The NPR Politics Podcast - SCOTUS on Travel Ban/CBO on Health Care

Episode Date: June 26, 2017

The Supreme Court takes action on President Trump's travel ban, and the Congressional Budget Office scores the Senate health care bill. This episode: host/White House correspondent Tamara Keith, Justice correspondent Carrie Johnson and editor/correspondent Ron Elving. More coverage at nprpolitics.org. 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 y'all, Sam Sanders here. These days I feel like I can't make sense of the news until I've talked it out with my friends. So, I made a new show where we do that every week. It's called It's Been a Minute. That's my way of saying, let's catch up. Find It's Been a Minute now on the NPR One app or wherever you get your podcasts. Thanks. Hey y'all, this is Christina Kulikowski from Austin, Texas. The following podcast was recorded at 5.05 p.m. on Monday, June 26th. Things may have changed by the time you hear it. Keep up with all of NPR's political coverage at NPR.org, the NPR app, or your local public radio station. All right, here's the show.

It's the NPR Politics Podcast, here to discuss Supreme Court action today, allowing parts of President Trump's travel ban to take effect, and a brand new analysis of the Senate health care bill from the Congressional Budget Office. I'm Tamara Keith. I cover the White House for NPR. I'm Carrie Johnson, justice correspondent. And I'm Ron Elving, editor correspondent. All right. So today is one of those big news days. You might say. And it was fun. I don't know if fun is the right word, but standing at my little standing desk next to your two standing desks,

watching you watch the Supreme Court opinions and other actions, just sort of orders roll in slowly during that 10 o'clock hour. It's an exercise in speed reading. It doesn't seem so slow when it actually gets going. So we started today thinking that this podcast was going to be about the CBO score, the Congressional Budget Office score of the Senate health care bill. And we are going to get to that in the second half of this podcast. But the Supreme Court did some stuff today that is absolutely worth talking about. Ron, the big one. The big one is the travel ban, because the president's travel ban, which was initially

ordered as an executive order in January, struck down in the courts, brought back in a revised form, struck down by the courts again, was batting zero in the appeals courts up until now. And now the Supreme Court has said, no, we, the Supreme Court, want to review those appeals court decisions, and we will do that in October. And perhaps most significantly, in the meantime, we're going to let part of the president's travel ban take effect as it affects people coming to this country from six predominantly Muslim countries who do not have a family already here or a job or, say, a university. Yeah, that's what the court's talking about here with respect to a bona fide relationship, a relationship to U.S. persons who have U.S. constitutional rights. And that's been an open question. A bunch of people, refugees, for instance, may not have any relationship at all to the United States other than the fact that they are seeking a place to

resettle. So the impact of this action today by the court will be great on those people. They will be, you know, zeroed out of being able to come. But folks who have a mother-in-law, a close family member overseas and want to bring them here, that's a different story, the court said today. Now, we should say that the ban is being reinstated and the court orders against it are being lifted temporarily because the really important thing is that the court is going to review all of this in the fall and they they could go all the way in one direction or the other, or they could continue to split the baby after the manner of King Solomon. Well, you know, I think the court left itself a couple of off-ramps here. One is this whole issue of when the 90-day period for vetting was supposed to begin and when it's supposed to end. You know, the administration had said it wanted to take extra time, temporary pause, to do some real vetting of

these countries and their security protocols. To sort of review all of the different countries and how they screen people and all that. Yeah, and relationships with security services there to see what they could find out about people applying to come here to the U.S. Now, it's not at all clear to me that by October, when the court is going to hear this case, that that period of vetting will be over and the court could use that as an off-ramp, say that the timer in the kitchen has ticked down and buzzed, and, hey, this thing is moot because you had enough time to do your vetting. The court could do that. We just don't know for sure.

And there's another off-ramp? Yeah, it has to do with standing. This notion that you have to have suffered an injury in order to be able to sue. There's a question about whether some of these plaintiffs in the travel ban cases actually have suffered an injury or will have suffered an injury by the time... Come October. Come October. And if the government decides to grant some of these people's relatives visas, for instance, they could be zeroed out of the case, leaving very few, if any people, withstanding left to sue by the time this case gets argued. So the president today, some hours after this came down, tweeted the following,

and I'm hoping you guys can just sort of explain what this means. He says, quote, very grateful for the 9-0 decision from the U.S. Supreme Court. We must keep America safe, exclamation point. Well, that's going to give the impression to an awful lot of people that the entire travel ban issue has been resolved forever. That did not happen. They could have refused to take the case. They could have said, no, we're going to let the circuit court rulings striking down this ban stand.

