1 00:00:00,120 --> 00:00:03,520 Speaker 1: Obamacare is in jeopardy once again, and the question is 2 00:00:03,520 --> 00:00:05,960 Speaker 1: whether the Supreme Court will have to decide the fate 3 00:00:06,000 --> 00:00:09,319 Speaker 1: of the Affordable Care Act once again. A federal judge 4 00:00:09,320 --> 00:00:12,760 Speaker 1: in Texas ruled that the entire law was unconstitutional last 5 00:00:12,760 --> 00:00:15,640 Speaker 1: Friday night in a lawsuit filed by a coalition of 6 00:00:15,680 --> 00:00:19,720 Speaker 1: twenty Republican led states. President Trump had ordered the Justice 7 00:00:19,720 --> 00:00:22,759 Speaker 1: Department to stop defending the a c A, and he 8 00:00:22,800 --> 00:00:25,680 Speaker 1: applauded the judge's decision in a speech at the Congressional 9 00:00:25,720 --> 00:00:29,440 Speaker 1: ball I believe we're going to get really good healthcare. 10 00:00:29,520 --> 00:00:33,000 Speaker 1: Exciting things happened over the last twenty four hours. Joining 11 00:00:33,040 --> 00:00:35,440 Speaker 1: me now is Tim Josh, professor at Washington and LEAs 12 00:00:35,520 --> 00:00:39,360 Speaker 1: School of Law. Tim this lawsuits challenge to the a 13 00:00:39,560 --> 00:00:43,080 Speaker 1: c A is centered on the Individual Mandate. Tell us 14 00:00:43,120 --> 00:00:46,720 Speaker 1: about it and the judge's ruling well. The Individual mandate 15 00:00:47,000 --> 00:00:51,000 Speaker 1: was the provision of the Affordable Care Act that required 16 00:00:51,080 --> 00:00:55,400 Speaker 1: people to either have health insurance or fit into an exception, 17 00:00:55,640 --> 00:00:59,560 Speaker 1: or pay attacks and against the law was signed. It 18 00:00:59,680 --> 00:01:04,280 Speaker 1: was allens with the argument that Congress had no authority 19 00:01:04,319 --> 00:01:08,240 Speaker 1: to require people to buy a product, and the Supreme 20 00:01:08,240 --> 00:01:11,119 Speaker 1: Court ultimately agreed with that after a couple of years 21 00:01:11,120 --> 00:01:14,480 Speaker 1: of litigation. But what the Supreme Court said was it 22 00:01:15,040 --> 00:01:17,760 Speaker 1: the Congress can't do that. But what Congress can do 23 00:01:18,000 --> 00:01:21,360 Speaker 1: is to give people the choice of either being insured 24 00:01:21,520 --> 00:01:25,680 Speaker 1: or paying attacks. And that's what Congress did, and that's okay. 25 00:01:25,760 --> 00:01:30,040 Speaker 1: Congress dous has the power to tacks. O'Connor. Judge O'Connor 26 00:01:30,080 --> 00:01:36,160 Speaker 1: in Texas says now that since Congress in reduced the 27 00:01:36,200 --> 00:01:39,280 Speaker 1: amount of attacks to zero, there's no longer attacks, and 28 00:01:39,360 --> 00:01:44,919 Speaker 1: therefore the mandate is unconstitutional. And here taking a huge jump, 29 00:01:45,480 --> 00:01:49,000 Speaker 1: the entire nine hundred pages, hundreds of sections of the 30 00:01:49,080 --> 00:01:52,160 Speaker 1: law all depend on the individual mandate, and therefore the 31 00:01:52,160 --> 00:01:55,720 Speaker 1: whole law goes away. He's basically wrong at every step 32 00:01:55,800 --> 00:01:59,720 Speaker 1: with his logic, but right now that's his judgment and 33 00:02:00,080 --> 00:02:01,720 Speaker 1: the country is going to have to figure out how 34 00:02:01,760 --> 00:02:05,800 Speaker 1: to deal with it. So seventeen Democrat led states have 35 00:02:05,960 --> 00:02:08,240 Speaker 1: intervened in the lawsuit and they're going to appeal the 36 00:02:08,280 --> 00:02:11,079 Speaker 1: decision to the Fifth Circuit Court of Appeals, which