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Over the past week, federal appellate courts dealt a one-two punch to the national conservative agenda. Taken together, they stand as a rare defense of low-income Americans to get affordable health care and exercise their right to vote.
While the Trump administration frequently trumpets the number of judges it has appointed to the federal bench over the past three years, these decisions are a reminder of the inherent independence of lifetime appointees to break sharply with partisan policymakers.
In the first case, Gresham v. Azar, Arkansas residents sued the secretary of Health and Human Services for approving a pilot project purportedly aimed at “promoting the objectives of Medicaid” but that required recipients to work to qualify for the free health care.
In 2013, Arkansas’ Democratic governor expanded Medicaid under Obamacare to include all qualified individuals with income up to 133 percent of the poverty level. (In 2020, that base level is $26,200 annually for a family of four.) But Republicans in Arkansas proposed new restrictions on who gets Medicaid, proposing that people aged 19-49 be required to work 80 hours per month to receive Medicaid, with only limited exceptions. HHS greenlighted the idea, renaming it “community engagement.” It also authorized Arkansas to eliminate retroactive Medicaid coverage and terminate a program that allowed people to use Medicaid funds to offset the cost of employer-provided health care.
In a unanimous opinion authored by Judge David Sentelle—an appointee of President Ronald Reagan who replaced the late Justice Antonin Scalia when he joined the Supreme Court—the U.S. Court of Appeals for the D.C. Circuit struck down HHS’ approval of the program. HHS had claimed that Arkansas’ plan would “incentivize beneficiaries to engage in their own health care and achieve better health coverage” and “address behavior and social factors that influence health care outcomes.”
Sentelle was having none of it.
HHS is obliged to apply the terms of the Medicaid statute as Congress intended, he reasoned, and it was Congress’ intent to provide—not deny—health care assistance. Moreover, Congress specifically intended to help “families with dependent children and of aged, blind, or disabled individuals, whose income and resources are insufficient to meet the costs of necessary medical services.” Sentelle characterized HHS Secretary Alex Azar’s reasoning as disdainful of the real concerns of low-income people. He wrote: “Nodding to concerns ... only to dismiss them in a conclusory manner is not a hallmark of reasoned decision making.”
Usually, agencies get loads of deference when they interpret federal statutes that Congress allows them to implement. And ironically, it’s the conservative end of the bench—including jurists like Justices Brett Kavanaugh and Neil Gorsuch—that tends to sharply deride federal agencies’ power, believing instead that courts should be more proactive in challenging agency overreach. The D.C. Circuit did that in this case. HHS will either have to come up with a legitimate reason for its decision to approve Arkansas’ plan—which will, presumably, be difficult if HHS’ lawyers took their best shot the first round—or refuse Arkansas’ request for a waiver of the Medicaid requirements for purposes of this pilot proposal.
In the second case, Jones v. Governor of Florida, the U.S. Court of Appeals for the 11th Circuit, which is generally progressive-leaning, found unconstitutional the Florida Legislature’s attempt to condition felons’ voting rights on the payment of “all fines, fees and restitution imposed as part of the sentence.”
Recall that on November 6, 2018, Florida voters approved a state constitutional amendment to allow felons to vote after completing their sentences, rendering approximately 1.4 million people potentially eligible—mostly African Americans. (According to the Atlantic, “in 2016, more than 21 percent of Florida’s eligible black citizens were disfranchised.”) The constitutional amendment added that voting rights were contingent on “completion of all terms of sentence including parole or probation.” Florida lawmakers construed that language to require payment of all outstanding fees and fines. The Florida Supreme Court upheld the measure.
In a 78-page opinion, a three-judge panel of the federal appeals court, which included one Reagan appointee and two judges appointed by President Jimmy Carter, held that the fee add-on for felons “punishes those who cannot pay more harshly than those who can—and does so by continuing to deny them access to the ballot box,” thus violating the equal protection clause of the 14th Amendment.
The court applied what’s called “heightened scrutiny” to the Florida bill—an equal protection rubric that’s more rigorous than the basic “rational basis” review but less exacting than “strict scrutiny,” which applies to government actions that are based on immutable characteristics like race. In doing so, the court sidestepped two principles that favored Florida: that “there is nothing unconstitutional about disenfranchising felons—even all felons, even for life,” and that “wealth ... is not a suspect classification” according to the U.S. Supreme Court. The odds that the decision could be overturned by a conservative majority—if the Supreme Court were to accept an appeal—are relatively good.
Like HHS in the Gresham case, Florida lawmakers made excuses for the rule, including that it “broadly encourage[es] the repayment of felons’ debts to society.” But again, the court didn’t buy it: “The problem with the incentive-collections theory is that it relies on the notion that the destitute would only, with the prospect of being able to vote, begin to scratch and claw for every penny, ignoring the far more powerful incentives that already exist for them—like putting food on the table, a roof over their heads, and clothes on their backs.”
In sum, the court held, “the state may not treat criminal defendants more harshly on account of their poverty.”
Perhaps the framers knew what they were doing when they put federal judges beyond the reach of politics.