White House Sides with Texas in Obamacare Lawsuit

the problem of Obamacare now. The Trump administration is getting another chance to dismantle President Obama's signature White House achievement, signing with Texas and nineteen other Republican led states to have a judge toss out some aspects of the Affordable Care Act. Joining me as Timothy Johnson, Professor at Washington and Lee School of Law, Timmy, what's the legal argument of Texas and the coalition of states against the Affordable

Care Act mean? Is that the Supreme Court in held that Congress lacked the authority under the Commerce Power to adopt the individual mandate as a command or requirement, but that it could do it and did do it as a tax. However, in uh Congress repealed the tax penalty beginning in and therefore Texas argues the individual mandate is now entirely unconstitutional and the the the entire statute was built on the individual mandate, and therefore all nine pages

of the statute collapse. What is your legal opinion of their argument. It's absurd, and I think most legal experts who have looked at it agree with that in one way or another, including some people who conservative legal scholars who have supported earlier challenges to the statute. I mean, it's flawed in many ways. Um, the individual mandate at this point is not a command. Supreme Court held that

it wasn't. Um, the tax have been zeroed out, but there are lots of taxes that are taxes that no one is paying right now that are have zero So it's still there on the books as attacks. But most importantly, when Congress repealed the or zeroed out the penalty in seventeen, it had no intention of getting rid of the rest of the statute. It had already tried to get rid of some parts of the statute and then failed, and numerous senators said, we are not doing anything here to

change anything else in the statute. And uh, and so the judge should a single judge in North Texas should not rewrite the statute when Congress refused to do so. Now, I understand that the administration, the Trump administration is not going as far as as Texas is. What's the Trump administration position? Well, the Trump administration position is that if the individual they well, the first they agree the individual

mandate is now unconstitutional. But they say the consequence of that is that the court should strike the provisions of the Affordable Care Act that require insurers to cover people with pre existing conditions and not charge them more, and to cover specifically those pre existing conditions. And the Trump

administration argues that those requirements cannot survive without the individual mandate. Interestingly, though, however, yesterday they said, but don't rule on this, tell after open enrollment closes in December, because otherwise you'll cause chaos and the insurance industry. And what I think they're really saying is don't rule before or the mid terms, because you'll cause chaos in the in the election for Republicans. Well, it isn't is it an opposition? Does it seem to you?

Because that is such pre existing conditions and insurers having to take people even that they have pre existing conditions is such a popular part of Obamacare and polls. Yeah, I think it's probably the most popular part of the of the Affordable Care Act. Um, it is in No, one must admit that the Obama administration in also said that if the individual in the end date was found unconstitutional, that would undermine the guaranteed issue and community rating requirements

as well. Um. But um, that was before and we now have evidence that, in fact, we can get rid of the individual mandate and the rest of the law works pretty fine. Um. The rate increases that insures it put in for next year, fully under standing that the individual mandate has gone, are very moderate compared to previous year. Some some insurers are even reducing their premiums. So I think that there's no evidence at this point that the individual mandate is essential to the operation of any other

part of the Affordable Care Act. So the administration's move here has left it to a coalition of seventeen Democratic state attorneys general to defend Obamacare here. What's their argument? Does it follow what you've been saying? Yeah, I mean, basically what I've said is their argument. Number one, the mandate is constitutional, uh, And number two, if the Court

decides to hold it unconstitutional. It is completely independent of the whole It should be severed in legal language, from the whole rest of the statute, and the whole rest of the statute should be sustained. Now, the Supreme Court has ruled on various parts of Obamacare, as we remember. If as does go to the Supreme Court, let's just say it ends up the Supreme Court. How is the court likely to hold and would the presence of Brett

Kavanaugh on the court make a difference. Well, I think that it's been to the Supreme Court twice now, and both times the four Democratic appointees on the Supreme Court have been joined by Chief Justice Roberts to uphold it. So in a sense, Um, Judge Kavanaugh's appointment is not our decision is not crucial one way or the other. Um. I but I don't know how how Justice Kavanaugh would rule on this. And he, of course is a Justice Kavan, I should say, and he of course is steadfastly appointing

that question in the confirmation hearings. Um, it would certainly, uh to my mind, be preferable to have a Supreme Court justice who would be more favorably incline towards the Affordable Care Act. But but I mean, ultimately, we're looking at legal questions here, and I think the law on this is pretty clear. Um that again, the uh, it's it's constitutional and should be severed. All right, thank you so much. That's Timothy Johnston, professor at Washington and Lee's

School of Law. The judge has not ruled in the case on the preliminary injunction, and the hearings just took place yesterday. It's day three of the confirmation hearings were Supreme Court nominee Brett Kavanaugh. The highlight of the hearing so far has been Kavanaugh's refusal to answer Democratic Senator's pointed questions on abortion, affirmative action, and presidential power, among

other things. Here's Democratic Senator Richard Blumenthal asked me about Kavanaugh's position on abortion, Can you commit, sitting here today, that you would never overturn Rogie Waite so center. Each of the eight justices currently on the Supreme Court when they were in this seat declined to hire that question. Joining me is Steve Sanders, professor at Indiana University's Mare

School of Law. Steve Kavana seems to have refined the Supreme Court nominees art of not answering a question, even in areas that he's written in extensively, he's calling it nominee precedent. So are these hearings just for show? Unfortunately, as much as I hate to admit thinking so, June

and I I think I have to agree. I mean, so, what we've seen over and over again is the Republican Senators asking either sort of gassing on to just run out the clock or asking these really embarrassing softballs and asking him about his faith and his daughter's basketball team.

