Advisory Opinions - Zombie Obamacare

Episode Date: December 24, 2019

Former Texas Solicitor General Scott Keller joins to discuss the latest 5th Circuit opinion on Obamacare and David and Sarah discuss JK Rowling’s latest TERF tweet. Learn more about your ad choices. Visit megaphone.fm/adchoices

That's the sound of unaged whiskey transforming into Jack Daniel's Tennessee whiskey in Lynchburg, Tennessee. Around 1860, Nearest Green taught Jack Daniel how to filter whiskey through charcoal for a smoother taste, one drop at a time. This is one of many sounds in Tennessee with a story to tell. To hear them in person, plan your trip at tnvacation.com. Tennessee sounds perfect. Sasquatch here. You know, I get a lot of attention wherever I go. So when I need a judgment-free zone, I go to Planet Fitness. Get started for $1 down and then only $15 a month. Offer ends April 12th. $49 annual fee applies. See Home Club for details. Welcome to Episode 3 of Advisory Opinions, the new podcast from Dispatch Media. Sign up at thedispatch.com.

With Sarah Isger, this is David French, And we have a very special key guest today, somebody instrumental in headline-making news last week. This is the kind of key guest you can expect from us in the coming weeks and months. Now, if you are unfortunate— He was very difficult to get, very difficult to get today. I mean, it's two days before Christmas. This was tough. Well, we have the best bookers. We have the best bookers. Key connections. So you've heard, if you're unfortunate enough to listen to Pod Save America, which I confess I've listened to quite a few episodes of Pod Save America, they have this saying, friend of the pod. They'll

introduce somebody and they'll say friend of the pod. So this is spouse of the pod who is a guest. Scott Keller, attorney, Baker Botts, former Texas solicitor general, graduate of the second greatest UT in the United States of America, the University of Texas Law School. Hey now. Hey now. The greatest UT, as we all know, is the University of Tennessee. And Texas, as we all know. The fact that you even have to explain what state you're talking about, because no one, like everyone listening is like, what? Yeah, it's because Texas.

Well, I maintain that Texas, and I'm accurate in this historically, and we could probably do a whole pod about this, that Texas is Tennessee's. Oh, God, you're about to Polk. You're about to President Polk. Oh, so much more than that. So Texas is Tennessee's first and only colony. So I think, what was it, 13% of the combatants who died at the Alamo were Tennesseans, Davy Crockett, Tennessean. You had Sam Houston, former governor of Tennessee, the author of the Texas Declaration of Independence, Tennessean. James K. Polk, who of the Texas Declaration of Independence, Tennessean. James K. Polk, who brings it into the United States, Tennessean.

I mean, it really is a state that is imprinted with the spirit of Tennessee. So Tennessee is most famous for Texas. No, I mean, that's like number 100 on our list, but that's why it's trivia. I don't think so. Oh, okay. Yeah. So anyway, I just briefly introduced Scott. Anything else you want to... He grills a really good steak.

Nice. He takes out the trash on the regular. I don't even have to ask. It's wonderful. No, so Scott is actually from Wisconsin. Little known fact. He is not a born Texas, but as we have the bumper sticker, I wasn't born in Texas, but I got here as fast as I could.

That is Scott Keller. Got a huge Monday Night Football game tonight. Packers and Vikings. He's still a Packers fan, sorry. Oh, I can hear that Wisconsin accent right there. Just get him started on cheese. I mean, put the boy near cheese and he goes. He clerked for Justice Kennedy and was the first chief counsel to Senator Ted Cruz.

Correct. And and then he was solicitor general and he had you've done 11 Supreme Court cases. But outstanding brings you what brings you to the pod today. And he was Solicitor General and he had, you've done 11 Supreme Court cases. Outstanding. But what brings you to the pod today is you were the original drafter. How do you want to describe your role in this Obamacare case? I don't want to put words in your mouth. So the Affordable Care Act case that we're about to talk about was led by the state of Texas and the state of Wisconsin and their attorneys general. And so I was there at the Texas Attorney General's office at the time that that lawsuit was filed.

Were you also Wisconsin? Did you represent both? No, no, no. My good friend, the former Wisconsin Solicitor General Misha Saitlin was Solicitor General of Wisconsin at that time. Corrupt bargain. Well, Scott, so what we're going to talk about, there'll be four broad topics because we're going to track the main controversies in the Obamacare case. And this was a case filed, very interesting legal the, this was filed after Congress removed the tax penalty from the individual mandate, correct? It was not a pending case before then. That's right. And the lawsuit was really a reaction to that. And of course,

as I think you're about to get into, there's a whole lot of history before we got to that point. Yeah, a ton, a ton. So we're going to, we're going to, there are kind of three broad controversies in the case. Why the heck do you think Texas has standing, which is, this is going to be legal nerdery here. So just legal nerd warning, but standing issues are important. Why the heck is a toothless mandate unconstitutional? And why do you think that the whole act can be struck down? And then the fourth question is, when will Texas ever be back in football? So those are the four broad. So first, why don't you kind of set up the lawsuit? What was the overall, give us the historical background, the overall sort of theory of the case, why you did it,

