Supreme Court Hears Affordable Care Act Case; AG Breaks With DOJ Precedent : The NPR Politics Podcast With Obamacare once again on the chopping block at the U.S. Supreme Court, comments from the justices appeared to suggest Tuesday that a majority is inclined to leave the bulk of the Affordable Care Act in place. Also, Attorney General William Barr wrote a memo authorizing federal prosecutors to pursue any "substantial allegations of voting and vote tabulation irregularities." There is no evidence of substantial election fraud.

This episode: congressional correspondent Susan Davis, national political correspondent Mara Liasson, and national justice correspondent Carrie Johnson.

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Supreme Court Hears Affordable Care Act Case; AG Breaks With DOJ Precedent

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Supreme Court Hears Affordable Care Act Case; AG Breaks With DOJ Precedent

Supreme Court Hears Affordable Care Act Case; AG Breaks With DOJ Precedent

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  • Transcript

ANDY PAPAS: Hey there. This is Andy Papas. And I just finished my 15th summit of Bromley Mountain here in southern Vermont. This podcast was recorded at...


It's 2:05 p.m. on my birthday, Tuesday, November 10.

MARA LIASSON, BYLINE: Happy birthday.

CARRIE JOHNSON, BYLINE: Happy birthday, Susan Davis.

PAPAS: Things might have changed by the time you hear this. But as an out-of-work opera singer, I just want to remind you to keep wearing your masks so we can be onstage as soon as possible. OK. (Singing) Here's the show.


LIASSON: Oh, that's so great.

DAVIS: I wouldn't mind spending my birthday on a mountain in the fall in Vermont.

JOHNSON: Oh, sounds amazing.

DAVIS: Hey there. It's the NPR POLITICS PODCAST. I'm Susan Davis. I cover Congress.

JOHNSON: I'm Carrie Johnson, national justice correspondent.

LIASSON: And I'm Mara Liasson, national political correspondent.

DAVIS: And another health care case is before the Supreme Court. The newly full bench heard oral arguments in a case challenging the Affordable Care Act, aka Obamacare. Carrie, what is this case all about?

JOHNSON: Sure. You know, as Justice Alito - Sam Alito said this morning, it seemed like deja vu all over again.

DAVIS: (Laughter).

JOHNSON: That's because this is the third time the Supreme Court has heard a legal challenge to the Affordable Care Act. And this time, the question was the following. You know, earlier, the Supreme Court, a divided court, had saved the heart - what was considered to be the heart of the Affordable Care Act, the individual mandate - the idea that you had to pay a penalty if you didn't have insurance - by calling that a tax. Well, Congress - people in your neck of the woods, Sue, on Capitol Hill - Congress zeroed out that financial penalty. And so states like Texas and other states led by Republican attorneys general sued, saying that because the individual mandate was no more, because there was no more penalty, then the law was unconstitutional, and the entire Obamacare law should be thrown out. And that's what the justices heard today.

DAVIS: So what were some of the points the justices made that stuck out to you?

JOHNSON: You know, one thing that's really important is that even if that individual mandate is no longer constitutional, there's this issue called the doctrine of severability. And basically, it means that if you take out one card from the house of cards, does the whole house collapse, or can you presume as a judge that the rest of the law, the rest of the cards should stay in place? And that was a key issue, especially for conservative Justice Brett Kavanaugh.


BRETT KAVANAUGH: I tend to agree with you that it's 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, reading our severability precedents.

JOHNSON: You know, and while you can never say exactly where the court is going, that was a pretty clear signal that he thinks that even if the mandate goes down, the rest of the law should remain. And the other important signal here came from Chief Justice John Roberts, who asked some very skeptical questions of the solicitor general of the state of Texas.


JOHN ROBERTS: 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.

JOHNSON: And Sue, as you know, I'm not good at math, but the simple math is the following. If you've got Justice Kavanaugh and Justice Roberts from the conservative side and the court's three liberals, that's five votes for this - the heart of this law to remain.

DAVIS: Mara, the Trump administration brought forth this suit, but this one seems different than the prior two cases that challenged the ACA in that there really wasn't significant broad support among Republicans for this lawsuit this time around.

LIASSON: I think that this whole episode could be titled how Republicans learned to love the ACA because...

DAVIS: How so?

LIASSON: ...They have tried over and over again to get rid of it and failed because they could never come up with a replacement. Yes, they were able to knock out the mandate. And here you have the Supreme Court saying, OK, so you knocked out the mandate. But you had almost every Senate incumbent in a tight race running ads saying that they loved the Obamacare clause that protected people with preexisting conditions, and they would never, ever, ever do anything to get rid of that, even though Trump was in court trying to get rid of it, along with the entire law.

So they - as Justice Roberts just said, if they wanted to get rid of it, they could've passed a law getting rid of the whole thing, and they didn't. And the ACA has just gotten more and more popular. And we might be seeing - just as the Supreme Court has saved President Trump from himself time and time again - maybe the Supreme Court is saving Republicans from themselves because not a single Republican senator filed an amicus brief in this suit.

And also, it would be like the dog catching the car. If they did overturn the ACA, that would be something that would land right in their laps. And there are a lot of simple things that the Biden administration could do to fix this, like restoring the mandate with $1, you know, passing a law that says it was severable. I just think the ACA is a permanent thing that's not going to be overturned because it's become part of people's lives, and people like it.

JOHNSON: And can I just point out that the state of Texas and these other red states were making this argument at the Supreme Court in a time of a global pandemic? And the argument from supporters of the ACA is that if they were to succeed, more than 20 million Americans would lose their health insurance. And some very popular things like requiring insurers to protect people, cover people with preexisting conditions, and young adults - keep young adults on their parents' insurance plans for a while - those are very popular things, like Mara said.

