November 9, 2020

Covering COVID-19 is a daily Poynter briefing of story ideas about the coronavirus and other timely topics for journalists, written by senior faculty Al Tompkins. Sign up here to have it delivered to your inbox every weekday morning.

More than 75 million Americans got the outcome they wanted from this election but 70 million more didn’t. I urge journalists to keep that in mind when they go back to the office today, even if that going back is virtual. Report the actions, plans and decisions of the next administration with the same vigor and scrutiny as you did the current one and the ones before that. Do your job without fear or favor today.

There is a moment in the movie “My Cousin Vinny” when everything at stake in life piles up and Joe Pesci pops his cork (I will wait while you watch). That may be where you are today.

The pandemic is setting new records, sick people are filling hospitals, a Texas convention center is a field hospital now, the president of the United States is telling the world the American election system is fraudulent and tomorrow the U.S. Supreme Court will consider whether to overturn the law that underpins the nation’s health care system. Is there anything else we can pile on?

Oh yeah, and there is a tropical storm system in the Gulf of Mexico.

Let’s spend some time on the Supreme Court case first because your viewers, readers and listeners are going to be concerned about this one.

Obamacare will be in front of the Supreme Court tomorrow

The Supreme Court is seen as sundown in Washington, Friday afternoon, Nov. 6, 2020. (AP Photo/J. Scott Applewhite)

The Supreme Court will make a decision on the future of Obamacare on Tuesday. The justices will begin hearing arguments and later decide the case, likely in the spring of 2021. With Joe Biden and Kamala Harris in the White House, the outcome might be less consequential than it might have been with Donald Trump in the White House, given his long opposition to the Affordable Care Act.

At the center of the case before the court — California v. Texas (known as Texas v. U.S. in the lower courts) — is whether if one section of the Affordable Care Act is deemed unconstitutional, can the rest of it stand?

The original 2010 ACA treated health insurance similar to how some states consider car insurance. It required employers with 50 or more full-time employees will have to either provide at least a specified minimum level of health coverage that its employees can afford or pay a penalty beginning in 2014. The law required individuals without employer-supplied health care to purchase health coverage or pay a tax penalty, which was called the “individual mandate.”

But the Supreme Court ruled it was not a penalty, and that the mandate was, in fact, a tax. (Specifically, Chief Justice John Roberts wrote that the law is constitutional as an exercise of Congress’ power to tax.) And since the mandate was a “tax,” in 2017, Congress realized it had the authority to control the tax rate and zipped it down to zero as of Jan. 1, 2019. President Trump often claimed “getting rid of the individual mandate” as a victory.

But then lawsuits began. In December 2019, the U.S. Court of Appeals for the 5th Circuit affirmed a trial court’s decision that the individual mandate is no longer constitutional because the associated financial penalty no longer “produces at least some revenue” for the federal government. But, instead of deciding whether the rest of the ACA should be struck down, the 5th Circuit sent the case back to the trial court for additional analysis. It could, in theory, bounce back and forth, but the Supreme Court agreed to review the case.

Meanwhile, the unanticipated disruption in the mandate caused insurance rates to rise. Health insurance companies set their rates with the understanding that everybody — healthy and unhealthy, young and old — would be in the pool of people the insurers were covering. But without the mandate, health insurance companies calculated that only people who thought they might need health insurance would buy it and that young, healthy people wouldn’t. And so insurance companies raised their prices.

Lower courts have ruled that if one part of the Affordable Care Act is unenforceable, then the whole thing is unconstitutional. The lower courts say you can’t dice the ACA into pieces and let some parts stand. The Supreme Court might take a stand on that question. The word of the day is “severability.” Can you keep part of a law even while trashing the rest of it? Or does Congress have to start all over again with a new health care law?

If it matters, some Republicans who voted to zero out the mandate said they did not intend to kill the whole ACA, just that part of it. “Legislative intent” could be another term to keep in mind tomorrow.

What is at stake in this lawsuit?

