- Dahlia Lithwicksenior editor at Slate magazine, where she is the senior legal correspondent and Supreme Court reporter.
- Dr. Steffie Woolhandlerprofessor at CUNY-Hunter College and a primary care physician. She is a lecturer at Harvard Medical School and the co-founder of Physicians for a National Health Program.
In oral arguments Tuesday, the Supreme Court appeared to reject arguments to strike down the Affordable Care Act in the middle of the pandemic. The case was filed by a group of 18 Republican-led states, backed by the Trump administration, who argue the ACA’s individual mandate is unconstitutional, and the rest of law should fall with it. “This was a terrible third attempt to have the Supreme Court strike down Obamacare. The first two had failed. This was even more ludicrous than the earlier cases,” says Slate legal correspondent Dahlia Lithwick. We also speak with Dr. Steffie Woolhandler, co-founder of Physicians for a National Health Program, who says Medicare for All remains the best way to expand healthcare in the United States. “We don’t need to raise the total cost of healthcare. We just need to go to an efficient system that excludes private health insurance,” Dr. Woolhandler says.
AMY GOODMAN: This is Democracy Now!, democracynow.org, The Quarantine Report. I’m Amy Goodman, with Juan González.
As coronavirus cases soar across the United States, the Supreme Court heard oral arguments on Tuesday on whether to strike down the Affordable Care Act in the middle of the pandemic. A group of 18 Republican-led states filed the case, led by Texas and backed by the Trump administration. They argue the ACA’s individual mandate is unconstitutional, should be struck down, that the rest of Obamacare should fall with it. But the response from the justices suggests a majority of the conservative-led court does not agree. The oral arguments were conducted by telephone because of the pandemic. This is Chief Justice John Roberts addressing Texas Solicitor General Kyle Hawkins.
CHIEF JUSTICE JOHN ROBERTS: General Hawkins, on the severance question, I think it’s hard for you to argue that Congress intended the entire act to fall if the mandate were struck down, when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act. I think, frankly, that they wanted the court to do that, but that’s not our job.
AMY GOODMAN: Like Chief Justice Roberts, Justice Brett Kavanaugh also suggested he’s not prepared to strike down the entire Obamacare. This is what Kavanaugh said while questioning the pro-ACA lawyer Donald Verrilli.
JUSTICE BRETT KAVANAUGH: I tend to agree with you this a very straightforward case for severability under our precedents, meaning that we would excise the mandate and leave the rest of the act in place.
AMY GOODMAN: Joining us to unpack all of this and discuss what’s at stake is Dahlia Lithwick, senior legal correspondent, Supreme Court reporter at Slate.com, and Dr. Steffie Woolhandler, primary care physician, co-founder of Physicians for a National Health Program, professor at CUNY-Hunter College, lecturer at Harvard Medical School, recently co-authored an analysis that found, in Trump’s first three years, more than 2 million people lost healthcare, and thousands died early.
So, let’s begin with Dahlia Lithwick. Were you surprised by what took place before the Supreme Court yesterday?
DAHLIA LITHWICK: Hi, Amy.
Yes and no. I think that a lot of what we saw happen yesterday is that this was truly a horrible case. This was a terrible third attempt to have the Supreme Court strike down Obamacare. The first two had failed. This was even more ludicrous than the earlier cases. And it was an astonishment that a lower court in Texas ever found grounds to say that this had basis. We’ve seen so many conservative legal advocates who were on board for the other attempts to repeal Obamacare peel off this case. So, in some sense, it was sort of a “How nihilist is the present court?” It turns out, not that nihilist.
JUAN GONZÁLEZ: And, Dahlia, why was it so much of a weaker case? And were you surprised by Justice Kavanaugh’s line of questioning?
DAHLIA LITHWICK: It was a weaker case, in some sense, because as a statutory matter, Texas and the 18 states that joined Texas were trying to say that because of this tiny little provision, the individual mandate — you’ll recall, in the first Obamacare case in 2012, John Roberts famously flipped. He said the individual mandate that required Americans to pay $695 in taxes every year was in fact a tax, it wasn’t a penalty. He upheld all of the ACA.
So, what happened in 2017, when Congress zeroed out the mandate — they couldn’t kill Obamacare legislatively — they zeroed it out, and then Texas comes forward and says, “Now the mandate is unconstitutional,” which we can have a conversation about — it was one of the issues in the court — “but because the mandate is unconstitutional, the entire 2,000-page ACA also falls.”
So, this is this doctrine of severability: Did Congress intend the entire thing, like a game of Jenga, to collapse if one provision is unconstitutional? And so, the answer, you know, both in terms of — was that a crazy Hail Mary? I think it was. Presumptively, we think that provisions that are unlawful can be severed from the whole statute.
But I think that on the question of Brett Kavanaugh, I think it’s not all that surprising that he said, “Look, even if I say this provision can’t stand, would I tear down the entirety of the statute, given that severability doctrine in the Supreme Court says you strongly presume that the law stands?” He’s not insane, I guess is my short answer. And to pull down the whole statute because of one provision truly would be, I think, insane.
