1 00:00:03,520 --> 00:00:07,040 Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every 2 00:00:07,120 --> 00:00:09,680 Speaker 1: day we bring you insight an analysis into the most 3 00:00:09,720 --> 00:00:12,200 Speaker 1: important legal news of the day. You can find more 4 00:00:12,240 --> 00:00:16,160 Speaker 1: episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud 5 00:00:16,280 --> 00:00:19,759 Speaker 1: and on Bloomberg dot com slash podcasts. While the eyes 6 00:00:19,800 --> 00:00:22,360 Speaker 1: of the nation were on the House impeachment vote, a 7 00:00:22,480 --> 00:00:27,800 Speaker 1: federal appeals court struck down Obamacare's individual mandate as unconstitutional, 8 00:00:28,120 --> 00:00:32,360 Speaker 1: but sidestep the issue of the law's overall constitutionality. The 9 00:00:32,440 --> 00:00:35,120 Speaker 1: Fifth Circuit sent the case back to the district court 10 00:00:35,200 --> 00:00:38,600 Speaker 1: judge in Texas, all but assuring the issue won't be 11 00:00:38,680 --> 00:00:42,920 Speaker 1: resolved by the election. My guest is Timothy Johnson, professor 12 00:00:42,960 --> 00:00:46,000 Speaker 1: at Washington and Lee School of Law, tell us about 13 00:00:46,000 --> 00:00:50,239 Speaker 1: the crucial issue the appellate court decided. What happened was 14 00:00:50,400 --> 00:00:55,000 Speaker 1: the end of last year. A judge in Texas, Judge O'Connor, 15 00:00:55,360 --> 00:01:01,000 Speaker 1: ruled that the individual mandate, which requires people to buy 16 00:01:01,040 --> 00:01:05,920 Speaker 1: health insurance or to pay attacks, was unconstitutional because the 17 00:01:06,000 --> 00:01:10,280 Speaker 1: Supreme Court in the NFIB case, had held that Congress 18 00:01:10,319 --> 00:01:13,399 Speaker 1: couldn't require people to buy health insurance, but upheld the 19 00:01:13,400 --> 00:01:19,160 Speaker 1: mandate as attacks and in seventeen, the Congress zeroed out 20 00:01:19,200 --> 00:01:23,480 Speaker 1: the attacks as of January one, nineteen, So the court 21 00:01:23,520 --> 00:01:28,360 Speaker 1: held that as of January one, the individual mandate was 22 00:01:28,680 --> 00:01:33,240 Speaker 1: completely unconstitutional. It wasn't attacks, it couldn't be a legal command. 23 00:01:33,680 --> 00:01:36,840 Speaker 1: And then the Court went on to hold that since 24 00:01:36,920 --> 00:01:41,399 Speaker 1: the individual Mandate was no longer constitutional, the entire nine 25 00:01:41,480 --> 00:01:44,720 Speaker 1: hundred pages and hundreds of sections of the Affordable Care 26 00:01:44,720 --> 00:01:47,800 Speaker 1: Act had to be thrown out as well well. That 27 00:01:47,960 --> 00:01:52,080 Speaker 1: decision was appealed to the Fifth Circuit, and the Fifth 28 00:01:52,080 --> 00:01:56,040 Speaker 1: Circuit ruled in a two to one decision that the 29 00:01:56,120 --> 00:02:00,160 Speaker 1: majority agreed with Judge O'Connor that the individual mandate is 30 00:02:00,160 --> 00:02:05,440 Speaker 1: now completely unconstitutional, but had some questions about whether that 31 00:02:05,560 --> 00:02:08,960 Speaker 1: meant the whole rest of the statute had to be invalidated, 32 00:02:09,200 --> 00:02:13,400 Speaker 1: So it sent the whole case back down to Judge O'Connor. 