is 37 00:02:11,160 --> 00:02:14,119 Speaker 1: all been referred to as the most conservative appellate court 38 00:02:14,120 --> 00:02:18,000 Speaker 1: in the country. What's the likelihood that the judge's decision 39 00:02:18,040 --> 00:02:20,600 Speaker 1: will be reversed? Well, I mean, it is one of 40 00:02:20,639 --> 00:02:23,200 Speaker 1: the most conservative circuits in the country, and I believe 41 00:02:23,400 --> 00:02:26,200 Speaker 1: it has as many active judges appointed by Trump as 42 00:02:26,240 --> 00:02:30,920 Speaker 1: it does have the judges appointed by all preceding Democratic presidents. 43 00:02:31,440 --> 00:02:34,920 Speaker 1: Having said that this decision is so outside of the 44 00:02:34,960 --> 00:02:39,760 Speaker 1: bounds of the current law that I am fairly confident 45 00:02:39,840 --> 00:02:42,640 Speaker 1: that just about any three judge panel that they draw 46 00:02:42,800 --> 00:02:46,200 Speaker 1: on the Fifth Circuit is going to reverse this decision, 47 00:02:46,520 --> 00:02:49,520 Speaker 1: so at least at least reverse the part of it 48 00:02:49,639 --> 00:02:53,480 Speaker 1: that says that the entire A c A collapses if 49 00:02:53,480 --> 00:02:58,320 Speaker 1: the individual mandate is not sustainable. I mean, this decision 50 00:02:58,400 --> 00:03:02,360 Speaker 1: affects every American. Uh, it affects people on Medicaid, it 51 00:03:02,360 --> 00:03:05,359 Speaker 1: affects people on Medicare, It affects most of us who 52 00:03:05,360 --> 00:03:08,880 Speaker 1: are covered through our jobs. It would repeal the Indian 53 00:03:08,960 --> 00:03:11,800 Speaker 1: Health Service Act. It repeals a lot of provisions that 54 00:03:11,840 --> 00:03:15,160 Speaker 1: have very little to do with health care. And so 55 00:03:15,280 --> 00:03:18,119 Speaker 1: I think the idea that somehow, if you pull out 56 00:03:18,160 --> 00:03:22,160 Speaker 1: the individual mandate, restaurants should no longer have to disclose 57 00:03:22,200 --> 00:03:25,519 Speaker 1: the calorie account of their burgers, or nursing mothers should 58 00:03:25,520 --> 00:03:29,160 Speaker 1: no longer have privacy. Um, that's ridiculous, and I think 59 00:03:29,320 --> 00:03:31,920 Speaker 1: just about any other judge in the country would see that. 60 00:03:32,800 --> 00:03:35,520 Speaker 1: What about the Supreme Court. Is the Supreme Court going 61 00:03:35,560 --> 00:03:38,240 Speaker 1: to take it in any event? Or might it just 62 00:03:38,280 --> 00:03:41,640 Speaker 1: say no if it's a Fifth Circuit reverses. I think 63 00:03:41,640 --> 00:03:44,600 Speaker 1: if the if the Fifth Circuit reverses, the Supreme Court 64 00:03:44,600 --> 00:03:47,000 Speaker 1: will in all likelihood say no, We're going to leave 65 00:03:47,000 --> 00:03:50,600 Speaker 1: it at that. I don't think Chief Justice Roberts is 66 00:03:50,640 --> 00:03:54,240 Speaker 1: eager to have another Affordable Care Act case on his docket, 67 00:03:54,840 --> 00:03:57,080 Speaker 1: but I mean, it would take four judges to decide 68 00:03:57,120 --> 00:04:00,320 Speaker 1: that for Justices. But I really think if if if 69 00:04:00,400 --> 00:04:03,080 Speaker 1: Circuit reverses, as I expect, that that will be the 70 00:04:03,200 --> 00:04:06,440 Speaker 1: end of it. If the Fifth Circuit affirms this judgment, 71 00:04:06,960 --> 00:04:09,320 Speaker 1: then I think the Supreme Court will definitely have to 72 00:04:09,360 --> 00:04:12,200 Speaker 1: take it. You can't just drop this big a bomb 73 00:04:12,200 --> 00:04:16,280 Speaker 1: on the American