AMY GOODMAN: I wanted to turn to Supreme Court Justice Samuel Alito.
JUSTICE SAMUEL ALITO: At the time of the first case, there was strong reason to believe that the individual mandate was like a part in an airplane that was essential to keep the plane flying, so that if that part was taken out, the plane would crash. But now the part has been taken out, and the plane has not crashed. So, if we were to decide this case the way you advocate, how would we explain why the individual mandate in its present form is essential to the operation of the act?
AMY GOODMAN: So, Dahlia Lithwick, we’ve played Kavanaugh, Chief Justice Roberts, Samuel Alito. And then, if you could respond to — this was really the first time we saw Justice Amy Coney Barrett ask questions — the direction she went in?
DAHLIA LITHWICK: Well, I think the answer to Sam Alito was the answer that Don Verrilli, who was representing Congress, gave, which was, “Look, that individual mandate we thought was central, it turned out, when it was zeroed out, people still really, really, really wanted Obamacare.” And he sort of said, “We thought of that as a stick. It turns out we didn’t need the stick, because there were lots of carrots, and people wildly flocked to enter the ACA even without that penalty/tax.” That was his answer. So, while at the time we thought it was integral, it turns out, when it was zeroed out, there was no problem. People still love it. That was his answer.
In terms of Justice Barrett, I think she was sort of strangely disconnected from a lot of the merits of this case. She asked a whole bunch of very academic questions, a whole bunch of questions that seemed maybe a little orthogonal to the discussion. I think it’s useful to remember she only sat on the 7th Circuit for a short time. She was a law professor, first and foremost. She came off looking very law professorish. And I don’t think she said that much that tipped her hand about which way she would go.
AMY GOODMAN: Let me bring in Dr. Steffie Woolhandler. As you listened to these oral arguments, you did not support the Affordable Care Act at the beginning, because you are a staunch supporter of Medicare for All. Can you talk about what happened yesterday, what you think needs to happen at the Supreme Court and ultimately in this country?
DR. STEFFIE WOOLHANDLER: OK. Well, the Medicaid expansion was the best aspect of the Affordable Care Act. And to expand Medicaid, you never needed the individual mandate. The individual mandate was a pretty bad idea, telling people that they had to go and turn their money over to a private insurance company if they earn too much to be eligible for Medicaid. They had to give money to the private insurance industry, and we were going to penalize them through the tax system if they didn’t. It was, in fact, a terrible idea, and it was put into the Affordable Care Act because the private insurance industry wanted to get this new business of subsidized coverage. They wanted the new business, but they did not want to be responsible if there was a big influx of very sick people. And just remember, when we’ve expanded Medicaid in the past, when we expanded Medicare, there was no individual mandate. You offer people good health insurance, and they’re going to be willing to take it. What’s happened is now that the individual mandate, the penalty has been reduced to zero, it became obvious that the individual mandate was never needed. You know, so that was what this fight was about. And, in fact, that’s what has changed over the last few years, is we now know we do not need an individual mandate. It was a bad idea from the beginning, and it continues to be a very bad idea.
What we really need is to provide good insurance to everyone. We call that single payer or Medicare for All. It’s a type of system that the rest of the developed world has, like Canada, like Scotland. And, you know, you enroll in insurance the day you’re born, and you keep it your entire life. It’s not free; you pay for it through your taxes. But it’s a much more efficient system, because you don’t have all this administrative complexity and hassle that is eating up a huge share of U.S. healthcare spending, probably more than a third. So, by simplifying healthcare, moving it away from a business to a public service, you save a lot of money, that allows you to cover everyone and also remove copayments and deductibles, which have been a major problem in the ACA, especially for people with exchange coverage.
JUAN GONZÁLEZ: Well, Dr. Woolhandler, I wanted to ask you — during Joe Biden’s run for the presidency, his counter to Bernie Sanders and Elizabeth Warren and others who were pushing for Medicare for All was to expand Medicare coverage to lower ages. Where do you see, given the results of the election right now, the prospects for expanding Medicare coverage is right now?
DR. STEFFIE WOOLHANDLER: OK. Well, there is another election in two years, so we don’t have to just focus on what can be done in the next 24 months. We need to be focusing on what the American people need and what’s the correct system to get everybody covered for all medically necessary care, with complete free choice of doctor and hospital. We can really only do that through single payer or a Medicare for All-type system.
I think it would be great if, in the meantime, we were able to lower the Medicare age. Certainly, older adults who are not yet elderly have a lot of problems if they lose their job and lose their insurance. Private insurers are not very happy to provide coverage for them. If they do provide coverage because they are forced to under the Affordable Care Act, there’s often copayments and deductibles and restrictions in services provided, restrictions in networks, that make it very expensive for older adults to buy private insurance. So, I’d love to see the Medicare age lowered.
I’d really prefer that the Medicare age be lowered to zero, because that would give us that simple, administratively simple system that saves hundreds of billions of dollars, that we would need in order to cover everyone. We don’t need to raise the total cost of healthcare. We just need to go to an efficient system that excludes private health insurance.