Today, Explained - A preexisting debate

Episode Date: July 10, 2019

Obamacare is back in court. Vox’s Li Zhou explains how the healthcare bill might finally meet its maker and Ezra Klein explains why that might be great news for Democrats in 2020. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Depending on what hemisphere you currently are situated in, it might be summer. If so, that might mean you're traveling. And if you're traveling, you're going to need a travel toothbrush. Consider the Quip. Go to getquip.com slash explained where it starts at just $25. That's G-E-T-Q-U-I-P dot com slash explained where your first set of refills is free. Liso, Politics Vox, the Affordable Care Act was back in court just yesterday. What did it do this time? They are trying to question the constitutionality of the ACA yet again.

This would be kind of the third major lawsuit challenging the ACA and whether it can continue to stand as is. But I imagine they're questioning like a different aspect of it this time because that's what you got to do. Right, right. They are. And that's partly because things have changed. So in a previous lawsuit, the reason the ACA was declared constitutional was because of something called the individual mandate. A part of the law that said you have to have health insurance, right? Right. It was a penalty that you would have to pay if you don't have health insurance.

And it was intended to basically get healthy people to also get insurance and to distribute the risk that the market would have to bear across kind of all the various individuals who are part of it. And Republicans, I think, have long argued, even though this actually originated from kind of a conservative think tank, they now argue that by forcing people to have insurance, that's big government kind of getting involved and pushing people to get a product they don't necessarily want. And that went all the way up to the Supreme Court.

Yeah, yeah, that went all the way up to the Supreme Court. They ruled that it was constitutional, that it was considered a tax on people, and that that was acceptable. In 2017, the Republicans actually undid that penalty as part of their tax cuts. And so because the penalty no longer exists, this new set of plaintiffs is arguing that the whole law is no longer constitutional because it's gone. So what's at stake here with this case? Is it the entire kit and caboodle, all of Obamacare? Yeah, it's actually kind of tough to even really comprehend how much could change if the ACA was actually completely dismantled. About 20 million people were able to obtain coverage after the ACA was implemented and they would potentially lose their coverage.

On top of that, the ACA requires that insurance companies don't discriminate against people with preexisting conditions. So that's chronic illnesses like diabetes, for example. Insurers right now cannot charge those people more and they can't refuse insurance. But if the ACA were gone, it's possible that those protections would also be eviscerated as well. OK, so how did this particular challenge get started?

Where does it begin? This starts with a collection of about 20 state attorneys general from Republican-leaning states. It's led by Texas. And it's basically the next iteration of Republicans trying to take down this law. Like we saw them try to do it in Congress. We've seen them try to do in the courts. This is the latest example of that. And who's standing there defending the ACA again? So shockingly, not the Trump administration. Obviously not shocking when you talk about what Trump has said about the ACA and all of that. Obamacare is a disaster. But it is surprising because typically the administration,

the president, the DOJ is going to stand behind a law that already exists. And they've said, no, we're actually going to support the plaintiffs. Does Obama have to go do it himself? He's got a JD, right? I know he's got to come back. Instead, you have the Democratic states, attorneys generals stepping in. So California is a big one, as well as House Democrats who are stepping in to intervene as well. So what exactly is this appeals court looking at with regard to the ACA? is the second piece in this lawsuit process. So the first step that the lawsuit had to go through was kind of a district court hearing last December.

And in that hearing, the judge actually decided that he agreed with the Republicans and said that the ACA is unconstitutional. President Donald Trump, who tried to repeal this legislation earlier in his presidency, tweeted the ruling was not surprising and it was, quote, great news for America.

I think we did an episode on that one. I believe you guys did. And the appeals court is basically looking at his argument and trying to determine do they agree with him? And when this lawsuit was first brought, most people were surprised

that it even made it past the district court level because it was just such kind of a far-fetched argument to make. And part of the reason is because when you look at how a law should be treated, you look at the way that Congress handled it. So Congress decided to undo this penalty, but they left the rest of the ACA in place. So if you're just a straightforward person looking at how to interpret their approach to the law, that's pretty obvious. They wanted the rest of the ACA to stick around. And so for a judge to kind of impose his

