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All Podcasts The Supreme Court, the ACA, and COVID-19, with Nicholas Bagley

The Supreme Court, the ACA, and COVID-19, with Nicholas Bagley

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Andy talks with Nicholas Bagley, co-author of their recent New York Times piece on the razor’s-edge status of the Supreme Court, the Affordable Care Act, and the pandemic. Nicholas is a law professor and former Justice Department attorney; he has also advised Michigan Governor Gretchen Whitmer on the pandemic. This episode prepares you for the monumental and rapid progression of the potential appointment of Judge Amy Coney Barrett to the Supreme Court, the presidential election, and the ACA case on November 10. Andy and Nicholas are considered the foremost experts on this topic and this episode will be the authoritative take on this subject. 

Keep up with Andy on Twitter @ASlavitt and Instagram @andyslavitt.

Follow Nicholas Bagley on Twitter @nicholas_bagley.

In the Bubble is supported in part by listeners like you. Become a member, get exclusive bonus content, ask Andy questions, and get discounted merch at http://lemonadamedia.com/inthebubble/ 

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Transcript

[00:48] Andy Slavitt: Welcome to In the Bubble. This is Andy Slavitt. We have an episode today that’s focused on how the pandemic and the Supreme Court meet. And, of course, the joint that connects them is the Affordable Care Act, which is a case that will be heard on the 10th of November. Now, as everybody knows by now, we have an opening in the Supreme Court that has an enormous impact on what’s going to happen in the way we’re managing the pandemic. It’s also vital, as you’ll hear from my guest that’ll be on in a moment, Nicholas Bagley, for the election. This is truly an election where, depending on how it turns out, we’ll have a lot to say with whether or not people can get healthcare coverage and can get preexisting condition coverage ever again. So it’s particularly vital. But I thought it’d be nice to start before we get into all of that with just a little bit of a conversation about Justice Ginsburg. And we’re not going to be able to do her justice, so to speak. But for that, I have on a very special guest, my mom.

 

[02:10] Andy Slavitt: How do you process the loss of something like Ruth Bader Ginsburg? 

 

[02:18] Andy’s mom: I don’t think I’ve processed it fully yet. She was so meaningful and so important to my generation and to future generations. And I think it is very sad to see that her polar opposite is now being placed in her position. She was forward. This almost makes me feel backward. It makes me emotional.

 

[02:39] Andy Slavitt: So when you say polar opposite, Justice Ginsburg, as much as anybody we know, we could probably put John Lewis in this camp, spent his life opening doors for other people fighting so that the world would be different for people who came after them and so they wouldn’t have to fight as hard. And, you know, I don’t think we’re getting that same thing if Justice Barrett is approved. 

 

[03:06] Andy’s mom: Absolutely not. I mean, if you want to take all the way to the right and all the way to the left, Ginsburg was so meaningful to everyone who didn’t have a voice. She’s a tremendous, tremendous loss. And there’s no one who’s following in her footsteps. 

 

[03:25] Andy Slavitt: So there’s a great tweet that Lana gave me. Here’s what she says. “Ruth Bader Ginsburg is going to be replaced by a woman who walked through every door that Ginsburg opened for her so she can promptly use her position to shut them all for others behind her.” 

 

[03:51] Andy’s mom: It is exactly what I wish I had said.

 

[04:07] Andy Slavitt: There’s another reason we’re having you on today, and that’s to wish you happy birthday. I don’t know that it’s important what birthday it is, but it is important to all of us to celebrate during times like these when, you know, a lot of times it feels like our life’s on hold. I think it’s really important to recognize and do the best we can to celebrate wonderful happenings. So happy birthday. 

 

[04:35] Andy’s mom: Thank you. You have made this so special for me that I haven’t been this happy in a long, long time. The expression of emotion and love that you’ve given me, you and your sister and your wife and your whole family, it’s just overwhelming. And I so appreciate it. So thank you. 

 

[04:56] Andy Slavitt: Well, that makes me feel very good to hear. Believe me, we love you. All of us. 

 

[05:10] Andy Slavitt: OK, now let’s get to our conversation about the Supreme Court and how it’s going to have an impact on our management of the pandemic. To do that, we have a phenomenal guest, my coauthor of our New York Times piece on this very topic, Nicholas Bagley. Nicholas is a law professor at the University of Michigan. He is a former Justice Department lawyer. He was a former clerk in the Supreme Court. He has been a legal adviser to Governor Gretchen Whitmer on the pandemic. And as you’ll see, there’s nobody better at explaining this than Nick. And I think you’ll see Nick and I, because we are colleagues, we kind of enjoy each other. And I think we try to do our best to explain this to you. But also I think you hear us talking about how we process this issue together, because we have a habit of doing that. So let’s ring up, Nick. 

 

[06:19] Andy Slavitt: So you and I are extremely close to this topic, Nick. But it’s hard to know where to start to do this conversation justice about how the Supreme Court actually has a bearing on COVID-19. We have two executive branches that have a large impact based on the president’s reaction and how he’s handled things. We know the Congress has a role to play when they supported people who were going through challenges in keeping the economy running. Now, our third branch of government is jumping into the fray. Why does the Supreme Court have anything to do with COVID-19? 

