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AG Paxton on Obamacare Supreme Court case: 'It’s going to be a close vote'

Texas Attorney General Ken Paxton joins Yahoo Finance's Kristin Myers to break down his thoughts on the Affordable Care Act Supreme Court case.

Video Transcript

KRISTIN MYERS: But I want to talk now about a different kind of legal fight, this very important court case that is being heard in the Supreme Court, and that's on the Affordable Care Act. We're joined now by Texas Attorney General Ken Paxton. Just as a reminder for everyone at home, Texas is leading the Supreme Court battle to overturn Obamacare. Attorney General, it's good to have you join us today.

I want to get on the topic of this Supreme Court fight. Well, we were just hearing from Senate Minority Leader Chuck Schumer and some of his comments on all of the lawsuits and the allegations of voter fraud. I did want to ask you if you could respond to some of his comments and what your thoughts are about the lawsuits we're seeing from the Trump campaign filed against the states of Pennsylvania and Michigan.

KEN PAXTON: So I have an interest in this because in Texas, we dealt with lawsuits prior to the election. I think we had 12 lawsuits related to mail-in ballots and the attempt to make Texas like some of these other states where you end up having disputes after the fact. One of the things that we did is by having those lawsuits up front, we didn't end up in the same situation as Pennsylvania and Wisconsin. So had we not done that, I believe that we would have had more election fraud. And so it would not surprise me if there was significant election fraud in these other states because mail-in ballots, by their very nature, you can't verify who's voting as you do when somebody shows up at a site to vote in person with a photo ID.

So I do have concerns. Who knows if there's-- they can get to the evidence. It's a hard thing to do, and it's a hard thing to prove. But it would not surprise me, knowing what I know about election fraud in Texas, that there is election fraud in other places. And it could be, you know, by a large measure.

KRISTIN MYERS: If there is election fraud in other states-- I want to quickly ask you here, and then let's shift the conversation to that Supreme Court fight. But if there is election fraud, most studies and research show that fraud happens at very small amounts. So even if there was fraud in Pennsylvania, even if there was fraud in Michigan, it would not be enough to overturn the results in the state. Are you seeing things differently?

KEN PAXTON: I do because the reason you hear the narrative that there's a small amount of election fraud is because there's not a lot of state resources in most states, including ours, dedicated to finding election fraud. It takes a lot of effort. It takes a lot of work.

when I came to my office, we only had one prosecutor and very few people involved in doing these investigations. And so you're not going to find a lot of election fraud. It takes a lot of work to prove it. So we now have three lawyers and more investigators, and we're finding more election fraud.

So I know that if the legislature gave me more resources, we would find more election fraud because we haven't gotten to the limit yet here in Texas. So it does not surprise me that it's easy to make the argument we don't have a lot of fraud in other states because most states don't focus on finding it.

KRISTIN MYERS: All right, I do want to mention for everyone at home, however, that we have seen judges throw some of these lawsuits out because they say that there is not enough evidence of election fraud in some of those allegations. Attorney General, I want to turn now to the Supreme Court case, and I want to start with-- and I really hope you can correct me if I'm wrong here, so I want to make sure I'm explaining it for everyone about the crux of this argument. You are the lawyer. I am not.

But essentially, the argument being made in the Supreme Court is over that individual mandate. That, of course, is the mandate that is requiring Americans to have insurance or face a penalty if they do not. You guys are arguing that if that mandate falls or if it is found to be unconstitutional that the rest of the law therefore must fall with it. Correct? I do have that accurate for everyone? OK, great, I know it's a very simplified version.

You know, a lot of analysts-- I've been reading about this. A lot of folks are saying that this is a pretty weak legal argument. I know that you probably are feeling differently since you're the one arguing it, but I'm wondering, considering you're hearing all this criticism that it's not a very strong legal case, what hope do you guys currently have that you're going to have success in your claim with the Supreme Court?

KEN PAXTON: Well, I do think it's interesting that people say-- analysts say it's a weak argument. We won at the district court level on the very issue that they said was a weak argument. We won at the Fifth Circuit on the very issue that they said is a weak argument. So now we're at the Supreme Court having won at every level with people telling us we had a weak argument. So that's a little bit-- I don't know-- disingenuous when we've had success all the way through the process.

So it's-- and I don't think it's going to be a 9-0 decision against us. It may be-- it's going to be a split decision one way or the other. It's going to a close vote, and it's going to come down to the interpretation of whether legislative intent and what the text of the statute actually says about severability as to how these justices rule. And we think the legislative history and the actual text favor us.

Now, there are policy considerations. We don't think the judges should take those into account. They should just follow the law and do their jobs.

