Scott Nelson, a public interest attorney with the nonprofit consumer advocacy organization Public Citizen, discusses the likelihood that the latest case against the Affordable Care Act before the U.S. Supreme Court will fail.
Listen to the podcast!
Click the arrow in the circle (below left).
How likely is it that the U.S. Supreme Court would rule the Affordable Care Act is unconstitutional? What does “unconstitutional” actually mean in this context? Scott Nelson, a public interest attorney working with Public Citizen, and host Brenda Gazzar discuss possible outcomes to the case against Obamacare, and the reasons why Public Citizen, a nonprofit consumer advocacy organization, believes Medicare for All would be a better option for Americans than our current market-based system.
Will the legal challenge to Obamacare fail?
—– TRANSCRIPT —–
(10-second Talk back music)
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.
What are the chances that the legal challenge to the Affordable Care Act now before the U.S. Supreme Court will succeed? I recently interviewed Scott Nelson, an attorney at Public Citizen’s Litigation Group to find out.
Welcome to Code WACK!, Scott.
Nelson: Thank you.
Q: So what do you see as the best and worst possible outcome of the U.S. Supreme Court’s decision?
Nelson: Well, the worst possible outcome would be for Texas, Texas’ argument to be accepted. For the Court to say, first, when you zero out the individual mandate — that’s the requirement in the law that everybody has to buy health insurance — you’ve not just rendered the mandate, you know, meaningless. You’ve rendered it somehow a violation of the Constitution, that it violates the Constitution to have this provision on the books that really doesn’t have any meaning or effect.
That’s sort of an extraordinary position to begin with because ordinarily when something is unconstitutional, it’s unconstitutional because it has some effect that hurts somebody in a way that the Constitution prohibits, and when a law, like the individual mandate, doesn’t affect anybody, it’s really kind of bizarre to say that it’s unconstitutional.
But so the Supreme Court would have to say that and then they would have to say, and everything else in this 1,000- page statute goes with it, and the result of that would be now insurance companies could discriminate against you … if you had a pre existing condition and somebody could say to me ‘Oh, we’ll sell you insurance but the one thing that you really need it for, we won’t cover.’ So that would be one consequence…. The argument is everything that was in that statute would have to go. That would be a disaster.
Q: Right, so how likely is that to happen?
Nelson: Fortunately, I actually don’t think it’s going to happen. Because I think the best case is that the Court will say, even if we bought the argument that this individual mandate, now that the tax penalty is zero, somehow is unconstitutional, we don’t throw out the rest of the statute because there’s this long established principle in American Constitutional law that says when a court finds one provision of a statute unconstitutional it has to say ‘all right, now that we found that unconstitutional, what would Congress want us to do when we found that unconstitutional? Is that provision so central to the statute that if that got tossed out the window Congress wouldn’t want anything else in the statute?’ In that case, the courts say it’s not severable, the whole thing has to go, but that’s quite unusual. What the norm is, is that other provisions of the statute are not affected by the unconstitutionality of a single provision.
Sometimes the court has to say, well we don’t really know, Congress hasn’t told us what to do if we strike down one provision of the statute. So we have to think about, you know, what do we think Congress would have done? What makes sense? But this is a case where Congress actually told them exactly what it wanted because it itself effectively severed the individual mandate from the rest of the statute when it said,’you know, we don’t want there to be a tax penalty anymore. We don’t want the individual mandate to be enforceable in any way. But we don’t want the rest of the statute to be affected.’ So all they did was zero out the individual mandate. They left the rest of it in place for the court to now say we’re going to take it upon ourselves to toss that out, would be the court basically stepping into the shoes of being a legislature, and they have said repeatedly, that’s not their job.
Q: Great. So why does Public Citizen support Medicare for All?
Nelson: Well, you know, our view is that the Affordable Care Act still involves people getting their health care through the mediation of insurance companies whose goal is to make a profit and making a profit is not always the same as operating in the best interest of the public. Our view is there really isn’t a lot of efficiency to be gained by having profit making entities standing between Americans and their health care. And we know that government operated programs can deliver health care to people.
They can make sure that doctors get paid for their services but they do it in a way that doesn’t put people at the mercy of the premiums and the terms of coverage and the deductibles, and the gaps in coverage that still exist under the ACA. How do we know that? Because there are two extremely successful programs, Medicare and Medicaid, that do that for millions of people right now. And our goal is to make that universal, to make those programs better, because Medicare itself has some gaps and some requirements that people go out of pocket that we don’t think are necessary. But we think that the government could handle the financing of a health insurance program that would be cheaper, and would give people better coverage than the system that we now have.
Q: Thank you, Scott.
Find more Code WACK! episodes at ProgressiveVoices.com and on the PV app. You can also subscribe to Code WACK! wherever you find your favorite podcasts. This podcast is powered by HEAL California, uplifting the voices of those fighting for healthcare reform around the country. I’m Brenda Gazzar.
_________________________________________________________________________________
HEAL California is an independent news and information hub focused on the Medicare for All movement.
With non-partisan news, views, podcasts and videos, we highlight the on-going injustices of our broken healthcare system and amplify the voices of those who are most impacted by it.
Our Podcasts shine a light on the failures of America’s healthcare system, while explaining how Medicare for All could help.
Our Media page offers connections to experts and additional resources including links to legislation and studies.
Keep up with the Medicare for All movement!
Follow us on Facebook and Twitter, and subscribe for email updates.