interpretation on that and say that, no, actually what Congress wanted was to get rid of it all is kind of something that people think is too far reaching. So is the court just trying to figure out whether the lower court's judge made the right decision? Is that all that's really happening here? Just trying to figure out whether the lower court's judge made the right decision? Is that all that's really happening here? That's effectively what's happening. And in the lower court, what happened was he both said that the individual mandate is now unconstitutional. And he argued that because it's unconstitutional, the rest of the law is as well. Another thing they will have to consider is potentially whether the plaintiffs bringing the suit have the standing

to do so, and also whether the defendants who've opted to intervene have the standing to be part of it as well. What was said yesterday in oral arguments? What were the arguments that everyone was making? What did the judges have to say? What we heard was that the plaintiffs kind of continue to push this argument that the entire ACA should be invalidated. The individual mandate is unconstitutional and it is inseverable from the remainder of the law. While you have the Democrats basically arguing that, no, the two issues of the individual mandate and the law kind of writ large can be separated and considered differently. If you no longer have the tax, why isn't it unconstitutional? There are no negative legal consequences for going without health care coverage. You are violating the law.

You are not violating the law if you don't buy health insurance right now. Individuals who don't buy health insurance, nothing bad will happen to them. There are no negative legal consequences. Do we have any idea based on prior legal work what these judges might do here? Do we have an idea where they stand on the ACA? I think what has been interesting to see is that people have pointed to the fact that two of the three judges who are sitting on the circuit court were appointed by Republican presidents. And that that could give you a hint to maybe where their potential political leanings stand. Typically, judges are not supposed to be partisan. But as we know, that's not always the case.

And so I think when people are trying to read the tea leaves and see where things might fall, they look at that affiliation. So what happens if this appeals court rejects the Texas judge's decision? If they do, I think the likelihood of this case going to the Supreme Court is slightly lower, partly because that just means the status quo stays in place. And if they accept it? If they accept it, I think then you see the Supreme Court basically feeling like it needs to weigh it. Because at that point, this is another challenge that has gone to the actual constitutionality of the law. And even though the Supreme Court has already considered whether or not the ACA is constitutional, it might feel compelled to hear the case again. Right. So when is the decision expected from this Fifth Circuit appeals court in New Orleans?

It's sometime later this year. We don't have an exact date. And I think it just got started. So it might be a little while before we finally know. So in the meantime, what happens to the roughly 20 million Americans who currently depend on Obamacare? So the folks that who have been able to get additional coverage through ACA will be fine until a final decision comes out from potentially the Supreme Court. And I think what's interesting about the Supreme Court decision is that the timing of that will likely be sometime next spring, next summer, which puts it squarely in the center of the 2020 elections. If the Republicans finally succeed in killing off Obamacare, they could pay for it in the 2020 elections. Ezra Klein parses out the new Democratic debate over health care after the break. In another life, I used to love taking a nice two-week vacation.

Just abandon all your responsibilities, get out there, immerse yourself, forget what you even do for a living, and just take it all in. Now, the realities of the daily podcast not really so amenable to the two-week vacation, at least thus far. But, you know, I can close my eyes and imagine. Imagine that trip to the Seychelles. Don't know a whole lot about the country, but I know they got the best flag in the world, so it's got to be great. Sandy beaches, baby blue ocean, matching sky, tropical drink, and a toothbrush. A Quip electric toothbrush because a quip electric toothbrush

comes with a travel ready cover that acts as a stand it mounts to hotel mirrors and protects your brush from sandy swimsuits and luggage slip-ups the quip's making it easier than ever to keep up with your wake up and wind down routine when you're out of the office go to getquip.com slash explained g-e-t-q-u-i-p.com slash explained where the brush starts at just $25 and your first set of refills is nothing but free. Getquip.com slash explained. Ezra Klein, editor-at-large at Vox. On one side, we've got this lawsuit against the Affordable Care Act. And then on the other side, we've got 20 or something Democratic candidates proposing all sorts of different health care reform plans.

What is the connection here? Is there one? There's a huge connection here. I call this the Republican effort to pass Medicare for all. You have to go back a little bit. Senate Republicans trying to repeal and replace Obamacare and that vote coming up short. This is the closest we will ever get to repealing and replacing Obamacare.

America's Obamacare nightmare is about to end. We're going to continue to do everything we can to repeal the president's failed health care law. The law is a train wreck. The president has protected health care law. The law is a train wreck. The president has protected American big business. It's time to protect American families from this unworkable law. The whole theory behind the Affordable Care Act, it wasn't just a policy theory, though it had that. It was a political theory. And the theory was this. If Democrats pick up the plan that Republicans passed in Massachusetts under Mitt Romney, the kind of plan Republicans have been proposing for a long time where you use a lot of private insurance and an individual mandate and you regulate it so it covers everybody and doesn't discriminate against the sick, then a plan like that will command some bipartisan support, even if not in the initial vote over time.

