A federal judge who invalidated the Indian Child Welfare Act and the Affordable Care Act is seeing his rulings challenged before the 5th Circuit Court of Appeals, whose building is seen here in New Orleans, Louisiana. Photo by Indianz.Com (CC BY-NC-SA 4.0)

Health | Law | National | Politics | Trust

Trump administration abandons the Indian Health Care Improvement Act in court case

Tuesday, March 26, 2019

In a legal development that puts the Indian Health Care Improvement Act (IHCIA) at risk of being eliminated, the Trump administration is refusing to defend the Affordable Care Act (ACA).

In a one-page filing on Monday, the Department of Justice said it supports a federal judge's decision to invalidate the entirety of the ACA. If the ruling is upheld, the IHCIA would also go away because the judge assigned to the case made no effort to determine how to protect the trust and treaty responsibility owed to American Indian and Alaska Native patients.

The Trump administration's stance also leaves Indian Country without an advocate as the case moves forward. While a number of state governments have intervened to defend the ACA, no tribes or tribal organizations are participating at this point.

The judge who invalidated ACA is Reed O'Connor, who serves on the federal court in the Northern District of Texas. He is the same judge who struck down the Indian Child Welfare Act (ICWA) as unconstitutional, a ruling that went against decades of precedent in Indian law and policy cases.

Both decisions are now being challenged in the 5th Circuit Court of Appeals. Arguments in the ICWA case took place two weeks ago, with a panel of judges expressing skepticism about O'Connor's ruling, as well as the overall attempt to invalidate a federal law that has been in place since 1978.

Judge O’Connor also struck down recently the Indian Child Welfare Act, a 40 year old statute that has twice been reviewed by SCOTUS on four separate constitutional grounds. The Fifth Citcuit stayed the decision pending appeal. https://t.co/oyrEVFujHB
— Keith Michael Harper (@AmbHarper) December 15, 2018

Both lawsuits were spearheaded by Texas Attorney General Ken Paxton, a Republican. Tribal leaders believe he intentionally filed the ICWA case in the Fort Worth Division, knowing it would be assigned to O'Connor because he is the only active judge there.

"They kind of shopped around for a while to find a court that would side with them," Chairman Tehassi Hill of the Oneida Nation told Indianz.Com after the March 13 arguments in the ICWA case, known as Brackeen v. Bernhardt and as Texas v. Bernhardt.

In 2010, Congress included a permanent reauthorization of the IHCIA in the ACA. That prevented tribes and their advocates from having to seek approval every few years for the law, which renewed key programs at the Indian Health Service.

Additionally, the ACA, also known as Obamacare, includes provisions that benefit tribes and individual Indians. Those will go away if the law is invalidated.

The Trump administration will be filing a brief explaining its argument in the case, known as Texas v. United States.

“Donald Trump and Republicans are obsessed with taking health care away from millions of Americans," said Democratic National Committee Chair Chair Tom Perez. "For nearly a decade, Republicans have tried and failed to kill the ACA. This filing moves them one step closer to throwing the financial security and peace of mind of millions – not to mention one of the largest sectors of our economy – into a tailspin."

“This filing should alarm every American. It is an indisputable fact that the Affordable Care Act has saved lives, and Democrats will do everything in our power to protect it," Perez said. “Democrats believe health care is a right, not a privilege – and so do the American people. It’s time for the Trump administration and Republican leaders to stop playing games with people’s lives.”