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Apr. 14, 2020

Antidote to the administration’s COVID-19 briefings?

History and action

Julie A. Werner-Simon

Phone: (213) 894-5456


Julie A. Werner-Simon is a former federal prosecutor, former constitutional law fellow, and currently serves as a law professor (adjunct) at University of Southern California's Gould School of Law, Drexel University's Kline School of Law, and is also a legal analyst at Drexel's LeBow School of Business.

New York Times News Service

As a constitutional studies instructor (now teaching law students "on-line" from the quiet of a bedroom closet) and as someone who worked for almost three decades at the U.S. Department of Justice (for presidents from Ronald Reagan to Barack Obama), I have been asked by quite a few students about both my ability to stay optimistic and productive during home-confinement and how I view the president's approach to the COVID-19 pandemic. My answers overlap.

To the first query I've explained that as I am not on the front lines like my sister, the family practice doctor, who is seeing patients in a snorkel mask and garbed in Hefty trash bags, I can use this time of "solitude" as an opportunity to read books, write articles, and stay engaged in the outside world by snail-mail-sending (to charities and progressive political causes) my "no-longer-drinking-Starbucks" money. I use a big paper wall calendar to plan my strategy for each day. At least 30 minutes of some part of each business day involves getting outside. I don my bandana-mask and plastic gloves (the ones from the hair dye boxes), walk-jog to the mailbox (a quarter mile away) and use the U.S. mail to communicate with the greater world. I am reclaiming my inner Austen.

As for the second topic, the "political question" regarding our current commander in chief, my shelter-in-place deep-dive into the history books has brought me a renewed appreciation for the commander and chief of my childhood, Lyndon B. Johnson.

LBJ, the towering Texan, attended a teacher's college as a young man. In the late 1920s, he taught impoverished minority students in rural Texas and from that experience gleaned that it was the government's role to eradicate obstacles to equality.

For our 36th president, health care was one of the great equalizers. LBJ believed that health care was essential to ensuring and enhancing the lives of "his fellow Americans." He entreated Congress to amend the Social Security Act of 1935 (one of FDR's New Deal accomplishments) to add health care coverage for the elderly and the infirm.

LBJ, a master vote-shepherd having served as Senate majority leader, succeeded where presidents from Teddy Roosevelt (in his 1912 Bull Moose presidential run) to Harry Truman had failed where it came to health care. In July 1965, LBJ signed into law the Medicare and Medicaid Act. At the signing, in Independence Missouri, hometown to President Harry Truman, and in the presence of former President Truman and Mrs. Bess Truman, LBJ stated that his health care legislation would provide "the wide range of health and medical services" to those in need. LBJ predicted that Medicare would become a "vital protection" for America's elderly. At the ceremony, LBJ gave the former president and Mrs. Truman the very first and second Medicare cards ever to be issued.

These LBJ health care programs, in 2020, continue to provide hospital and medical insurance to senior citizens and to the disabled.

What I have seen on the White House lawn and in the president's daily "briefing" sessions, has made me long for our 36th president (even though I still harbor blame for LBJ's culpability in our Vietnam entrenchment). LBJ well understood the importance of the presidential pulpit and the presidential toolbox to enhancing the lives of those who call America 'home." LBJ brought us the Immigration and Nationality Act of 1965, which finally got rid of the National Origins Formula of the 1920s which had been used to limit immigration of Jews during the Holocaust. The 1965 act also established a policy of encouraging the immigration of skilled professionals and laborers and reuniting immigrant families.

LBJ well knew that the role of government was to use science, metrics, and grit to identify the problems and to expeditiously bring in the best minds to tackle them. LBJ, a profane raconteur of renown, would often colorfully share what it was like in his home-state before the technicians employed by FDR's New Deal brought electricity to Texas' rural corners.

LBJ's "get the job done" attitude was evidenced in his work post-Pearl Harbor, as a Naval Reserve officer tasked to identify production and labor impediments facing American manufacturers of airplanes and ships. Lt. Commander LBJ got his hands dirty, crisscrossed the country visiting manufacturing plants to ensure battle-readiness, and even flew in some bomber missions in the South Pacific to assess the needs of the combat fighters.

All this is a back-drop to my "take" on the current presidential approach to the COVID-19 world-wide pandemic. Although both men topped out at over six feet tall (LBJ's 6'4 to our president's 6'2), the 45th president is no LBJ.