 

[07:00] Nicholas Bagley: I think it’s a testament to the outsized role that courts play in our sort of national culture. But, you know, if we have a political debate that one side or the other can’t win, they take that political debate to the courts. And that’s what we’re seeing. We’re seeing a bunch of red-state attorneys general seizing on what they see as a constitutional defect in a tiny part of the law to try to take the whole damn thing down. And they’ve had some success in the lower courts because there are a lot of Republican-appointed judges who would love to see the Affordable Care Act be stricken from the books. 

 

[07:36] Andy Slavitt: So the law we’re talking about is, as you say, the Affordable Care Act, as Democrats call it, or Obamacare, as Republicans call it. 

 

[07:43] Nicholas Bagley: I call it Obamacare sometimes, too. 

 

[07:47] Andy Slavitt: You know, it’s a law that contains a number of things that are relevant to COVID-19. Let’s reel off the things that are relevant.

 

[07:56] Nicholas Bagley: So protections for people with preexisting conditions, right off the bat. 

 

[08:00] Andy Slavitt: So let’s start there. COVID as a preexisting condition. Kind of an interesting one. We had an episode about long-haulers, essentially we learned that COVID can impact your immune system. It could impact your circulatory system, may impact your clotting. It impacts virtually every organ system. It impacts every limb. So help me process that. How does it work as a preexisting condition?

 

[08:24] Nicholas Bagley: It’s an underwriting nightmare. So before the Affordable Care Act, if you wanted to get insurance, you had to give all your medical data, medical information, to an insurance company. And the insurance company would say, OK, well, you know, like you look like you’re a little sicker than the average bear. So we’re going to charge you a little more. Or we’re not going to cover, you know, conditions that you’ve had in the past that we fear might flare up again. And with a disease like COVID-19, where we don’t know what the consequences are going to be for people who got it a year, two years, three years down the line, it’s hard for an insurer to price that. And so a lot of the folks that COVID-19 just won’t be insurable. The insurers just aren’t going to take a risk. And if you’ve got complications, they might say, sure, we’ll cover you, but not for any of the things you really need insurance for. 

 

[09:11] Andy Slavitt: OK. So I’m 25. I know I don’t look it, but I’m 25. I get COVID. I’m a college student at University Michigan. I get COVID but I’m basically feeling fine. No harm, no foul. It’s 10 years later, I develop a heart arrhythmia or a clotting problem. I go to apply for insurance. What happens? 

 

[09:33] Nicholas Bagley: They’ll say no. I mean they’ll say no because you’re a bad risk, right? It’s not because they’re evil. It’s because they’re an insurance company, it means that the only way they stay afloat is if they can’t take in more in premiums than they pay out in healthcare. And if it looks like, you know, you’re going to need a lot of healthcare, they’re not going to write you a policy.

 

[09:51] Andy Slavitt: So the ACA prohibits that right now. Makes it illegal to do that right now. And since everybody plays by the same rules, it’s fine. So what you’re saying is that insurance companies would stop doing that, I guess, because if some did it and some didn’t, the insurance companies that covered those things would get all those sick people in. And the ones who didn’t wouldn’t, and therefore disadvantage themselves. So basically then nobody gets coverage, is that kind of how it works?

 

[10:19] Nicholas Bagley: Yeah, that’s exactly what will happen. Look at the very beginning of the dawn of health insurance that the blues existed. And they were they they tried to do the right thing and cover everybody, including people with preexisting conditions. And then private insurers came on the scene and they started clobbering the blues when it came to, you know, their financial position. And so the blues to compete, to take on new customers had to actually start doing the same kind of thing. It’s not, again, because these insurance companies are evil. It’s because they face incentives that force them to discriminate between sick people and healthy people. 

 

[10:52] Andy Slavitt: OK, so let’s stick on preexisting conditions for a second. Let’s say that the Supreme Court — and we’re going to talk a little bit about the Supreme Court in a bit, but we know we have a new Supreme Court center being formed as we speak. And we’re going to talk a little bit about that and about the new nominee. But couldn’t the president just say, you know what,  preexisting conditions, they shall be covered.

 

[11:16] Nicholas Bagley: Wouldn’t that be nice if you were the president, you had a magic wand and you could just make laws that easily. So, you know, President Trump issued an executive order saying it was the policy of the United States to protect people with preexisting conditions. But, you know, look, an executive order is just a memo with a fancy letterhead. It doesn’t do anything unless the president is exercising power that Congress has delegated to him. He can’t do anything with an EO. It’s like saying his tweets have legal authority. 

 

[11:45] Andy Slavitt: Yeah, that would be something. Can you imagine? So I call the insurance company. I say cover me. They say no. Can’t I wave around this executive order and say, but I have this executive order right here. It has the president’s name on it. I want you to cover me. 

 

[12:04] Nicholas Bagley: Do you like being laughed at? So the insurance company will look at that and say, that’s nice. But look, we are subject to laws and laws are not things that the president can just make up. There are things that Congress has to adopt or enact. And without a law, you can’t. It doesn’t work. 

 

[12:24] Andy Slavitt: But say you go to court. You’re like Karen Silkwood. You hired Nick Bagley. And I am suing the insurance company because I have a piece of paper from Donald Trump. It’s an executive order. It’s an order. 

