Opinions | Trump made us No. 1 — in the spread of a deadly disease

Jennifer Rubin WASHINGTON POST 3/27/2020

Trump says people 'want to get back to work'

Editor’s note: The opinions in this article are the author’s, as published by our content partner, and do not necessarily represent the views of MSN or Microsoft.

The United States reached two grim milestones on Thursday: Fatalities from covid-19 topped 1,000, and it became the country with the most confirmed cases of coronavirus, surpassing China with more than 82,000. (Keep in mind, there is reason to doubt that China’s tally is accurate, absent a free media or independent verification from an international organization.)

We are only at the beginning of the deadly pandemic that President Trump once promised would “completely disappear.” Trump once promised that 15 initial cases would go down to zero but, of course, that was either a deliberate untruth or ignorance magnified by denial. (The apex in New York City won’t be here for about three weeks, according to the state’s governor.)

Despite at least two months warning, Trump’s disastrous missteps and willful blindness have stripped away our defenses and set us back in mitigation efforts. The New York Times recounts, “A series of missteps and lost opportunities dogged the nation’s response. Among them: a failure to take the pandemic seriously even as it engulfed China, a deeply flawed effort to provide broad testing for the virus that left the country blind to the extent of the crisis, and a dire shortage of masks and protective gear to protect doctors and nurses on the front lines, as well as ventilators to keep the critically ill alive.”

© Drew Angerer/AFP/Getty Images President Trump during a coronavirus briefing at the White House on Thursday. At right is Vice President Pence.

Politicians resistant to universal health-care coverage never tire of telling us that we have the world’s greatest medical system. Even in normal times, the claim is questionable; now it is absurd. “The United States, which should have been ready, was not,” the Times report noted.

Trump’s failures are personal (e.g., lying; relying on Chinese President Xi Jinping’s assurances) but also entail the failure to install competent people in key positions or to follow established protocols his predecessor provided to him. The Centers for Disease Control and Prevention’s director, Robert Redfield, bollixed testing. The administration ignored the advice of the outgoing Obama team that had gained experience with Ebola and Zika. (The Times reported, “In 2016, the Obama administration produced a comprehensive report on the lessons learned by the government from battling Ebola. In January 2017, outgoing Obama administration officials ran an extensive exercise on responding to a pandemic for incoming senior officials of the Trump administration.”)

Moreover, in an administration in which credible and competent people do not survive and only weak yes-men remain, it was impossible to get Trump’s attention when it mattered. Now defensive, he refuses to stop peddling false and dangerous information or to fully take charge of the response, shifting as much responsibility as he can onto the states.

The Post reports, “Washington Gov. Jay Inslee (D) clashed with President Trump during a conference call with governors on Thursday, pleading with him to take more dramatic action to secure medical supplies for his state as it suffers from the coronavirus pandemic, according to four people familiar with the call.” Trump vaguely threatens that governors need to be “nice” to him to get what they want. It seems the effort to extort a foreign country, Ukraine, to drum up a fake scandal involving his potential 2020 opponent was a warm-up for an effort to treat our country like a mob boss’s territory. Nice state you have there. Would be a shame if anything happened to it.

Trump fundamentally sees himself as president only of his supporters. However, as the pandemic spreads to Florida, Louisiana and other states he considers on “his” side, the full impact of an incompetent and uncaring president may finally hit home. The virus does not differentiate between blue and red states; the former are simply sequentially ahead of the latter.

At some point — When unemployment hits 30 percent? When deaths double and double again? — even Trump’s cultists may come to wonder how this could have happened to them. The answer is that the president they enabled was not up to the job of protecting the country against a deadly pandemic.

AMERICA ODEPIUS

The Lost Month: How a Failure to Test Blinded the U.S. to Covid-19

LONG READ
The New York Times 3/28/2020 WASHINGTON — Early on, the dozen federal officials charged with defending America against the coronavirus gathered day after day in the White House Situation Room, consumed by crises. They grappled with how to evacuate the United States consulate in Wuhan, China, ban Chinese travelers and extract Americans from the Diamond Princess and other cruise ships.

© Grant Hindsley for The New York Times

The members of the coronavirus task force typically devoted only five or 10 minutes, often at the end of contentious meetings, to talk about testing, several participants recalled. The Centers for Disease Control and Prevention, its leaders assured the others, had developed a diagnostic model that would be rolled out quickly as a first step.

But as the deadly virus from China spread with ferocity across the United States between late January and early March, large-scale testing of people who might have been infected did not happen — because of technical flaws, regulatory hurdles, business-as-usual bureaucracies and lack of leadership at multiple levels, according to interviews with more than 50 current and former public health officials, administration officials, senior scientists and company executives.

\
© Anna Moneymaker/The New York Times Dr. Robert R. Redfield is the head of the C.D.C.. The test his agency developed failed in February.

The result was a lost month, when the world’s richest country — armed with some of the most highly trained scientists and infectious disease specialists — squandered its best chance of containing the virus’s spread. Instead, Americans were left largely blind to the scale of a looming public health catastrophe.

The absence of robust screening until it was “far too late” revealed failures across the government, said Dr. Thomas Frieden, the former C.D.C. director. Jennifer Nuzzo, an epidemiologist at Johns Hopkins, said the Trump administration had “incredibly limited” views of the pathogen’s potential impact. Dr. Margaret Hamburg, the former commissioner of the Food and Drug Administration, said the lapse enabled “exponential growth of cases.”
© Anna Moneymaker/The New York Times Regulations at the F.D.A., led by Dr. Stephen Hahn, made it difficult for hospitals to test patients at the same rate as in other countries.

And Dr. Anthony S. Fauci, a top government scientist involved in the fight against the virus, told members of Congress that the early inability to test was “a failing” of the administration’s response to a deadly, global pandemic. “Why,” he asked later in a magazine interview, “were we not able to mobilize on a broader scale?”

Across the government, they said, three agencies responsible for detecting and combating threats like the coronavirus failed to prepare quickly enough. Even as scientists looked at China and sounded alarms, none of the agencies’ directors conveyed the urgency required to spur a no-holds-barred defense.

Dr. Robert R. Redfield, 68, a former military doctor and prominent AIDS researcher who directs the C.D.C., trusted his veteran scientists to create the world’s most precise test for the coronavirus and share it with state laboratories. When flaws in the test became apparent in February, he promised a quick fix, though it took weeks to settle on a solution.

The C.D.C. also tightly restricted who could get tested and was slow to conduct “community-based surveillance,” a standard screening practice to detect the virus’s reach. Had the United States been able to track its earliest movements and identify hidden hot spots, local quarantines might have confined the disease. 

