Steve Crane, Maryland Matters

A federal district judge in Oregon overturned Health and Human Services Secretary Robert F. Kennedy Jr.’s directive that said health care facilities providing gender-affirming care to minors are barred from Medicare and Medicaid.

U.S. District Judge Mustafa Kasubhai, in a scathing opinion filed Saturday, called Kennedy’s Dec. 18 directive “one of a long list of examples of how a leader’s wanton disregard for the rule of law causes very real harm to very real people.”

“Secretary Kennedy’s unlawful declaration harmed children. This case illustrates that when a leader acts without authority and in the absence of the rule of law, he acts with cruelty,” Kasubhai wrote.

Kasubhai vacated the Dec. 18 declaration on “Safety, Effectiveness and Professional Standards of Care for Sex-Rejecting Procedures on Children and Adolescents,” as unlawful, saying Kennedy exceeded his authority and failed to follow required procedures for setting regulations.

He also ruled that federal officials lack the authority to set standards that supersede standards of care in the 21 states and the District of Columbia that sued to block the directive. And he prohibited HHS from trying to enforce the “Kennedy Declaration” or “any materially similar policy.”

In a brief emailed statement, HHS spokesperson Emily Hilliard said, “HHS will continue to fight to protect our nation’s children, as this Biden-appointed judge’s ruling puts radical ideology ahead of their safety.”

Maryland was one of 21 states and D.C. that filed suit on Dec. 23, claiming Kennedy’s directive exceeded his authority, violated the states’ rights to manage their Medicare systems as they saw fit and effectively banned “by fiat, an entire category of healthcare.”

Maryland Attorney General Anthony Brown welcomed the ruling in a prepared statement Monday as “a victory for every young Marylander, all of whom deserve access to the medical care their doctor recommends that is free from political interference.”

That was echoed by Oregon Attorney General Dan Rayfield, the lead plaintiff in the lawsuit.

“When families and doctors make healthcare decisions together, no federal official should be able to use threats and intimidation to get in the way,” Rayfield said in a statement Monday. “That’s what Secretary Kennedy tried to do — force hospitals and providers to abandon their patients. Oregon will always stand up for the dignity and wellbeing of every person.”

The dispute stems from the Dec. 18 directive that says, “Sex-rejecting procedures for children and adolescents are neither safe nor effective as a treatment modality for gender dysphoria, gender incongruence, or other related disorders in minors, and therefore, fail to meet professional [sic] recognized standards of health care.”

Kennedy said in a news conference that day, according to Kasubhai’s opinion, that the declaration should be taken as “a clear directive to providers to follow the science and the overwhelming body of evidence that these procedures hurt — not help — children” and that anyone providing such care would be “out of compliance with these standards of healthcare.”

Any health care provider that fails to meet professionally recognized standards of care can be excluded from participation in Medicare and Medicaid — effectively cut off from federal funding — on a finding by the HHS Office of Inspector General.

In the weeks after the directive was issued, HHS General Counsel Mike Stuart referred 18 health care facilities that offered gender-affirming care to the inspector general for investigation under the Dec. 18 directive. Included in the referrals were the Johns Hopkins Center for Transgender and Gender Expansive Health and Hopkins’ Emerge Gender and Sexuality Clinic.

The directive had the intended effect. By Feb. 11, Stuart was saying on social media that “more than 40 hospital systems across the country have made the right decision to stop these heinous procedures.”

HHS argued in court that the declaration was not a “‘definitive statement’ on the standard of care” that the inspector general has to apply, but merely Kennedy’s musings on the topic, and could not be challenged by the states as an official regulation. And because the inspector general has not ruled on any of the referrals, there is no damage for the states to assert, the government said.

It also claimed that reversing the directive would deny Kennedy his First Amendment right to express his views on important public issues.

Kasubhai called that argument “absurd,” and said he could “scarcely recall an … action that has come before it [the court] in which the agency’s action was so clearly unlawful.” He said many of the government’s arguments were based on “falsehoods.”

