Featuring Scott Nelson, a public interest attorney with the nonprofit consumer advocacy organization Public Citizen, on the latest case against the Affordable Care Act being heard by the U.S. Supreme Court.
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The Affordable Care Act is before the Supreme Court again. What’s the latest case about? Why are California and Texas suing over the landmark legislation? What impact might the court’s decision have on Americans’ health care? Scott Nelson, an attorney with Public Citizen, and host Brenda Gazzar discuss the latest legal challenge to Obamacare and the possible consequences.
Obamacare on Trial – What’s at Stake?
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Welcome to Code WACK!, your podcast on America’s broken healthcare system and how Medicare for All could help. I’m your host, Brenda Gazzar.
Today, we’ll talk about the legal challenge to the Affordable Care Act now being heard at the U.S. Supreme Court — and what’s at stake for millions of Americans.
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Scott Nelson is an attorney at the litigation group of Public Citizen. He handles a wide range of cases on behalf of the public interest.
I interviewed Scott about this important case just days before oral arguments began on Nov. 10 for some background and context.
Welcome to Code WACK!, Scott.
Nelson: Thank you very much.
Q: So first of all, I’d love for you just to talk a little bit about the Affordable Care Act. How would you characterize the impact it’s had on our country so far?
Nelson: Well, as most people listening probably know, the Affordable Care Act, or Obamacare, it was kind of a compromise between the desire of some people, like my organization, to have a government-run health insurance program that everybody participates in, and the prevailing system in this country, which has been to have private healthcare insurance often through employer–sponsored plans. And the problem with that is not everybody gets access to the system and insurance companies don’t necessarily make insurance available on affordable terms to everyone.
So the object of Obamacare was to allow everybody to have access to a basic level of health insurance, and to open up markets in a way that would allow individuals and their families to get access to them, without regard to things like pre-existing conditions, which is where an insurance company will say, “No, we’re not going to cover you, or we’re going to exclude the main health problem that you need coverage for, because you already have it.”
So you know, Obamacare, the ACA says, “no, everybody’s eligible to get health insurance and you’re entitled to health insurance regardless of what previous health problems you have and the insurance companies can’t exclude that when they offer you coverage.”
Q: So today, we’re discussing a couple of lawsuits, California vs. Texas, and Texas vs. California. So are California and Texas really suing each other? And in a nutshell, what are these cases about?
Nelson: Well, in effect, they’re suing the federal government to have its healthcare program either upheld in the case of California’s suit, or in the case of Texas’s suit, set aside. So actually California intervened in Texas’s lawsuit. Texas is trying to get the entire Affordable Care Act tossed out. It goes into a whole evolution of cases where the Supreme Court has previously considered the Affordable Care Act.
Q: So how did Public Citizen get involved in the case?
Nelson: When the case went up to the Supreme Court, we had a particular point we wanted to make about how the Supreme Court should resolve the case and it is in line generally with the arguments that California was making. But we just wanted to focus right in on a point that we thought was critical and determine the outcome of the case. It’s possible for people or organizations other than the actual parties to the case to submit their views in what are called Friend of the Court briefs, or as lawyers often refer to them, Amicus briefs, because we like to mispronounce Latin.
Q: Do you want to talk about what that point is, that you made to the Supreme Court?
Nelson: It might help to back up a little bit and talk about what the issue here is. When the Affordable Care Act was first enacted, there was a lot of concern about how this system where everybody gets to have access to health care works better the more people are buying into the system. So one part of the original act was a requirement that everybody buy insurance, and to make that stick the law said that if you didn’t buy health insurance, and you didn’t have it through an employer or some other means, like Medicaid or Medicare, you would have to report that on your tax return and pay a penalty.
Q: Right. I remember that.
Nelson: And so when Obamacare was first challenged in the courts, one of the central arguments of the challenge was Congress doesn’t have the power to require everybody to obtain insurance in that manner. And the defenders of the statute said, well, Congress actually had two sources of power. One is what’s called the Commerce Clause in the U.S. Constitution, which gives the Congress of the United States the power to regulate interstate commerce. And that power has been interpreted to give Congress the power to do all kinds of things, as long as they have some bearing on the national economy. But the conservative majority on the Supreme Court has been trying to rein that in a little bit and there was actually a majority to say, “No, whatever the bounds of that power are, it doesn’t give Congress the right to compel an individual to participate in the insurance marketplace by buying insurance.”
Q: Got it. So that source of power wasn’t very useful then in this case.
Nelson: But there was another argument about why this was a legitimate requirement and that comes from Congress’s power under what’s called the taxing clause, which says Congress has the power to impose and collect taxes. And that’s a very broad power. And the argument was this individual mandate, that’s the requirement in the law that everybody has to buy health insurance, is a tax law because the only consequence if you don’t buy insurance, you don’t go to jail. You don’t pay a fine. You just have to pay a tax penalty and the majority of the Supreme Court and Chief Justice Roberts was the swing vote here, he went along with the liberals on the court. He said, Yeah, it’s a tax law. It’s got a real tax consequence. Congress has the power to do that. And so the requirement that people buy insurance, or pay a tax penalty, that’s constitutional.
Q: So if the Supreme Court ruled that Congress has the power to do that, why is this even an issue today?
Nelson: But then a few years later, in the Trump tax plan from a couple of years ago, as part of the program of tax cuts, Congress decided, you know what, we don’t want to collect this tax penalty anymore. So they said from now on, the tax penalty under the Affordable Care Act is going to be zero. But otherwise, we’re leaving the Affordable Care Act entirely as it is. And when that happened, Texas said, “Aha! Well, Chief Justice Roberts said a few years back that the reason this individual mandate was Constitutional, was that it was a tax measure because it had a tax penalty attached to it. Now that the tax penalty is zero, the individual mandate is no longer Constitutional.”
That in itself doesn’t make a bit of difference, because the individual tax mandate without the tax penalty doesn’t require anybody to do anything. Right now, there’s a line in the federal statutes that says, everybody’s required to buy insurance and if you don’t, you pay a tax penalty, and that is zero, which is equivalent to saying, there’s no longer an individual mandate.
So what Texas said is, you know, they’re not really challenging the individual mandate. What they wanted was an excuse to say, the individual mandate is no longer valid, and the whole rest of the ACA comes down with it.
Q: And what does that include?
Nelson: The expansion of the Medicaid program, the requirement that health insurance companies can’t deny coverage for pre-existing conditions, the provision that says parents can keep their kids under their plans, even after the kids have become adults for a few years, the provisions that allow these marketplaces where people can go and by individual coverage. All that stuff, it’s a 1000 page long statute, they say it’s all got to go.
Q: So what are the chances that this legal challenge will succeed on some level? Stay tuned for our next episode with Public Citizen’s Scott Nelson.
Find more Code WACK! episodes at ProgressiveVoices.com and on the PV app. You can also subscribe to Code WACK! wherever you find your podcast. This podcast is powered by HEAL California, uplifting the voices of those fighting for healthcare reform around the country. I’m Brenda Gazzar.
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