And what we see among the Democrats, though, I think is just as frustrating, and that is they should know well that if they ask a pointed question like Senator Blumenthal asked um Kevinaugh, they're not going get a response. No Supreme Court nominee in recent history has been willing

to answer a quote unquote hypothetical like that. What I wish the Senators would do would go up just a little bit to a higher level of abstraction and engage him about the meaning and the history of certain constitutional provisions and his judicial philosophy. We saw a little bit of that this morning actually with Senator Graham, Lindsey Graham asking him about the extent of how far can we

stretch the word liberty which is in the Constitution. That word is the basis really of Roe versus Wade and many other controversial decisions. The problem is Senator Graham kept cutting off Kavanaugh, wouldn't let Kavanaugh give some meaningful answers. Graham kept, you know, filibustering about what he thought about the issue. So I think, in short, I'm more and more prepared with every passing hour to agree with you.

Kevina tried to back away from his written views in a law review article a president shouldn't face criminal investigation. Did he succeed in backing away? Well, I think he made the fair point that he he said, Uh, you know, he clarified that he was arguing about things Congress could do, perhaps Congress should do. He wasn't making he wasn't giving his own view of the president's role under the Constitution

or the president's role under existing law. He was making a suggestion of something Congress might want to think about and why that might be a good idea. So, you know, there are nuances and a lot of these issues that get lost and so I think it was a fair point of his to point out what he was saying and what he wasn't saying on that question. And what what's your take on his description of the Nixon case. Well, so that's interesting. He he really sort of brought up

United States versus Nixon himself. That's the case in which the Supreme Court ruled the President couldn't withhold the Watergate tapes, which were being subpoenaed, not in a legal proceeding that Nixon himself was involved in, but an illegal proceeding that several of his aids were involved in a criminal prosecution. And I think it was interesting to contrast his fourth right embrace, uh in praise for that decision. I think he said something like that was one of the Supreme

Court's finest hours. He had no problems with that, yet again repeatedly refusing to endorse or really say anything about

Roe versus ray, Row versus Weight, or some more controversial decisions. Um. But you know, for another reason, his embrace of the United States versus Nixon, I think was interesting in that, um, it might cut against a little bit the idea that he has this broad view of sort of limitless executive power and executive discretion, and the freedom that the president should have from having to obey criminal process that other people have to obey. So Steve. This morning, some Democrats

released confidential memos and emails. Maizie Herono explained, released an email which dealt with his his talking about Roe v. Wade as not settled precedent years ago. So how should how should pro choice people view his answers as comforting or as disturbing? I think I think they just don't really shed any light on his views as a judge.

That what he was saying. It was a an email that he wrote in the White House which was making comments and a draft op ed that somebody else had written, and this person had said had referred to Roe versus Weight as quote unquote settled law or subtle precedent, and Kavanaugh at that point pointed out, well, not everyone agrees that it is subtle precedent. I don't think that was factually untrue. I mean, you could say Kavanaugh may have been motivated to point that out by the fact that

he also thinks it's not settled precedent. But Kavanaugh pointed out in that email that at that point three justices of the Supreme Court were prepared to overrule Roe versus Way. It was probably a fair accurate statement that many of the lawyers and scholars in the federalist society that Brett Kavanaugh was hanging out with didn't regard Roe versus Way as quote unquote settled law. So I think that's pretty

thin stuff. I mean again, he was I think making an observation about the broader community of legal scholars that I think was not in itself in itself inaccurate or unfair as a characterization. It's certainly an article of faith among progressive lawyers and scholars that Roll versus Way to settled lawyers should be considered settled law. That's different than making a statement that everyone thinks it is now legal. Anewars have said that his confirmation could create the most

conservative Supreme Court in generations. Do you agree, and if so, in what areas might we see a change? Well, I think we're likely to. Well, abortion is since we've been talking about that is probably one of the areas. There are um constant attempts at the state level by conservatives to pass laws that they know might be struck down at a lower court level. Because their goal is to get to higher courts and ultimately the Supreme Court and chip away at abortion rights. I'm not the first person

to say this, but I think it bears repeating. You don't need to overturn Roe versus wade Um to uh sharply restrict abortion availability from what it is today. In fact, the Supreme Court itself in backed away from Roversus from the letter of Roversus, weighed and modified it and narrowed it, and and there are lots of ways in which UM, a conservative court could continue to do that could continue UH saying well, this is not an undue burden to

write to abortion. That's not an undue burden to a write to abortion without ever having to undo Roversus weight itself. Thank you so much for your insight, Steve. That's Steve Sanders, professor at the Indiana University maur School of Law. Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple podcast, SoundCloud, and on Bloomberg dot com slash podcast. I'm June Brasso. This is Bloomberg. Yeah,