“Defendants cannot bully or gaslight this Court into ignoring the many procedural and legal flaws of the Kennedy Declaration by invoking one of the most sacred principles of our constitutional democracy — the freedom of speech — when that principle comes nowhere close to being implicated,” Kasubhai wrote.

He said the states’ lawsuit has nothing to do with Kennedy’s right to express his opinion about gender-affirming care for minors.

“Rather, Plaintiffs’ claims challenge Secretary Kennedy’s authority to unilaterally, categorically, and without any process, supersede professional standards of care regarding gender-affirming care that apply in the Plaintiff states,” he wrote.

What is at stake, Kasubhai said, is the rule of law and state sovereignty.

“The Kennedy Declaration exceeded Defendants’ statutory authority, flouted applicable notice and comment rulemaking procedures, and impeded Plaintiffs’ rights to regulate the medical profession and their discretion to design their own statutorily-compliant Medicaid plans,” he wrote, before entering his order.

In addition to Maryland, Oregon and D.C., states involved in the suit included California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Pennsylvania, Rhode Island, Vermont, Washington and Wisconsin.

— This story was updated at 6 p.m. Tuesday to correct the number of states involved in the lawsuit against HHS.

Oregon Capital Chronicle is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Oregon Capital Chronicle maintains editorial independence. Contact Editor Julia Shumway for questions: info@oregoncapitalchronicle.com.

WASHINGTON — Congress plans to spend just 35 days between now and the end of the year in the nation’s capital, a fitting end to one of the least productive sessions in decades.

The deeply divided 118th Congress so far has placed just 78 public laws on the books, a fraction of the hundreds enacted during prior sessions, regardless of whether one party held control or voters elected a divided government. While there’s time left to enact a handful of laws, the number is nearly certain to remain low.

Over the past several decades, lawmakers have become accustomed to bundling several bills together into sweeping legislative packages instead of voting on them individually, but that doesn’t entirely account for how unproductive this Congress has been.

Members have sought to approve bipartisan legislation on immigration policy and border security, railway safety, the farm bill, tax law and children’s online safety at various points during the last 19 months — but all those major initiatives failed to make it across the finish line.

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Lawmakers have been able to reach consensus on must-pass items like the annual government funding bills, but did so six months behind schedule. They are on track to miss their deadline again this year, which will mean yet another stopgap spending bill.

What is the problem?

While election-year politics and a truncated amount of time on Capitol Hill hampered lawmakers’ productivity, there are numerous other factors dragging down this Congress.

Molly Reynolds, senior fellow in governance studies at the nonprofit Brookings Institution, said Democrats are working to flip control of the House away from Republicans’ narrow majority, while at the same time the GOP is projecting it will push Democrats out of power in the Senate.

Those ambitions add “an additional structural layer” to the typical disagreements within Congress, she said.

Infighting within each of the political parties, as well as Democrats and Republicans moving further away from each other on policy goals, has contributed to the intransigence, she said.

“Those divisions within the parties pale in comparison to the size of the difference between the parties,” Reynolds said. “And so, that does make it more challenging to find issues on which both sides are willing and interested to come to the table.”

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A bipartisan trio of senators spent months negotiating a deal on immigration just to have the agreement disintegrate when Republican presidential candidate Donald Trump came out in opposition. That disappointing outcome makes members of Congress reluctant to tackle tough issues, she said.

“When members put in the hard work to try and reach a compromise and then don’t have the backing of their leadership, it doesn’t necessarily incentivize them to come back to the table and try to do that same thing again in the future,” Reynolds said.

Speaker drama set the tone

The 118th Congress included more than its fair share of drama and bickering. The turmoil prevented the Republican House and Democratic Senate from agreeing on much of anything other than the bare minimum, with even must-pass legislation finalized months behind schedule.