Kaiser Health News explains that the ACA has many provisions that could be eliminated and affect millions of Americans, including:

  • Protections for people with preexisting conditions
  • Subsidies to make individual health insurance more affordable
  • Expanded eligibility for Medicaid
  • Coverage of young adults up to age 26 under their parents’ insurance policies (the number of non-elderly individuals who are uninsured decreased by 18.6 million from 2010 to 2018, as the ACA went into effect)
  • Coverage of preventive care with no patient cost-sharing
  • Closing of the doughnut hole under Medicare’s drug benefit

Who brought the lawsuit?

While Texas’ name is on the suit, the fact of the matter is that 20 states (Texas is just one of them) brought the lawsuit. 17 other states defend the ACA and a handful more states have filed briefs in the matter. Only Idaho, Wyoming, Oklahoma and Alaska are not involved in this litigation, but they of course will be affected by the decision.

Notice how this map of where states stand on the ACA looks a lot like the Electoral College map. It is not a perfect reflection, but you see similarities and that is no fluke.

Why is the federal government not defending a federal law?

Usually, lawsuits challenging the constitutionality of a federal law involve a state or an individual suing the U.S. government. And usually the Department of Justice defends the federal law. But not this time. The feds have a two-part position:

  • The individual mandate is unconstitutional and;
  • The ACA’s protections for people with preexisting conditions, including guaranteed issue and community rating, should be struck down.

What could happen?

There are three ways to answer this question. One is what could the court do? Another is what would a Biden administration with a Democrat-controlled House and GOP-controlled Senate do? A third way to think about it would be what would a Biden White House with both Houses of Congress in Democrat control do?

Kaiser explains the four questions that the court will hear:

First, the Court will consider whether Texas and the individual plaintiffs have standing to bring the lawsuit to challenge the individual mandate. If so;

the Court will determine whether the Tax Cut and Jobs Act (TCJA) passed in 2017 rendered the individual mandate unconstitutional (when it reduced the tax for the mandate to zero.)

If the mandate is unconstitutional, the Court will decide whether the rest of the ACA can survive.

Finally, if the entire ACA is held invalid, the Court will resolve whether the entire law should be unenforceable nationwide or whether it should be unenforceable only to the extent that provisions injure the individual plaintiffs.

Kaiser’s decision tree explains how the case could be settled:

If some or all of the ACA is reversed, a Biden administration would launch an all-out effort to pass a new version. Without a Senate majority, a familiar gridlock could occur, and the provisions of the ACA could flounder.

What does Biden want?

President-elect Joe Biden speaks, Saturday, Nov. 7, 2020, in Wilmington, Del. (AP Photo/Carolyn Kaster)

The main component of Joe Biden’s health care plan is to offer a “public option.” It would be a Medicare-like option for 12 million or so Americans who pay for their own insurance. And the 150 million Americans who have employer-sponsored insurance would keep their plans.

But Biden does not want to allow employers to blow up their plans and send people to the public option. Kaiser says most people would not find the public option to be cheaper than their employer-supplied insurance, but Biden’s plan intends for Americans to spend no more than 8.5% of their income on health care coverage.

Biden’s plan also has a goal of expanding Obamacare to include a limit on price increases “for all brand, biotech and abusively priced generic drugs” and to add limits for pricing drugs that have no competition in the marketplace. And, controversially, the Biden plan would also allow undocumented immigrants to buy into the public option, but their coverage would not be subsidized.

Again, if Republican senators hold the majority, any decision the Supreme Court makes after tomorrow will be all the more significant because it will be a much tougher battle to rebuild a version of the ACA.

Biden to launch a COVID-19 task force today

President-elect Joe Biden promised he would make controlling COVID-19 his first priority and today he intends to name a 12-member task force to get to work on it.

Some members of the group have been serving on Vice President Mike Pence’s COVID-19 task force, but the new committee will include three co-chairs: former Surgeon General Vivek Murthy, former Food and Drug Administration Commissioner David Kessler and Dr. Marcella Nunez-Smith from Yale University.