 

[12:35] Nicholas Bagley: You just keep wanting to get laughed at now by a judge. They’d look at that and say it’s garbage. It doesn’t it doesn’t do anything. Look, I mean, to be blunt about like, the thing that the President Trump is trying to do is to fool you into thinking that because he calls it an executive order, it does something. An executive order is traditionally just an instruction to agency officials to carry out their duties differently than they were before, to prioritize certain kind of enforcement or to adopt a new rule. But they don’t have legal weight except in very rare circumstances, and this ain’t one of them. So unless you’ve got the Affordable Care Act in place, that piece of paper isn’t going to do anything for you. 

 

[13:13] Andy Slavitt: Fine. I won’t get my preexisting condition covered. What’s another thing that the ACA says or does that has bearing on COVID-19? 

 

[13:24] Nicholas Bagley: Well, probably the most important thing is that it expanded Medicaid to cover 13 million additional people across the country. So Medicaid is going to cover you regardless of preexisting conditions because it’s a government program. But if you’re poor, and everybody on Medicaid is poor ,and you lose that coverage, you’re out of luck not because you’ve got a preexisting condition, but because you can’t afford private coverage, because the Affordable Care Act — the whole point was to provide coverage to those people who couldn’t afford it. 

 

[13:53] Andy Slavitt: OK. So let’s let’s roll this back a little bit. All the way back when our parents had jobs. I don’t know what jobs your parents had, but my dad did an eight to five job. He got health insurance from his company. And he stayed at his job for a long time. And I know a lot of people in our neighborhood, lot of people we know, they just got insurance from their employer. Our generation, our kids’ generation, it doesn’t seem to be working that way. There’s a lot of people who have jobs at Amazon distribution centers or Walmart or they drive an Uber, I think more than half the jobs don’t offer health insurance. Plus, people want to leave their jobs. They don’t want to be stuck in their jobs. And in fact, during COVID-19, I think of all the people who lost their job, we know five million people have lost their health insurance. So what happens to all these people without insurance? I think you said 13 million for Medicaid expansion. You get another bunch of people that have insurance on the insurance exchanges. There’s some estimates by a nonpartisan organization called the CBO that you might see 20 to 25 million people lose their insurance. So what would happen to them? Can they just get insurance some other way? 

 

[15:13] Nicholas Bagley: No. I mean, if you lose your coverage and the ACA isn’t there, unless you’re independently wealthy, you’re gonna have a tough time buying it. You know, the average price of insurance for a family of four last year, employer-sponsored coverage, was something on the order of $20,000 per year. Now, a lot of us get our insurance through our employers, like you said, and that’s kind of invisible to us because it comes out of our wages. And there are a lot of people who don’t get health insurance at their jobs at all. And if they don’t have a bunch of cash lying around, they’re gonna have a really hard time. And that’s if they’re healthy. And if they’re unhealthy, I mean, good luck to you. And as for people who get employer-sponsored coverage, you know, the ACA did a lot of nice things for folks who get coverage through their jobs. So, you know, my employer can’t stop paying my insurance coverage just because I have a really big bill. Before the Affordable Care Act, if you went over a certain cap over the course of a year, over the course of a lifetime, your insurer would just stop paying for you. If you have a preemie baby or if you had cancer, your insurance might just run out and you’d go bankrupt. 

 

[16:15] Andy Slavitt: You just want to regulate everything, don’t you? Make insurance cover medical care.

 

[16:21] Nicholas Bagley: I like good regulations. I don’t like dumb regulations. But the health insurance market just doesn’t work without an overlay of regulation. 

 

[19:42] Andy Slavitt: :The thing that I think most people don’t know about, Nick, is — I mean, we’re obviously joking around a little bit because you and I know this topic so well. But there were hundreds of billions of dollars that are spent by the government in subsidies to basically create an equivalent mechanism for people who don’t have employer-sponsored coverage to make them close to on par. Now it stops at about $100,000 of family income, and that’s something that can be addressed. But those subsidies evaporate. And just so everyone is very clear where they go. They become tax cuts.

 

[20:19] Nicholas Bagley: Tax cuts and actually, some of the Medicare cuts in the Affordable Care Act might be walked back, too. The ACA financed itself by imposing a bunch of tax cuts and by cutting a bunch of inflated Medicare spending. And so we’re going to spend more on Medicare and cut rich people’s taxes, which doesn’t seem like a great tradeoff. 

 

[20:40] Andy Slavitt: Here’s I think one of things that’s really interesting about this is people will say, and the president will say, well, I’ll just create a replacement plan. We have to go through probably a couple of scenarios, and I don’t want it to be too complicated for people listening. But let’s say President Trump stays as president, or Joe Biden becomes president but one or two of the chambers are in Republican hands. If the ACA were to go away in order to have a replacement, the hardest part is it would mean Republicans would have to do a tax increase. And given that, what we know particularly the House, but also the Senate is made up in Washington of Republicans, that’s just not going to happen. It’s not gonna happen in anything close the measure that’s needed.