House Republicans set the tone for their razor-thin majority in January 2023 when they trudged through 15 rounds of voting over several days and nights before California Rep. Kevin McCarthy secured the speaker’s gavel.

McCarthy made several backroom deals during the stalemate and elicited anger from members of the party’s right flank, who nearly came to blows on the floor as he sought to lock in the necessary support.

Less than nine months later, the House voted to oust McCarthy from the speaker’s office. The GOP then kept the chamber frozen for several weeks as members voted behind closed doors to put forward four nominees, before Louisiana’s Mike Johnson garnered the votes necessary on the floor to lead his party and the chamber.

McCarthy, who repeatedly swore he would never quit, then did just that in December.

Senate border deal goes to pieces

The Senate has spent much of its time confirming President Joe Biden’s nominees, occasionally breaking from that pattern to negotiate necessary items like the annual defense policy bill, government funding measures and legislation that avoided a default on the national debt.

Senators appeared to be on the cusp of making bipartisan changes to the nation’s border security and immigration policy following painstaking negotiations between Oklahoma Republican Sen. James Lankford, Connecticut Democratic Sen. Chris Murphy and Arizona independent Sen. Kyrsten Sinema. It would have been the most sweeping immigration legislation in years.

But that fell apart in February after Trump signaled he didn’t want to lose the border and immigration as an election issue or see Biden claim a victory.

Senate Republican Leader Mitch McConnell, of Kentucky, had said the deal was necessary to move an emergency spending bill for Israel, Ukraine and Taiwan through the chamber, though he later reversed course.

Congress finally approved $95 billion in military and humanitarian assistance in April after House Republicans added in a ban on the social media app TikTok that would kick in if ByteDance, the Chinese parent company, didn’t sell the platform — one of the most significant laws of the year as it turned out.

Congress has also failed to negotiate a new version of the five-year farm bill, following months of delays and differences of opinion on how much nutrition assistance for low-income Americans should be in the package.

Few laws passed

The 78 laws enacted this Congress pale in comparison to earlier sessions.

During the 116th Congress, when the GOP controlled the Senate and Democrats held the House, lawmakers reached agreement on 344 measures that went on to become law.

When Democrats held control of both chambers and the presidency during the 117th Congress, they approved more than 360 measures that would later become law, the vast majority of which required bipartisan support to move through the Senate.

Lawmakers have consistently enacted more than 280 public laws during their two-year sessions, going back to at least the 82nd Congress, which began in 1951 and ended the following year.

During that seven-decade span, the number of laws enacted per Congress fluctuated, reaching a low of 283 during the 112th Congress, which lasted from January 2011 through January 2013, and a high of 1,028 during the 84th Congress, which took place in 1955 and 1956. The number of laws enacted was consistently in the 400s or 500s, if not higher, during those years.

Reynolds pointed out that not all laws are created equal — some simply rename post offices or are confined to one issue, while others bundle several major pieces of legislation together in one package and have a much greater impact than other public laws.

Congress, she noted, used to pass the annual government spending bills individually, but over time has settled into a pattern of approving just one or two omnibus spending packages, which roll together some or all of the dozen budget bills.

Other examples of this include the Democrats’ signature health care, tax and climate change package, approved in the summer of 2022, known as the Inflation Reduction Act. When the GOP had unified control of Congress during the first two years of the Trump administration, they passed an overhaul of the nation’s tax code in just one bill.

“If we look at the data on the number of public laws, and we look at the data on the number of pages of public laws, we do see that, on average, they have been getting longer,” Reynolds said. “Having said all of that, when we actually do dig into what the 118th Congress has been up to, it has not been an especially productive Congress.”

Lame-duck session on the way

Lawmakers are set to return from their summer recess for a three-week session in September, before breaking again until after Election Day.

Members are expected to draft and vote on a stopgap spending bill to avoid a partial government shutdown when the new fiscal year begins on Oct. 1. But not much else is likely to move through as attention turns even more toward Nov. 5.

