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What a Supreme Court vacancy means for Obamacare

Yahoo Finance Editor-in-chief Andy Serwer, HuffPost Washington Bureau Chief Amanda Terkel, Yahoo News Editor-in-Chief Dan Klaidman, and Yahoo Finance senior columnist Rick Newman talk about the effects a Supreme Court vacancy has on the Affordable Care Act, also known as Obamacare.

Video Transcript

ANDY SERWER: We're now joined by Yahoo Finance senior columnist Rick Newman. Rick, the justices are set to hear another Obamacare case on November 10. What are they considering at this point?

RICK NEWMAN: Yeah, this is kind of a complicated case. So Obamacare, as the ACA is known, it did survive one trip through the Supreme Court. It did not get struck down. Obviously, it's still in effect. So what happened the second time around is in the Tax Cuts and Jobs Act, which was the big tax cut bill Republicans passed at the end of 2017, that eliminated the penalty fee for people who did not abide by the individual mandate.

So it used to be if you did not have insurance, then you had to pay a penalty fee. So Congress zeroed that out. And the argument that the attorney general made of Texas is more or less this-- that by lowering that to zero, that used to be considered a tax. The Supreme Court ruled on that a few years back. But when it goes to zero, it's no longer a tax.

This is the-- the Texas attorney general said, therefore, if it's not considered a tax, the individual mandate itself is completely invalid. And if that part of the law is invalid, then the entire Affordable Care Act is invalid. A lot of legal experts at the time thought this was pretty flimsy legal logic. Nonetheless, it has made it all the way through the appeals process, and the Supreme Court is going to hear it on November 10, as you pointed out.

So you know, the rule-- the last ruling on the Aca was 5-4 in favor of upholding the ACA, with John Roberts as the swing vote. Ruth Bader Ginsburg was another one of those-- the majority votes. And of course, she's gone. So in theory, the court could tilt away from supporting the ACA and rule against the law, either invalidating part of it or invalidating all of it when this decision is likely to come probably next June.

AMANDA TERKEL: So Rick, you mentioned that this case, a lot of legal experts and I've seen even conservative legal experts say that this case is pretty flimsy. But still, it's making its way-- you know, it's at the Supreme Court. What do you think the chances are that maybe some other Republicans besides Roberts could rule against this? I've seen some people mentioned Brett Kavanaugh perhaps. You know, what do you think the chances are of that?

RICK NEWMAN: Yeah, so there's-- because of other rulings Brett Kavanaugh has made, there's some belief that maybe he would actually knock down-- vote to knock down this lawsuit, and it would knock the five. And of course, now we don't know who the ninth justice, who now, if Kavanaugh were to where to vote to uphold the ACA, would-- we don't know which way the ninth justice would go.

I mean, there are some other factors to consider here. The-- this is basically-- the Texas attorney general basically found a technicality that-- you know, Congress could fix this in the simplest legislation that ever went through the legislature. I mean, and if Democrats take the Senate, I think that's very likely to happen.

So it's this simple. If Congress were to simply raise the penalty fee, which is now zero-- so the individual mandate still exists. They could eliminate the individual mandate. That would solve the technical problem, and it would basically torpedo this entire lawsuit, rendering it moot.

They can also leave the individual mandate and raise the penalty fee to something like $1. If they raised it from $0 to $1, well, once again, then it would count as a tax, and this whole thing would be moot. And there's some other things they could do.

I mean, you know, this is just basically a seam in the law. And you know, the Texas attorney general kind of went for a Hail Mary pass. And you know, they got to, like, the 3-yard line so far.

So there are a lot of things that happen-- of course, Congress is not going to pass any of those laws unless Democrats controlled both Congress and the White House. But that's how simple this would be to fix, if you really just wanted to fix the ACA and leave it in place.

DAN KLAIDMAN: Rick, I think we can be pretty confident that neither of the presidential candidates are going to be speaking as eloquently as you just did about the legal and policy intricacies of the ACA. But in some small ways, this Supreme Court vacancy offers a little bit of a silver lining for the Democrats, doesn't it? Giving Joe Biden the opportunity to talk about health care and talk about the possibility that a lot of people could lose their health care?

