Speaker 1: Obamacare is in jeopardy once again, and the question is
Speaker 1: whether the Supreme Court will have to decide the fate
Speaker 1: of the Affordable Care Act once again. A federal judge
Speaker 1: in Texas ruled that the entire law was unconstitutional last
Speaker 1: Friday night in a lawsuit filed by a coalition of
Speaker 1: twenty Republican led states. President Trump had ordered the Justice
Speaker 1: Department to stop defending the a c A, and he
Speaker 1: applauded the judge's decision in a speech at the Congressional
Speaker 1: ball I believe we're going to get really good healthcare.
Speaker 1: Exciting things happened over the last twenty four hours. Joining
Speaker 1: me now is Tim Josh, professor at Washington and LEAs
Speaker 1: School of Law. Tim this lawsuits challenge to the a
Speaker 1: c A is centered on the Individual Mandate. Tell us
Speaker 1: about it and the judge's ruling well. The Individual mandate
Speaker 1: was the provision of the Affordable Care Act that required
Speaker 1: people to either have health insurance or fit into an exception,
Speaker 1: or pay attacks and against the law was signed. It
Speaker 1: was allens with the argument that Congress had no authority
Speaker 1: to require people to buy a product, and the Supreme
Speaker 1: Court ultimately agreed with that after a couple of years
Speaker 1: of litigation. But what the Supreme Court said was it
Speaker 1: the Congress can't do that. But what Congress can do
Speaker 1: is to give people the choice of either being insured
Speaker 1: or paying attacks. And that's what Congress did, and that's okay.
Speaker 1: Congress dous has the power to tacks. O'Connor. Judge O'Connor
Speaker 1: in Texas says now that since Congress in reduced the
Speaker 1: amount of attacks to zero, there's no longer attacks, and
Speaker 1: therefore the mandate is unconstitutional. And here taking a huge jump,
Speaker 1: the entire nine hundred pages, hundreds of sections of the
Speaker 1: law all depend on the individual mandate, and therefore the
Speaker 1: whole law goes away. He's basically wrong at every step
Speaker 1: with his logic, but right now that's his judgment and
Speaker 1: the country is going to have to figure out how
Speaker 1: to deal with it. So seventeen Democrat led states have
Speaker 1: intervened in the lawsuit and they're going to appeal the
Speaker 1: decision to the Fifth Circuit Court of Appeals, which is
Speaker 1: all been referred to as the most conservative appellate court
Speaker 1: in the country. What's the likelihood that the judge's decision
Speaker 1: will be reversed? Well, I mean, it is one of
Speaker 1: the most conservative circuits in the country, and I believe
Speaker 1: it has as many active judges appointed by Trump as
Speaker 1: it does have the judges appointed by all preceding Democratic presidents.
Speaker 1: Having said that this decision is so outside of the
Speaker 1: bounds of the current law that I am fairly confident
Speaker 1: that just about any three judge panel that they draw
Speaker 1: on the Fifth Circuit is going to reverse this decision,
Speaker 1: so at least at least reverse the part of it
Speaker 1: that says that the entire A c A collapses if
Speaker 1: the individual mandate is not sustainable. I mean, this decision
Speaker 1: affects every American. Uh, it affects people on Medicaid, it
Speaker 1: affects people on Medicare, It affects most of us who
Speaker 1: are covered through our jobs. It would repeal the Indian
Speaker 1: Health Service Act. It repeals a lot of provisions that
Speaker 1: have very little to do with health care. And so
Speaker 1: I think the idea that somehow, if you pull out
Speaker 1: the individual mandate, restaurants should no longer have to disclose
Speaker 1: the calorie account of their burgers, or nursing mothers should
Speaker 1: no longer have privacy. Um, that's ridiculous, and I think
Speaker 1: just about any other judge in the country would see that.
Speaker 1: What about the Supreme Court. Is the Supreme Court going
Speaker 1: to take it in any event? Or might it just
Speaker 1: say no if it's a Fifth Circuit reverses. I think
Speaker 1: if the if the Fifth Circuit reverses, the Supreme Court
Speaker 1: will in all likelihood say no, We're going to leave
Speaker 1: it at that. I don't think Chief Justice Roberts is
Speaker 1: eager to have another Affordable Care Act case on his docket,
Speaker 1: but I mean, it would take four judges to decide
Speaker 1: that for Justices. But I really think if if if
Speaker 1: Circuit reverses, as I expect, that that will be the
Speaker 1: end of it. If the Fifth Circuit affirms this judgment,
Speaker 1: then I think the Supreme Court will definitely have to
Speaker 1: take it. You can't just drop this big a bomb
Speaker 1: on the American healthcare system and ignore it. So Judge
Speaker 1: rid O'Connor, the judge who made the decision in this case,
Speaker 1: was appointed by President George W. Bush, tell us more
Speaker 1: about his decisions in previous challenges to the health law
Speaker 1: and also against efforts to expand transgender rights. Well, yes,
Speaker 1: he has been very hostile to transgender rights. He basically
Speaker 1: sees they're being men and they're being women, and there
Speaker 1: being nothing else. And therefore he reads the sex discrimination
Speaker 1: laws and the Affordable Care Act anti discrimination previsions as
Speaker 1: only applying to men and women. So he is a
Speaker 1: couple of rulings now on transgender rights in which he
Speaker 1: has taken a very strong stance on that, contrary to
Speaker 1: the position many other just have taken with the Affordable
Speaker 1: Care Act. One of those cases was an Affordable Care
Speaker 1: Act case. There's also a case that's kind of in
Speaker 1: the weeds with respect to health insurance tax where he
Speaker 1: ruled against the federal government on a tax um that
Speaker 1: is imposed on Medicaid managed care plans um. He is
Speaker 1: also ruled against a number of other Obama era regulations.
Speaker 1: So he seems to be a very political judge, to
Speaker 1: have a very strong political agenda, and he seems to
Speaker 1: be pursuing it through this court. He is the only
Speaker 1: judge in his particular subdistrict, So any time the Texas
Speaker 1: Attorney General or anybody else wants to get a particular ruling,
Speaker 1: they file it in his court, and he's the judge
Speaker 1: that they draw, as opposed to most courts in the
Speaker 1: country where you take your your luck when you file
Speaker 1: a case as to which of many judges you will
Speaker 1: end up with. That was the judge reversed on those
Speaker 1: Obamacare decisions. I don't believe any of them. I don't
Speaker 1: believe there are decisions yet in any of those cases,
Speaker 1: although the federal government has appealed one of them and
Speaker 1: the issue in one of the other cases. The transgender
Speaker 1: rights under the Affordable Care Act has been litigated in
Speaker 1: a number of other courts who have gone the other way.
Speaker 1: All right, thanks so much, Tim, As always, that's Timothy Johnston,
Speaker 1: professor at Washington and Lee School of Law.