WEBVTT - Is Obamacare Ruling Likely to be Reversed?

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<v Speaker 1>Obamacare is in jeopardy once again, and the question is

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<v Speaker 1>whether the Supreme Court will have to decide the fate

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<v Speaker 1>of the Affordable Care Act once again. A federal judge

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<v Speaker 1>in Texas ruled that the entire law was unconstitutional last

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<v Speaker 1>Friday night in a lawsuit filed by a coalition of

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<v Speaker 1>twenty Republican led states. President Trump had ordered the Justice

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<v Speaker 1>Department to stop defending the a c A, and he

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<v Speaker 1>applauded the judge's decision in a speech at the Congressional

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<v Speaker 1>ball I believe we're going to get really good healthcare.

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<v Speaker 1>Exciting things happened over the last twenty four hours. Joining

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<v Speaker 1>me now is Tim Josh, professor at Washington and LEAs

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<v Speaker 1>School of Law. Tim this lawsuits challenge to the a

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<v Speaker 1>c A is centered on the Individual Mandate. Tell us

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<v Speaker 1>about it and the judge's ruling well. The Individual mandate

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<v Speaker 1>was the provision of the Affordable Care Act that required

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<v Speaker 1>people to either have health insurance or fit into an exception,

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<v Speaker 1>or pay attacks and against the law was signed. It

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<v Speaker 1>was allens with the argument that Congress had no authority

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<v Speaker 1>to require people to buy a product, and the Supreme

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<v Speaker 1>Court ultimately agreed with that after a couple of years

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<v Speaker 1>of litigation. But what the Supreme Court said was it

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<v Speaker 1>the Congress can't do that. But what Congress can do

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<v Speaker 1>is to give people the choice of either being insured

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<v Speaker 1>or paying attacks. And that's what Congress did, and that's okay.

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<v Speaker 1>Congress dous has the power to tacks. O'Connor. Judge O'Connor

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<v Speaker 1>in Texas says now that since Congress in reduced the

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<v Speaker 1>amount of attacks to zero, there's no longer attacks, and

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<v Speaker 1>therefore the mandate is unconstitutional. And here taking a huge jump,

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<v Speaker 1>the entire nine hundred pages, hundreds of sections of the

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<v Speaker 1>law all depend on the individual mandate, and therefore the

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<v Speaker 1>whole law goes away. He's basically wrong at every step

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<v Speaker 1>with his logic, but right now that's his judgment and

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<v Speaker 1>the country is going to have to figure out how

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<v Speaker 1>to deal with it. So seventeen Democrat led states have

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<v Speaker 1>intervened in the lawsuit and they're going to appeal the

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<v Speaker 1>decision to the Fifth Circuit Court of Appeals, which is

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<v Speaker 1>all been referred to as the most conservative appellate court

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<v Speaker 1>in the country. What's the likelihood that the judge's decision

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<v Speaker 1>will be reversed? Well, I mean, it is one of

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<v Speaker 1>the most conservative circuits in the country, and I believe

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<v Speaker 1>it has as many active judges appointed by Trump as

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<v Speaker 1>it does have the judges appointed by all preceding Democratic presidents.

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<v Speaker 1>Having said that this decision is so outside of the

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<v Speaker 1>bounds of the current law that I am fairly confident

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<v Speaker 1>that just about any three judge panel that they draw

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<v Speaker 1>on the Fifth Circuit is going to reverse this decision,

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<v Speaker 1>so at least at least reverse the part of it

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<v Speaker 1>that says that the entire A c A collapses if

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<v Speaker 1>the individual mandate is not sustainable. I mean, this decision

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<v Speaker 1>affects every American. Uh, it affects people on Medicaid, it

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<v Speaker 1>affects people on Medicare, It affects most of us who

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<v Speaker 1>are covered through our jobs. It would repeal the Indian

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<v Speaker 1>Health Service Act. It repeals a lot of provisions that

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<v Speaker 1>have very little to do with health care. And so

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<v Speaker 1>I think the idea that somehow, if you pull out

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<v Speaker 1>the individual mandate, restaurants should no longer have to disclose

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<v Speaker 1>the calorie account of their burgers, or nursing mothers should

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<v Speaker 1>no longer have privacy. Um, that's ridiculous, and I think

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<v Speaker 1>just about any other judge in the country would see that.