The House Appropriations Committee has approved all 12 of its spending bills for fiscal 2025 while the Senate committee has voted to send 11 to the floor. The two chambers, however, are working off very different spending levels and don’t seem inclined to conference their bills until after they learn who will control Congress next year.

The lame-duck session, which spans the time between the election and when the new Congress convenes, is scheduled to last five weeks spread through late November and December.

During that time, GOP leaders in the House and Democratic leaders in the Senate may seek to pass their overdue government funding bills and the annual defense policy bill.

There are several other bills that have passed one chamber or the other with bipartisan majorities or have strong bipartisan support through co-sponsors, which lawmakers could seek to move through to the president’s desk. But much of that will be determined by the outcome of the elections as well as whether there is any violence or unrest connected with the results.

How to explain it

Members of Congress had varying answers for what they tell constituents back home about this Congress’ accomplishments.

Maryland Sen. Chris Van Hollen, a Democrat, said that he speaks with voters about the laws enacted during the previous Congress, when Democrats had unified control of government, as well as this Congress.

“Well, first of all, I tend to talk about the sweep of accomplishments, right? Both this Congress but also the previous Congress where we were enormously productive, right?” Van Hollen said. “So usually I don’t limit it to that timeline.”

Van Hollen said he was optimistic that Congress would be able to complete its work on the dozen annual government funding bills later this year.

“Obviously, we’ve been able to adequately fund government agencies,” Van Hollen said. “So that may be a low bar, but in this divided Congress, it is something that I point to, because we’ve worked on the Appropriations Committee, at least in the Senate, to have bipartisan products.”

Kansas GOP Sen. Jerry Moran said he predominantly talks with constituents about his work as ranking member on the Veterans Affairs Committee as well as the Commerce-Justice-Science appropriations subcommittee.

“I talk about my own particular accomplishments as compared to bragging about Congress in general,” Moran said.

Much of the work that members do while in Washington, D.C., he said, doesn’t resonate with constituents who are focused on their own lives and families.

“No, I don’t think so,” Moran said. “Most people are paying specific attention to things that matter to them.”

Pennsylvania Democratic Sen. Bob Casey, who faces a challenging reelection bid this November, said he tends to put more emphasis on the accomplishments of the upper chamber when talking with constituents back home.

“I think the Senate’s been a lot more productive than the House, but we’ll let voters sort that out,” Casey said.

While the Senate holds the advice and consent power to confirm certain presidential nominees, legislation must pass through both chambers of Congress and avoid the president’s veto pen, if it’s to become law.

Casey said there are several occasions where the House and Senate agreed on major issues, listing off the appropriations bills for the last fiscal year, the emergency spending package for Ukraine and other U.S. allies, and a bill to address fentanyl abuse.

“I think it’s a pretty long list and there’s still more work to do in the fall,” Casey said.

More time at work?

Sen. Chuck Grassley, R-Iowa, criticized the number of days the chamber spends in session every week, saying the calendar has shortened during his decades in the chamber.

“When I came to the Senate 44 years ago, we used to start at 10 a.m. on Monday and go to 4 or 5 on Friday,” Grassley said.

The Senate typically comes into session around 3 p.m. on Monday, with its first vote at 5:30 p.m. The chamber usually holds its last vote of the week on Thursday around 1:45 p.m., with the vast majority of senators heading to cars to leave shortly afterward.

The House keeps to a similar four-day schedule, though its “fly-in day” is sometimes on Tuesday, pushing its “fly-out day” to Friday. That chamber takes its first vote of the week around 6:30 p.m. with its last vote before noon on the fourth day.

“There’s enough work for individual senators to do seven days a week if you want to work,” Grassley said. “But you can’t solve this country’s problems until you get 100 people together, and they’ve got to be together for more than two-and-a-half days a week.”

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Maryland Matters is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Maryland Matters maintains editorial independence. Contact Editor Steve Crane for questions: editor@marylandmatters.org. Follow Maryland Matters on Facebook and X.