The NPR Politics Podcast - Judge Calls The Affordable Care Act Unconstitutional; More White House Staff Shakeups

Episode Date: December 17, 2018

A federal judge in Texas issued a ruling Friday declaring the Affordable Care Act unconstitutional, apparently setting the stage for another hearing on the health care law by the U.S. Supreme Court. Plus, President Trump names Mick Mulvaney as his Interim Chief of Staff, and Ryan Zinke will step down as Secretary of the Interior amidst allegations of ethics violations. This episode: White House correspondent Tamara Keith, White House correspondent Scott Horsley, and national political correspondent Mara Liasson. Email the show at [e-mail]. Find and support your local public radio station at npr.org/stations.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hey, Tam. Hey, Scott. So I cover Congress, you cover the White House. But before we both did that, we were both member station reporters. Where we covered politics. I started at KQED. I was at WOSU in Ohio, KPCC. And I also worked at KQED.

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This podcast was recorded at 1.43 p.m. on Monday, December 17th. Things may have changed by the time you hear this. All right, here's the show. Now that's what I call a pledge premium. Congratulations and thank you for giving to your local public radio station. Hey there, it's the NPR Politics Podcast. A federal judge ruled that the Affordable Care Act is unconstitutional, and President Trump found himself a new chief of staff. Acting, that is. I'm Tamara Keith. I cover the White House. I'm Scott Horsley. I also cover the White House. And I'm Mara Liason, national political correspondent.

Okay, before we really jump into what this ruling does, Scott, let's just start off at the beginning with a disclaimer that nothing is changing, right? At least not right away. That's right. This ruling, which came from a federal judge in Texas, is sure to be appealed to the appellate court and perhaps all the way to the Supreme Court. And until that legal process plays out, no less authority than the White House has said, we're going to stick with the status quo for the time being. Which is not to say it's not important. Right. It definitely could have massive implications for the entire health care system if it is upheld. At some point in the future.

And that is a very big if. Can we just walk through what the lawsuit was that led to this ruling and what the judge is saying here? It was a lawsuit brought by a bunch of Republican state officials, mostly attorneys general, a couple of governors, and they were challenging the entire Affordable Care Act because of a change that was made in late 2017 as part of the GOP tax cut. Remember, one feature of the tax cut was to zero out the tax penalty for people who don't buy health insurance. So these state officials said, well, now that Congress has taken away the tax penalty for people who don't buy health insurance, everything else in the Affordable Care Act has to go away too, which is kind of an interesting legal argument.

But this judge in Texas, this federal judge in Texas, agreed and ruled late Friday that the entire Affordable Care Act is therefore unconstitutional. Mara, can we just run through some of the things that are part of the Affordable Care Act is therefore unconstitutional. Mara, can we just run through some of the things that are part of the Affordable Care Act? Well, there are a lot of very popular things that have been politically adjudicated in several election cycles, but one of them is a rule forbidding insurers from charging more to people with pre-existing medical conditions. There's the rule that young people can stay on their parents' health insurance plans until they're 26 years old. There's the expansion of Medicaid,

which many states, including those with Republican governors, have taken advantage of. So politically, this is an excruciating decision for Republicans, because even though the president has been tweeting triumphantly about it and saying, this is so great, it's unconstitutional, the Supreme Court will uphold this. The fact is that Republicans just went through an election where they tried to convince voters that they didn't want to get rid of any of the popular provisions of Obamacare. But now Democrats can say, aha, a bunch of Republican attorney generals brought this case. The president is thrilled about it. And Republicans, despite their promises, have not been able to pass a replacement for Obamacare. That was one of the most politically painful failures of the first two years of the Trump administration. They just couldn't pass anything.

Who is affected by the Affordable Care Act? Well, that's a good question. Broadly, the Affordable Care Act has really reshaped the insurance market for the whole country. The fact that the uninsured population has been driven down affects the cost shift, affects the extent to which people who get insurance through their employer, for example, and that's the majority of Americans, are having to subsidize the uninsured. There are changes to the way insurance companies are rewarded that affect the broader insurance market. So really, this has tentacles that reach into a huge part of the U.S. economy. I think it's 17% of GDP right now is the health care system.