© Anna Moneymaker/The New York Times Under Alex M. Azar II, 
the health secretary, the C.D.C. and F.D.A. failed to break out of their business-as-usual habits.

Dr. Stephen Hahn, 60, the commissioner of the Food and Drug Administration, enforced regulations that paradoxically made it tougher for hospitals, private clinics and companies to deploy diagnostic tests in an emergency. Other countries that had mobilized businesses were performing tens of thousands of tests daily, compared with fewer than 100 on average in the United States, frustrating local health officials, lawmakers and desperate Americans.

Alex M. Azar II, who led the Department of Health and Human Services, oversaw the two other agencies and coordinated the government’s public health response to the pandemic. While he grew frustrated as public criticism over the testing issues intensified, he was unable to push either agency to speed up or change course.

Mr. Azar, 52, who chaired the coronavirus task force until late February, when Vice President Mike Pence took charge, had been at odds for months with the White House over other issues. The task force’s chief liaison to the president was Mick Mulvaney, the acting White House chief of staff, who was being forced out by Mr. Trump. Without high-level interest — or demands for action — the testing issue festered.

At the start of that crucial lost month, when his government could have rallied, the president was distracted by impeachment and dismissive of the threat to the public’s health or the nation’s economy. By the end of the month, Mr. Trump claimed the virus was about to dissipate in the United States, saying: “It’s going to disappear. One day — it’s like a miracle — it will disappear.”

By early March, after federal officials finally announced changes to expand testing, it was too late. With the early lapses, containment was no longer an option. The tool kit of epidemiology would shift — lockdowns, social disruption, intensive medical treatment — in hopes of mitigating the harm. 

© EPA, via Shutterstock Medical workers with a patient in Wuhan, China, in January. The U.S. health secretary would declare a public health emergency at the end of the month.

Now, the United States has more than 100,000 coronavirus cases, the most of any country in the world. Deaths are rising, cities are shuttered, the economy is sputtering and everyday life is upended. And still, many Americans sickened by the virus cannot get tested.
© Amanda Voisard/Reuters Dr. Nancy Messonnier, director of the National Center for Immunization and Respiratory Diseases, has taken a public role in the crisis.

In a statement, Judd Deere, a White House spokesman, said that “any suggestion that President Trump did not take the threat of Covid-19 seriously or that the United States was not prepared is false.” He added that at Mr. Trump’s direction, the administration had “expanded testing capacities.”

Dr. Bruce Aylward, a senior adviser at the World Health Organization, led an expert team to China last month to research the mysterious new virus. Testing, he said, was “absolutely vital” for understanding how to defeat a disease — what distinguishes it from others, the spectrum of illness and, most important, its path through populations.

“You want to know whether or not you have it,” Dr. Aylward said. “You want to know whether the people around you have it. Because you know what? Then you could stop it.”

“You can’t stop it,” he warned, “if you can’t see it.”

A Startling Setback

The first time Dr. Robert Redfield heard about the severity of the virus from his Chinese counterparts was around New Year’s Day, when he was on vacation with his family. He spent so much time on the phone that they barely saw him. And what he heard rattled him; in one grim conversation about the virus days later, George F. Gao, the director of the Chinese Center for Disease Control and Prevention, burst into tears.
© Centers for Disease Control and Prevention The C.D.C.’s flawed testing kit for the new coronavirus.

Dr. Redfield, a longtime AIDS researcher, had never run a government agency before his appointment to lead the C.D.C. in 2018. Until then, his biggest priorities had been fighting the opioid epidemic and the spread of H.I.V. Suddenly, a man who preferred treating patients in Haiti or Africa to being in the public glare was facing a new pandemic threat.
© Samuel Corum/Getty Images Mr. Azar speaking about the public health response in January after five cases were confirmed in the United States.

At first, Dr. Redfield’s agency moved quickly.

On Jan. 7, the C.D.C. created an “incident management system” for the coronavirus and advised travelers to Wuhan to take precautions. By Jan. 20, just two weeks after Chinese scientists shared the genetic sequence of the virus, the C.D.C. had developed its own test, as usual, and deployed it to detect the country’s first coronavirus case.
© T.J. Kirkpatrick for The New York Times President Trump announcing the rollout of additional tests at the C.D.C. in early March.

“That’s our prime mission,” Dr. Redfield said later in an interview, “to get eyes on this thing.”

Assessing the virus would prove challenging. It was so new that scientists had little information to work with. China provided limited data, and rebuffed an early attempt by Mr. Azar and Dr. Redfield to send C.D.C. experts there to learn more. That the virus could cause no symptoms and still spread — something not initially known — made it all the more difficult to understand.

To identify the virus, the C.D.C. test used three small genetic sequences to match up with portions of a virus’s genome extracted from a swab. A German-developed test that the W.H.O. was distributing to other countries used just two, potentially making it less precise.

But soon after the F.D.A. cleared the C.D.C. to share its test kits with state health department labs, some discovered a problem. The third sequence, or “probe,” gave inconclusive results. While the C.D.C. explored the cause — contamination or a design issue — it told those state labs to stop testing.
© Doug Mills/The New York Times Vice President Mike Pence discussing 15-day federal guidelines this month to “slow the spread” of the pandemic.

The startling setback stalled the C.D.C.’s efforts to track the virus when it mattered most. By mid-February, the nation was testing only about 100 samples per day, according to the C.D.C.’s website.

Dr. Redfield played down the problem in task force meetings and conversations with Mr. Azar, assuring him it would be fixed quickly, several administration officials said.

With capacity so limited, the C.D.C.’s criteria for who was tested remained extremely narrow for weeks to come: only people who had recently traveled to China or had been in contact with someone who had the virus.

The lack of tests in the states also meant local public health officials could not use another essential epidemiological tool: surveillance testing. To see where the virus might be hiding, nasal swab samples from people screened for the common flu would also be checked for the coronavirus.

The C.D.C. announced a plan on Feb. 14 to perform the screening in five high-risk cities: New York, Chicago, Los Angeles, San Francisco and Seattle. An agency official said it could provide “an early warning signal to trigger a change in our response strategy.” But most of the cities could not carry it out.

“Had we had done more testing from the very beginning and caught cases earlier,” said Dr. Nuzzo, of Johns Hopkins, “we would be in a far different place.”

The consequences became clear by the end of February. For the first time, someone with no known exposure to the virus or history of travel tested positive, in the Seattle area, where the U.S.’s first case had been detected more than a month earlier. The virus had probably been spreading there and elsewhere for weeks, researchers later concluded. Without a more complete picture of who had been infected, public health workers could not do “contact tracing” — finding all those with whom any contagious people had interacted and then quarantining them to stop further transmission.

