Subject: Fwd: Internal White House TPs on ACA Lawsuit and DOE/DOJ Guidance on Transgender Students
From: "Miranda, Luis" <[email-masked]>
To: Debbie Wasserman Schultz <[email-masked]>
Date: Sat, 14 May 2016 13:35:44 -0700

Sent via the Samsung GALAXY S®4, an AT&T 4G LTE smartphone

-------- Original message --------
From: "Paustenbach, Mark" <[email-masked]>
Date: 05/14/2016 11:32 (GMT-09:00)
To: Regional Press <[email-masked]>
Subject: Internal White House TPs on ACA Lawsuit and DOE/DOJ Guidance on Transgender Students

House v. Burwell
Topline Message

·                     While we are disappointed with the district court’s ruling, the Department of Justice has stated that it will appeal this decision, and we are confident that, when all is said and done, we will prevail in this litigation.  In the meantime, the court has stayed its decision, so there is no impact on customers.

·                     This is not the first time that we’ve seen opponents of the ACA go through the motions to try to win this political fight in the court system.

·                     But as we have said all along, this suit is unprecedented.  Never before in our nation’s history has Congress been permitted to sue the Executive Branch over a disagreement about how to interpret a statute.  The courts should not permit such a lawsuit here.

·                     Moreover, it is clear that Congress fully intended to fund the cost-sharing reductions that make health care more affordable for consumers.  That is as true today as it was last week.

·                     It’s unfortunate that Republicans have resorted to a taxpayer-funded lawsuit to refight a political fight that they keep losing.  They’ve been losing this fight for six years, and we are confident they’ll lose it again.
BACKGROUND: Key Quotes from DOJ Briefs
STANDING

·                     A House of Congress may not — as it seeks to do here — maintain an action against the Executive Branch concerning its implementation of a statute. This is “obviously not the regime that has obtained under our Constitution to date.” DOJ Motion to Dismiss 1 (quoting Raines v. Byrd, 521 U.S. 811, 828 (1997)).

·                     Contrary to the entire premise of the plaintiff’s suit here, the Supreme Court has made clear that federal courts do not sit to referee this sort of an institutional dispute “between one or both Houses of Congress and the Executive Branch … on the basis of claimed injury to official authority or power.”  DOJ Motion to Dismiss 1-2 (quotingRaines v. Byrd, 521 U.S. 811, 826 (1997)).

·                     The U.S. House of Representatives now asks this Court to decide a generalized, institutional dispute between the Executive Branch and one chamber of the Legislative Branch concerning the proper interpretation of federal law. This novel tactic is unprecedented, and for good reason: the House has no standing to bring this suit. The House here asserts only that the Executive Branch is implementing statutory provisions, which were enacted by a previous Congress, in a manner different from what the current House would prefer. Because the House does not suffer any concrete and particularized injury from the Executive Branch’s implementation of federal law, this Court cannot decide the House’s claim.  DOJ Motion to Dismiss 2.

·                     Federal courts sit only to decide actual cases and controversies, not abstract claims of legislative power. What is more, the House retains a variety of political and legislative tools to advance its prerogatives in this inter-Branch dispute — including its “power of the purse.” It need not conscript the Judiciary in its effort to superintend the Executive’s implementation of the law.  DOJ Reply on Motion to Dismiss 2.

·                     Where, as is often the case, an appropriation is tied to a particular statute or program, any claim that an Executive Branch agency has erroneously interpreted the governing substantive statute could easily be recast as a violation of the Appropriations Clause, on the theory that the applicable appropriations law did not permit the expenditure of funds for an assertedly unlawful purpose.  DOJ Motion for Certification 14-15.
MERITS

·                     The text, structure, design, and history of the Affordable Care Act demonstrate that the Act permanently funded both interrelated components of its insurance subsidy program—premium tax credits and cost-sharing reductions.  DOJ Merits Response 1.

·                     The ACA did not, for appropriations purposes, split apart the two subsidies that it integrated, legally and economically, for purposes of eligibility and payment.  DOJ Merits Opening Brief 8.

·                     The House does not seriously dispute that its interpretation of the Affordable Care Act—under which premium tax credit payments are permanently funded but cost-sharing reduction payments are not—would have the perverse effect of vastly increasing federal spending from the very appropriation the House purports to be protecting. Significantly, the projections to that effect cited in the defendants’ previous briefing have been  confirmed by the Urban Institute, which recently determined that federal spending would rise by $47 billion over the next ten years under the House’s reading of the ACA.  DOJ Merits Reply 1.

Department of Education/DOJ Guidance

Bumper sticker statement:

All students—including transgender students—should be able to learn, grow, and thrive in a school environment that is safe and free from discrimination. That’s why the U.S. Departments of Education and Justice are releasing guidance to help ensure the civil rights of transgender students are protected from discrimination based on their sex or gender identity.

TPs:

·         As you know, we’ve heard from a growing chorus of educators, parents, and students around the country about the need for guidance on how schools can successfully support transgender students and non-transgender students in compliance with federal civil rights laws.

·         For that reason, DOJ and ED are releasing guidance to schools today explaining how federal law prohibiting sex discrimination affects schools’ obligations toward transgender students.

·         The Department of Education is also releasing a compilation of examples of ways that schools across the country are already successfully supporting transgender students.

·         Both documents show that protecting transgender students’ right to be who they are does not harm other students; instead, they show that equality for transgender students is not only required by law but achievable through common-sense approaches that foster safety and a positive learning environment for all students.

·         Taken together, we hope these new resources provide clarity for everyone – from state and local leaders to educators to students and families – about how to create a safe, welcoming, and supportive learning environment for every student.
HHS Section 1557

·         Today, HHS finalized a rule to improve health equity thanks to the Affordable Care Act -- prohibiting discrimination based on race, color, national origin, sex, gender identity, age or disability – and ensuring that individuals with limited English proficiency can access language assistance.

·         The protections in the final rule and Section 1557 regarding individuals’ rights and the responsibilities of many health insurers, hospitals, and health plans administered by or receiving federal funds from HHS build on existing federal civil rights laws to advance protections for underserved, underinsured, and often excluded populations.

·         Section 1557 of the Affordable Care Act isthe first federal civil rights law to broadly prohibit discrimination on the basis of sex in federally funded health programs.

·         The final rule prohibits sex discrimination in health care including by:

o   Requiring that women must be treated equally with men in the health care they receive.

o   Prohibiting denial of health care or health coverage based on an individual’s sex, including discrimination based on pregnancy, gender identity, and sex stereotyping.

·         It also includes important protections for individuals with disabilities and enhances language assistance for people with limited English proficiency.

Mark Paustenbach
National Press Secretary &
Deputy Communications Director
Democratic National Committee
202.863.8148
[email-masked]<mailto:[email-masked]>