healthcare system and ignore it. So Judge 74 00:04:16,400 --> 00:04:19,159 Speaker 1: rid O'Connor, the judge who made the decision in this case, 75 00:04:19,240 --> 00:04:23,120 Speaker 1: was appointed by President George W. Bush, tell us more 76 00:04:23,120 --> 00:04:27,040 Speaker 1: about his decisions in previous challenges to the health law 77 00:04:27,240 --> 00:04:32,039 Speaker 1: and also against efforts to expand transgender rights. Well, yes, 78 00:04:32,160 --> 00:04:35,640 Speaker 1: he has been very hostile to transgender rights. He basically 79 00:04:35,680 --> 00:04:39,920 Speaker 1: sees they're being men and they're being women, and there 80 00:04:39,960 --> 00:04:44,400 Speaker 1: being nothing else. And therefore he reads the sex discrimination 81 00:04:44,480 --> 00:04:49,080 Speaker 1: laws and the Affordable Care Act anti discrimination previsions as 82 00:04:49,200 --> 00:04:51,880 Speaker 1: only applying to men and women. So he is a 83 00:04:51,920 --> 00:04:54,960 Speaker 1: couple of rulings now on transgender rights in which he 84 00:04:55,000 --> 00:04:58,479 Speaker 1: has taken a very strong stance on that, contrary to 85 00:04:58,680 --> 00:05:02,320 Speaker 1: the position many other just have taken with the Affordable 86 00:05:02,360 --> 00:05:04,960 Speaker 1: Care Act. One of those cases was an Affordable Care 87 00:05:04,960 --> 00:05:08,919 Speaker 1: Act case. There's also a case that's kind of in 88 00:05:08,960 --> 00:05:13,440 Speaker 1: the weeds with respect to health insurance tax where he 89 00:05:13,520 --> 00:05:17,719 Speaker 1: ruled against the federal government on a tax um that 90 00:05:18,120 --> 00:05:22,359 Speaker 1: is imposed on Medicaid managed care plans um. He is 91 00:05:22,400 --> 00:05:27,240 Speaker 1: also ruled against a number of other Obama era regulations. 92 00:05:27,279 --> 00:05:31,520 Speaker 1: So he seems to be a very political judge, to 93 00:05:31,600 --> 00:05:34,960 Speaker 1: have a very strong political agenda, and he seems to 94 00:05:35,000 --> 00:05:38,039 Speaker 1: be pursuing it through this court. He is the only 95 00:05:38,200 --> 00:05:44,799 Speaker 1: judge in his particular subdistrict, So any time the Texas 96 00:05:44,839 --> 00:05:48,800 Speaker 1: Attorney General or anybody else wants to get a particular ruling, 97 00:05:49,360 --> 00:05:51,640 Speaker 1: they file it in his court, and he's the judge 98 00:05:51,680 --> 00:05:53,800 Speaker 1: that they draw, as opposed to most courts in the 99 00:05:53,839 --> 00:05:56,880 Speaker 1: country where you take your your luck when you file 100 00:05:56,920 --> 00:05:59,600 Speaker 1: a case as to which of many judges you will 101 00:05:59,680 --> 00:06:03,200 Speaker 1: end up with. That was the judge reversed on those 102 00:06:03,200 --> 00:06:07,279 Speaker 1: Obamacare decisions. I don't believe any of them. I don't 103 00:06:07,279 --> 00:06:10,280 Speaker 1: believe there are decisions yet in any of those cases, 104 00:06:11,520 --> 00:06:15,000 Speaker 1: although the federal government has appealed one of them and 105 00:06:15,400 --> 00:06:18,800 Speaker 1: the issue in one of the other cases. The transgender 106 00:06:18,880 --> 00:06:21,800 Speaker 1: rights under the Affordable Care Act has been litigated in 107 00:06:21,839 --> 00:06:24,080 Speaker 1: a number of other courts who have gone the other way. 108 00:06:24,440 --> 00:06:27,880 Speaker 1: All right, thanks so much, Tim, As always, that's Timothy Johnston, 109 00:06:27,920 --> 00:06:30,479 Speaker 1: professor at Washington and Lee School of Law.