 

[21:31] Nicholas Bagley: Yeah, well, let’s just wish that problem away by saying you could just deficit spend your way out of this. You’d still have to get to a deal between Republicans and Democrats about what this ACA 2.0 would look like. And, you know, the Republicans can’t come to a plan within their own caucus. And Democrats had to work for years to put the architecture of the ACA in place and get buy-in from stakeholders and from members of Congress. So to think that this could just happen overnight, I think it’s fanciful. 

 

[22:01] Andy Slavitt: Let’s play this game. What percentage chance? Zero to 100. If the ACA goes away and Donald Trump remains president, what percent chance is there that there’s a replacement that is passed and signed by the president? 

 

[22:15] Nicholas Bagley: I don’t mean to sound cynical and the future is hard to predict, but I think it runs to zero. 

 

[22:20] Andy Slavitt: You match my number exactly. I think there’s zero chance. I completely agree with you. Now, Nick is an expert in the law and the ACA. My background is more in the health side of the ACA. So we’re looking at this from two different lenses, but understanding a shared set of facts. And so it’s important for people to understand before the election that if President Trump remains in office or if the Senate remains in Republican hands, the chances of a replacement Nick and I both estimate at zero. And I think we’re probably in the mainstream with that estimation. 

 

[22:56] Nicholas Bagley: Yeah. You saw Republicans struggle to come up with a plan they could all agree to in 2017. And if they’re gonna have to cut a deal with Democrats, it’s going to be a deal even less to their liking. I just don’t see it happening. It’s an ugly spot to be in right where our politics are so broken that we couldn’t even come up with a patch I think that that stands a good chance of being adopted.

 

[23:18] Andy Slavitt: Here’s what I think would happen. Tell me what you think about this scenario. I think the Republicans would propose something akin to a block grant of say 25 to 30 percent of what is needed to fund people’s healthcare and a grant to the states with no rules, maybe some kind of broad language about you should cover people with preexisting conditions, but binding. They can make their own rules. Saying that you’d get about a quarter to a third of the money, just low enough that they were sure the Democrats would vote against it so that they could say, see, we proposed something and the Democrats rejected it. The Democrats would have to reject it. And we would be essentially back in a place where we were in 2008, which for those who remember were long forms to try to get insurance and very, very, very expensive insurance, if you could even get it. So what do you think of that scenario?

[24:20] Nicholas Bagley: Yeah, I think that’s pretty plausible. You know, I think the politics of Washington have just become so tit for tat in this hyper-partisan environment that tearing down the other guy is the political strategy. And it’s not even about coming to a solution for the public. 

 

[24:34] Andy Slavitt: Let’s fixate on that scenario that works because there is a beam of light that shines through this thing. You know, if Joe Biden were to win as president and if there were a Democratic House and a Democratic Senate, even by bare majorities, could they repair the ACA, were to be ruled unconstitutional? Could Joe Biden and the Democrats then do something?

 

[25:01] Nicholas Bagley: Yeah, you pass a law. One sentence. I mean, you could do it in all sorts of different ways. You could reinstate the tax penalty for the individual mandate or you could repeal the end of — I mean, I’m getting into the weeds here. But the fact is, it’s easy to do. It’s a question of political will.

 

[25:15] Andy Slavitt: Easy to do if there’s Democrats controlling the Senate, the House and the White House. And zero percent chance in every other scenario. 

 

[25:23] Nicholas Bagley: I think that’s right. I sound like such a crazy person when I talk about this as if I’m just deeply cynical about people all the way through. And I’m not usually, I’m a pretty rosy, optimistic guy. The outlook is bleak if the Supreme Court jumps on this.

 

[25:44] Andy Slavitt: What we’ve established — and I apologize if the conversation got a little bit complex for people listening — but there is a path out. There’s only one path that we can control, and that is the Democrats have to sweep. And if the Democrats sweep, we can assure that no matter what the court does, we have an ACA intact. Now, let’s talk about the court and let’s talk about the situation we’re in right now. The president named his Supreme Court nominee. Tell us about her. 

 

[26:16] Nicholas Bagley: Yeah. Amy Coney Barrett, she’s a Notre Dame law professor. She was a clerk to Justice Scalia, is likely to be a justice in very much the same vein as as he was, which is to say a staunch textualist, a strong originalist, someone with impeccable conservative bona fides. 

 

[26:33] Andy Slavitt: So it always seemed to me that people who describe themselves as textualists, as Justice Scalia did, they were somewhat selective textualists. Sometimes I wondered whether or not it was a rationale for avoiding certain changes that were going on in society while at other times not being such a textualist. Is there’s any merit to that point?

[26:58] Nicholas Bagley: I think there’s some. I mean, I want to be clear. I think you can be a principled textualist. There are arguments in favor of construing statutes that way. But what you tend to miss is kind of what Congress is meant to accomplish and what legislatures are meant to do with our laws. Laws aren’t these abstract things that you interpret and don’t have any effect on people’s lives. They’re meant to actually accomplish things in the world. And sometimes if you just blind yourself to anything but a literal text of the words, you can really get misleading results. And I do think that’s kind of part of the virtue of textualism to a lot of these justices, because, you know, a lot of them are committed to the view that we shouldn’t have a federal government that’s as big and powerful as it is. And if, you know, there are times when a strict construction will throw a wrench into the works, they’re OK with that. 