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<v Speaker 1>What about the Supreme Court. Is the Supreme Court going

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<v Speaker 1>to take it in any event? Or might it just

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<v Speaker 1>say no if it's a Fifth Circuit reverses. I think

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<v Speaker 1>if the if the Fifth Circuit reverses, the Supreme Court

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<v Speaker 1>will in all likelihood say no, We're going to leave

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<v Speaker 1>it at that. I don't think Chief Justice Roberts is

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<v Speaker 1>eager to have another Affordable Care Act case on his docket,

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<v Speaker 1>but I mean, it would take four judges to decide

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<v Speaker 1>that for Justices. But I really think if if if

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<v Speaker 1>Circuit reverses, as I expect, that that will be the

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<v Speaker 1>end of it. If the Fifth Circuit affirms this judgment,

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<v Speaker 1>then I think the Supreme Court will definitely have to

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<v Speaker 1>take it. You can't just drop this big a bomb

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<v Speaker 1>on the American healthcare system and ignore it. So Judge

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<v Speaker 1>rid O'Connor, the judge who made the decision in this case,

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<v Speaker 1>was appointed by President George W. Bush, tell us more

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<v Speaker 1>about his decisions in previous challenges to the health law

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<v Speaker 1>and also against efforts to expand transgender rights. Well, yes,

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<v Speaker 1>he has been very hostile to transgender rights. He basically

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<v Speaker 1>sees they're being men and they're being women, and there

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<v Speaker 1>being nothing else. And therefore he reads the sex discrimination

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<v Speaker 1>laws and the Affordable Care Act anti discrimination previsions as

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<v Speaker 1>only applying to men and women. So he is a

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<v Speaker 1>couple of rulings now on transgender rights in which he

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<v Speaker 1>has taken a very strong stance on that, contrary to

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<v Speaker 1>the position many other just have taken with the Affordable

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<v Speaker 1>Care Act. One of those cases was an Affordable Care

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<v Speaker 1>Act case. There's also a case that's kind of in

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<v Speaker 1>the weeds with respect to health insurance tax where he

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<v Speaker 1>ruled against the federal government on a tax um that

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<v Speaker 1>is imposed on Medicaid managed care plans um. He is

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<v Speaker 1>also ruled against a number of other Obama era regulations.

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<v Speaker 1>So he seems to be a very political judge, to

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<v Speaker 1>have a very strong political agenda, and he seems to

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<v Speaker 1>be pursuing it through this court. He is the only

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<v Speaker 1>judge in his particular subdistrict, So any time the Texas

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<v Speaker 1>Attorney General or anybody else wants to get a particular ruling,

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<v Speaker 1>they file it in his court, and he's the judge

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<v Speaker 1>that they draw, as opposed to most courts in the

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<v Speaker 1>country where you take your your luck when you file

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<v Speaker 1>a case as to which of many judges you will

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<v Speaker 1>end up with. That was the judge reversed on those

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<v Speaker 1>Obamacare decisions. I don't believe any of them. I don't

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<v Speaker 1>believe there are decisions yet in any of those cases,

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<v Speaker 1>although the federal government has appealed one of them and

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<v Speaker 1>the issue in one of the other cases. The transgender

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<v Speaker 1>rights under the Affordable Care Act has been litigated in

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<v Speaker 1>a number of other courts who have gone the other way.

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<v Speaker 1>All right, thanks so much, Tim, As always, that's Timothy Johnston,

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<v Speaker 1>professor at Washington and Lee School of Law.