KRISTIN MYERS: Has your calculation on how the Supreme Court is going to rule changed at all since Justice Barrett was appointed to the bench?

KEN PAXTON: Look, we're optimistic. We think she is a textualist, somebody that will actually read the text of the statute, follow the Constitution as the framers intended it, and that's always good for us. We like judges that follow the law, who are there to make up law or try to fix something that Congress should have done or shouldn't have done. That's not their job. That's the job of the legislature, who is elected by the people, not judges appointed by presidents.

KRISTIN MYERS: Now, I was reading some of the oral transcripts on the arguments. Justices Kavanaugh and Roberts making comments about severability. In other words, for those of you at home who are not doing the research like I am-- in other words, that the individual mandate could be removed and leave the rest of the act in place.

Now, a lot of folks have read that to mean that those two justices at least are inclined to leave Obamacare standing. What was your reaction to some of those thoughts and comments? Are you reading it the same way, that those justices might not rule in your favor?

KEN PAXTON: Look, it's always difficult to tell which way they're going to rule. I've been surprised before. I think a lot of us have been surprised before. But remember, there are three different issues. There's a standing issue, which no one's questioning whether we're going to be successful. There's the idea of whether the individual mandate needs to be struck down, which is this idea that Congress can order you to buy health insurance. No one seems to be questioning whether we're going to win on that.

So the only issue that people seem to be questioning is whether the other issues related to Obamacare need to stay in place. And our argument is hey, look, Congress said in the statute and in the legislative history that fundamental to the purpose of this statute was the individual mandate, this idea that you were forced to buy insurance by the government. And with that gone, our argument is Congress had no purpose in this-- the rest of the legislation standing. It's a very, I think, legitimate argument and one that we should win, based on the law.

KRISTIN MYERS: Now, I have to mention, you know, this law has been in place for a decade. Congress has tried to overturn it. They've had more than 60 votes on the Affordable Care Act. This lawsuit-- of course, I'm wondering if you see this lawsuit as a last-ditch attempt from Republicans or the last, essentially, attempt that Republicans can make to essentially overturn the health care act?

KEN PAXTON: This isn't based on party. This is based on whether the Constitution matters, whether the law matters, and that's our argument. Hey, the courts are not there to make policy decisions about whether this should be staying here or not stay here.

They need to look at the text of the statute and look at the Constitution. And I think it's been pretty clearly determined that Congress doesn't have this kind of authority. The question then is, does the statute, as read, allow them to keep the rest of it in place? And we just don't think it does.

KRISTIN MYERS: Attorney General, you know, Supreme Court decisions are typically immediate, take effect immediately. So that means that if you are successful in your claim, over 20 million people would immediately lose their health insurance. What do you say to the 23 million people at home, whose health insurance that you are fighting to get rid of in the middle of a pandemic and for whom you-- and it's not necessarily your job-- but for whom Republicans at large currently have no replacement?

KEN PAXTON: Well, first of all, I don't know if you heard our arguments, but we suggested to the court that if they do have a decision, they give time for legislators to come back and make their own fixes. Our argument all along has been hey, this should be decided by the states. This is not a federal issue. Every state has different types of people, different demographics, different workforces. Why not let the states make their own decisions and provide resources and opportunities that are individualized, as opposed to one-size-fits-all from the federal government?

We think our state can do it better, and that's what we argued to the US Supreme Court. And we continue to believe that Texas can do a-- come up with a better solution than the federal government for Texans and that Massachusettans would be better served by their legislature, as opposed to, you know, one-size-fits-all for every state.

KRISTIN MYERS: So then why hasn't Texas come up with a better solution?

KEN PAXTON: Well, we've been precluded by federal law. So this is-- we had a partial solution, I think, before all this went into effect, and it was somewhat taken apart by the Obamacare legislation. So we want the opportunity to come back and do the best we can for our people, and we think we could do a better job providing more choices.

Because remember, Obamacare was supposed to let you keep your doctor. It didn't let you do that. It was supposed to cost less. It's been more expensive. It just takes away choices from the American people. I want the American people to make the decision about who their doctor is and not have the federal government tell them who they can go to.

KRISTIN MYERS: All right, this is going to be a last question for you here. I have to ask you, since you are facing legal issues yourself, do you have any plans to resign or step down, especially after these allegations that you have abused the power of your office?

KEN PAXTON: Absolutely not. We have tried, in this office, always to take care of our constituents. I'm going to continue to work for the people of Texas. And I'm proud of this office. I'm proud of what we've done on Obamacare. I'm proud of the things that are going on in all of this related to election integrity. And you're going to continue to see great things from this office.