 

[27:47] Andy Slavitt: Right. But if we have various challenges in our society, like equal voting rights or the emergence of subgroups that are not getting treated fairly in either. Climate situations or other situations or issues such as money in politics and so forth, is that just a reason for textualists to say, you know, it wasn’t contemplated in the Constitution, so therefore I’m free to ignore it?

 

[28:13] Nicholas Bagley: Yeah. I mean, like, there’s a sense in which anything that’s novel or new or different is amenable to all sorts of potential challenges under the Constitution. And, you know, if you take an originalist view of the Constitution and suggest that means that the federal government should have been small and should not have been doing that much and stuff should have just been left to the states, then you can find lots of excuses to start chipping away at progressive legislation. You know, the best example of this is what happened back in 2012 with the Affordable Care Act. It came within one vote of being struck down altogether. And, you know, one vote even on a theory that was kind of made up out of whole cloth, the notion that the individual mandate exceeded Congress’ powers under the Commerce Clause. You know, like that wasn’t a thing. But the conservative legal movement made it a thing and they came within a hair’s breadth of just torching the entire law. 

 

[29:03] Andy Slavitt: So let’s talk about the Affordable Care Act. Do we know Judge Barrett’s views on the ACA? 

 

[29:09] Nicholas Bagley: We know that she is sympathetic to the challenger’s position. She has written in a 2017 law review article that she thinks that the chief justice misconstrued the ACA in an effort to save it back in 2012. So she’s made it pretty clear she would have joined with the four dissenting justices, which means that, like, I think the way to think about it is that if you had Justice Barrett on the court back in 2012 and the first ACA case came, we wouldn’t have the Affordable Care Act, she would have put it to the torch. And that would’ve meant that all the benefits that we’ve seen, all the protections for people with preexisting conditions, those would have all gone away. When you have a six-three majority, you can tolerate the chief justice getting wobbly. And it doesn’t matter when you can still do whatever conservative thing you’d like to do. You have a bigger margin for crazy when she’s on the court. 

[30:01] Andy Slavitt: So does her writing about the ACA mean that we know how she’ll vote in this case? 

 

[30:08] Nicholas Bagley: No, she was talking about the challenge to the individual mandate back — the original one went right after the Affordable Care Act was signed. And so this latest challenge is another challenge to the Affordable Care Act with a legal theory is really different. And it’s a lot dumber, to be honest. And so, you know, we know that she is skeptical of maybe the Affordable Care Act, is not afraid of making aggressive rulings, even if it results in the overturning of a really important statute. But beyond that, I think we just kind of have to wait and see. 

 

[30:39] Andy Slavitt: What is the psychology like of a new justice coming in, appointed by a Republican president who is stated to be — and obviously, he’s literally got his lawyers on this case stated to have a preference for this law — how much do you expect someone like just disparity, if she becomes a justice, would be intimidated or influenced, I should say it’s really a better word, by those very real politics of who she’s appointed by?

[31:08] Nicholas Bagley: I don’t think it would affect her judgment much at all. You have to think of her less as a creature of President Trump and more as a creature of the conservative legal movement, which predates Trump and sort of will continue after him. This is a longstanding mission to put like-minded people on the court through the Federalist Society and through a small network of really conservative activist judges. I think she’s going to look at this like she would if she’d been appointed by a more conventional Republican president. 

 

[31:37] Andy Slavitt: You know those spectrographs we see all over in the newspaper where they got Justice Thomas over here. Maybe give us your sense of where he will likely center is now?

 

[31:56] Nicholas Bagley: Yeah, I think it’ll depend a little bit on that particular case. You can imagine different justices being in the center for different kinds of cases. But for the ACA case and for a lot of cases, I think Justice Kavanaugh is now likely to be the center of the court. Justice Barrett may end up kind of being a Kavanaugh-minded jurist. And I think it’s more likely she’ll end up being kind of a Gorsuch-minded jurist, somebody who’s even more extreme. Although, you know, time will tell him. I’m not sure about that. If Justice Kavanaugh is the center of the court, that’s like — I mean, I think one of the things that people don’t fully appreciate about the Supreme Court is how conservative it is and how conservative it has been for a very, very long time. I clerked back in 2006 to 2007 for Justice Stevens, and that was like right after Roberts and Alito joined the court. And like, those guys are super, super conservative. And if you think chief justice Roberts is like not conservative enough for you, you are really far to the right. I mean, like way out of step with the vast majority of the American public and questions, you know, ranging from abortion to gun rights. I mean, these people are hard liners. I mean, there’s just no other word for it. 

 

[35:29] Andy Slavitt: So now that we know who the nominee is, can you help us all understand the process? Like what happens from here? I think many of us are used to seeing on TV these hearings with senators asking questions. But how much time does that take? When is it supposed to happen? How long will it take for it to happen? Will it happen before the election? What do you think?

 

[35:51] Nicholas Bagley: Yes. So there’s no fixed process for handling nomination to the Supreme Court. Senate can run it however it wants, and there are certain ground rules in a normal year. But this isn’t a normal year and they’ve got to get this nominee through very quickly. Look, if the Senate didn’t want to hold hearings, they don’t have to. They could just vote. They could vote the day after the nominee is announced. I think they’ve got a little time and they’ll probably hold hearings just to make it look legit. But the fix is in. I mean, we know what’s going to happen. And McConnell says it’s going to happen before the election and I have no reason to doubt him. 

