The Case for Striking Down Obamacare
JOHN BERMAN, CNN ANCHOR: This morning, a major legal development that puts the fate of Obamacare in jeopardy. The Trump administration has made its official argument for striking down the Affordable Care Act, all of it, insisting that if the individual mandate is unconstitutional, so is the entire bill. Actually, what happened is, if the individual mandate is no longer in effect because it was struck down as part of the tax bill last year, they're saying the entire bill is no longer in effect. Let's discuss with Elie Honig, former federal prosecutor and CNN legal analyst, and Julie Rovner, chief Washington correspondent for Kaiser Health News. And, Julie, I want to start with you to remind people, look, Obamacare has had an evolution in public opinion. It was very controversial. Then it went into effect and slowly but surely it is gaining in popularity. But if it were to disappear from a judge's ruling, what would be lost?</s>JULIE ROVNER, CHIEF WASHINGTON CORRESPONDENT, KAISER HEALTH NEWS: Well, basically everything that people like, the requirement for people to have health insurance was the only really unpopular piece of the Affordable Care Act. Things like protecting people with preexisting conditions, expanding the Medicaid program, letting adult kids stay on their parents' health plans, menu calorie labeling, allowing for generic biologic drugs, all of those things are quite popular and they would all go away if this law is struck down.</s>BERMAN: And, Elie Honig -- and, again, my clunky introduction, the reason I corrected myself about the individual mandate being unconstitutional is because the Supreme Court didn't decide that. What actually happened from a legal standpoint was when Congress passed the tax bill in 2017, they removed the penalty for the individual mandate. And a Texas judge has decided, well, if that penalty is gone, if, in fact, enforcing the individual mandate goes away, then the rest of the bill, all of it falls apart. How is that legal reasoning in your mind?</s>ELIE HONIG, CNN LEGAL ANALYST: So, John, the key legal concept here is what we call severability, and that means basically, as you just laid it out, if you pull out or eliminate one provision of a complex law, and this is about as complex as laws get, does the remainder of the structure stand without it or does the whole thing have to come tumbling down? Think about the kids game Jenga. When you pull out that one block, does the structure remain in place or does it all come crumbling down? And the administration here has changed its position. Initially the position was, yes, the remainder of Obamacare, ACA, can stand without this one piece, the individual mandate. Now they've changed course and said, no, the whole thing has to come tumbling down. And, look, there's a real threat to the future of the ACA here. The administration's view prevailed in the district court, in the trial court in Texas. That judge said the whole thing has to come down. Now, that's on hold as we work our way through the appeals courts.</s>BERMAN: Right.</s>HONIG: The next step is the Fifth Circuit Court of Appeals, which is famously conservative in ideology, and then potentially the Supreme Court.</s>BERMAN: We'll come back to that in just a moment. Julie, I do want to ask you about preexisting conditions, because of all the buzzwords surrounding Obamacare, that is the one I think that comes up the most, and one in which the administration and the president insists, he says I'm for preexisting conditions. I will protect preexisting conditions. But -- and this is what I hope you can explain -- in previous Republican versions of bills to replace Obamacare, they would allow waivers for something called the community rating, which means what for people with preexisting conditions?</s>ROVNER: Well, community rating is what says that insurers have to sell to everybody at the same price regardless of whether they have preexisting conditions and are likely to use that insurance. It was interesting, the Trump administration's original position on this lawsuit was that most of the rest of the law could stay, but without the penalty for not having insurance. The community rating, the selling to everybody at the same price, and the guaranteed issue, meaning selling to everybody even if you're sick, would have to fall down, which, of course, is politically the opposite of what they want and Republicans say what they want is to protect people with preexisting conditions. So they're in this very awkward position. On the one hand, the president keeps, you know, urging Congress to protect pre-existing conditions. On the other hand, they're already protected unless the ACA falls.</s>BERMAN: And, of course, if the community rating goes, it means that, yes, maybe you guarantee the right for people to get insurance if they have preexisting conditions, but if you don't guarantee the price, that might make it prohibitive for people with preexisting conditions, correct?</s>ROVNER: That's correct. And, you know, what's interesting is, everybody, including the Supreme Court, thought that the Affordable Care Act wouldn't work without the penalty, to urge healthy people to buy insurance. It turns out that what's been much more important are the subsidies, are giving people help to buy insurance. So what we saw in 2018, or when the penalty went away is that -- or 2019, this year, is that almost as many people bought insurance as bought insurance the year before when the penalty was there because they still had that financial help to buy the insurance. So it turns out the financial penalty maybe isn't all that important to allowing the law to work.</s>BERMAN: And, Elie, back to the courts, because you said something very important, and William Barr, in testimony a few weeks ago also said very important, he made the strange argument, you know, I don't think the courts are going to overturn all of this, so it may be nothing we have to worry about. But do we know that for sure?</s>HONIG: No, I wouldn't be complacent, John, on either side. This is going to be a really close call in the courts. Round one went to the strike it all down side. We're now in round two. Again, they're very conservative. And it could go to the Supreme Court. Now, if it goes to the Supreme Court, we're going to have a very close call here. In 2012, when the ACA came up for the first time, it was only upheld by one vote. It was a 5-4 decision. Chief Justice Roberts surprised a lot of people and swung over and voted with the perceived liberal block to uphold it. But the problem is, Chief Justice Roberts rested his vote on the very thing that is now gone, the individual mandate. He said that's a legitimate exercise of the tax power. So we're going to be in sort of razor thin margin territory here.</s>BERMAN: All right, Elie Honig, Julie Rovner, thank you very much for being with us. I really appreciate that discussion. Now, other news, a student who was killed during the shooting at the University of North Carolina is now being praised as a hero. What police say he did that may have saved lives. That's next.