1 00:00:03,480 --> 00:00:07,560 Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every 2 00:00:07,640 --> 00:00:10,440 Speaker 1: day we bring you insight and analysis into the most 3 00:00:10,480 --> 00:00:13,399 Speaker 1: important legal news of the day. You can find more 4 00:00:13,440 --> 00:00:18,040 Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud, 5 00:00:18,320 --> 00:00:22,840 Speaker 1: and on Bloomberg dot com slash podcasts. President Trump seems 6 00:00:22,880 --> 00:00:27,400 Speaker 1: intent on undoing President Obama's signature legislative achievement, the Affordable 7 00:00:27,480 --> 00:00:31,000 Speaker 1: Care Act, this time in the courts. The Trump administration 8 00:00:31,040 --> 00:00:34,360 Speaker 1: has changed positions in a federal appeals court case, now 9 00:00:34,479 --> 00:00:39,120 Speaker 1: saying the entire law should be declared unconstitutional. The Democrats 10 00:00:39,159 --> 00:00:42,520 Speaker 1: warned that repeal of Obamacare in its entirety would risk 11 00:00:42,600 --> 00:00:46,400 Speaker 1: making more than twenty million people uninsured. Here's how, Speaker 12 00:00:46,520 --> 00:00:51,320 Speaker 1: Nancy Pelosi, the Justice Department of the Trump administration, you 13 00:00:51,400 --> 00:00:54,440 Speaker 1: think they had more to do, uh, decided not only 14 00:00:55,160 --> 00:00:58,520 Speaker 1: to try to destroy protections for pre existing conditions, but 15 00:00:58,640 --> 00:01:05,280 Speaker 1: to tear down every last benefit and protection the affords. 16 00:01:06,200 --> 00:01:09,479 Speaker 1: Joining me is Timothy Just, professor at Washington and Least 17 00:01:09,520 --> 00:01:13,200 Speaker 1: School of Law. Tim start by telling us about the 18 00:01:13,240 --> 00:01:19,080 Speaker 1: far reaching effects of wiping Obamacare off the books. Well, 19 00:01:19,160 --> 00:01:22,880 Speaker 1: the Affordable Care Act is well over nine pages long, 20 00:01:23,560 --> 00:01:27,120 Speaker 1: and although most of the discussion has been about the 21 00:01:27,240 --> 00:01:32,920 Speaker 1: private insurance provisions, and in particular the exchanges and tax credits, 22 00:01:33,000 --> 00:01:36,960 Speaker 1: and the provisions for sort of low and moderate income Americans. 23 00:01:37,120 --> 00:01:41,040 Speaker 1: It also includes the Medicaid expansions. It includes a number 24 00:01:41,080 --> 00:01:46,000 Speaker 1: of Medicare benefits, and includes Medicare payment provisions. And I 25 00:01:46,000 --> 00:01:49,400 Speaker 1: think it's important to realize that if the if this 26 00:01:49,480 --> 00:01:54,600 Speaker 1: lawsuit was entirely successful, UM, a lot of current Medicare 27 00:01:54,680 --> 00:01:57,760 Speaker 1: payment regulations would be swept off the books, and it's 28 00:01:57,800 --> 00:02:01,440 Speaker 1: not at all clear how doctors, hospitals, or even Medicare 29 00:02:01,480 --> 00:02:05,160 Speaker 1: advantage plans could be paid. It also includes Food and 30 00:02:05,200 --> 00:02:10,640 Speaker 1: Drug Administration's authority for approving generic biologics, which the Trump 31 00:02:10,639 --> 00:02:15,639 Speaker 1: administration has been very supportive of UM, and many provisions 32 00:02:15,760 --> 00:02:21,720 Speaker 1: like protections of nursing mothers, were posting of calorie information 33 00:02:21,800 --> 00:02:27,440 Speaker 1: and fast foods joints. That that has absolutely nothing to 34 00:02:27,480 --> 00:02:31,600 Speaker 1: do with the individual mandate, which is what the law 35 00:02:31,639 --> 00:02:35,280 Speaker 1: school as a little law The lawsuit that basis is about, well, 36 00:02:35,360 --> 00:02:38,360 Speaker 1: let's talk a little bit about that. The specific case 37 00:02:38,400 --> 00:02:41,640 Speaker 1: before the Fifth Circuit Court of Appeals just explained the 38 00:02:41,720 --> 00:02:46,000 Speaker 1: ruling of the lower court judge briefly. Yeah, well, The 39 00:02:46,080 --> 00:02:50,720 Speaker 1: lawsuit was brought by the Texas Attorney General and a 40 00:02:50,720 --> 00:02:55,280 Speaker 1: group of other Republican states, and their claim is that 41 00:02:56,000 --> 00:02:59,400 Speaker 1: the individual mandate was held by the Supreme Court in 42 00:02:59,600 --> 00:03:04,079 Speaker 1: two thousand and twelve to be unconstitutional as a command, 43 00:03:04,160 --> 00:03:07,040 Speaker 1: but it was only valid as at tax. The tax 44 00:03:07,200 --> 00:03:11,520 Speaker 1: was zeroed out by the Tax bill UH and therefore 45 00:03:11,520 --> 00:03:16,240 Speaker 1: they argue the mandate is now unconstitutional. And then they 46 00:03:16,400 --> 00:03:20,280 Speaker 1: argue beyond that that if the individual mandate goes, the 47 00:03:20,480 --> 00:03:23,160 Speaker 1: entire remainder of the A c A goes with it, 48 00:03:23,840 --> 00:03:28,079 Speaker 1: and the the judge in the case rid O'Connor, Texas 49 00:03:28,120 --> 00:03:32,320 Speaker 1: District Federal District Court judge basically agreed with that and 50 00:03:32,440 --> 00:03:36,000 Speaker 1: held that the entire A c A should be invalidated. 51 00:03:36,720 --> 00:03:41,160 Speaker 1: Um Now, up until now that the Trump administration has 52 00:03:41,200 --> 00:03:45,440 Speaker 1: taken the position that the mandate was in fact unconstitutional, 53 00:03:45,960 --> 00:03:50,520 Speaker 1: but that only the pre existing condition protections of the 54 00:03:50,560 --> 00:03:53,720 Speaker 1: Affordable Care Act should be struck down with it. But 55 00:03:53,840 --> 00:03:57,280 Speaker 1: now they have changed their position and are asking the 56 00:03:57,320 --> 00:04:01,440 Speaker 1: court to the circuit to uphold the Federal District Court 57 00:04:01,520 --> 00:04:05,640 Speaker 1: decision which struck down the entire Affordable Care Act with 58 00:04:05,720 --> 00:04:08,120 Speaker 1: all of those provisions that I just mentioned in many 59 00:04:08,160 --> 00:04:12,280 Speaker 1: many more so, the lawsuit was filed in a particular 60 00:04:12,360 --> 00:04:14,640 Speaker 1: district in Texas so that it would be heard by 61 00:04:15,200 --> 00:04:21,200 Speaker 1: Judge O'Connor, who ruled against Obamacare before. Was his decision 62 00:04:21,240 --> 00:04:25,839 Speaker 1: and outlier among the courts and criticized by many legal experts. 63 00:04:26,920 --> 00:04:30,159 Speaker 1: I think a number of his decisions have been criticized 64 00:04:30,279 --> 00:04:35,480 Speaker 1: by the courts and UH and criticized by legal experts 65 00:04:35,520 --> 00:04:40,320 Speaker 1: as well, and frankly, in this current decision, UH, it 66 00:04:40,400 --> 00:04:47,839 Speaker 1: has been repudiated by legal experts really across the political spectrum. 67 00:04:47,960 --> 00:04:53,279 Speaker 1: Some of the conservative legal experts supported earlier attacks on 68 00:04:53,360 --> 00:04:56,400 Speaker 1: the Affordable Care Act said that this decision just makes 69 00:04:56,400 --> 00:05:00,680 Speaker 1: no sense legally. So then it's before the Circuit Court 70 00:05:00,680 --> 00:05:05,680 Speaker 1: of Appeals, which is you'd say, more conservative court of Appeals. 71 00:05:05,880 --> 00:05:10,080 Speaker 1: Are they likely to uphold it? Then? Um, the Fifth 72 00:05:10,080 --> 00:05:12,679 Speaker 1: Circuit is in fact one of the most conservative circuits 73 00:05:12,720 --> 00:05:17,520 Speaker 1: in the country. Of the UM sixteen active judges, only 74 00:05:17,600 --> 00:05:21,479 Speaker 1: five were appointed by Democrats and five have have already 75 00:05:21,520 --> 00:05:26,400 Speaker 1: been appointed by the Trump administration. UM. I still think though, 76 00:05:26,440 --> 00:05:29,560 Speaker 1: that this case is the decision of Judge O'Connor is 77 00:05:29,600 --> 00:05:34,719 Speaker 1: such a far out outlier that even probably most of 78 00:05:34,720 --> 00:05:37,400 Speaker 1: the judges on the Fifth Circuit would reject it as well, 79 00:05:38,080 --> 00:05:43,200 Speaker 1: although I think it's quite possible that they may rejected 80 00:05:43,240 --> 00:05:46,400 Speaker 1: on the grounds like standing, which is to say, uh, 81 00:05:47,040 --> 00:05:51,760 Speaker 1: was anybody Is anybody actually injured by the individual mandate 82 00:05:51,760 --> 00:05:54,760 Speaker 1: at this point? And