 

[36:18] Andy Slavitt: So I had speculated before, and others had as well, that it could be in the president’s political interest to wait and hold the vote during a lame duck. But let’s hold on that scenario because it’s confusing. What you’re saying is that Mitch McConnell and Donald Trump can get a vote done before November 3rd, which is the election. Is there anything that Chuck Schumer or the Democrats can do, any crazy plays, any procedural issues, anything you can think of? 

 

[36:48] Nicholas Bagley: I’m not a parliamentarian. It’s possible there are some, you know, tricks they can pull out of their back pocket. But my understanding is no. It’s good to be the king and it’s good to be in charge of the Senate. And when you are and you have the votes, you can do what you.  

 

[37:03] Andy Slavitt: By the way, Al Franken did give me one trick. I did call Al. He gave me one trick that I don’t think would work, but it’s interesting. And that is if the House files impeachment proceedings again against the president, the Senate would be forced to deal with those before they could deal with the nominee.

 

[37:26] Nicholas Bagley: See, now that that’s the kind of inside-baseball that I am not privy to. 

 

[37:31] Andy Slavitt: It’s the kind of thinking you need moments like this, I suppose. OK, so then we’ve got this Affordable Care Act case. We started by talking about why it matters and the consequence. I have absolutely no idea if that was the best way to run this podcast is to talk about that first. At least now we know what the stakes are. So then this Affordable Care Act case. When is it due to be heard? 

 

[38:01] Nicholas Bagley: On November 10th. So a week after the election. Who’s arguing on behalf of California? 

 

[38:08] Nicholas Bagley: Yeah, it’s the California solicitor general who’s likely to stand up in court, a guy named Mike Mongan, good lawyer. And he’ll stand up in court and say this law is perfectly constitutional now. He’s doing the job that the Trump administration should be doing, which is defending an act of Congress from constitutional challenge. But the Trump administration, its Justice Department, said we don’t want to defend this law. We’re going to we’re basically gonna flop. And I got to tell you, as a former Justice Department official, I was an attorney there, Justice Department lawyers take that duty to defend congressional statutes really seriously. I defended lots of laws that Republican Congress has passed. And it’s just part of the job. 

 

[38:52] Andy Slavitt: It’s what you do. Didn’t some of them resign? 

 

[38:53] Nicholas Bagley: Yeah. There was one lawyer who resigned, a couple of others who took themselves off the case. And these are good lawyers. They’re loyal. They’re good soldiers. They’ve worked across administrations. This is really different. 

 

[39:06] Andy Slavitt: Just to create a parallel for folks, we’ve talked on the show about the FDA and the CDC and the politics that are kind of taking over for some of the great civil servants over there. I think what Nick’s talking about. It’s a very similar experience for career Justice Department officials who have just wanted to do their job. And, you know, you’re exactly right. I have implemented laws when I was in the government. And once Congress passes the law, we didn’t know we got to pick or choose when we could implement and which ones we wouldn’t. 

 

[39:37] Nicholas Bagley: What kind of country is it? Like, we’re supposed to be a government of laws. And that means that, you know, the question of whether you’ll like them or don’t like them, you’re bound by them. 

 

[39:46] Andy Slavitt: So this case is heard on the tenth. What are the possible outcomes? Can you give us just the big two or three potential outcomes we could see? 

 

[40:01] Nicholas Bagley: Yeah, look, the likeliest outcome is that the Supreme Court comes to its senses, realizes this lawsuit is silly because it is and kicks it to the curb and does it, you know, by a lopsided vote, including a lot of the conservative justices. I think that’s possible. You know, the plaintiffs have a really ambitious legal argument. They got to kind of run the table in order to win here. But the other possibility is that by a vote of five-four, the court decides to invalidate a substantial chunk or all of the Affordable Care Act. To be honest, there’s not a whole lot of room between.

 

[40:31] Andy Slavitt: Let’s deal with the bad scenarios first, because on this show, we eat our vegetables before we eat meat. So they can invalidate the entire law, in which case there are many, many things besides the things we’ve already talked about, such as the prescription drug program for seniors that get impacted, vaccinations, preventive medicine, task force guidelines, a whole bunch of things that are just part of our healthcare infrastructure that are just too numerous to name on the show, but we just take them for granted. And for people who are deep into healthcare, they know there’s also things like the Centers for Medicare and Medicaid Innovation, which is what allows primary care doctors to get paid more, to take better care of people and so forth. So all those things would go because in that particular verdict, the court would decide that there’s a magic word called severability. And they would be saying that there is a problem with what? One part of the law?

 

[41:33] Nicholas Bagley: Yeah. A problem with one part of the law and the question is, you know, should you just strike that little tiny part of the law or should you strike only the parts of the law that are kind of tightly connected to that infirm part? Or is that one tiny part so integral to the whole that the entire ACA has to fall?