And that would have been the end of the travel ban forever. They did not do that. And in that sense, the president is correct. That is a victory for the president that the court is even taking it up. Correct. Now, to imply that the whole issue has been resolved in the president's favor, of course, is premature. Well, in fact, three of the justices, Samuel Alito, Clarence Thomas, and the new justice, Neil Gorsuch, have said that they would seek to reinstate the ban in its entirety right now. So it's not unanimous in any sense of the word. Because there's six other justices that we don't know exactly what they would want.

Yeah, exactly. Aside from President Trump's tweet, the White House actually put out a statement that read as if it had been written by a lawyer, of all things. And it talked about the president's power to protect the nation's security and his power as commander-in-chief under the Constitution. That's the central issue in this case, really. They're going to either defer to the executive authority that is traditional or decide that this is a very untraditional president who is motivated by other things, perhaps religious animus, as some of these lower courts have. And we'll see where it goes from there.

And it's interesting that you should read a tweet in part of this discussion, because one of the issues here is going to be whether or not the court considers strictly the record, or whether the court also considers the impetus behind the president's actions, as revealed in his tweets. Well, and there was a development on the tweets as official statements front over the weekend, which on Friday, I believe it was, there was this deadline for the White House to respond to the House Intelligence Committee to say whether there were tapes of the conversations with Jim Comey. And the White House did respond. They sent a letter that basically said, yes, the president put out a statement on Twitter. Here are the tweets. We've responded. So the tweets are official statements from the president of the United States. The White House has conceded that. Officially official. Officially. And the issue is moving forward. We know this is going to be a litigated presidency.

Pretty much everything this guy wants to do is going to wind up in the courts one way or the other. And that's an entryway to enter his tweets into evidence, too. Okay, so the Supreme Court weighed in on a couple of other things. There's one other case that they have decided to take up. Carrie? Yeah, it's a case involving private businesses. In this case, a cake shop called Masterpiece Cake Shop in Colorado can refuse to bake a cake for a same-sex wedding. And in the lower courts in Colorado, the courts sided with this gay couple to say, your rights are being abridged here. And this cake artist, as he calls himself, can't refuse to make your wedding cake on those grounds.

And he may also have some rights as a free expression because he doesn't want to use his artistic expression to support something that his religious principles tell him is wrong. So, all right, there are some very interesting issues here to play out as well. It's really a clash between the emerging jurisprudence of Anthony Kennedy and others, which has gone farther and farther over time in protecting the rights of LGBTQ people versus other folks who want to assert their religious freedom. And that is going to be a test for some time to come. Coming into today, there had been a boomlet of rumor that Justice Anthony Kennedy might be considering retiring. Yes, because he is about to be 81 in July, and because he is the longest serving justice.

And he had this party for his clerks that sort of sounded like a reunion of people to celebrate his retirement. And there were just a lot of signs. But on the other hand, he has never said that he was considering retiring. And he has every reason, as I think Kerry has just given us an example, to want to stick around and be the most important judge in the world, because he is casting the five in a lot of five to four decisions. You know, I must say, I was surprised by how fevered the speculation got about his retirement and a little bit annoyed too. But I have to tell you, there's

a reason for that. Because when Neil Gorsuch joined the court, he took Scalia's seat and it basically kept the teeter-totter in line. The essential balance of the left-right court remained the same. Anthony Kennedy has been the swing vote on abortion, capital punishment, and a number of other major issues. And when he goes, it is going to be huge. And so I sort of get why it got so hot in the last few days. And this particular case is one of those areas where his presence would be strongly felt. Yes. His decision two years ago today in legalizing same-sex marriage is one he'll be remembered for for some time to come.

And we should say that although there is no reason to think that Anthony Kennedy is just teasing us here, there was an instance not long ago when somebody retired two days after the session had ended. But we would rather have expected it to come today, but it could still come today and it could still come tomorrow. And absolutely, it's up to him. When he retires, he can do it any old time. Or somebody else could retire. Like Clarence Thomas, also the source of fevered speculation, although slightly less fevered. And we're not going to try to pronounce Obergefell.

