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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcasts. Throughout his presidency,

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Speaker 1: Donald Trump has repeatedly attacked the Affordable Care Act. Obamacare

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Speaker 1: is a disgrace to our nation, and we are solving

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Speaker 1: the problem of Obamacare now. The Trump administration is getting

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Speaker 1: another chance to dismantle President Obama's signature White House achievement,

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Speaker 1: signing with Texas and nineteen other Republican led states to

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Speaker 1: have a judge toss out some aspects of the Affordable

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Speaker 1: Care Act. Joining me as Timothy Johnson, Professor at Washington

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Speaker 1: and Lee School of Law, Timmy, what's the legal argument

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Speaker 1: of Texas and the coalition of states against the Affordable

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Speaker 1: Care Act mean? Is that the Supreme Court in held

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Speaker 1: that Congress lacked the authority under the Commerce Power to

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Speaker 1: adopt the individual mandate as a command or requirement, but

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Speaker 1: that it could do it and did do it as

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Speaker 1: a tax. However, in uh Congress repealed the tax penalty

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Speaker 1: beginning in and therefore Texas argues the individual mandate is

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Speaker 1: now entirely unconstitutional and the the the entire statute was

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Speaker 1: built on the individual mandate, and therefore all nine pages

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Speaker 1: of the statute collapse. What is your legal opinion of

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Speaker 1: their argument. It's absurd, and I think most legal experts

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Speaker 1: who have looked at it agree with that in one

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Speaker 1: way or another, including some people who conservative legal scholars

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Speaker 1: who have supported earlier challenges to the statute. I mean,

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Speaker 1: it's flawed in many ways. Um, the individual mandate at

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Speaker 1: this point is not a command. Supreme Court held that

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Speaker 1: it wasn't. Um, the tax have been zeroed out, but

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Speaker 1: there are lots of taxes that are taxes that no

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Speaker 1: one is paying right now that are have zero So

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Speaker 1: it's still there on the books as attacks. But most importantly,

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Speaker 1: when Congress repealed the or zeroed out the penalty in seventeen,

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Speaker 1: it had no intention of getting rid of the rest

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Speaker 1: of the statute. It had already tried to get rid

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Speaker 1: of some parts of the statute and then failed, and

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Speaker 1: numerous senators said, we are not doing anything here to

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Speaker 1: change anything else in the statute. And uh, and so

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Speaker 1: the judge should a single judge in North Texas should

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Speaker 1: not rewrite the statute when Congress refused to do so. Now,

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Speaker 1: I understand that the administration, the Trump administration is not

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Speaker 1: going as far as as Texas is. What's the Trump

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Speaker 1: administration position? Well, the Trump administration position is that if

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Speaker 1: the individual they well, the first they agree the individual

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Speaker 1: mandate is now unconstitutional. But they say the consequence of

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Speaker 1: that is that the court should strike the provisions of

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Speaker 1: the Affordable Care Act that require insurers to cover people

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Speaker 1: with pre existing conditions and not charge them more, and

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Speaker 1: to cover specifically those pre existing conditions. And the Trump

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Speaker 1: administration argues that those requirements cannot survive without the individual mandate. Interestingly, though, however,

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Speaker 1: yesterday they said, but don't rule on this, tell after

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Speaker 1: open enrollment closes in December, because otherwise you'll cause chaos

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Speaker 1: and the insurance industry. And what I think they're really

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Speaker 1: saying is don't rule before or the mid terms, because

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Speaker 1: you'll cause chaos in the in the election for Republicans. Well,

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Speaker 1: it isn't is it an opposition? Does it seem to you?

