representatives should they refuse to give up their land for mining.
“No-one wants to give up their ancestors’ lands, but if they [resist] they can be killed,” a Kachin civil society group member told Global Witness.
“Brave local people are risking their lives to speak out against these destructive mines and defend their land, livelihoods and sources of water, despite the threats they face from the local militias,” Davis said.
Prioritize rights amid escalating demand
While rare earth mining is an incredibly toxic industry, it is unlikely to fade away any time soon. Demand for rare earth minerals used in magnets — a vital component of many clean energy technologies — is set to triple by 2035, according to a recent study. And the U.S. Department of Energy has identified rare earth minerals as among the world’s most critical materials, warning that bottlenecks in the rare earth supply chain could harm the clean energy industry.
To safeguard Myanmar’s people and the environment from the industry’s impacts and abuses, Global Witness recommend urgent action from mining companies operating in the country to cease activity and ensure rare earths mined in Myanmar do not enter global supply chains. The report also calls on international governments to impose import restrictions for rare earth elements sourced in Myanmar and to introduce standards that stipulate the need for clear evidence that products are not linked to human rights abuses, illegality or corruption.
Lastly, the report calls on governments to introduce stronger policies, investment incentives and recycling targets that will help to reduce the impacts of rare earth mining and extraction, and that will facilitate a shift away from the use of rare earth minerals in future products.
“As the climate crisis accelerates and demand for these low-carbon technologies skyrocket, [the investigation’s] findings must be a wake-up call that the green energy transition cannot come at the cost of communities in resource-rich countries,” Davis said. Energy solutions “must instead be equitable and sustainable, prioritising the rights of those who are most impacted.”
This article was originally published on Mongabay.
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