Oh, sure we are. Obergefell. Obergefell? Come on. Those of us who have spent time practicing to say Obergefell want to be able to say it as often as possible. I'm impressed. Dear listeners, that is the name of the case that none of us could actually pronounce that led to the national legalization of gay marriage two years ago today. So there is one more case, and this was an actual decision that came down today related to playground equipment and religious freedom, separation of church and state. It's pretty important which of those two things you put first, because this is either a case about playgrounds or it's a case about allowing parochial schools

to have access to taxpayer funds, which would be an enormous change in American life. This is a Lutheran school, Trinity Lutheran in Missouri. And the state courts there said, no, you know, you can't apply for one of these grants that we're giving to nonprofits that are doing things like resurfacing playgrounds. This particular church school wanted to resurface its playground. And it was determined that because they were a church, they simply couldn't have taxpayer funds. Well, seven justices today, seven is a pretty rare majority. Seven justices today said, you know, that's going a little too far with this church-state separation thing. All the folks want to do is have a safer playground. And after all, they're a nonprofit. They qualify in every other way. So you are singling them out

and saying you are not eligible because you're not just a normal nonprofit, you're a church. And as John Roberts wrote, that is odious to his reading of the Constitution. But Carrie, there was a dissent. Yeah, and it was hot. Justice Sonia Sotomayor took the unusual step of reading her dissent from the bench. She said that the majority ruling here would essentially tear down the wall between church and state that this country had erected and that something like 38 or 39 state constitutions had built up over time. She said this jeopardizes the government's ability to remain secular. She said that efforts to try to limit the ruling to be just about protecting kids from their shins and ankles getting hurt on the playground,

she was very suspicious of that idea and seemed to think that this decision today would be used in much broader ways moving forward. And of course, it could be the nose of the camel under the tent from the standpoint of those people who want to make sure that that firewall remains in place. If a school can get money for a playground, why couldn't a school get money for a new wing on the school? Why couldn't it get money for something else other than the teaching of religion? Well, you know, money is fungible. You get money for one thing, perhaps the school has a little money left over to do the other. So you're helping parochial schools if you give them any taxpayer money at all. And that could open up the bloodgates, if you will, for every religious institution in the country to get its hands on some kind of a taxpayer grant.

Now, we should say that this is an unusual kind of thing, but in this opinion, there is a footnote, footnote three on the case, which says that they're talking about playgrounds here, and they don't think that it necessarily applies to other things that might get taxpayer money at a parochial school. They wanted to make that clear. Just playgrounds, just this case, and only two of the justices went so far as to say we're actually not on board for that. We like the broader application of this reasoning. And those two were the newest, Neil Gorsuch, and the next oldest or longest serving, Justice Clarence Thomas. OK, so, Carrie, you get to go back to your desk. All right. Continue reporting. OK. And we're going to tag in Danielle Kurtzleben, who is going to talk with us about the CBO score of the Senate health care bill.

So thanks, Carrie. Thank you. And we will be right back. And we are back and we are joined now by political reporter Danielle Kurtzleben. Hello, Danielle. Hi, how are you? Oh, I'm good. And you are here with a 49-page document. 49 pages, including tables. There's a lot to go through here.

We killed so many trees just now. Yes, but look, see, I printed on the other side of used paper. Boom. Okay, so what we are talking about here is the score from the Congressional Budget Office of the Senate health care bill, which could be voted on as soon as the end of this week. Correct. And that's quick. What does this thing say? All right. So here are the headline numbers you're probably going to be hearing and reading about over the next few days. It says that over the next 10 years, the CBO usually uses a frame of a decade,

that this bill will lead to 22 million more uninsured people than current law would. This is slightly fewer than the House AHCA would have. That said, 23 million more would be uninsured in 10 years. It's still like millions of people. That's still a lot of people. And really, that increase would start next year quite quickly. This CBO report says that 15 million more people would be uninsured under the Senate bill next year compared to current law. Now, that is because it repeals the individual mandate, the CBO says. You would have a bunch of people who just would say, all right, not going to buy insurance then. However, after that, things that would tend to increase the number of uninsured would include lower subsidies, meaning people might decide, well, I just don't have the money to buy this

insurance, so I just won't. And also, by the way, Medicaid cuts, which would end up taking people off the Medicaid rolls. And Medicaid is the health care program for the poor in America, which was expanded under the Affordable Care Act. And which would be rolled back. It's going to be rolled back because it now applies to some people who are well over the poverty line. They may not be affluent, but they are over the poverty line. Right. Absolutely. And so let's get to the other big thing that people were looking for out of this bill.

