[no audio] announcer: as we leave the supreme court, president-elect biden will be talking about the case before the court challenging the affordable care act. we will bring you live coverage of his comments starting at 2:00 on. eastern on c-span, live c-span.org, or listen with the free c-span radio app. now, a conversation from this morning's washington journal.

next by are joined katie keith with georgetown university, the center on health insurance reform. she is also an adjunct professor of law at the law school at georgetown. thank you for joining us. katie: thank you for having me. host: here to talk about the latest supreme court and the most significant supreme court on the affordable care act. give us the shorthand version of legally, how we arrived at this point. katie: to understand this case, we have to go back in time a little bit to 2012 and then 2017. if folks remember back to 2012, that was the first time the supreme court upheld the affordable care act. chief justice john roberts held that the individual mandate could not be sustained under the commerce clause, but it could be sustained as a tax. it walks, talks, cracked like attacks.

-- quacks like a tax. fast-forward to 2017, republicans controlled both chambers of congress. timespent much of their trying to repeal as much of the affordable care act as possible. it led to multiple high-profile failed attempts and the very dramatic john mccain thumbs down in the middle of the night one night. law inot repeal the 2017. then in the tax reform bill, congress changed the individual mandate penalty from $695 to zero dollars. saw a lawsuit filed by a coalition of republican toorney generals, individuals, and joined by the trump administration essentially asking the court to revisit that by saying there is

no more penalty for the individual mandate and it can no longer be sustained as a tax. that makes it unconstitutional under the 2012 decision. that argument is what it is. but what the kicker is, and they go so much further to argue, the mandate itself is so essential and so critical to the entire rest of the affordable care act that the entire law should be struck down alongside the mandate. the case that this is about is whether the mandate can stand now that the penalty is set to zero. and if not, how much of the rest of the law should be struck down with it? host: take us back to 2012. chief justice roberts in that inision, did he write about his decision, the expectation would come back

to the court? and that these points would be argued with some sort of finality. wase: i don't think that the expectation at the time. and he saw and occasional -- an additional supreme court case challenging a separate issue. that case in 2015 also written by the chief justice, he sort of closes that decision by saying it is not the court's job the question what congress did here. read that as saying, stop bringing these cases. that clearly hasn't happened, and here we are. ,he law turned 10 years old enacted and signed into law in 2010. withd behold we are back existential challenge to the law. host: that tax penalty shortly after the case began to develop,

who are the plaintiffs bringing this case to the court? have been changes over time. i will give you who the parties are now. on one side, they are arguing the entire aca should fall. you have a coalition of more or less red states. a group of republican attorneys general and governors. states led8 of those by texas. two individuals that serve as consultants in texas and lived there. you have the department of justice representing the trump administration in this case all on one side arguing that the mandate is unconstitutional and that the entire rest of the aca should be invalid. host: i want to remind viewers that we will be covering the oral arguments at 10:00 a.m. eastern with live coverage on c-span and c-span radio. our guest is katie keith to talk about the aca.

here is how we are setting aside the phone lines for this segment. if you are uninsured, that line is (202) 748-8001. for those that get employers insurance, (202) 748-8002. for all others, (202) 748-8003. by the, thatvered number is (202) 748-8000. publishedh was yesterday, a preview. , one of theith things that you talked about, the issues to listen for, do the challengers, a coalition of states, have standing to challenge the aca? tell us what standing is and if the court will make that decision? is one of these bedrock legal principles. you don't get to go to court for any reason.