The C.D.C. gave little thought to adopting the test being used by the W.H.O. The C.D.C.’s test was working in its own lab — still processing samples from states — which gave agency officials confidence. Dr. Anne Schuchat, the agency’s principal deputy director, would later say that the C.D.C. did not think “we needed somebody else’s test.”

And the German-designed W.H.O. test had not been through the American regulatory approval process, which would take time.

Throughout February, Dr. Redfield shuttled between Atlanta, where the C.D.C. is based, and Washington, holding multiple calls every day with Mr. Azar and participating in the coronavirus task force.

Mr. Azar’s take-charge style contrasted with the more deliberative manner of Dr. Redfield, who lacked the kind of commanding television presence that impressed Mr. Trump. He was “a consensus person,” as one colleague described him, who sought to avoid conflict. He relied heavily on some of the C.D.C.’s career scientists, like Dr. Schuchat and Dr. Nancy Messonnier, the director of the agency’s National Center for Immunization and Respiratory Diseases.

Under scrutiny from Congress, Dr. Redfield offered reassurances. Responding on Feb. 24 to a letter from 49 members of Congress about the need for testing in the states, he wrote, “CDC’s aggressive response enables us to identify potential cases early and make sure that they are properly handled.”

Days later, his agency provided a workaround, telling state and local health department labs that they could finally begin testing. Rather than awaiting replacements, they should use their C.D.C. test kits and leave out the problematic third probe.

Meanwhile, the agency’s epidemiologists were growing more concerned as the virus spread in South Korea and Italy. On Feb. 25, Dr. Messonnier gave a briefing with a much blunter warning than usual. “Disruption to everyday life might be severe,” she said.

Mr. Trump, returning from a trip to India, was furious, according to senior administration officials. Later that day, Mr. Azar seemed to be tamping down the level of concern. All Dr. Messonnier had meant, he said at a news conference, was that people should “start thinking about, in their own lives, what that might involve.”

“Might,” Mr. Azar repeated emphatically. “Might involve.”

Barriers to Testing

Dr. Stephen Hahn’s first day as F.D.A. commissioner came just six weeks before Mr. Azar declared a public health emergency on Jan. 31. A radiation oncologist and researcher who helped turn around MD Anderson in Houston, one of the nation’s leading cancer centers, Dr. Hahn had come to Washington to oversee a sprawling federal agency that regulates everything from lifesaving therapies to dog food.

But overnight, his mission — to manage 15,000 employees in a culture defined by precision and caution — was upended. A pathogen that Mr. Trump would later call the “invisible enemy” was hurtling toward the United States. It would fall to the newly arrived Dr. Hahn to help build a huge national capacity for testing by academic and private labs.

Instead, under his leadership, the F.D.A. became a significant roadblock, according to current and former officials as well as researchers and doctors at laboratories around the country.

Private-sector tests were supposed to be the next tier after the C.D.C. fulfilled its obligation to jump-start screening at public labs. In other countries hit hard by the coronavirus, governments acted quickly to speed tests to their populations. In South Korea, for example, regulators in early February summoned executives from 20 medical manufacturers, easing rules as they demanded tests.

But Dr. Hahn took a cautious approach. He was not proactive in reaching out to manufacturers, and instead deferred to his scientists, following the F.D.A.’s often cumbersome methods for approving medical screening.

Even the nation’s public health labs were looking for the F.D.A.’s help. “We are now many weeks into the response with still no diagnostic or surveillance test available outside of C.D.C. for the vast majority of our member laboratories,” Scott Becker, chief executive of the Association of Public Health Laboratories, wrote to Mr. Hahn in late February. “We believe a more expeditious route is needed at this time.”

Ironically, it was Mr. Azar’s emergency declaration that established the rules Dr. Hahn insisted on following. Designed to make it easier for drugmakers to pursue vaccines and other therapies during a crisis, such a declaration lets the F.D.A. speed approvals that could otherwise take a year or more.

But the emergency announcement created a new barrier for hospitals and laboratories that wanted to create their own tests to diagnose the coronavirus. Usually, they faced minimal federal regulation. But once Mr. Azar took action, they were subject to an F.D.A. process called an “emergency use authorization.”

Even though researchers around the country quickly began creating tests that could diagnose Covid-19, many said they were hindered by the F.D.A.’s approval process. The new tests sat unused at labs around the country.

Stanford was one of them. Researchers at the world-renowned university had a working test by February, based on protocols published by the W.H.O. The organization had already delivered more than 250,000 of the German-designed tests to 70 laboratories around the world, and doctors at the Stanford lab wanted to be prepared for a pandemic.

“Even if it didn’t come, it would be better to be ready than not to be ready,” said Dr. Benjamin Pinsky, the lab’s medical director.

But in the face of what he called “relatively tight” rules at the F.D.A., Dr. Pinsky and his colleagues decided against even trying to win permission. The Stanford clinical lab would not begin testing coronavirus samples until early March, when Dr. Hahn finally relaxed the rules.

Executives at bioMérieux, a French diagnostics company, had a similar experience. The company makes a countertop testing system, BioFire, that is routinely used to check for the flu and other respiratory illnesses in 1,700 hospitals around the country. It can provide results in about 45 minutes.

“A lot of us said, you know, your typical E.U.A. is just much too demanding,” said Dr. Mark Miller, the company’s chief medical officer, referring to the emergency approval. “It’s going to take much too much time. And can’t you do something to shorten that?”

Officials at the F.D.A. tried to be responsive, Dr. Miller said. But rather than throw out the rules, the agency only modified the regulatory requirements, still requiring weeks of discussions and negotiations.

After conversations with the F.D.A. in mid-February, the company received emergency approval for its BioFire test on March 24. (The company also began talking to the F.D.A. in January about another type of test, but decided not to pursue it in the United States for now.) Dr. Miller said that while he was ultimately satisfied with the F.D.A.’s actions, the overall response by the government was too slow, especially when it came to logistical questions like getting enough testing supplies to those who needed them.

“You’ve got other countries — and I’m sorry, unfortunately, the U.S. is one of those — where they’ve been slow, disorganized,” he said. “There are still not enough tests available there to test everybody who needs it.”

In an emailed statement, Dr. Hahn maintained that his agency had moved as quickly as it safely could to ensure that tests would be accurate. “Since the early days of this pandemic,” he said, “the F.D.A.’s doors have always been and still remain open to test developers.”