What will it do to the deficit? This bill, the Senate bill, would reduce the deficit by $321 billion over 10 years compared to current law. Now, that is much bigger savings than the House AHCA would have saved. That bill would have saved $119 billion. So this will probably, I imagine, make Senate Republicans happy. They have, you know, more money to fiddle with here. Yeah. So, Ron, we were talking about this. It's like walking around money for Mitch McConnell, the majority leader in the Senate.

Yeah. Let's make clear what we mean here. There are eight or nine or some number that we haven't entirely determined, Republicans who haven't signed on to the bill. We have five who have come out and said, right now, I can't vote for this. In its current form. In its current form, knowing, of course, that it's going to be amended, knowing, of course, that there will be commerce that will go on between them and the Senate leadership. And then we have a like number of people who just haven there really isn't much support for that scourge in the bill as it stands. Yeah. So this is something that I've been working on a story about. And so I've dug in a little bit on this. Currently in this bill that the Congressional Budget Office just scored, there's a $2 billion fund to help deal with the opioid crisis. Drop in the bucket. Right. Some senators from some key states who are struggling with the issue of heroin and fentanyl and all of these other opioids, they want that to be $45 billion.

Well, they sort of had that $2 billion in as a placeholder to wait to see how much money was available. Well, there's money available. Looks like it's going to get much bigger, and it may be targeted to the states of people who have a particular problem, either in the Medicaid category or in the opioid category, and who might just be people who at this juncture haven't endorsed or committed to voting for the bill. And just to get down in the weeds a little bit on the opioid thing, I was talking to an economist today at Harvard who said that even that $45 billion would be woefully insufficient if all of these other Medicaid cuts went through.

But it would look a lot better than $2 billion and give everybody a chance for a little political relief. Right. And by the way, there is one thing that this bill does or would do is it gives states broad leeway to get these waivers called 1332 waivers, waivers where you can say to the federal government, hey, I want my state to be able to opt out of certain things, for example, essential health benefits that were included in the Affordable Care Act. And we've heard a lot about essential health benefits. Correct. So the CBO report says, you know, listen, and this is a quote, if the essential health benefits were modified to drop coverage of services that have high costs

and are used by few people, for example, maternity care, mental health care, and rehabilitative and habilitative treatment, a.k.a. Opioids. Something that might include, you know, for example, maternity care, mental health care, and rehabilitative and habilitative treatment, aka... Opioids. Something that might include, you know, opioid treatment, then that could greatly increase the cost of those things to people in those states. Because, you know, you can see a state being willing to say, you know, not many people use this. It's expensive.

We don't want to have to help pay for that as much. So you can see why people, why under this bill, people in some states would say, you know, we really could use a lot more money for something like opioid treatment. I want to just pull back a little bit. You know, the promise coming in from President Trump was and for many of the Republicans in Congress is we're going to lower your premiums. Now, in my sprint read of this, it says that in the first couple of years, maybe premiums would go up, but that in the long run, premiums would go down. But that isn't the whole story. Right. This is the way you get the numbers down in terms

of premiums, by offering people less for less money. So less for less money. Correct. It's not that hard to get less for less money. If we were to put a headline on what this does, is that it? How about less for less for fewer? Less for lower premiums, I suppose you could say. But once again, it could increase your out of, like, depending on who you are and depending on what you need, it could very easily increase your deductible. I mean, the deductible on a bronze plan right now is somewhere around $6,000, which is, I believe, about double of what it is on a silver plan. Which means that you don't get anything back from the insurance company until you've had $6,000 out-of-pocket costs? Correct. Ouch. Yeah. So it's something