Our president's pronouncements at the COVID-19 daily "briefings" where he has said that the states are "on their own" and that the federal government serves just "as back-up" -- have the scent of social Darwinism. Taking a page from 19th-century British sociologist Herbert Spencer (who coined the term "survival of the fittest" before Charles Darwin used it in "The Origins of the Species"), the president is espousing the view that the strongest will survive and the weakest -- well they, perhaps,100,000 or 200,000, will die.

What other plausible explanation can there be for his refusal to re-open the sign-up periods for enrollment in the Affordable Care Act federal exchanges for those, ages 18 to 64, who have no health insurance? Weeks ago, he said he would consider this, but now he says "no."

Our president's view on health care is clear. It is not a human right; it is a privilege. He is the one who has consistently cut short the annual ACA open-enrollment periods and who caused ACA outreach and the help-you-enroll navigator budgets to be slashed by some 90% since he took office. According to congressional testimony, this has resulted, since the advent of the current administration, to millions of fewer health insurance enrollees.

Even now, this president's Department of Justice is arguing before the United States Supreme Court (in a consolidated case to be heard in October 2020, California, et al., v. Texas, certiorari granted, March 2, 2020, in No. 19-1019, now No.19-840) that the Affordable Care Act should be immediately jettisoned, leaving, at a minimum, more than 8 million people covered by the federal exchanges, with no health care coverage. This means young adults would no longer be covered on their parents' insurance plans until age 26, and that insurance companies would be free to charge more or decline coverage for those with preexisting medical conditions.

Instead of supporting the ACA, which has succeeded in expanding coverage to millions of Americans, the president's emissary (one of the Justice Department's top attorneys) wrote these words in the United States' brief to the 5th U.S. Circuit Court of Appeals: "[i]t is the proper course to strike down the Affordable Care Act in its entirety."

This president is not alone in this current Supreme Court litigation (the third Supreme Court case litigated in the highest court since the ACA's inception in 2010). The current case, like its predecessors, is designed to deprive millions of people of health insurance coverage under the ACA.

This litigation has been ridiculed by constitutional law scholars of all stripes. Texas' position is that since the individual mandate (referred to formally as the ACA's Shared Responsibility Provision which required all Americans to enroll in some health insurance plan or pay a fine) was dropped as part of the December 2017 Tax Cut overhaul, then the entire ACA is unconstitutional. Under this analysis, no longer would any other of the law's provisions (to include Medicaid expansion, free immunizations, mental health services, and the required menu of covered services as well as pre-existing health condition coverage) survive.

Eighteen red-states -- to this day -- are party to the current Supreme Court lawsuit, and continue to argue that the Affordable Care Act should be immediately scrapped. Those states? Texas, Alabama, Arizona, Florida, Georgia, Indiana, Kansas, Louisiana, Mississippi, Missouri, Nebraska, North Dakota, South Carolina, South Dakota, Tennessee, Utah, West Virginia and Arkansas. Quite a few of those states, following the president's lead, were slow to impose stop-the-spread restrictions.

In my shelter-in-place confinement, some of my time, when not on-line in classes, or reading, mentoring by phone, or making my trips to the mailbox, is spent in solitude. I can't get LBJ out of my mind. It was not just his tenacity vis-a-vis health care and immigration, LBJ also brought us the anti-discrimination troika of the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Housing Rights Act of 1968.

For LBJ, no minute was to be wasted, to include time on the toilet. He, like Churchill, held meetings (while "indisposed") in his bathroom. LBJ's mission: to make America a better, more inclusive place. His legislative and executive acumen continue to inspire. But it is more than that. In these days of confinement, I think about LBJ's cautionary words. He warned us not to worship men who cause us to look down on others.

Take heed. For those who can, who have the comfort of shelter (and sufficient paper products), turn this time on-its-head. Consider it an opportunity for reflection, growth and as an opportunity to be part of something greater than yourself. Check out our state government's volunteer umbrella group: CaliforniaVolunteers at They have come up with ways to safely donate time to local food banks and shelters. Contact them, or in some other way donate (if you can) to the outside world. Take a moment and have a restaurant deliver take-out to your neighborhood hospital or to our first responders.

One of LBJ's missives has become my mantra: "Tomorrow is ours to win or lose."

Let's use this time to make the world a better place. If we keep our humanity, we can ultimately win. 


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