you can't file any lawsuit you want because you don't like something the government has done. standing means you have to actually have been injured. , ans a procedural hurdle important one anybody has to cross to be able to bring a lawsuit. argument being made by a group of states and california defending the law in the house of representatives, they made some pretty forceful arguments that no one is injured by a zero dollar penalty. how are states injured by a mandate with no penalty? individualse injured by a mandate with no penalty? justices troubled by that? do they have questions about standing? it is certainly

something to be watching for. harmed innt that your a penalty without a -- in a mandate without a penalty is much weaker. host: justice amy coney barrett -- do we have any kind of indication of how she has come down on cases for the aca in the past? katie: she has not ruled, to my knowledge, on any of the affordable care act latest cases. in her professorship and scholarship, she has been critical of the chief justice's decisions. it is probably no surprise to your listeners that she listed justice scalia as a mentor. she said his judicial philosophy is her own. he was a leading defender and both of those cases against the chief justice. sayink it would be safe to

if justice barrett had been on the court previously, she likely would have been in the dissent. it is hard to say at this point quite what that means for how she might decide on this case, but i think she certainly would have sided with the dissent. her: it's hard to believe confirmation hearings were just a month ago. exchange between the chair lindsey graham and now chair justice barrett on the issue of severability. >> the doctrine of severability is a doctrine essentially of statutory interpretation. what it means is that if you have a statute and the affordable care act is a long statute, if there is one provision within the statute that is unconstitutional, the question is whether that one section can simply be rendered null and excised from the statute, severed, so that the

rest of the law stands. or whether that provision is so essential to the statute that its unconstitutionality, once it is pulled out, the house of cards collapses. the presumption is in favor of severability. it is a question of your intent. thingr graham: the main is the doctrine of severability has a presumption to save the statute if possible. correct? >> that is correct. senator graham: i want every conservative in the nation to listen to what she just said. the doctrine of severability presumes, and its goal is to preserve the statute, if that is possible. so from a conservative point of view, generally speaking, we want legislative bodies to make laws, not judges. correct? >> that is correct. senator graham: and would be

further true if you preserve a statute, you try to to the extent possible? >> that is true. senator graham: that is the law, folks. bet: the theme considered to severed here is the mandate, right? katie: that's exactly right. thequestion here is, if mandate is unconstitutional, is that the part that could be pulled out and everything else left to stand or not. the court in recent terms dealt with severability issues on other laws that congress has passed? katie: it has. there are two recent decisions from the courts last term. decisions out in 2020, one written by the chief justice and one written by justice kavanaugh. both decisions really confirmed the description that now justice barrett was giving during the

confirmation hearing that there is a presumption of severability. berts -- courts should conservative, not politically conservative, but judicially conservative to preserve the law. , that can look at intent is what you're supposed to do. you are not supposed to take the pen and invalidate entire laws. thatis the principle diverse legal scholars agree on. we don't want the court rewriting whole statutes. host: the idea of severing the individual mandate, it is like severed like a limb off the law. case, if heis struck down the individual mandate, that provision would no longer be enforced. is not being

enforced right now. we have been living in this world without a functional individual mandate is 2019. -- since 2019. average premiums are down a little bit. enrollment is stable. yes, congress intended to zero out the individual mandate and it did not mean for the entire lot to be thrown out. -- entire law to be thrown out. everything is functioning as they otherwise would. probably more stable than expected. masters of keith, a public health from johns hopkins university. let's get to calls who is dennis, under the affordable care act in tyler, texas. of againstas kind obama care when it first came had a pre-existing and we could not get any other

insurance companies to cover us. inough obamacare, we got there and they save my wife's life and myself because it allowed pre-existing. we pray -- we pay pretty good chunk, but it has been worth it. host: give us an idea, what do you pay, if you don't mind? >> we pay $15,000 a year. host: we appreciate your call. katie: thanks, dennis. the affordable care act is not a perfect law. no law is. but i think it is families like dennis's where if the court invalidates some or all of the coverage dennis's would be severely disrupted and not something we should be prioritizing in a pandemic. host: go ahead.

caller: is it possible that biden can use an executive order and give us insurance? can't the president do anything he wants to do? what hastop of that, the trump administration done byher legislatively or executive action to change the affordable care act at all? pass inf this comes to texas is successful striking down the affordable care act, there is nothing a trump administration or biting administration could do. it would be in the hands of congress which has a range of auctions. -- of options. congress could keep it out of the court entirely.