to that effect. So this means, you know, my premiums on a bronze plan are probably, you know, a lot lower than on a silver plan. But then when I do need to get that health care, then I'm going to end up having to throw a lot of money at it. Now, in terms of the increase in uninsured, what the CBO says is the increase would be disproportionately larger among older people with lower income. Like Ron said, particularly people between 50 and 64 with incomes of less than 200 percent of the federal poverty level. So if you are older and poor, then you may well see fit to just not get insurance because, you know, if you're making, you know, $16,000 a year and you see a $6,000 deductible, then you might think, well, what's the point? And if you're older and

poor, you're more likely to need health care. Now, the argument in favor of this bill in terms of that, you might say, well, states are going to have flexibility to fiddle with their insurance markets and states will have these what these stability funds to help try to improve life for people who have high cost conditions or that sort of thing. Right. So if you go through the list of complaints about the Affordable Care Act right now, are there things that this helps fix? Like right now, there are a lot of places where there's only one insurance provider, where you don't have a lot of options if you're just out there trying to buy insurance for yourself. Does this stabilize the market or create more competition and options for people? In some places, it should. We just heard this afternoon that Anthem, one of the big health insurance outfits, has endorsed the Senate bill. It says it will help stabilize the market in some places. And Anthem's one of the ones that's been pulling out of some of the locations where they had been providing insurance but now don't want to write anymore. And there's been a great deal

of uncertainty about what was going to happen in terms of federal policy, because this has been pillar to post for years now. No one has been willing to do any improvements or tweaks on Obamacare because they wanted to repeal it in an all-Republican Congress. And so they have the all-Republican Congress, and they're a Republican president, and they're going to pass something, one presumes. And so there should be greater stability in the market. That's a help right there. Right. But, I mean, looking through this report, you know, the report does say that right now there is stability in most areas.

Now, granted, if you're looking at an area with, you know, without an insurer in the market, that doesn't do you much good. Parts of Tennessee. Right, exactly. Ohio. And there are other states that have been hit in the far west. Most definitely. So the report does acknowledge, but it still says stability in most areas. But it also says that this bill would continue stability, quote, in most parts of the country.

So... It's not perfect. But the point being, this report doesn't seem to say that there is a massive improvement in stability. And one area that it said could be unstable under this bill is places, sparsely populated places, a.k.a. rural places. A.k.a. the places that are having problems right now. Yeah. And places that also, by the way, really supported our president and supports Republicans in many cases.

OK, can we have a brazen political conversation here? Most of this would not take effect until after 2018, and a lot of it wouldn't take effect until after 2020. So is there a political calculation here that there's no price to pay? Surely the political pain of this is delayed as much as is practicable. But there will also be unintended consequences. There will be reactions from insurers. There will be reactions from individuals making different decisions. So we don't really know what the political effect will be. We do know that the bill is not popular as it's been distributed around the country. Not

that everybody has perfect knowledge of it. I'm not sure anyone has perfect knowledge of it, including ZBO. But insofar as people learn about it, they're disturbed by a lot of it. And so it may have a political fallout just in prospect. Not only that, but the rollback to Medicaid expansion starts in 2021. So right after a great big election. For the president. Right. And, you know, as you said earlier, after 2018, which is, of course, the next congressional election.

So, yeah, all of this is calculated. All of the things that are going to be done in the next few days to try to win votes in the Senate are also highly calculated. This is how you get it done, they're going to own it. And anything people are unhappy about in the next couple of years or the next decade is going to be on them rather than on Obamacare. Right. And I'll point out that right now the American people have more confidence in Democrats than Republicans on health care. At least that's what a Gallup poll showed that came out today. By and large, Americans said that they believe Democrats are better at doing health care policy than Republicans. There are plenty of areas where Republicans were ahead, but not this one. All right. Well, we will be back on Thursday, at which point we might know how this is all turning out and whether the votes are there and whether Mitch McConnell is able to cobble together a coalition to make this thing pass. Or we might not know.

But we will be back on Thursday regardless. Either way, we're here. Okay. Until then, keep up with us on Twitter, Facebook, and Instagram and at NPR Politics. Also, make sure you're downloading Up First every weekday morning. And support the podcast by supporting your local public radio station. Find yours and donate at the link in our episode data. I'm Tamara Keith. I cover the White House for NPR.

I'm Danielle Kurtzleben, political reporter. And I'm Ron Elving, editor correspondent. And thank you to Kerry Johnson, who was in here earlier. And thank you all for listening to the NPR Politics Podcast.