StatNews says Biden is also going to send three specific messages today:

  • He will reach out to Dr. Anthony Fauci to offer his support.
  • He will assure the World Health Organization that the U.S. will be an active WHO participant after Trump pulled out of the WHO and threatened funding.
  • He will soon reach out to governors and mayors to understand their concerns and needs, especially as local governments plot their plans for a national vaccine program. Biden is also likely to use the contacts with governors and mayors to urge them to pass and enforce universal mask mandates.

Biden has also offered a seven-point plan for dealing with COVID-19, including:

  • Quickly doubling the number of drive-thru testing sites.
  • Investing in new testing technology that would eventually make testing for the coronavirus possible at home.
  • Vastly expanding contact tracing to include 100,000 workers under a U.S. Public Health Jobs Corps to get the job done.
  • Increasing personal protective equipment production. Biden says he will “fully use the Defense Production Act to ramp up production of masks, face shields, and other PPE so that the national supply of personal protective equipment exceeds demand and our stores and stockpiles — especially in hard-hit areas that serve disproportionately vulnerable populations — are fully replenished.”
  • Putting scientists and global health specialists front and center, beginning with Dr. Fauci.
  • Expanding COVID-19 relief to eliminate out-of-pocket costs for testing and treatment and provide additional pay and PPE to essential workers.
  • Providing a “restart package” that helps small businesses cover the costs of operating safely, including things like plexiglass and PPE.
  • Creating the Nationwide Pandemic Dashboard that Americans can check in real time to help them gauge whether local transmission is actively occurring in their ZIP codes.

The new ‘first dogs’ are about to become celebs

The Bidens have two dogs, both German Shepherds, named Major and Champ. They bought Champ as a puppy in 2008.

Major may become an iconic White House pet because he was a rescue dog that the Bidens adopted in 2018. The News Journal reported that Major came to the Delaware Humane Society as a puppy, along with his five siblings, after the litter was exposed to toxins and surrendered to the shelter. The pups underwent life-saving medical care at a local veterinary emergency center. Ashley Biden sent her father a Facebook post saying the shelter was looking for a home for the dogs. What started as a foster care project became an adoption.

Delaware Online said Joe Biden “wanted to adopt one of them because his older dog, Champ, was beginning to slow down, and he wanted a younger dog to be a companion for her.”

How many first dogs can you name? Who, for example, was Rob Roy and which president had a dog named King Tut? Here is an easier question: Which president had a dog named Fala? Finally, just so you will get one of the questions right, what breed of dogs did Lyndon Johnson lift by their ears in front of journalists? Go here for all of the answers.

‘Trust’ may just be the issue of 2020-21

CNN just launched a new promo that focuses on the issue of “trust.” The message notes that people have lost trust in government and even in each other. Trust will be the main issue over the next month or two when we may have a vaccine that will help us get control of this pandemic. Trust will be key to a smooth transition of government.

I took Joe Biden’s Saturday night speech and turned it into a word cloud. Notice how it is more about “America, restore, together, united, believe and cooperate” than it is about “Democrats.” The speech attempts to build trust.

(Text from Joe Biden’s Nov. 7, 2020 address)

And, I would add, journalists have some trust to rebuild as well. Gallup’s data is broad in that it asks a question about trust in “mass media,” which is local and national and includes all media. And we know that polling generally shows that people trust local news more than the national outlets. (Maybe in the same way that you trust your doctor more than the “medical establishment” or that you support your local member of Congress and it is the rest of them that you want tossed out. Most incumbents get reelected even when Congress as a whole gets low marks.)

You (we) have 70 million Republicans who, as a group, don’t think much of you (us). How will you send a message to your community that you are connected with what they are concerned about?

My recommendation is that you not try to convince your readers/listeners/viewers that you are trustworthy. Spend your energy connecting with them, demonstrating that you “get” them and, for those who distrust you, try to understand why. You may never be able to earn their trust and for some, it may not be worth the effort. You know that we earn trust over time and we can lose it overnight.

We’ll be back tomorrow with a new edition of Covering COVID-19. Sign up here to get it delivered right to your inbox.

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Al Tompkins is one of America's most requested broadcast journalism and multimedia teachers and coaches. After nearly 30 years working as a reporter, photojournalist, producer,…
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