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Speaker 1: Because that is such pre existing conditions and insurers having

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Speaker 1: to take people even that they have pre existing conditions

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Speaker 1: is such a popular part of Obamacare and polls. Yeah,

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Speaker 1: I think it's probably the most popular part of the

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Speaker 1: of the Affordable Care Act. Um, it is in No,

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Speaker 1: one must admit that the Obama administration in also said

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Speaker 1: that if the individual in the end date was found unconstitutional,

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Speaker 1: that would undermine the guaranteed issue and community rating requirements

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Speaker 1: as well. Um. But um, that was before and we

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Speaker 1: now have evidence that, in fact, we can get rid

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Speaker 1: of the individual mandate and the rest of the law

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Speaker 1: works pretty fine. Um. The rate increases that insures it

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Speaker 1: put in for next year, fully under standing that the

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Speaker 1: individual mandate has gone, are very moderate compared to previous year.

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Speaker 1: Some some insurers are even reducing their premiums. So I

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Speaker 1: think that there's no evidence at this point that the

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Speaker 1: individual mandate is essential to the operation of any other

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Speaker 1: part of the Affordable Care Act. So the administration's move

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Speaker 1: here has left it to a coalition of seventeen Democratic

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Speaker 1: state attorneys general to defend Obamacare here. What's their argument?

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Speaker 1: Does it follow what you've been saying? Yeah, I mean,

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Speaker 1: basically what I've said is their argument. Number one, the

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Speaker 1: mandate is constitutional, uh, And number two, if the Court

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Speaker 1: decides to hold it unconstitutional. It is completely independent of

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Speaker 1: the whole It should be severed in legal language, from

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Speaker 1: the whole rest of the statute, and the whole rest

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Speaker 1: of the statute should be sustained. Now, the Supreme Court

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Speaker 1: has ruled on various parts of Obamacare, as we remember.

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Speaker 1: If as does go to the Supreme Court, let's just

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Speaker 1: say it ends up the Supreme Court. How is the

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Speaker 1: court likely to hold and would the presence of Brett

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Speaker 1: Kavanaugh on the court make a difference. Well, I think

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Speaker 1: that it's been to the Supreme Court twice now, and

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Speaker 1: both times the four Democratic appointees on the Supreme Court

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Speaker 1: have been joined by Chief Justice Roberts to uphold it.

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Speaker 1: So in a sense, Um, Judge Kavanaugh's appointment is not

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Speaker 1: our decision is not crucial one way or the other. Um.

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Speaker 1: I but I don't know how how Justice Kavanaugh would

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Speaker 1: rule on this. And he, of course is a Justice Kavan,

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Speaker 1: I should say, and he of course is steadfastly appointing

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Speaker 1: that question in the confirmation hearings. Um, it would certainly,

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Speaker 1: uh to my mind, be preferable to have a Supreme

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Speaker 1: Court justice who would be more favorably incline towards the

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Speaker 1: Affordable Care Act. But but I mean, ultimately, we're looking

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Speaker 1: at legal questions here, and I think the law on

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Speaker 1: this is pretty clear. Um that again, the uh, it's

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Speaker 1: it's constitutional and should be severed. All right, thank you

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Speaker 1: so much. That's Timothy Johnston, professor at Washington and Lee's

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Speaker 1: School of Law. The judge has not ruled in the

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Speaker 1: case on the preliminary injunction, and the hearings just took

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Speaker 1: place yesterday. It's day three of the confirmation hearings were

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Speaker 1: Supreme Court nominee Brett Kavanaugh. The highlight of the hearing

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Speaker 1: so far has been Kavanaugh's refusal to answer Democratic Senator's

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Speaker 1: pointed questions on abortion, affirmative action, and presidential power, among

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Speaker 1: other things. Here's Democratic Senator Richard Blumenthal asked me about

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Speaker 1: Kavanaugh's position on abortion, Can you commit, sitting here today,

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Speaker 1: that you would never overturn Rogie Waite so center. Each

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Speaker 1: of the eight justices currently on the Supreme Court when

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Speaker 1: they were in this seat declined to hire that question.