33 00:02:13,680 --> 00:02:16,519 Speaker 1: It vacated his decisions so it is no longer of 34 00:02:16,560 --> 00:02:19,360 Speaker 1: any legal effect, but sent it back to him to 35 00:02:19,440 --> 00:02:22,600 Speaker 1: reconsider how much, if any, of the rest of the 36 00:02:22,680 --> 00:02:26,799 Speaker 1: Affordable Care Act should be thrown out with the individual mandate. Now, 37 00:02:26,840 --> 00:02:30,840 Speaker 1: there was a vigorous descent from Judge King, who said, 38 00:02:31,520 --> 00:02:35,120 Speaker 1: we're really the people who should be determining what should 39 00:02:35,160 --> 00:02:39,240 Speaker 1: be severed is the legal word from the mandate, and 40 00:02:39,440 --> 00:02:42,200 Speaker 1: what should remain. And there's no sense at all in 41 00:02:42,240 --> 00:02:45,600 Speaker 1: sending it back to Judge O'Connor again. But she was 42 00:02:45,639 --> 00:02:48,680 Speaker 1: in the minority, so the case is going back to O'Connor. 43 00:02:49,440 --> 00:02:54,120 Speaker 1: So is this essentially the Fifth Circuit ponting? Because what 44 00:02:54,160 --> 00:02:56,280 Speaker 1: are they going to learn from Judge O'Connor. It seems 45 00:02:56,320 --> 00:02:59,720 Speaker 1: as if they had enough before them to make a decision. Yeah, 46 00:02:59,760 --> 00:03:02,320 Speaker 1: it is punting, but it's sort of like punting on 47 00:03:02,440 --> 00:03:06,480 Speaker 1: second down. They really should have decided the case themselves. 48 00:03:06,520 --> 00:03:10,200 Speaker 1: It's the questions are strictly legal questions. It's not like 49 00:03:10,280 --> 00:03:12,480 Speaker 1: Judge O'Connor is going to hold a trial on this. 50 00:03:12,639 --> 00:03:14,960 Speaker 1: There's no more information that he's going to have than 51 00:03:15,000 --> 00:03:19,680 Speaker 1: what they have. Is their action essentially putting off this 52 00:03:19,880 --> 00:03:24,880 Speaker 1: whole Obamacare debate until after the election? Well that would 53 00:03:24,880 --> 00:03:27,720 Speaker 1: be the effect if the case goes back to Judge O'Connor, 54 00:03:27,800 --> 00:03:30,760 Speaker 1: which is where it's headed at this moment. Now. The 55 00:03:30,840 --> 00:03:35,000 Speaker 1: California group that had appealed the case, led by Attorney 56 00:03:35,040 --> 00:03:39,520 Speaker 1: General Bus Sarah, is seriously considering going to the Supreme 57 00:03:39,560 --> 00:03:41,880 Speaker 1: Court with the case right now, and they could do that, 58 00:03:42,560 --> 00:03:46,840 Speaker 1: But the problem is is really timing because it's awfully 59 00:03:46,920 --> 00:03:48,760 Speaker 1: late in the year to get the case before the 60 00:03:48,800 --> 00:03:52,840 Speaker 1: Supreme Court this term, the last date for oral arguments 61 00:03:52,920 --> 00:03:55,880 Speaker 1: is April twenty nine, and takes several months to get 62 00:03:55,880 --> 00:03:58,960 Speaker 1: a case through the process. Would they also be taking 63 00:03:58,960 --> 00:04:02,680 Speaker 1: a chance on what the Court would do because last 64 00:04:02,720 --> 00:04:05,280 Speaker 1: time it was up there, it was Chief Justice Roberts 65 00:04:05,360 --> 00:04:10,360 Speaker 1: that stood between Obamacare and oblivion. Well that's true, but 66 00:04:10,440 --> 00:04:14,600 Speaker 1: Chief Justice Roberts is still there, and Justice Kennedy, who 67 00:04:14,600 --> 00:04:19,280 Speaker 1: has subsequently left, and Justice Scalia were both on the 68 00:04:19,279 --> 00:04:23,719 Speaker 1: other side. So if the Chief Justice sticks with his 69 00:04:23,800 --> 00:04:29,080 Speaker 1: decision in the NFIB case, then I think that the 70 00:04:29,160 --> 00:04:33,799 Speaker 1: statute is likely to be upheld. But the question would 71 00:04:33,800 --> 00:04:37,159 Speaker 1: really be different this time. I mean, whether the individual 72 00:04:37,240 --> 00:04:40,640 Speaker 1: mandate is unconstitutional nor not? Is neither here nor there. 