And even if you don't think you are affected directly by the Affordable Care Act, this act and the ultimate outcome of this legal challenge could have a bearing on your own coverage. Okay, so let's just run through where this goes from here, because there is the assumption that it will be appealed. And it's going to be appealed initially by Democratic-controlled states, just as Texas and Wisconsin, the Republican attorneys general in those states led the campaign, joined by a lot of their Republican colleagues at the state level to overturn the ACA, now you have in New Orleans, has a reputation as being a fairly conservative appeals court. So I suppose this has maybe a better chance there than it might in a more liberal appellate circuit. But if the Fifth Circuit reverses this decision and says, no, the ACA remains in effect,

that's probably the end of the line. If the Fifth Circuit, on the other hand, upholds this judge's decision, then it'll almost certainly go to the Supreme Court to make the ultimate ruling. And the Supreme Court has twice already upheld the Affordable Care Act. And there is nothing about the new lineup at the court that suggests that the balance of power on this issue has changed. Explain what you mean, Mara. In other words, the conservative justices who retired and voted to undo Obamacare have been replaced with conservative justices who would vote the exact same way. In other words, the balance of power remains the same as long as John Roberts, who is responsible for Obamacare surviving, continues to vote to keep it in place.

That's right. The big challenge to Obamacare in the Supreme Court was in 2012. And the big part of what was being challenged was the so-called individual mandate, this idea that everyone had to obtain health insurance. And John Roberts, along with the four liberals on the court, concluded that, no, Congress has the power to tax. And since the only real teeth of the individual mandate is this tax penalty, when you don't buy insurance, that's constitutional. And all the people that came to that decision in 2012 to preserve the Affordable Care Act are still on the court today. We are going to keep following this as it winds its way through the appeals process. But bottom line for now is nothing is

changing just yet. We are going to take a quick break. And when we get back, President Trump finds himself a chief of staff. Support for NPR and the following message come from Walmart. Walmart is using virtual reality to train managers and associates on everything from customer service to adopting new in-store tech. Here's Senior Director of Digital Operations, Brock McKeel. With VR, I'm able to do a lot of that training in four and five minute segments. And now I can bring that technology to them and it's accessible and it's fun and it's engaging. We focus on three things for VR. It's bringing to life the things that we don't want to create in

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reminder that if you like what you hear, you can support this podcast by supporting your local public radio station. Just go to donate.npr.org slash politics to support fact-based journalism. OK, back to the show. And we're back. And Mara Liason, last week we did a lot of podcasts. One of them was about President Trump's chief of staff, John Kelly, leaving. And you listed off a bunch of names of potential replacements. Maybe Mick Mulvaney, who already has 100 jobs in the cabinet, maybe he could add one more. Ding, ding, ding, ding, ding.

Ding, ding, ding, ding. Mara Eliason, you picked the chief of staff. Or at least the acting chief of staff. I picked the acting chief of staff. Mick Mulvaney is kind of a jack of all trades. He's available for whatever job you need in the administration. And when President Trump had trouble finding the chief of staff job because at least two of the people that he wanted or was said to want turned him down. So he was having trouble replacing John Kelly, and he turned to Mick Mulvaney, who is the acting chief of staff. We are going to talk about what we think it means that he is acting in a moment.

But first, Scott Horsley, who is Mick Mulvaney? Mick Mulvaney is a former congressman from South Carolina. He was first elected in 2010 as part of the sort of Tea Party rebellion. He has a reputation as a fiscal conservative, even though as budget director he has presided over the ballooning of the federal deficit. But he does have experience on Capitol Hill, which could be valuable. It's something that his predecessor, John Kelly, the retired Marine general, did not have. So there's maybe an expectation that Mulvaney will be a little bit more politically attuned than John Kelly was. Although he did once refer to himself as a

right-wing nutjob. He's a funny guy, too. It should be noted that he is funny and self-aware. And Tamara, you reported back in 2012 on a study that found that he was the most plain spoken member of Congress of anyone in the House of Representatives. Yes. And he took that as an insult. He was not happy with my story. Tam's not getting invited to the Chief of Staff's cocktail hour. Absolutely not. But President Trump didn't look very far to find him because Mick Mulvaney of the federal government if they can't agree on a spending deal by the end of this week, and walked out of that meeting with the acting chief of staff's job because Trump was tired of reading all these stories about people who'd been turning him down. Mara, do you have any idea what they mean by acting? I think he just isn't willing to say that Mick Mulvaney is my chief of staff. He still wants to keep looking. I wouldn't be surprised if Mick Mulvaney is the acting chief of staff for the remainder of the term.