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Speaker 1: Joining me is Steve Sanders, professor at Indiana University's Mare

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Speaker 1: School of Law. Steve Kavana seems to have refined the

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Speaker 1: Supreme Court nominees art of not answering a question, even

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Speaker 1: in areas that he's written in extensively, he's calling it

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Speaker 1: nominee precedent. So are these hearings just for show? Unfortunately,

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Speaker 1: as much as I hate to admit thinking so, June

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Speaker 1: and I I think I have to agree. I mean, so,

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Speaker 1: what we've seen over and over again is the Republican

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Speaker 1: Senators asking either sort of gassing on to just run

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Speaker 1: out the clock or asking these really embarrassing softballs and

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Speaker 1: asking him about his faith and his daughter's basketball team.

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Speaker 1: And what we see among the Democrats, though, I think

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Speaker 1: is just as frustrating, and that is they should know

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Speaker 1: well that if they ask a pointed question like Senator

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Speaker 1: Blumenthal asked um Kevinaugh, they're not going get a response.

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Speaker 1: No Supreme Court nominee in recent history has been willing

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Speaker 1: to answer a quote unquote hypothetical like that. What I

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Speaker 1: wish the Senators would do would go up just a

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Speaker 1: little bit to a higher level of abstraction and engage

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Speaker 1: him about the meaning and the history of certain constitutional

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Speaker 1: provisions and his judicial philosophy. We saw a little bit

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Speaker 1: of that this morning actually with Senator Graham, Lindsey Graham

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Speaker 1: asking him about the extent of how far can we

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Speaker 1: stretch the word liberty which is in the Constitution. That

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Speaker 1: word is the basis really of Roe versus Wade and

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Speaker 1: many other controversial decisions. The problem is Senator Graham kept

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Speaker 1: cutting off Kavanaugh, wouldn't let Kavanaugh give some meaningful answers.

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Speaker 1: Graham kept, you know, filibustering about what he thought about

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Speaker 1: the issue. So I think, in short, I'm more and

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Speaker 1: more prepared with every passing hour to agree with you.

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Speaker 1: Kevina tried to back away from his written views in

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Speaker 1: a law review article a president shouldn't face criminal investigation.

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Speaker 1: Did he succeed in backing away? Well, I think he

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Speaker 1: made the fair point that he he said, Uh, you know,

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Speaker 1: he clarified that he was arguing about things Congress could do,

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Speaker 1: perhaps Congress should do. He wasn't making he wasn't giving

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Speaker 1: his own view of the president's role under the Constitution

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Speaker 1: or the president's role under existing law. He was making

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Speaker 1: a suggestion of something Congress might want to think about

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Speaker 1: and why that might be a good idea. So, you know,

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Speaker 1: there are nuances and a lot of these issues that

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Speaker 1: get lost and so I think it was a fair

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Speaker 1: point of his to point out what he was saying

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Speaker 1: and what he wasn't saying on that question. And what

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Speaker 1: what's your take on his description of the Nixon case. Well,

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Speaker 1: so that's interesting. He he really sort of brought up

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Speaker 1: United States versus Nixon himself. That's the case in which

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Speaker 1: the Supreme Court ruled the President couldn't withhold the Watergate tapes,

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Speaker 1: which were being subpoenaed, not in a legal proceeding that

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Speaker 1: Nixon himself was involved in, but an illegal proceeding that

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Speaker 1: several of his aids were involved in a criminal prosecution.

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Speaker 1: And I think it was interesting to contrast his fourth

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Speaker 1: right embrace, uh in praise for that decision. I think

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Speaker 1: he said something like that was one of the Supreme

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Speaker 1: Court's finest hours. He had no problems with that, yet

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Speaker 1: again repeatedly refusing to endorse or really say anything about

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Speaker 1: Roe versus ray, Row versus Weight, or some more controversial decisions. Um.