RICK NEWMAN: I think you're right, Dan. There's also one other thing that we haven't mentioned, which is that the Trump administration actually has filed a brief in favor of the plaintiffs in this lawsuit. In other words, they are still-- Trump is still trying to kill the ACA. So if Joe Biden can say without exaggeration that Donald Trump is still trying to take health care away from the 20 million people who get it under the ACA who would not have health care otherwise-- so I think you're right.

And we know from 2018, in the midterm elections, health care was a big issue. Arguably, health care is an even bigger issue now because the pandemic recession. So people are scared about public health to start with. People who are losing their jobs, many of them are losing their insurance. I don't think we have good data on that yet, but it only stands to reason that the more people who lose jobs, the more people are going to lose employer-provided care.

And of course, Joe Biden has a very detailed health care plan, which involves a new public option for people who cannot get insurance otherwise. He also wants to lower the Medicare eligibility age from 65 to 60 and shore up the ACA. Those are basically three planks of his health care plan. So if he plays it right, I think that's a pretty-- you know, pretty strong message for voters to hear.

ANDY SERWER: Well, you guys are right. Joe Biden has been talking about the ACA, and it'll be interesting to see how much he talks about it in the days between now and the old Election Day. But here's what he said recently about the ACA.

JOE BIDEN: Millions of Americans who are voting because they know their health care hangs in the balance. In the middle of the worst global health crisis in living memory, Donald Trump is before the Supreme Court trying to strip health care coverage away from tens of millions of families.

RICK NEWMAN: I don't know about tens--

ANDY SERWER: So Amanda--

RICK NEWMAN: --of millions. I mean, you know, we know that the number-- I suppose you could come up with some technicalities that explain the tens of millions. But Biden, I mean, he's effectively right there. And one of the things I've always wondered is what if-- what would happen if the Republicans actually got their wish and they were able to repeal the Affordable Care Act?

It would be like the dog that caught the car, and now what do you do? How do you-- you know, you've been telling people this is this evil law for all these years. But suddenly, you have to explain to 20 million people what they're supposed to do to get coverage some other way.

And the other important thing that's in the ACA is the prohibition on discriminating against people with pre-existing conditions. So Trump keeps saying he would take care of it. Trust me. I'll come up with my own pre-existing condition plan. He has not done that.

Trump does not have a health care plan, by the way. He has said many times he's going to unveil one over the summer. He said he would show everybody his health care plan by the end of August. The only thing he's got on health care is-- there are seven bullet points on the Trump campaign website saying things like lower prescription drug prices and lower the cost of health care with no details on how Trump would do that.

AMANDA TERKEL: Yeah, Rick, I was going to ask you about Trump's health care plan that was supposed to come out by the end of August.

RICK NEWMAN: Well, we'll just go with it.

AMANDA TERKEL: I think today, Kayleigh McEnany, you know, the White House press secretary, said that, you know, this health care plan is real, and it will be coming out very soon. I mean, do you think that Trump is going to come out with any health care plan before the election, and do you think that Republicans just really want to avoid talking about health care and making this more of an election about health care?

RICK NEWMAN: It's a losing issue for Republicans because look what happened when they tried-- you know, they tried. They had a vote to repeal Obamacare in 2017, and they failed. And everybody blames that on John McCain. But again, what would they have done-- where would they stand in 2020 if they had actually been able to repeal the ACA?

I mean, there's almost no chance they would have been able to provide coverage for all the people who lost it. There are a couple of Republican bills that would, in an alternative way, address the pre-existing condition problem. But I mean, I think nobody in America wants to go back to the days when insurance companies could charge you four times more or 10 times more or just deny you coverage altogether if you've had cancer in your past or if you had a heart attack or some other condition, diabetes.

And the Republicans just don't have a good explanation for what they would do if the existing law were repealed. So I mean, my guess is Trump will come up with something by, you know, maybe midnight on November 2 before, you know, the last people vote. But the obvious question voters should ask is, why are you doing this at the very last minute of your first term? Why didn't you do something before now?

ANDY SERWER: All right, I think Dan and Amanda would agree that nobody knows the ACA like Rick Newman. Rick, thank you so much for joining us.