A Lack of Trust

Alex Azar had sounded confident at the end of January. At a news conference in the hulking H.H.S. headquarters in Washington, he said he had the government’s response to the new coronavirus under control, pointing out high-ranking jobs he had held in the department during the 2003 SARS outbreak and other infectious threats.

“I know this playbook well,” he told reporters.

A Yale-trained lawyer who once served as the top attorney at the health department, Mr. Azar had spent a decade as a top executive at Eli Lilly, one of the world’s largest drug companies. But he caught Mr. Trump’s attention in part because of other credentials: After law school, Mr. Azar was a clerk for some of the nation’s most conservative judges, including Justice Antonin Scalia of the Supreme Court. And for two years, he worked as Ken Starr’s deputy on the Clinton Whitewater investigation.

As Mr. Trump’s second health secretary, confirmed at the beginning of 2018, Mr. Azar has been quick to compliment the president and focus on the issues he cares about: lowering drug prices and fighting opioid addiction. On Feb. 6 — even as the W.H.O. announced that there were more than 28,000 coronavirus cases around the globe — Mr. Azar was in the second row in the White House’s East Room, demonstrating his loyalty to the president as Mr. Trump claimed vindication from his impeachment acquittal the day before and lashed out at “evil” lawmakers and the F.B.I.’s “top scum.”

As public attention on the virus threat intensified in January and February, Mr. Azar grew increasingly frustrated about the harsh spotlight on his department and the leaders of agencies who reported to him, according to people familiar with the response to the virus inside the agencies.

Described as a prickly boss by some administration officials, Mr. Azar has had a longstanding feud with Seema Verma, the Medicare and Medicaid chief, who recently became a regular presence at Mr. Trump’s televised briefings on the pandemic. Mr. Azar did not include Dr. Hahn on the virus task force he led, though some of the F.D.A. commissioner’s aides participated in H.H.S. meetings on the subject.

And tensions grew between the secretary and Dr. Redfield as the testing issue persisted. Mr. Azar and Dr. Redfield have been on the phone as often as a half-dozen times a day. But throughout February, as the C.D.C. test faltered, Mr. Azar became convinced that Dr. Redfield’s agency was providing him with inaccurate information about testing that the secretary repeated publicly, according to several administration officials.

In one instance, Mr. Azar appeared on Sunday morning news programs and said that more than 3,600 people had been tested for the virus. In fact, the real number was much smaller because many patients were tested multiple times, an error the C.D.C. had to correct in congressional testimony that week. One health department official said Mr. Azar was repeatedly assured that the C.D.C.’s test would be widely available within a week or 10 days, only to be given the same promise a week later.

Asked about criticism of his agency’s response to the pandemic, Dr. Redfield said: “I’m personally not focused on whether they’re pointing fingers here or there. We’re focused on doing all we can to get through this outbreak as quickly as possible and keep America safe.”

For all Mr. Azar’s complaints, however, he continued to defer to the scientists at the two agencies, according to several administration officials. Mr. Azar’s allies said he was told by Dr. Redfield and Dr. Fauci that the C.D.C. had the resources it needed, that there was no reason to believe the virus was spreading through the country from person to person and that it was important to test only people who met certain criteria.

But even in the face of a crescendo of complaints from doctors and health care researchers around the country, Mr. Azar failed to push those under him to do the one thing that could have helped: broader testing.

In a statement, Caitlin Oakley, Mr. Azar’s spokeswoman, said that the secretary had “empowered and followed the guidance of world-renowned U.S. scientists” on the testing issue. “Any insinuation that Secretary Azar did not respond with needed urgency to the response or testing efforts,” she said, “are just plain wrong and disproven by the facts.”

By Feb. 26, Dr. Fauci was concerned that the stalled testing had become an urgent issue that needed to be addressed. He called Brian Harrison, Mr. Azar’s chief of staff, and asked him to gather the group of officials overseeing screening efforts.

Around noon on Feb. 27, Dr. Hahn, Dr. Redfield and top aides from the F.D.A. and H.H.S. dialed in to a conference call. Mr. Harrison began with an ultimatum: No one leaves until we resolve the lag in testing. We don’t have answers and we need them, one senior administration official recalled him saying. Get it done.

By the end of the day, the group agreed that the F.D.A. should loosen regulations so that hospitals and independent labs could move forward quickly with their own tests.

But the evening before, Mr. Azar had been effectively removed as the leader of the task force when Mr. Trump abruptly put Mr. Pence in charge, a decision so last-minute that even the top health officials in the White House learned of it while watching the announcement.

A Tacit Acknowledgment

Previous presidents have moved quickly to confront disease threats from inside the White House by installing a “czar” to manage the effort.

During an outbreak of the Ebola virus in 2014, President Barack Obama tapped Ron Klain, his vice president’s former chief of staff, to direct the response from the West Wing. Mr. Obama later created an office of global health security inside the National Security Council to coordinate future crises.

“If you look historically in the United States when it is challenged with something like this — whether it’s H.I.V. crises, whether it’s pandemic, whether it’s whatever — man, they pull out all the stops across the system and they make it work,” said Dr. Aylward, the W.H.O. epidemiologist.

But faced with the coronavirus, Mr. Trump chose not to have the White House lead the planning until nearly two months after it began. Mr. Obama’s global health office had been disbanded a year earlier. And until Mr. Pence took charge, the task force lacked a single White House official with the power to compel action.

Since then, testing has ramped up quickly, with nearly 100 labs at hospitals and elsewhere performing it. On Friday, the health care giant Abbott said it had received emergency approval for a portable test that could detect the virus in five minutes.

The president boasted on Tuesday that the United States had “created a new system that now we are doing unbelievably big numbers” of tests for the virus. The U.S., he said, had done more testing for the coronavirus in the last eight days than South Korea had done in eight weeks.

Yet hospitals and clinics across the country still must deny tests to those with milder symptoms, trying to save them for the most serious cases, and they often wait a week for results. In tacit acknowledgment of the shortage, Mr. Trump asked South Korea’s president on Monday to send as many test kits as possible from the 100,000 produced there daily, more than the country needs.

Public health experts reacted positively to the increased capacity. But having the ability to diagnose the disease three months after it was first disclosed by China does little to address why the United States was unable to do so sooner, when it might have helped reduce the toll of the pandemic.

“Testing is the crack that split apart the rest of the response, when it should have tied everything together,” said Dr. Nahid Bhadelia, ​the medical director of the Special Pathogens Unit at Boston University School of Medicine.

“It seeps into every other aspect of our response, touches all of us,” she said. “The delay of the testing has impacted the response across the board.”

Eric Lipton contributed reporting from Washington and Choe Sang-Hun from Seoul, South Korea.