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Speaker 1: But you know, for another reason, his embrace of the

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Speaker 1: United States versus Nixon, I think was interesting in that, um,

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Speaker 1: it might cut against a little bit the idea that

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Speaker 1: he has this broad view of sort of limitless executive

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Speaker 1: power and executive discretion, and the freedom that the president

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Speaker 1: should have from having to obey criminal process that other

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Speaker 1: people have to obey. So Steve. This morning, some Democrats

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Speaker 1: released confidential memos and emails. Maizie Herono explained, released an

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Speaker 1: email which dealt with his his talking about Roe v.

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Speaker 1: Wade as not settled precedent years ago. So how should

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Speaker 1: how should pro choice people view his answers as comforting

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Speaker 1: or as disturbing? I think I think they just don't

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Speaker 1: really shed any light on his views as a judge.

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Speaker 1: That what he was saying. It was a an email

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Speaker 1: that he wrote in the White House which was making

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Speaker 1: comments and a draft op ed that somebody else had written,

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Speaker 1: and this person had said had referred to Roe versus

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Speaker 1: Weight as quote unquote settled law or subtle precedent, and

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Speaker 1: Kavanaugh at that point pointed out, well, not everyone agrees

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Speaker 1: that it is subtle precedent. I don't think that was

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Speaker 1: factually untrue. I mean, you could say Kavanaugh may have

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Speaker 1: been motivated to point that out by the fact that

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Speaker 1: he also thinks it's not settled precedent. But Kavanaugh pointed

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Speaker 1: out in that email that at that point three justices

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Speaker 1: of the Supreme Court were prepared to overrule Roe versus Way.

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Speaker 1: It was probably a fair accurate statement that many of

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Speaker 1: the lawyers and scholars in the federalist society that Brett

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Speaker 1: Kavanaugh was hanging out with didn't regard Roe versus Way

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Speaker 1: as quote unquote settled law. So I think that's pretty

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Speaker 1: thin stuff. I mean again, he was I think making

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Speaker 1: an observation about the broader community of legal scholars that

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Speaker 1: I think was not in itself in itself inaccurate or

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Speaker 1: unfair as a characterization. It's certainly an article of faith

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Speaker 1: among progressive lawyers and scholars that Roll versus Way to

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Speaker 1: settled lawyers should be considered settled law. That's different than

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Speaker 1: making a statement that everyone thinks it is now legal.

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Speaker 1: Anewars have said that his confirmation could create the most

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Speaker 1: conservative Supreme Court in generations. Do you agree, and if so,

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Speaker 1: in what areas might we see a change? Well, I

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Speaker 1: think we're likely to. Well, abortion is since we've been

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Speaker 1: talking about that is probably one of the areas. There

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Speaker 1: are um constant attempts at the state level by conservatives

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Speaker 1: to pass laws that they know might be struck down

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Speaker 1: at a lower court level. Because their goal is to

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Speaker 1: get to higher courts and ultimately the Supreme Court and

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Speaker 1: chip away at abortion rights. I'm not the first person

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Speaker 1: to say this, but I think it bears repeating. You

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Speaker 1: don't need to overturn Roe versus wade Um to uh

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Speaker 1: sharply restrict abortion availability from what it is today. In fact,

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Speaker 1: the Supreme Court itself in backed away from Roversus from

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Speaker 1: the letter of Roversus, weighed and modified it and narrowed it,

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Speaker 1: and and there are lots of ways in which UM,

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Speaker 1: a conservative court could continue to do that could continue

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Speaker 1: UH saying well, this is not an undue burden to

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Speaker 1: write to abortion. That's not an undue burden to a

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Speaker 1: write to abortion without ever having to undo Roversus weight itself.

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Speaker 1: Thank you so much for your insight, Steve. That's Steve Sanders,

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Speaker 1: professor at the Indiana University maur School of Law. Thanks

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Speaker 1: for listening to the Bloomberg Law Podcast. You can subscribe

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Speaker 1: and listen to the show on Apple podcast, SoundCloud, and

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Speaker 1: on Bloomberg dot com slash podcast. I'm June Brasso. This

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Speaker 1: is Bloomberg. Yeah,