if not, does anybody really have 83 00:05:54,839 --> 00:05:57,720 Speaker 1: any right to sue? So I think there are some 84 00:05:57,760 --> 00:05:59,640 Speaker 1: ways they could get rid of this case to as 85 00:05:59,680 --> 00:06:02,840 Speaker 1: picture and lee. Now it might keep them from having 86 00:06:02,839 --> 00:06:06,720 Speaker 1: to side the merits. So, now if they do decide 87 00:06:06,720 --> 00:06:11,400 Speaker 1: the merits and they decide that Obamacare is unconstitutional and 88 00:06:11,480 --> 00:06:14,240 Speaker 1: it goes to the Supreme Court, the Supreme Court has 89 00:06:14,320 --> 00:06:20,280 Speaker 1: twice before upheld Obamacare, and five the five justices on 90 00:06:20,839 --> 00:06:24,080 Speaker 1: the majority in the majority who upheld the law are 91 00:06:24,080 --> 00:06:27,240 Speaker 1: still on the court. So is it likely that they 92 00:06:27,240 --> 00:06:31,000 Speaker 1: will once again uphold the law. Yeah, I think it's 93 00:06:31,080 --> 00:06:34,240 Speaker 1: very likely that Supreme Courts would uphold the law. And again, 94 00:06:35,440 --> 00:06:39,320 Speaker 1: given the legal issues involved in the case, the technical 95 00:06:39,440 --> 00:06:43,600 Speaker 1: legal issues in the case, I think that Judge O'Connor's 96 00:06:43,640 --> 00:06:48,080 Speaker 1: decision is simply indefensible and therefore I think, regardless of 97 00:06:48,120 --> 00:06:50,560 Speaker 1: the politics of the judges on the Supreme Court and 98 00:06:50,600 --> 00:06:53,760 Speaker 1: maybe of the Fifth Circuit, that they will disagree with 99 00:06:53,839 --> 00:06:57,039 Speaker 1: him on the law. Will you explain why you think 100 00:06:57,080 --> 00:07:05,159 Speaker 1: his opinion is indefensible? Well, I think that the most 101 00:07:05,160 --> 00:07:09,000 Speaker 1: troubling issue in the case is his ruling on an 102 00:07:09,000 --> 00:07:12,680 Speaker 1: issue within which is called sever ability. In other words, 103 00:07:12,760 --> 00:07:16,280 Speaker 1: when the Court declares a federal law to be unconstitutional 104 00:07:17,320 --> 00:07:19,800 Speaker 1: or provision of a federal law, it then has to 105 00:07:19,880 --> 00:07:23,160 Speaker 1: decide how much of the entire law goes with it. 106 00:07:23,680 --> 00:07:27,120 Speaker 1: And in general that's a question of what Congress intended 107 00:07:27,120 --> 00:07:31,960 Speaker 1: and also a question of not doing uh, not invalidating 108 00:07:32,000 --> 00:07:35,160 Speaker 1: more than is really necessary. And here I think it's 109 00:07:35,240 --> 00:07:41,520 Speaker 1: perfectly clear what Congress intended in seventeen when they zeroed 110 00:07:41,520 --> 00:07:45,160 Speaker 1: out the tax, because we have statements by many of 111 00:07:45,200 --> 00:07:47,920 Speaker 1: the Senators saying we don't nothing else is going to 112 00:07:47,920 --> 00:07:50,120 Speaker 1: be affected by this. This has nothing to do with 113 00:07:50,160 --> 00:07:53,600 Speaker 1: pre existing condition protections, This has nothing to do with 114 00:07:53,640 --> 00:07:58,320 Speaker 1: the rest of the statute. And so Judge O'Connor's ruling 115 00:07:58,520 --> 00:08:03,160 Speaker 1: that the a vidual mandate is indispensable in the entire 116 00:08:03,280 --> 00:08:06,160 Speaker 1: rest of the statute should be invalidated if it falls 117 00:08:06,800 --> 00:08:10,920 Speaker 1: is I think simply unsupportable and also contrary to statements 118 00:08:11,440 --> 00:08:16,320 Speaker 1: and rulings made before by Chief Justice Roberts and UH 119 00:08:16,360 --> 00:08:19,960 Speaker 1: and Justice Scamano as well. Thank you so much. That's 120 00:08:19,960 --> 00:08:23,400 Speaker 1: Timothy jos He's a professor at Washington and Lee's School 121 00:08:23,640 --> 00:08:28,760 Speaker 1: of Law. Thanks for listening to the Bloomberg Law Podcast. 122 00:08:29,120 --> 00:08:33,200 Speaker 1: You can subscribe and listen to the show on Apple Podcasts, SoundCloud, 123 00:08:33,280 --> 00:08:37,160 Speaker 1: and on Bloomberg dot com slash podcast. I'm June Brasso. 124 00:08:37,640 --> 00:08:41,440 Speaker 1: This is Bloomberg Ye.