73 00:04:40,800 --> 00:04:45,080 Speaker 1: The tax has been zeroed out. So what Roberts held 74 00:04:45,360 --> 00:04:49,320 Speaker 1: in the NFIB case was what the statute essentially does 75 00:04:49,440 --> 00:04:53,039 Speaker 1: is gives you the option of either buying health insurance 76 00:04:53,120 --> 00:04:56,599 Speaker 1: or pain attacks, and therefore you upheld it as attacks. Well, 77 00:04:56,640 --> 00:05:00,320 Speaker 1: now the choice is still between buying health and insurance. 78 00:05:00,360 --> 00:05:03,440 Speaker 1: Are paying attacks but the tax is zero, and so 79 00:05:04,080 --> 00:05:07,000 Speaker 1: essentially it means and this is what the the Center 80 00:05:07,120 --> 00:05:09,640 Speaker 1: arguing in the Fifth Circuit is that essentially it means 81 00:05:09,680 --> 00:05:13,680 Speaker 1: now there's no consequence of the individual mandate. So to 82 00:05:13,800 --> 00:05:16,960 Speaker 1: then hold that the entire rest of the statute goes 83 00:05:17,000 --> 00:05:21,720 Speaker 1: out the door because the individual mandate is no longer 84 00:05:22,440 --> 00:05:27,920 Speaker 1: enforceable or in the decision of the court, unconstitutional, just 85 00:05:28,000 --> 00:05:31,640 Speaker 1: makes no sense at all. And the real question before 86 00:05:31,680 --> 00:05:34,560 Speaker 1: the Supreme Court this time around will be sever ability, 87 00:05:34,600 --> 00:05:37,240 Speaker 1: which is to say, how much of the statute goes 88 00:05:37,279 --> 00:05:40,680 Speaker 1: if the individual mandate goes and that really, I mean 89 00:05:41,200 --> 00:05:44,839 Speaker 1: Judge Kabanaugh, for example, has been and even Judge Thomas 90 00:05:45,000 --> 00:05:49,200 Speaker 1: have been pretty stripped on sever ability, on saying you 91 00:05:49,240 --> 00:05:54,000 Speaker 1: don't just go around throwing out statutes by a democratically 92 00:05:54,000 --> 00:05:57,839 Speaker 1: elected Congress just because there's some little flaw in them. 93 00:05:58,040 --> 00:06:03,400 Speaker 1: So what that suggests and the descent in the Fifth Circuits, well, 94 00:06:03,720 --> 00:06:07,040 Speaker 1: she held that the individual mandate the main constitutional, but 95 00:06:07,160 --> 00:06:09,039 Speaker 1: even if you take it out, the whole rest of 96 00:06:09,040 --> 00:06:12,680 Speaker 1: the statue to just stay in that majority ruling sort 97 00:06:12,680 --> 00:06:16,280 Speaker 1: of echoing what you said, Justices Thomas and Kavanaugh have 98 00:06:16,400 --> 00:06:19,880 Speaker 1: said the majority said, but it is no small thing 99 00:06:20,000 --> 00:06:24,840 Speaker 1: for unelected life tenure judges to declare duly enacted legislation 100 00:06:24,960 --> 00:06:29,520 Speaker 1: passed by the elected representatives of the American people unconstitutional. 101 00:06:29,920 --> 00:06:34,240 Speaker 1: Does that sort of counter what their decision is? Well, 102 00:06:34,320 --> 00:06:36,960 Speaker 1: I think their decision sort of hymns and os. I mean, 103 00:06:37,000 --> 00:06:40,560 Speaker 1: they did say that, and they did cite a number 104 00:06:40,600 --> 00:06:43,640 Speaker 1: of provisions of the Affordable Clear Act that clearly have 105 00:06:43,800 --> 00:06:48,320 Speaker 1: absolutely nothing to do with with the individual mandate. But 106 00:06:48,480 --> 00:06:52,240 Speaker 1: then they said, well, you know, maybe some provisions