there may be some very narrow circumstances were a biden administration could try to help. but at the end of the day, this would have to be something congress fixes. the idea that you could use an executive order to fill in the gaps, i don't think it will work in this situation. it does not have the legal binding effect to require insurance companies to do what the affordable care act were offer the coverage they need to people with pre-existing conditions. host: what was the original test of the mandate? intent -- original this was trying to have a healthy risk pool. it was to encourage younger, healthier people that otherwise wouldn't want to get insurance. if you are young and healthy, you think you don't need it. but having the mandate would require them to participate in the risk pool and get the insurance they need, and help

stabilize premiums to keep costs low for everyone. theas turned out that carrot has been more effective than the stick. subsidies for low and middle income families is what is keeping the market stable. congress at the beginning really thought this mandate was tickle. -- critical. mandatebeen without the for two years and things have been working just fine. our next caller, insured by his employer. caller: i would like to ask the guest, when the judges uphold , can they see why this keeps coming back. they voted.

how can individuals or states out?back and take this one vc -- don't they see that this involves politics? i don't understand that. why are the judges wasting their time? gay people that will not marry each other, it will just come back again. before, 20 years ago or 50 years ago. that we need to come back and politicize things. host: any thoughts? i can't speak to some of the other issues that john

case,t up, but on this the challenges seem quite politically motivated. i had hoped after the repeal there was a015, stalemate. i had naively hoped that we could move on from some of the affordable care politics and go on to working on health reform with bipartisan support. instead, we saw this lawsuit filed in february of 2018. it kept the affordable care act in the headlines. it certainly seems like proponents of the aca are creating a court system here. and politicoine says, not just obamacare, the supreme court conservative

majority could remake american health care. medicaid could shrink or undermine obamacare's marketplaces if the health care -- marketplaces. if the court declares the law unconstitutional, with that in the expansion of medicaid -- would that end the expansion of medicaid and states? katie: it could. is it really the court that draws the line? the court could invalidate the entire law and medicaid expansion would go away alongside the changes to medicare, the fda, the public health system, and a range of different parts of the statute. it could strike down just the protection. it could strike down the individual mandate. we will have a better sense

after oral arguments today that we will be waiting on pins and needles to see if any of the rest of the law is struck down, what does it include? older on medicaid and states will be watching that closely because it has huge implications for state budgets. host: on twitter, millions unemployed will file for aca health care. it is a pandemic and not time to resend coverage for americans with pre-existing conditions. in houston,alind texas. agree with that tweet you just read. how can we be considering cutting down on insurance in the middle of a public health crisis? i'm a strong supporter of an organization called the borgen project which has been working to secure funding to fight covid-19 abroad. we just heard from pfizer yesterday that the vaccine is over 90% effective.

we are looking at the most progress we have made toward ending this pandemic and we are thinking about limiting health care? now is the time for congress to worry about how to distribute the vaccine, distributing to people abroad. limitinge looking at it when we need to be bolstering it. host: katie keith. katie: thank you for that. i would add that some of the covid relief packages that congress has passed already really build on the affordable care act framework to do covid relief. of the covid testing provisions can be delivered. passed usesongress the affordable care act to make that happen. it is about something even bigger than health insurance at this point. host: she raised up the issue of

timing. but what about the timing of the case itself. any insight into the justices placing this on their dock at the week after the election, or is that just the way things work out? katie: i think it was the way things worked out. the schedule is entirely within the court's control. pandemic,cause of the there were a number of things held over from the last term. it pushed some of the cases, but i think it just happened to be that way. we will hear a little bit more and we will try to raise 18 leaf read a tea leaf -- leaf. people can enroll through

december 15, but we won't see a decision in this case until the spring of 2021 at the earliest. i am pretty much expecting it to come this summer. effortsw have those been going under the trump new acaration enrolling coverage? katie: things are remarkably stable. enrollment has decreased each year. obama administration was on its way out, we thought it would peek and it has fallen each year. i think part of it is they haven't done as much advertising, outreach, or education. year, we saw 11.4 million people enroll in hcare.govthrough healt