And in commanding some bipartisan support, the Congress will work on it. It will get popular. They'll make it better. They'll improve it. The deductibles will get better. The whole thing will sort of enter into a self-fulfilling positive feedback loop. And then it didn't happen. Republicans looked at Obamacare, said it's the worst thing ever, the socialism in America.

And so it's been the Republican effort to destabilize us at every turn that has forced Democrats, instead of saying, OK, we did Obamacare, let's move on to universal pre-K or something, to keep going back to the well and then to decide ultimately that the moderates were wrong. There isn't any compromise here. There isn't a public-private hybrid system that the right will eventually come to listen to and love. And you just got to go full public. Before we get to all the plans that the Democrats have pulled out of that well, is that to say that Obamacare is all but a failure as an idea at this point? No, I don't think Obamacare has been a policy failure, but I do think it's been a half political failure. So on the one hand, Obamacare is currently insuring tens of millions of people. That's not a failure. A lot of people

who did not have health insurance before have it now because of Obamacare. And in addition, Obamacare did over time, in fact, become popular, so popular that every Republican effort to repeal the law has failed, including after Republicans captured the White House, the Senate, and the House. They weren't able to repeal Obamacare even under those circumstances because, again, Obamacare is popular. So in those ways, Obamacare was quite successful. The places where it hasn't been successful is, one, the idea that it would become something that had any bipartisan support at all. The idea that it would become consensus policy in America, that has failed. And then because that has failed, it is very hard. It is very hard to

run a healthcare system well when one of the two main political parties, and in fact, the political party that controls more forms of government, is constantly trying to sabotage it. I don't really think there's any policy that would succeed all that well under those circumstances, but Obamacare is certainly bearing the strain of that. And so if Obamacare was sort of the compromised version of a health insurance program that would ensure all Americans were covered, what are Democrats now pulling out of that well you mentioned earlier? How do we think about the spectrum of ideas that are out there right now? Right now, the strongest version of Obamacare

is the furthest right thing you really see in the Democratic presidential campaign. The window has shifted way to the left. And so you have on the left, Bernie Sanders and his plan has been endorsed in different ways by Elizabeth Warren and Kamala Harris and co-sponsored even by others like Cory Booker. And his plan says you're going to have Medicare for all, but it's not Medicare as we know it. It's really a new program that he's calling Medicare.

That program will be more generous than Medicare is now, or, and this is important, more generous than any other public insurance program run by another country is. So it will cover literally everything with no co-pays and no deductibles, no point of service cost sharing. And it will outlaw duplicative private insurance. And because his plan basically covers everything, there really would be no private insurance. Under Medicare for All, we cover all basic health care needs, so they're not going to be there to do that. I suppose if you want to make yourself look a little bit more beautiful, you want to work on that nose, your ears, they can do that. So basically, Blue Cross Blue Shield would be reduced to nose jobs? Something like that. So that's the left side of it. Then you have a little bit more what I

think of as now the middle position, but it's quite to the left of Obamacare, what's called Medicare for America, or some people sometimes call it Medicare for more. Beto O'Rourke is a fan of this plan. I think Cory Booker is, a couple others have signed on to it. If we were to start from scratch, maybe we would start with a single payer, but we've got to work with the system that we have here today. The surest, quickest way to get there is Medicare for America. And what this plan basically does is it builds on Obamacare to create a Medicare-structured public option. So it's not just a public option. It's Medicare. It's like supercharged Medicare.