are related, 107 00:06:52,320 --> 00:06:55,479 Speaker 1: and uh, you really need to go through and think 108 00:06:55,600 --> 00:06:58,200 Speaker 1: this through section by section and figure out which ones 109 00:06:58,240 --> 00:07:01,640 Speaker 1: are and which ones aren't. So yeah, I mean, I 110 00:07:01,680 --> 00:07:05,120 Speaker 1: think that the language you just quoted really points in 111 00:07:05,160 --> 00:07:09,160 Speaker 1: the direction of leaving the whole rest of the Affordable 112 00:07:09,200 --> 00:07:13,200 Speaker 1: Care Act in place. Unfortunately, two things. One is that 113 00:07:13,280 --> 00:07:17,600 Speaker 1: Judge O'Connor is a highly ideological judge, and I think 114 00:07:17,800 --> 00:07:20,600 Speaker 1: is going to do his best to find some way 115 00:07:20,640 --> 00:07:24,240 Speaker 1: to invalidate the whole statute. And secondly, we won't know 116 00:07:24,280 --> 00:07:27,720 Speaker 1: what he does for months, maybe not until past the election. 117 00:07:28,400 --> 00:07:33,560 Speaker 1: And so in the meantime, you know, everybody is uncertain 118 00:07:33,640 --> 00:07:36,240 Speaker 1: as to what happens next, which is I think a 119 00:07:36,320 --> 00:07:38,520 Speaker 1: very good reason for the Supreme Court to take the 120 00:07:38,560 --> 00:07:41,400 Speaker 1: place and just settle this whole thing once and for good. 121 00:07:41,960 --> 00:07:47,200 Speaker 1: I remember when Judge O'Connor's opinion came out that legal 122 00:07:47,200 --> 00:07:52,000 Speaker 1: scholar is both conservative and liberal, found it problematic and 123 00:07:52,080 --> 00:07:56,119 Speaker 1: thought that it was an outlier decision. Did something happen 124 00:07:56,200 --> 00:07:59,560 Speaker 1: between then and now to make the Fifth Circuit not 125 00:07:59,600 --> 00:08:03,360 Speaker 1: just the throw it out? Well? I think the Fifth 126 00:08:03,440 --> 00:08:07,280 Speaker 1: Circuit decision is an outlier decision as well. I mean, 127 00:08:07,360 --> 00:08:10,720 Speaker 1: what you got is two very conservative judges. I mean, 128 00:08:11,000 --> 00:08:13,720 Speaker 1: there was a case that is mentioned that has cited 129 00:08:13,760 --> 00:08:17,880 Speaker 1: a couple of times in the decision involving another statute 130 00:08:17,960 --> 00:08:24,720 Speaker 1: and another severability question that held that a particular provision 131 00:08:24,760 --> 00:08:27,760 Speaker 1: of the statute was unconstitutional, but the whole rest of 132 00:08:27,760 --> 00:08:32,000 Speaker 1: the statute should be preserved. And judges at el Rad 133 00:08:32,040 --> 00:08:35,000 Speaker 1: and Engelhard who wrote this decision, we're in the minority 134 00:08:35,040 --> 00:08:38,680 Speaker 1: on that decision as well. So I think what we've 135 00:08:38,720 --> 00:08:43,520 Speaker 1: got here is just a very conservative judge being reviewed 136 00:08:43,559 --> 00:08:47,800 Speaker 1: by a very conservative panel, and I think the whole 137 00:08:47,840 --> 00:08:51,319 Speaker 1: case is an outlier. Thanks tim that's Timothy Johns of 138 00:08:51,440 --> 00:08:55,839 Speaker 1: the Washington and Lease School of Law. Thanks for listening 139 00:08:55,880 --> 00:08:59,160 Speaker 1: to the Bloomberg Law Podcast. You can subscribe and listen 140 00:08:59,200 --> 00:09:02,760 Speaker 1: to the show on Apple podcast, SoundCloud, and on Bloomberg 141 00:09:02,840 --> 00:09:07,560 Speaker 1: dot com slash podcast. I'm June Brosso. This is Bloomberg 142 00:09:12,960 --> 00:09:13,000 Speaker 1: m