and similar state marketplaces. host: is that new coverage or renewed coverage? katie: it is both. i can't recall the number of new enrollees off the top of my head, but that is for everybody. host: let's hear from vanessa in albuquerque. caller: thank you for taking my call. my comment is, i think they are just trying to get rid of the obamacare or affordable care act simply because they don't like it. this year, i became eligible for medicare part b and if you don't take it the first year you are eligible, there is a 10% penalty each year you don't take it. thingt's ok, and the only they are trying to do with obamacare is to try to get everybody to pay and -- to pay in, people would have coverage. how can you say it is not fair ?or them to pay that penalty

we all pay taxes. stopping us from paying federal or state taxes. is to get ridsue of obamacare. medicarede to take part b, i don't think i should take a penalty later on because i do have pre-existing conditions and i am a veteran. v.a. my health care at the outs.t sure of ins and i don't want to have to go get a supplement or continue to pay more money. it's easier for me to stay with v.a. so if there is a penalty for medicare part b, i don't see anybody trying to get rid of that. host: is there something analogous about that penalty?

as she was talking, i was thinking in some ways, she was channeling the chief justice and the 2012 debate saying that it is a choice that people make similar to the medicare part b decision. there are consequences if you don't do it, but it is within congresses authority to incentivize people to make decisions. i think they are somewhat analogous in that respect. host: farmington, minnesota. ken gets insurance on the aca. in farmington, new mexico. aboutmmunity hears is 100,000. -- here is about 100,000. i went on the aca when i retired.

they won't make a contract with any of the primary care physicians in this county. they won't pay any bills. i have been fighting with them for three or four years. anythingink there is they could do or the state could do? i pay $1500 a month for the silver hmo plan. thank you. it sounds like what you might want to do is reach out to your state insurance department. and there are some federal standards on this. it they're supposed to require insurance companies for network adequacy standards. enroll, it should have an

adequate provider network. i think the mexico state regulators would be very interested in hearing from you. host: when the court eventually rules on this case, could they negate the pre-existing conditions mandate in the aca? katie: they very much could. there is still a chance that that is true. possible is that they strike some of the affordable care act including primarily the people with pre-existing conditions. the argument would be that the mandate is so essential for those protections that they have to follow alongside it. -- fall alongside it.

texas points to language in the legislative findings. is so the legislation is essential. that is another thing to watch for today. how much does the court focus on conditions versus the other things. host: in new york, we hear from janet next. i am calling regarding a question. as we go into this new republic, this new democratic government why is it important that we are concerned about the aca or anything else when they promised they are going to go to medicare

for all. that means any private insurance would probably go away. they have not stated that, but it will probably go that route. why are we concerned when the possibility is we are not all going to have private insurance anyway? katie: i don't think that .edicare for all does options might not be on the table given the new congress. the political reality is that we will all be living with the affordable care act for a long time. president-elect biden has pledged to build on the affordable care act.

it will be something to sort of address in the meantime. you can tell folks are really reliant on the affordable care act. and again, in the middle of a pandemic it does not seem to be the time to destabilize health care. twitter saysn people have short memories. insurance premiums were out of control, emergency rooms with patients with zero coverage and taxpayers foot the bill. it was meant to give everyone skin in the game. thank you very much, c-span. i do have a question if my memory serves me correct. i am an avid watcher of all the ,earings and all on c-span

doing that 10 years ago when the hearings were going on. am i correct in saying that part -- it's what they can spend on their administrative fees? wasn't there something that they had to spend 80% or 85% of the premiums on actual patient care? and isn't part of the problem that offering a public option would be true competition because the public auction -- option isn't based on profit. isn't that why so many republicans are against the aca? is it currently there that the insurance companies just can't spend whatever they want on building their buildings and paying the ceos? that they must pay for patient