Eric Lipton and Choe Sang-Hun contributed reporting.

The Race for Virus Money Is On. Lobbyists Are Standing By

PROVING SUNLIGHT IS NOT THE STRONGEST DISINFECTANT

3/28/2020



President Trump signed the $2 trillion coronavirus relief bill on Friday. Companies are lobbying to get some of the government funding. Erin Schaff/The New York Times

WASHINGTON — The federal government is open for coronavirus business, and the scramble to get some of it is on.

A South Carolina company has hired a lobbyist close to President Trump to try to win regulatory approval to sell a misting spray to kill coronavirus on airplanes. A Manhattan company is seeking money from the $2 trillion stimulus package for its quick-change recyclable hospital curtains. Two prominent and well-connected Republican fund-raisers have linked up with competing businesses, both claiming to be able to acquire coveted equipment like coronavirus test kits and masks.

Across the country, companies see a chance to cash in, do some good for the country or both, making virus outbreak response one of the few thriving sectors of the economy. And because so much of the business runs through Washington, the rush has created new opportunities for those who can offer access, influence and expertise in navigating bureaucratic hurdles and securing chunks of the relief package Mr. Trump signed into law on Friday.

The boomlet has left the federal agencies responsible for regulating cleaning supplies, medical devices and medicines working overtime on requests to certify products for use in coronavirus response — and to clamp down on fraud.

The Food and Drug Administration has been processing a surge in applications for coronavirus vaccine and treatment trials. But the agency also has spent considerable time and resources fighting what it calls “ fraudulent Covid-19 products .”

Likewise, the Environmental Protection Agency has been cracking down on unregistered products claiming to kill coronavirus, and processing requests to list various disinfectants as approved to kill the virus on surfaces.

“I was on the phone earlier with E.P.A. today, and we’re both working 24/7,” said Hal Ambuter, who leads North American regulatory and government affairs for the British consumer-product maker Reckitt Benckiser, which makes Lysol disinfectants.

The company has been working with the E.P.A. to add more of the brand’s products to a list of disinfectants approved to kill coronavirus on surfaces. “There is a lot of work in our side, and there is a lot of work on their side to handle the volume of requests that have come in,” he said in an interview on Friday.

The company’s outside counsel, Benjamin Dunham, lobbied Congress on provisions included in the stimulus bill , which included $1.5 million for the E.P.A. to facilitate faster regulatory processing of coronavirus-killing disinfectants.

Reckitt Benckiser has paid Mr. Dunham’s firm $30,000 so far this year , according to a lobbying report filed this week. It indicated that a focus of his lobbying was increasing E.P.A. funding “to expedite registration actions involving disinfectant products that are effective against” coronavirus.

This month, a South Carolina-based company called NanoPure hired Brian Ballard , a lobbyist who is a top fund-raiser for Mr. Trump, to help it seek approval for a misting spray disinfectant system to kill bacteria and viruses on airplanes and airports and other institutional settings.

On its website, the company says it “has obtained an exclusive, worldwide license from the United States Government to sell and distribute NanoPure’s nanotechnology platform which kills air- and surface-borne mold, bacteria, and viruses at a 99.9999% rate of effectiveness.”

The law and lobbying firm Holland & Knight set up an entire “Covid-19 Response Team,” which is expected to grow to include as many as 60 lawyers, according to someone familiar with the firm’s efforts.

In a promotional brochure , it promised it could help prospective clients “survive and succeed during this uncertain period,” by securing government grants and “pandemic response funds in federal legislation” for a wide variety of uses.

The firm also says it can help laboratories navigate the Food and Drug Administration’s approval processes to bring “tests and treatments to market efficiently and effectively,” and apply for the agency’s emergency use authorization “to allow marketing of a coronavirus test.”

The firm lobbied to shape the stimulus bill on behalf of a hotel industry client, according to the person familiar with the firm’s efforts. It also helped get clients in the paper and chemical industries included on a list of critical industries allowed to continue operations during coronavirus-triggered shutdowns.

Last week, the firm registered to lobby for the battery maker Energizer Holdings on issues including winning “designation as critical industry/infrastructure on coronavirus relief packages,” according to a filing .

Van D. Hipp Jr., a former deputy assistant secretary of the Army and Republican Party official, registered this month as a lobbyist for one company involved in diagnostic testing and another that provides treatments for viral infections. On lobbying registration forms , he indicated he would arrange “meetings with officials regarding rapid testing for Covid-19,” and reach out to Congress on “issues related to the treatment of immune compromised patients who have documented Covid-19 infections.”

Lee C. Weingart, the founder of the lobbying firm LNE Group, said his firm is “busier now than we’ve been,” because of the stimulus.

His firm registered this week to lobby for On the Right Track Systems, Inc., a Manhattan-based manufacturer of recyclable hospital cubical curtains, to assist in obtaining federal money allocated to states and hospitals for coronavirus treatment.

Mr. Weingart said that the company has seen a sharp spike in demand for its curtains, which he said can be replaced in a fraction of the time it takes to replace more traditional curtains that surround hospital beds. “They’re shipping twice as many curtains in March as they did in January and February,” he said, adding that, in coronavirus response, “turnover of hospital rooms is critical.”


A Buffalo-area team is working to win approval from the E.P.A. for a retail version of a disinfectant.

A concentrated disinfectant made by one of the firms involved was added by the E.P.A. this month to the list of products that could be marketed to kill germs in the coronavirus family. The company linked up with Joe Mallare, who co-owns a company that makes melamine sponges, to try to sell a diluted version to individual customers. But the E.P.A. informed the team on Thursday that they would need to submit a new application, rather than an amendment to their existing registration for the concentrated blend, which is sold to institutional customers.

Mr. Mallare said his team is still committed to winning approval, and called the E.P.A. “very understanding and helpful,” including engaging in midnight email exchanges about the application process. “With this virus going, everybody in America needs this,” he said of his team’s product.

Mr. Mallare is being assisted by a pair of Republican operatives, David Ferguson and Peggy J. Ellis. They have enlisted support for the effort from members of Congress and helped Mr. Mallare’s team connect with the appropriate officials in the E.P.A.’s Antimicrobials Division.

Mr. Ferguson, who specializes in conservative issue advocacy and is not a registered federal lobbyist, said “we’re just trying to use our connections to do what’s right for the country in a time of national crisis.” He said he’s doing the work on a volunteer basis, adding “this is not my core business, and now is not a time for making money.”

For plenty of other Washington veterans, coronavirus is, indeed, a time for making money.