A lot of people get automatically enrolled into it. It uses Medicare's pricing power. It has a lot more room in subsidies. It's basically building a system that is designed around having people in the Medicare-based new public insurance system, but it doesn't get rid of private insurance. And the idea is that over time, the public insurance will just get stronger and stronger unless the private insurance is somehow able to compete or offer benefits or some kind of service that people really like. And then on the right, you have people who just want to add a little bit more of a public insurance option into Obamacare, sort of do the stronger version of Obamacare from 2010 and just build it up, sort of pass a package of fixes, that kind of thing. And so that's now the range of ideas among the Democrats, from the left of what you had in 2010

to things that almost nobody what you had in 2010 to things that almost nobody was talking about in 2010. During those debates, you had people like Governor Hickenlooper and Senator Michael Bennett taking sort of strong stances against abolishing private insurance, arguing that most Americans wouldn't want to see that happening. Are they right? So they're certainly right on the polling. If you pull Medicare for all, people say, I love that idea. We should definitely do it. And then you say, what if it means abolishing private insurance? They say, absolutely not. It's a terrible idea. Don't you dare. So it is quite unpopular. I do not like this debate, I want to say. I think this is a dumb

debate. Before you can talk about what you want to do with private insurance, you have to talk about actually what your plan is going to cover and how you're going to pay for it. Hasn't Bernie been talking about this idea of Medicare for all for like years and years and years now? How has he still not come up with a functional way to pay for it? He has been talking about it for a long time. To be fair to him, he's been talking about it for a long time as a democratic socialist within the Democratic Party, and it didn't have a chance of passing. And so he was using it to try to move the debate to the left. And when you're using a bill to move the debate, you don't, I think, front load the unpopular parts of it. That said, Sanders is really the reason this debate has pulled so far to the left. I think he's done a really important service, not just to the Democratic

Party, but to the country. I think the plans that are getting talked about as even the moderate alternative to Sanders, like Medicare for America. So I'm very happy to see it become the mainstream Democratic alternative and see sort of even folks like Michael Bennett and others who I think you would think of as in the center of the Democratic Party move in this direction. And I think you got to give Sanders a lot of credit for that. I mean, this whole thing just started. I just wonder, like, how much more fleshed out do these plans get? And how much better or worse does that make this field of candidates look if most Americans are scared about, like, the main thing that they're focusing on right now, which is potentially abolishing private insurance? It's very possible that in this field of 20-some candidates, only two or three are

actually interested in abolishing private insurance. And the other thing I think is interesting about this is Bernie Sanders has a clear plan. Elizabeth Warren has for a long time said, I'm open to a lot of plans. At the debate, she clarified that in a somewhat unexpected way and really came down hard in support of Bernie's plan. At some point, she's going to bring out her own plan. Her plan is not going to be Bernie's plan. It's going to be Warren's plan.

And that's going to give her an effort to at least resolve some of these questions in a way that she is ideally most comfortable with. So I am not sure that many Democrats, aside from Bernie Sanders, are really all in on the Bernie Sanders plan or that the Bernie Sanders plan in its current form would be their plan. I think a lot of people wanted to fuzz the difference because they don't want to be crosswise with his supporters. And the press keeps asking this question because they want everybody to fight about the most unpopular healthcare idea currently living in the Democratic primary. But I think what people are ultimately going to hear, at least from the Democrats,

if they're watching their ads and so on, is about an effort to expand Medicare to more people. And that is very popular. And by the way, also about the ongoing endless Republican effort to take health care away from people, which is very unpopular. If one of these candidates actually does win, but faces the same Republican Senate, more or less, will it all have been for naught? Yes. Yes. If one of these candidates wins and Mitch McConnell is a Senate majority leader, they are going to get nothing done on? Yes. Yes. If one of these candidates wins and Mitch McConnell is a Senate majority leader, they are going to get nothing done on healthcare. Yes, that is the answer. I guess also important to remember. Also important to remember. Something I say all the time is that before I want to hear any Democrats' plan for healthcare

reform, I want to hear their plan for the filibuster. Because similarly, if they're not going to get rid of the filibuster, what they can do on healthcare is very, very minimal. You can't do most of healthcare through the filibuster-protected reconciliation process. You can do some things, but not these huge plans. And so if you don't have a plan to get rid of the filibuster or to somehow evade it, you don't have a plan to get this done. So having these Democrats have all these pie-in-the-sky plans but not talk about what they're going to do regarding political institutions, which is also, by the way, why Obamacare ended up looking a lot worse than a lot of people wanted it to.

It's a very unrealistic way to have this debate. We do a very poor job in this country merging our discussions of policy, which are often bad to begin with, with any discussion of political institutions and reality. And it just leads to a constant cycle of hype in primaries and elections and then disappointment when people actually govern. I look forward to the third and fourth debates

being dedicated to the filibuster. Listen, you know if I were the moderator, it would be. Let's get that Ezra debate. I'm ready. I'm tanned, I'm rested, and I'm ready. Great. Thank you.