 

[41:52] Andy Slavitt: That’s work in that space a little bit. Again, I apologize if this is difficult to follow for people. And again, Nick and I have had this conversation and written about this several times, so we’re probably unknowingly using shorthand, so I’ll to try to go piece by piece here. So if the court decides that the ACA is unconstitutional, putting aside the merits of it, which I can point you to things to read, which would convince you that this is an absolutely crazy type of judgment, but let’s say they did that, then they would be deciding whether or not to get rid of just the part of it that has to do with one part of the law. And maybe you could tell us what that is or whether or not that’s connected to the rest of it. Tell us about that part of the law and tell us what the likelihood is that just that part goes or that though you think the whole thing goes well. 

 

[42:41] Nicholas Bagley: So the most minimal holding is just to say that the individual mandate that remains on the books, but is backed up by a zero-dollar penalty at this point, you could just say that goes and everything else stays. And if that were to happen, that’s a fine outcome. Nobody cares. The ACA moves on with its life. They could also say that this zero-dollar mandate is tied up with the private insurance markets. And so the protections for people with preexisting conditions, they’re so wrapped up in the mandate that brings healthy people into the market or is opposed to that. Those have to go and nothing else. So maybe the Medicaid expansion stays in the case like that with the subsidies for the ACA stay contested. Some people say they should go and some people say they shouldn’t go. If they don’t go, it’s not clear how subsidies would even work. If you’ve got a market where insurers are underwriting again, meaning that they’re discriminating against people who are sick, there are a lot of implementation questions that would — you know in your former role as an administrator in the federal government — keep you up at night and turn your hair gray. I don’t even know how you begin to do it. But that’s the kind of question they’re going to be grappling with. 

 

[43:49] Andy Slavitt: With that, would they give that authority to the administration?

 

[43:53] Nicholas Bagley: They wouldn’t give it to the administration, but they basically leave a named statute on the books and say, OK, here you go, do what you will with it. So then it becomes the administrators’ problem. 

 

[44:03] Andy Slavitt: Got it. So once again, you’re making me think maybe it’d be a better thing for the ACA if there was a Democrat in the office than a Republican.

 

[44:12] Yeah, I think that’s probably right. And I should say, you know, the extreme is that the whole thing goes right, that they just say we can’t pick and choose which parts of these laws survive. And that’s what the lower court said here. The first judge who looked at this said, well, you know, it’s just a big, complicated law. I can’t tell what Congress would’ve wanted to do. So, you know, just torched the whole thing. And I can’t even begin to imagine what that would do to the healthcare system. I mean, not only people losing coverage tomorrow, but also just like it’s part of the plumbing. You rip that out and nothing works. 

 

[44:48] Andy Slavitt: OK. So let’s handicap this thing now. So there are three liberal justices and we assume that they vote for the Affordable Care Act or for California for the defense. Then there is a fourth justice, Chief Justice Roberts, and if we don’t assume that he votes with them, then the rest of the discussion is less interesting.

 

[45:13] Nicholas Bagley: Yeah. Look, everybody’s guessing. But he had a chance in two prior, you know, Affordable Care Act cases to really take a whack at the law and chose not to.

 

[45:22] Andy Slavitt: Right. So now we have five justices left. These are. Five very conservative justices, including the new justice, very conservative. Let’s talk about what they’re deciding and what might cause them to go one way or the other. And I know that this whole handicapping of SCOTUS is just a sport in some circles and sort of not the purpose of the show. And perhaps it’s not a productive conversation. But at the same time, I do want people to get a chance to see the likelihood of some of these potential outcomes, particularly because they may be making a decision whether or not they like the Affordable Care Act. They may be making a decision whether or not they think it’s good for the country or politics. They may be thinking about making a decision based upon the strict reading of the language, they may do it based upon this whole severability idea. Could you give us a little insight into how some of those justices might be persuaded? 

 

[46:14] Nicholas Bagley: Yeah, well, it’s a good question about what motivates judges in a particular case to rule in a particular way. And the way I think about it is that like law matters and the strength of the legal arguments that are on display really matters. And the legal arguments here are, you know, in my judgment, in the judgment of a lot of people across the spectrum, are really weak. And that’s going to tug the justices one direction. But we know from the conservative justices’ past rulings on the Affordable Care Act and we know from their basic stance toward, you know, progressive enactments that they’re pretty hostile, that this gets their juices going. And that’s not really a criticism. I mean, politics is kind of all around us. It’s hard not to get wrapped up in it. And that’s going to affect their judgment on the margin. And the question is like how big of a margin? How much is that going to affect how they think about this case? And to be honest, I’d like to be optimistic. I’d like to think the law matters more than the raw politics. And I think it probably will at the end of the day. But I don’t know that. And the small risk — and maybe even a meaningful risk, more than small — of a really bad outcome is worth worrying about here, because I think it’s a real possibility. 

 

[47:21] Andy Slavitt: Yeah, it’s a real possibility. And I guess I just have really one really super in-the-weeds question, which is if I’m a justice of the court, some of these folks are like in their late 40s, early 50s are going to be there for a long, long time. They have to rule on a lot of cases. Presumably many of them still believe in precedence. Does voting to say that you can’t sever pieces of a law and you drew on all of it, would that tie my hands for the next 20, 30 years? In other words, would it motivate me to say, you know what, I really don’t want to be on record as saying things can’t be separate? 