care. host: thanks for listening and watching that hearing way back when and listening so closely. katie: she has a great memory. that is exactly right. is the medical loss ratio requirement and exactly what you said. it acts like a prophet cap for insurance companies. torequires them to spend 80% 85% on actual medical care or quality improvement activities. to 20% can go to administrative costs, profit, advertising. it makes the premium dollars coming in have to be spent on care. insurance companies have to give rebates to consumers, to make

sure that they spend the 85% that they have to. more than $2 billion is going .ut to consumers host: how have insurance companies fared financially in ?he last 10 to 12 years katie: there were struggles early on. coming into a new market, covering a new population. insurance companies did not know how to price or what the risk would be. in the first years, there were pretty significant losses. that has fully rebounded. we have seen insurance companies profit from the individual market. in 2018.ds being set insurance companies withdrew from the market are coming back in.

it took a little bit of time. host: let's hear from debbie in kensington, maryland. good morning. guess my comment is that i feel that people are listening to a lot of rhetoric coming out of the democratic that they will lose all of their insurance during a pandemic. which i believe is not true. like the way political .arties insert fear to people that they believe the people running for office are speaking true. we are going to get free insurance -- i can't imagine that whatever be so. i have mostly not had insurance in my lifetime unless i work for a company that offered it.

that wase catastrophic $140 a month and it went to $700 a month and i dropped it. i was penalized for dropping it. i am grateful for the republican party and president trump that i don't have to get penalized. $800 is a lot of money for someone like me that can't afford $700 a month with the .ther bills i have i am 63, i'm single, and i've -- i don't really have any medications except for one. i don't need to pay $750 a month for a couple of preventative doctor bills. i did try this past year to go and get catastrophic again.

but the living they offered was a $60,000 payout for cancer. that was it. and i was paying $270 a month just for that. that, to me, is like theft. i'm not a fan of obama care or the rhetoric. thesh people would have integrity of their word and speak the truth, not try to give people fear. they are not going to take anything away during a pandemic. host: any observations? commentsthink your show a lot of this is personal. it's about people's health needs, it's about budget. they are difficult and personal decisions. i think there continues to be a risk that the supreme court could strike the entire law or major part of it.

i hope that doesn't happen because i think it would be so destabilizing and not something we should be focused on at the moment. i think folks should not be too fearful at this moment. and again, it is open enrollment season so that folks can see if they qualify for coverage now. it continues to be a very real risk. folks did not expect this to be at the supreme court now but here we are. no one thought the court would take a whack at medicaid expansion and the court said it was optional for states. you have millions of people in .tates that have not expanded it is something i hope we don't

see repeated. host: are there any other affordable care act cases? katie: another case they have had an argument over is rutledge versus pc ma. the court of it is if the states have the regulatory authority over pharmacy managers. with drugfed up prices and are fighting for ways to bring those down. that challenge is preempted under federal law. the court is weighing if other states will have the flex ability to try to regulate pharmacy managers in the future. a little bit wonky, but i think it will have significant implications.

this would be the work requirement program, the trump administration program allowing serviceo prevent providers from giving abortion care, for example. we don't know if the court will take those cases just yet. host: let's hear from eric in connecticut. get his insurance through the aca. ander: i am 53 self-employed. i am on obamacare. putaffordable care act has many americans on medication that if they don't take, it will cause death or harm to their health. knowinglypreme court do harm or death to american taxpayers? the doctors take an oath that say they can do no harm to americans.

is that true also for the supreme court? katie: that is not true for the supreme court. i think the concern here is that they would make a decision on legal grounds that has the impact that you are talking about. it would make it harder for people to get the prescription drugs that they need. there are many studies that show having health insurance does help stabilize. it is not necessarily something the court would consider. i assume they are paying attention to health care needs like you just brought up, and the pandemic, and the destabilizing effect it could have on the health care market. at 10:00l arguments a.m. eastern and live coverage coming up as well. 10:00 a.m. on c-span, c-span

radio, and following along at c-span.org. we have been speaking with katie keith.