But I think that the president was frustrated by the stories that he was having trouble filling this position because he kept on saying and tweeting that many, many people want this job. And there were many people that wanted the job, but some of them were not as qualified as the president wanted. Let's move on to the Interior Department. We learned via tweet Saturday morning that Ryan Zinke, the secretary of the Department of Interior, is leaving. And the horse he rode in on. Ryan Zinke famously rode up on horseback on his first day as Interior Secretary, and he didn't make a lot of friends in the environmental community. And I think it was the Sierra Club in a press release chortling over his departure on Saturday

used that line about the horse he rode in on. The reason for his departure, Zinke later put out a statement saying basically, there were going to be all these investigations, all these people are accusing me of all kinds of things, and I didn't want to spend the money and put my family through defending myself against all of these baseless, he says, allegations. Which is an incredibly honest thing. Usually people leave because they say, I don't want to be a distraction or I want to spend more time with my family. That's pretty straightforward. Yeah, but I'm not sure he's going to save a lot of money in his defense fund by leaving. I don't think these investigations are necessarily going to simply go away. This is another case, though, like Scott Pruitt, of the EPA, where Zinke was very much

carrying out the policy wishes of the president. This was not a case where there was any sort of policy disagreement between Donald Trump and Ryan Zinke. He was opening up oil and gas leases on federal lands. He was talking about offshore drilling. He was doing the bidding that this president wanted. But like Scott Pruitt, he also had all these ethical questions that were becoming a distraction. And those were ultimately what cost him the job. And like Scott Pruitt, his replacement will continue to carry out those policies. So there's not going to be any change in policy. Yeah. And we should just say that with Democrats taking control of the House in January, they were promising vigorous

investigations and hearings related to Zinke's tenure at the Interior Department, a land deal that involved his wife and a Halliburton executive, and various other things. So maybe we should just step back and get out our scorecard, which we know Tam has been keeping. Donald Trump likes to have the biggest and the best of everything. And I guess he's had the biggest number of staff turnovers. Oh, he is lapping the recent past presidents. And let's just talk about cabinet turnover. Chief of Staff is actually considered part of the cabinet. So if you include Kelly in this, along with Zinke and the parade of people who came before, President Trump has had to fill 11 cabinet level vacancies, which is remarkable.

Let's just put it into perspective. Mara, you covered Bill Clinton. He had a lot of turmoil. His administration was seen as, you know, completely unruly at the beginning. In the first two years, he had six vacancies to fill. Trump has had 11. George W. Bush only had one. President Obama had four. Yeah, there's no doubt about it. He said he'd have the best people. And he has not been able to settle on who he thinks is the best people. And let's just have a conversation that we will either play back later and see how smart we were, or play back later and see that we got it completely wrong. But we don't expect this to be the last person

to leave this administration. Oh, no. I mean, Kirstjen Nielsen, the Homeland Security Secretary, I think is widely expected to leave. She's been sort of protected in some ways by her mentor, John Kelly. And with him out the door, I think it would certainly not be surprising to see Nielsen follow him out the door. There's been suggestions that Wilbur Ross may be a short timer at the Commerce Department. And Jim Mattis. And Mattis is the Secretary of Defense. And you know, on the one hand, you could look at this and say all this personnel turnover is detrimental to carrying out the president's agenda. On the other hand, a big part of Donald Trump's agenda is to dominate the conversation. And to that extent, this has certainly kept the

focus and the spotlight on the Oval Office and the man who's making these personnel changes. Well, and also, he has, despite it all, been able to keep a lot of promises, in part because Congress was controlled completely by Republicans and they handed him legislation to sign. More of what his promises have been kept through the administrative process and through these various cabinet secretaries, some of whom are being rewarded with a pink slip. All right, let's leave it here for now. We will be back as soon as there is more political news that you need to know about. Until then, head to npr.org slash politics newsletter to subscribe to our weekly digest. It'll keep you up to date on

our best online stories and analysis. I'm Tamara Keith. I cover the White House. I'm Scott Horsley. I also cover the White House. I'm Mara Liason, national political correspondent. Who also covers the White House. Yeah. And thank you for listening to the NPR Politics Podcast.