 

[47:56] Nicholas Bagley: Yeah. And there’s actually been a number of rulings the past couple of years where some of the conservative justices have said, look, severability is really important and we want to keep in place as much of Congress’ laws as we can. And we think it’s really important that we not kind of walk around with a sledgehammer just knocking down laws because of minor problems in one nook or corner of the law. So it matters. But I’ll say, you know, severability doctrine is notoriously spongy. It’s actually a really tough doctrine to apply. And so what you say in this case, you know, it would be influential in the future, but would it find you in any kind of, like, tight sense? I think probably not. 

 

[48:31] Andy Slavitt: That’s less good than I thought. 

 

[48:33] Nicholas Bagley: Yeah, well, I mean, it’s not nothing. I mean, I do think these people try to be principled, but I’ve seen too many cases go south where, you know, I struggle to find any other explanation except that they were motivated to reach the result they did for, you know, frankly, political reasons. 

 

[48:48] Andy Slavitt: So about when do you expect we’ll hear a ruling on this case? 

 

[48:50] Nicholas Bagley: Probably, you know, March, April, May. Could be as late as June of 2021. 

 

[48:57] Andy Slavitt: Got it. OK, well, I think you’ve just given us a great lay of the land. It feels like if you’re a visual learner, you could kind of map out the maze of the justice being confirmed, the election, the case, the choices in the case. But all of these things add up to one thing. Two things. One is that this election is about health care. The other is that this election is about COVID and the response to COVID. One of the points we made in our New York Times piece was that as soon as you go back to a world where your being sick, your health status is a factor in your ability to get insurance, you have to start becoming secretive again, very, very secretive about your health. And you think about all the things we have to do in a public health crisis, like contact tracing, testing. Who’s going to go in for a test? Who’s going to go tell someone that someone else, by the way, they’re exposed to COVID-19. So it’s one of the reasons why our country does far worse than all these other countries around the world do it because we don’t have universal coverage system and we have holes in our system and we create more holes. It could be really disastrous to COVID-19.

 

[50:13] Nicholas Bagley: Yeah. Well, look, it’s not hypothetical. We saw this with the last major pandemic, which was AIDS. And people who were worried about getting an AIDS diagnosis wouldn’t go get tested. And that’s obviously the opposite of what you want. You want people to get tested so they can be safe. And that’s not what we’re going to have if the Affordable Care Act is tossed out. 

 

[50:34] Andy Slavitt: Great. Thanks for ending on a happy note. 

 

[50:26] Nicholas Bagley: Listen man, it’s 2020. I don’t know what to do for you.

 

[50:41] Andy Slavitt: Exactly. I was thinking the other day, I remember like 10 years ago, I would see all these plans from states and companies with “Vision 2020.” Do you think this is what they had in mind? 

 

[51:06] Andy Slavitt: Thanks to Nick for laughing at my joke. I think he did a really great job explaining to people what is at stake in these very intricate, narrow issues. It’s a bit like a maze, but all these things are coming together at once. This combination of the election, the Supreme Court appointment, the ACA case, this is the bang, bang, bang. And Nick really patiently sorted it out for all of us. So I’m really grateful to him for doing that. Let me tell you about the next three upcoming shows. On Wednesday, we are going from up on the Hill where the Supreme Court is down the hill in Washington, D.C., to what they call downtown. And that is inside the White House for an episode on the West Wing. And let me tell you that when you are anywhere in Washington working for the government, people refer to the White House as downtown. There’s a reason for that. Maybe I’ll tell you at some point. Next week, Rajiv Shah, Rajiv Shah was the former head of USAID. He is one of the leading not just voices, but acts now as head of the Rockefeller Foundation, working to organize our way out of this pandemic. He is one of the most active people, he has been vocal about the CDC. He’s been especially vocal and focused on how we rapidly do testing. And he’s putting his money where his mouth is. It’s gonna be a great episode. Then on Wednesday, Senator Chris Murphy. This is a very relevant, very timely conversation because of the Supreme Court. Chris has so many issues of passion, including gun rights, including voting rights, so many things that are going to be in front of a court. We’re going to talk a little bit about what the Senate strategy and approach is during the confirmation. So that’s for the next three episodes. Thank you so much for sticking with me. And we’ll talk to you on Wednesday.

 

[53:07] Andy Slavitt: Thanks for listening to In the Bubble. Hope you rate us highly. We’re a production of Lemonada Media. Kryssy Pease and Alex McOwen, produce the show. Our mix is by Ivan Kuraev. My son Zach Slavitt is emeritus co-host and onsite producer. Improved by the much better Lana Slavitt, my wife. Jessica Cordova Kramer and Stephanie Wittels Wachs still rule our lives and executive produce the show. And our theme was composed by Dan Molad and Oliver Hill, and additional music by Ivan Kuraev. You can find out more about our show on social media @LemonadaMedia. And you can find me @ASlavitt on Twitter or @AndySlavitt on Instagram. If you like what you heard today, most importantly, please tell your friends to come listen. But still tell them at a distance or with a mask. And please stay safe. Share some joy and we will get through this together. #StayHome.

 

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