Mike Gula, a veteran Republican fund-raiser whose firm has been paid more than $36 million since 2008 by a range of top Republican politicians and political committees, sent an email on Thursday to clients announcing that he was leaving political fund-raising to focus his “full attention” on “another business outside politics.”

That business is a newly incorporated firm called Blue Flame Medical that boasts on its website that it has assembled an array of “hard-to-find medical supplies to beat the outbreak,” including respirator & surgical masks, coronavirus test kits “and a wide selection” of personal protective equipment.

Neither Mr. Gula nor his partner in the business, a fellow Republican operative named John Thomas, had much experience in the medical supply field.

But Mr. Thomas said in an interview on Saturday that the connections they made through their work in politics helped them find suppliers and connect to customers, including large medical systems and law enforcement agencies around the world, including in the Middle East.

“In politics — especially if you’re at a high enough level — you are one phone call away from anybody in the world,” Mr. Thomas said, adding that his new company had partnered with firms to sell and distribute its products. “It’s not about the financial motivations,” he said of his new venture, which was revealed Friday by Politico . “We’re here to solve a need to help people.”

Brad Wilson, another veteran Republican fund-raiser, who works for a firm that has been paid nearly $4 million by politicians and political committees since 2008, emailed contacts on Thursday on behalf of an Arizona-based firm called CashLabs, which is selling coronavirus-related supplies.

“If you, your company, or clients are in need of large quantities of masks, rapid test kits, or long lasting sanitizing coating (up to 6 months, child and pet friendly), please see attached,” he wrote. He attached a brochure listing prices and minimum orders for products, including $35 for a test that provides results in 10 minutes, with a minimum order of 25,000 tests. “Let me know, and I will be happy to set up a call for pricing and details,” he wrote.

In a brief phone interview on Saturday, Mr. Wilson said he had passed along the pricing sheet on behalf of a family friend who is involved in CashLabs. Mr. Wilson declined to comment when asked if he would receive a commission on sales he arranged.

Then there are industries that are appealing to the government for help repurposing existing products to help with the crisis. They include the plastics industry, which is making a plea to rethink bans on single-use plastic bags, arguing that they are more sanitary than reusable bags.

And the liquor distillers who are converting their production to hand sanitizers this week asked Congress for an exemption on the federal excise tax on liquor.

The exemption, sought by the Distilled Spirits Council, was included in the stimulus bill, but there was a wrinkle. The bill stipulated that, to qualify for the break, the hand sanitizer had to meet certain standards from the F.D.A., which has yet to approve the type of sanitizer most distilleries are producing.

Chris R. Swonger, the president of the spirits council, said most of the distilleries producing hand sanitizer want to give it away to emergency medical workers and hospitals “because the sooner we’re able to defeat Covid-19, the sooner they’ll be up making whiskey and distilled spirits again.”

---30---

LAW&CRIME 

Trump Lawyers: Congress Can’t ‘Uncover and Expose Whether the President Has Engaged in Wrongdoing’

by Colin Kalmbacher | March 27th, 2020


Attorneys for President Donald Trump filed a series of reply briefs with the Supreme Court on Friday in response to two ongoing lawsuits targeting his tax returns and other financial information.

The arguments advanced in those court documents by the 45th president suggest a general and wide-ranging aversion to investigative powers being wielded by the congressional branch.


“Congress does not get the benefit of the doubt when it issues an unprecedented subpoena for the President’s private papers on the assertion that might be useful in considering legislation,” one such filing reads. “To the contrary, the Court should harbor serious doubts that the subpoenas are within the Committees’ power to issue.”

Enforcing the duly-authorized congressional subpoenas issued by the House Oversight Committee would require “total deference to Congress,” according to Trump and his legal team.

The filing goes on like this for some time–using sweeping language to bat away generally non-controversial understandings of the congressional subpoena power and enforcement authority.

“The Committees concede that the subpoenas are meant to uncover and expose whether the President has engaged in wrongdoing,” the House-focused reply brief continues. “Their argument that such an avowed law-enforcement purpose is legitimate so long as they also proclaim a generalized interest in examining the adequacy of existing laws is meritless. Unless the primary purpose of the subpoenas controls, the Committees have carte blanche to engage in law enforcement.”

Critics assailed the president’s legal arguments.

“The president’s lawyers are determined to make clear that no person or entity has any authority to conduct oversight of the president to which he has not consented or over which he himself does not have control,” national security Bradley P. Moss told Law&Crime via email. “In the president’s view, the only lawful mechanisms that can restrain him are political actions of impeachment and election voting.”

House Democrats have long sought Trump’s tax returns and other information related to his finances–which is currently in the possession of the president’s accounting firm Mazars USA, LLP. The firm was served with a subpoena on April 15 2019 and Trump quickly sued to stop the company from providing the congressionally-requested documentation.

In October of last year, the D.C. Court of Appeals cited the Watergate scandal, its resulting legislation, and a case brought by a Senate Select Committee seeking Richard Nixon’s documents in order to validate the congressional request for Trump’s tax returns.

The Second Circuit followed suit less than a month later–in a similar case filed by New York County District Attorney Cyrus Vance.

Legal wrangling continued and the president ultimately appealed to the Supreme Court in order to keep his financial information from ever seeing the light of day–congressional subpoenas notwithstanding.

Friday’s filing makes no secret that the president disagrees with the validity of those subpoenas because Congress intends to use the requested information to ferret out whether or not the president has broken any laws.

Again the Committee-focused reply brief:


There is overwhelming proof that the primary purpose of the Committees’ subpoenas is to gather and expose evidence about whether the President violated various laws. And the Committees do not disagree; they double down. In the Committees’ view, the point of these subpoenas is to track down the President’s “alleged ties to criminal organizations or money laundering,” find out whether the President’s “‘real estate projects were laundromats for illicit funds from countries like Russia,’” uncover if the President’s properties were used to “launder…large sums of money for more than a decade,” determine whether the President is in “compliance with the Ethics in Government Act and the Emoluments Clauses,” and, ultimately, investigate “whether the President may have engaged in illegal conduct before and during his tenure in office.”

Citing a dissenting opinion by Trump-appointed Judge Neomi Rao as the legal foundation for their argument, the president’s attorneys claim there is “no basis…for allowing Congress to conduct ‘a roving inquisition over a co-equal branch of government’ to uncover and expose evidence of presidential wrongdoing.”

The Trump response to a separate case originating out of the Manhattan District Attorney’s Office relies upon a wholly different slate of arguments. Chief among these is the argument that the president is entitled to immunity but isn’t unaccountable.