DAVIS: This case was the central focus of the confirmation hearing for Amy Coney Barrett. I'm curious - in listening to the arguments today, Carrie, did she say anything or ask any questions that gave you any indication about how she might feel about this case?

JOHNSON: You know, Sue, she asked a lot of questions, mostly on the issue of standing, the argument being, did Texas and these other states actually suffer any injury or any harm that would give them a cause to take this case to the court system? But she really did not tip her hand at all. I came away not really knowing what she was going to do in this case, which may have been the intended result of her questions.

LIASSON: Carrie, can I ask you a question? If this case is considered pretty weak, does that mean that the ACA is constitutionally unassailable? In other words, if there was a stronger constitutional case to make about it, wouldn't its opponents be making it?

JOHNSON: You know, you would think that they would take a hint after three tries. And to be honest with you, I was a little surprised by John Roberts' tone at this argument. He seemed kind of irritated to have this question back in his lap again.

DAVIS: So, Carrie, when are we going to hear from the court on this decision?

JOHNSON: Well, certainly before they take their annual recess for the summer and possibly as early as early next year, Sue - hard to say at this point - depends on how far along they want to go in this analysis. If they find that these state plaintiffs and individual plaintiffs who sued don't have standing, don't have - haven't suffered an injury, they could stop the analysis right there and write this rather quickly. If they get to the issue of severability, of whether the mandate is problematic but whether the whole rest of the law should stand, it might take a little longer to write an opinion.

DAVIS: All right. Let's take a quick break. And when we come back, we're going to talk about the attorney general weighing in on the election.

And we're back. And on Monday, Attorney General Bill Barr wrote a memo authorizing federal prosecutors to pursue any, quote, "substantial allegations of voting and vote tabulation irregularities." Carrie, this memo has gotten a lot of attention. What does it say?

JOHNSON: Well, it basically gives U.S. attorneys around the country the ability to open investigations into voting irregularities before those contests are certified. And Sue, the reason that matters is because in the past, the Justice Department has not wanted to take any action to influence an election. Any kind of investigations into voting fraud allegations or irregularities, the Justice Department has said, can happen after the contests are certified. It doesn't want to weigh in in any way to tip the balance. And Bill Barr has sort of upended that norm, once again throwing the Justice Department into controversy.

LIASSON: So there have been a lot of speculation about his motivations. Is he literally trying to, quote, "steal the election" for Donald Trump, as some liberal critics would say, or is he just humoring the president, opening these investigations that will come to nothing? - because he did put a lot of caveats on them in that memo - the caveats that no one will read, but...

JOHNSON: Right - a lot of caveats, Mara, such as, you know, will this affect the outcome? And by most counts in some of the states that are the closest, including Pennsylvania and other states, none of these issues that have come to light, which are relatively minor, would have impacted at all the ultimate contest. So it's not clear to me what Bill Barr was doing exactly. What I can tell you is the reaction from the civil rights community, including people who worked in those units during the Obama administration, is that this is scare tactics and messaging by the attorney general to help the president out.

LIASSON: You mean to convince half the country that something was wrong with the election? That sounds pretty serious, undermining people's faith in democracy on purpose.

DAVIS: Well, it certainly is messaging that is coming from many corners of the Republican Party right now. I feel like, you know, Barr was up on Capitol Hill yesterday. He met privately with the Senate majority leader. We obviously don't know the details of that discussion, but after that meeting, he put out the memo. And Senate Majority Leader Mitch McConnell on the floor sort of echoed a lot of those themes, saying every legal vote should be counted; the president is within his rights to run through the court process here - not exactly embracing the conspiratorial or the false allegations made by the president and many in his orbit, but sort of validating what he's trying to do here. And I think we're seeing that from a lot of his allies not just on Capitol Hill, but also in the Justice Department.

LIASSON: But isn't the bottom line the same? You're convincing - trying to convince half the country that there was something wrong in the election, and that undermines people's faith in the system.

JOHNSON: Well, it's really a problem, I think, because if you talk to state election administrators from both political parties, they'd say these were remarkably clean elections. We had international observers observing and also concluding that the elections were legit and fine and worked well, even during a pandemic. So to cast doubt on one of the pillars of democracy is a big problem.

DAVIS: Carrie, has there been any reaction inside the Justice Department to the memo?

JOHNSON: Well, we know one thing in public, which is that the head of the Election Crimes bureau - a career prosecutor for many, many years - after this memo came out from the attorney general, quit that post. He stepped aside from that job saying, basically, he had never seen anything like it. It went contrary to the practice of public integrity and election investigators in the past. And he also pointed out in his email to colleagues that he had won a department-wide award for integrity and he wanted to keep it. So that is not a good sign. And that is not the first time we have seen a career prosecutor quit - quit a case or quit the entire Justice Department - under the reign of Bill Barr.

DAVIS: Mara, has there been any reaction from the president to the Barr memo?

LIASSON: Well, he tweeted out that Barr did it, and that sounds like his stamp of approval.

DAVIS: All right. We'll leave it there for today. And remember, you can join our Facebook group to meet other fans of the podcast by going to N.PR/PoliticsGroup or by following the link in the description of this episode.

I'm Susan Davis. I cover Congress.

JOHNSON: I'm Carrie Johnson, national justice correspondent.

LIASSON: And I'm Mara Liasson, national political correspondent.

DAVIS: And thank you for listening to the NPR POLITICS PODCAST.


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