Per the second reply brief:


Immunity does not place the President “above the law.” It “merely precludes” one specific “remedy for alleged misconduct in order to advance compelling public ends.” The Constitution is our supreme law. The District Attorney violated it by issuing this subpoena.

[image via Steven Ryan/Getty Images]

LAW&CRIME

Florida Gov. DeSantis Accused of Illegally Excluding Reporters from Coronavirus Presser

by Jerry Lambe | March 28th, 2020


Florida’s Republican governor Ron DeSantis (R) was accused of violating the state law Saturday when he barred journalists from both the Miami Herald and Tampa Bay Times from attending his afternoon coronavirus press conference.

The Herald’s Tallahassee Bureau Chief Mary Ellen Klas documented her experience in real-time Saturday as she was denied access to the event, claiming the DeSantis administration’s conduct violated Florida’s Sunshine Law.

“[Gov. Ron DeSantis] decided to violate the state’s public meeting laws and chose to exclude the Miami Herald and [the Tampa Bay Times] from a media briefing at the Capitol,” she wrote. “He was so determined to keep us out, he had a [Florida Department of Law Enforcement] vehicle pick up TV reporter Mike Vasilinda to give him back door access.”

.GovRonDeSantis decided to violate the state's public meeting laws and chose to exclude the @MiamiHerald and @TB_Times from a media briefing at the Capitol. He was so determined to keep us out, he had an FDLE vehicle pick up TV reporter Mike Vasilinda to give him back door access
— Mary Ellen Klas (@MaryEllenKlas) March 28, 2020

Klas also said that when another reporter – Jim Turner of New Service Florida (NSF) – attempted to reason with DeSantis’s media team, he was told that if he continued to argue with them, he, too, would be prevented from attending the press conference. Klas posted a video of Turner talking on the phone about the encounter.

“If I insist on Mary Ellen [Klas] coming in I have to watch on live screen,” Turner can be heard saying. Seconds later a car pulled up. Klas said that vehicle was going to escort Vasilinda to the governor’s press conference.
pic.twitter.com/OM5lpW9HB3
— Mary Ellen Klas (@MaryEllenKlas) March 28, 2020


According to the Florida First Amendment Foundation, the state’s Sunshine Law gives the public an “inalienable right to be present and to be heard” at public meetings, such as the governor’s press conference. While the government is permitted to place restrictions on the parameters of the public’s access, such restrictions are generally limited to requiring orderly behavior and allowing for the orderly progression of public meetings, such as limiting the amount of time an individual can speak during the event.

Klas insinuated that she was kept out of the governor’s press conference due to her news organization’s recent reporting on the COVID-19 pandemic, reporting which has been critical of DeSantis for failing to close the state’s beaches during spring break.

Outrage over packed Florida beaches continued on Saturday.

UPDATED | St. Johns County beaches were finally closed on Saturday at 6 p.m., after a day of controversy in which the county was the object of scorn on social media after images of packed beaches made the Internet rounds.
https://t.co/vFAOr8DHWr
— Florida Times-Union (@jaxdotcom) March 28, 2020

Klas went on to post several of the questions she would have asked DeSantis had she been permitted into the press conference.

You said you were going to be transparent throughout this process, why have to refused to disclose the nursing homes that have had COVID positive cases, except the one you considered negligent? /
— Mary Ellen Klas (@MaryEllenKlas) March 28, 2020

Asking for a friend: Did any of the reporters given exclusive access to the @GovRonDeSantis press conference ask why the governor has excluded @MiamiHerald and @TB_Times ?
— Mary Ellen Klas (@MaryEllenKlas) March 28, 2020


Tampa Bay Times executive editor Mark Katches also tweeted about the incident.

After we urged @GovRonDeSantis to put social distancing measures in place at his press briefings, the administration responded by excluding @TB_Times @MiamiHerald joint Tallahassee bureau from today's press briefing.
— Mark Katches (@markkatches) March 28, 2020

“After we urged @GovRonDeSantis to put social distancing measures in place at his press briefings, the administration responded by excluding @TB_Times @MiamiHerald joint Tallahassee bureau from today’s press briefing,” Katches said.

Tampa Bay Times and Miami Herald reporter Lawrence Mower said DeSantis has “refused to provide a safe place for Florida’s capitol press corps during his news conferences.”

“Often, 25+ reporters are crammed into a tiny room for his briefings,” Mower said. “Now he’s excluding us and other news outlets from his briefings.”

So, was this controversy related to compliance with social distancing guidelines?

The Miami Herald said that DeSantis spokeswoman Helen Aguirre Ferré said as much but did not explain why Klas was excluded:

Helen Aguirre Ferré, DeSantis’ chief spokeswoman, said in an email Saturday that a small group of reporters were invited to attend the briefing in an effort to respond to requests for social distancing. She said she alerted a different reporter of the Herald/Times bureau but did not explain why Klas was not allowed to attend. Klas was already at the Capitol entrance when Ferré called Lawrence Mower of the Times.

Law&Crime reached out to the governor’s Communications Office for comment on the accusation that Florida law was violated. Ferré said the following in a statement:

In an effort to maintain social distancing as some media groups requested, including The Miami Herald, a small pool of Tallahassee reporters representing print, TV and digital were invited to attend a publicly available livestream-briefing with the Governor. As is customary, a media advisory of the livestream was sent to statewide media. A reporter from Tampa Bay Times/ Miami Herald was called but the reporter did not return the two calls. Every endeavor is made to ensure the public continues to have full access to information as the safety and security of Florida residents is our greatest concern.

[image via Fox News screengrab]

LAW&CRIME

Court Slaps Down Drilling Ban in Big Win for Trump and Fracking Interests

by Colin Kalmbacher | 2:58 pm, March 27th, 2020

The White House notched a significant victory against environmental advocates on Friday after a federal court determined the Bureau of Land Management (BLM) did not violate the law by tossing a regulation against oil and gas exploration on public and tribal lands.

The U.S. District Court for the Northern District of California rubbished concerns leveled by the State of California and the Sierra Club in two separate but related lawsuits that BLM’s 2017 abandonment of a 2015 rule ran afoul of the Administrative Procedure Act (APA), National Environmental Policy Act (NEPA), and Endangered Species Act (ESA).

Specifically keyed toward hydraulic fracturing, or fracking–a process which uses various combinations of water, sand and chemicals to create and enlarge existing fractures underground–the 2015 rule was intended “as a much-needed complement to existing regulations designed to ensure the environmentally responsible development of oil and gas resources on Federal and Indian lands, which were finalized nearly thirty years ago, in light of the increasing use and complexity of hydraulic fracturing coupled with advanced horizontal drilling technology,” according to the prior administration’s BLM.

The court summed up the now-discarded Obama era regulation:

First, the 2015 Rule updated…well construction and testing requirements to ensure best practices for casing and cementing wells and “protect and isolate all usable water zones, lost circulation zones, abnormally pressured zones, and any prospectively valuable deposits of minerals.” Second, operators were required to use storage tanks instead of pits to “reduce…the potential risk to surface and groundwater resources,” as well as provide environmental benefits for wildlife. Third, the 2015 Rule provided greater oversight and information to BLM by requiring that operators seek approval for all hydraulic fracturing operations, instead of only “non-routine” operations. Finally, operators were required to disclose the chemical additives used for hydraulic fracturing by submitting the information to an independent organization, FracFocus, which had an existing database and provided “the quickest, most cost-effective way to make the information public.”

Litigation swiftly followed–initiated by states whose politicians have been politically captured by the oil and gas industry. Then, in 2017 the Trump administration quickly moved to rescind the rule.

First, President Donald Trump issued an executive order calling on all administrative agencies to reconsider rules and regulations related to the production of energy. The next day, then-secretary of the Interior Department Ryan Zinke dutifully complied by issuing an order which claimed “[the 2015 Rule] is unnecessarily duplicative of state and some tribal regulations and imposes burdensome reporting requirements and other unjustified costs on the oil and gas industry.”

The plaintiffs collectively argued that BLM had violated environmental rules under NEPA, failed to consider the rule change’s impact on wildlife under the ESA and that the basic decision to alter the rule was “arbitrary and capricious.”

Per the Supreme Court:

Normally, an agency [decision] would be arbitrary and capricious if the agency has [1] relied on factors which Congress has not intended it to consider, [2] entirely failed to consider an important aspect of the problem, [3] offered an explanation for its decision that runs counter to the evidence before the agency, or [4] is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Judge Haywood S. Gilliam Jr. tidily dismissed all of those concerns.

First, the judge found that “NEPA does not apply” to the facts of the case and easily ruled in BLM’s favor because the 2015 rule never actually took effect and therefore “the environmental status quo was not altered by” the Trump’s 2017 rule change.

The ESA decision relied simply upon taking BLM’s words at face value.

Judge Gilliam writes:

[T]he Court must review the entire administrative record, with a particular focus on the final representations BLM provided in the Repeal. BLM’s final position was that the Repeal would have no effect on threatened species on BLM lands, and the Court finds that there is a rational connection between this position and facts presented in the record.

As for the arbitrary and capricious charge, Gilliam accepted the administration’s argument that they had been motivated by a desire to cut enforcement costs for the agency and pointed to the Interior Department’s “cost-benefit analysis” to support the ruling.

“In summary, BLM met the requirement of providing a ‘reasoned explanation’ for why it is changing course after the nearly five-year long extensive rulemaking that resulted in the 2015 Rule,” the order notes. “Although BLM could have provided more detail, it did enough to clear the low bar of arbitrary and capricious review, and that is all the law requires.”

[image via via NICHOLAS KAMM_AFP via Getty Images]

Republicans Go for Obamacare’s Jugular Amid Spiraling Coronavirus Pandemic
by Colin Kalmbacher |  March 27th, 2020 LAW&CRIME 

Texas Attorney General Ken Paxton (C) walks to a news conference outside the Supreme Court on Capitol Hill on June 9, 2016 in Washington, D.C.

As the novel Coronavirus (COVID-19) spreads to an unknown degree, Republican attorneys general are moving forward with efforts to dismantle the Affordable Care Act, otherwise known as Obamacare.

Former vice president and freshly embattled Democratic Party presidential candidate Joe Biden recently forced the issue in an open letter addressed to various red state top cops, Mississippi Governor Tate Reeves (R), and President Donald Trump.

Urging the GOP to drop their ongoing litigation against the majority-approved health care law, Biden cited the national struggle against the fast-spreading contagion as a key reason to abandon their efforts. The letter explicitly tied the crisis to that courtroom battle:


At a time of national emergency, which is laying bare the existing vulnerabilities in our public health infrastructure, it is unconscionable that you are continuing to pursue a lawsuit designed to strip millions of Americans of their health insurance and protections under the Affordable Care Act (ACA), including the ban on insurers denying coverage or raising premiums due to pre-existing conditions.

Republicans issued their own harsh assessments of that letter.

“It’s shameful that the former VP of the United States would play crass politics during a national crisis,” Georgia Attorney General Chris Carr said in a statement provided to Yahoo Finance on Friday. “Republican AGs will continue to uphold the constitution, fight to protect those with pre-existing conditions and ensure better healthcare outcomes for the American people.”

Louisiana Attorney General Jeff Landry also took aim at the Democratic Party frontrunner: “Joe Biden is attempting to play politics right in the middle of a pandemic. His letter to President Trump on the legal issues surrounding the Affordable Care Act is not only in poor taste but also uniformed. A federal court has already ruled that the ACA is unconstitutional. It is critical the Supreme Court finish its review.”

The litigation in question–stylized as Texas v. Azar in the lower courts and as California v. Texas in consolidated Supreme Court parlance–hinges upon the argument, first advanced by Texas Attorney General Ken Paxton, that since the deeply unpopular individual mandate provision of Obamacare was stripped of its enforcement mechanism via the 2017 Tax Cuts and Jobs Act, that penalty is no longer a tax.

And, lower courts have held, without a tax that “produces at least some revenue” for the government, the mandate is unconstitutional. If the mandate itself is unconstitutional, Paxton and 17 other GOP attorneys general argue, the entire bill must be struck down–including popular provisions unrelated to the mandate–because the mandate is an integral aspect of the overarching legislation.

The U.S. Court of Appeals for the Fifth Circuit agreed with Obamacare’s opponents in a controversial decision issued late last year on the grounds–noted above–that the mandate “can no longer be read as a tax, and there is no other constitutional provision that justifies this exercise of congressional power.”

The ball is now in the Supreme Court’s hands and Obamacare advocates aren’t particularly optimistic about the law’s chances before a conservative majority that includes Trump appointees Neil Gorsuch and Brett Kavanaugh.

Paxton dismissed Biden’s letter as a nakedly political act.

“It’s unfortunate that a former Vice President would choose to play petty politics during a global crisis,” Paxton told Yahoo Finance on Friday morning. “Nevertheless, the facts are that Obamacare resulted in higher costs, fewer choices and a power imbalance between the people and their government. Even the mandate at its core was declared unconstitutional by a federal district court and affirmed by the U.S. Court of Appeals for the Fifth Circuit.”

[image via Gabriella Demczuk/Getty Images]