and then that'll kind of naturally weave into those sort of three big topics. Sure. So in, I think it was the end of 2017, Congress, as you said, got rid of or zeroed out the tax penalty for the Affordable Care Act's individual mandate. The individual mandate, of course, as I'm sure almost all of your listeners know, was a provision of the Affordable Care Act that required most Americans to affirmatively go purchase health insurance. And that was one of the two big components of the Affordable Care Act that was litigated at the Supreme Court earlier in the decade in a case called NFIB versus Sebelius. In that decision, the Chief Justice famously interpreted the individual mandate as a tax rather than a penalty, and by interpreting it as a tax, was able to uphold it. Of course, if I fast forward to 2017, Congress then eliminates the tax penalty,

and in doing so, then the state ofas and a coalition of other states and individual plaintiffs and we're going to get to that argued well if congress zeroed out the tax penalty it is no longer a tax if it is no longer a tax it cannot be justified as a valid use of Congress's power. Now, wait, can I just, can we dive into a footnote here, which is NFIB versus Sibelius is a 5-4 opinion with like an infinite number of opinions within the opinions. It is nesting dolls of opinions. The reason that the chief finding it attacks is relevant is not,

no one else joined that or did one other join it well so the four justices the joint dissent would have said no correct cannot save it as a tax four other justices would have said this is a valid use of commerce clause power and the chief justice said no it's not yeah it's not a valid use of that yet he's living on his own in this little tax island and so the reason that this becomes important, even though it's one justice, is he is like the swing vote extra because he had this unique little interpretation. And so this the whole concept behind this case in some ways is to box in this swing vote, the fifth vote, upholding Obamacare back in 2012. So without the tax, there is no evidence that there are five justices who would say that you can compel the purchase of private health insurance. There's four, but there ain't

five. But there ain't five. So this is all a battle for number five, which arguably, and we can have, I mean, David, you and I'll go off on this, I think in the new year, but in this new court, the chief is the swing vote. And we haven't had a chief justice as the swing vote in a long time and what all that means and the powers of the chief justice and everything. But this case is such a perfect example of Roberts as swing vote. Yes, exactly. All right. So, Scott, continue the tale. Standing. Yes, standing. Standing. And here, well, let me interject one more time. Here's why this is important.

So this is, you know, we have all heard of the judicial resistance, you know, hashtag resistance and and how an avalanche of lawsuits have been filed by states. And gosh, I don't know. I lost count. California AG might have somewhere in the range of 30 significant lawsuits against the Trump administration. lawsuits against the Trump administration. And there's a lot of controversy over when can a state assert an injury as a result of federal litigation. For example, I'm still mystified as to how states had standing to challenge the Trump travel ban. A lot of that was sort of imputed. Well, we have a right to take care to make sure our citizens aren't harmed by discrimination. Well, the citizens have individual rights if they are harmed by discrimination. But so anyway, so you had individual plaintiffs and state plaintiffs. So take us through why you felt like Texas was harmed by Obamacare.

Obamacare. So the states, first of all, raised their own interest as states, but then also the way standing, of course, works is you only need one plaintiff to actually have a concrete injury to get to court. And again, the whole rule behind standing is that you want a live case for controversy so that they don't have our court systems just going off and issuing whatever decisions they feel like at any given time. Rather, they need parties before them that have a concrete legal dispute. So the states, in having to certify which of their citizens would be needed to fall within the coverage of the Affordable Care Act and managing their Medicaid programs. In addition to all those compliance costs, the states were asserting, you know, there was interest, but there were also individual plaintiffs and individual citizens filed affidavits and they said, well, look, federal law says I must buy health insurance and a separate provision also included this tax penalty.

And, yeah, that tax penalty is at zero, but that's a separate provision of the law. And federal law today still requires me to purchase health insurance. I am a good citizen. I do not want to violate federal law. Therefore, I am going to abide by that requirement that I must purchase health insurance. But I wouldn't do that if Congress had not passed this requirement, if the individual mandate did not exist. And so, and this is fast forwarding a little bit – those two theories, the state's theory and the individual plaintiff's theory is ultimately what the Fifth Circuit last week said in a two-to-one vote was sufficient to have standing to challenge the individual mandate. Then you take on the individual mandate itself. And we kind of already talked about that there were, you know, the breakdown of the Sebelius case and the absence of five justices for a majority. But there was also sort of this argument. It's toothless. So why are you holding something unconstitutional that's toothless? Why are you holding something unconstitutional that's toothless?

And you kind of got to that with the standing argument a bit, but sort of walk us through the Fifth Circuit's opinion and what the Fifth Circuit held regarding the constitutionality of the mandate itself. Yes, I think a lot of ways the standing issue here and the merits issue of is the individual mandate constitutional, I think those do kind of combine. And I think you saw that in the dialogue between the majority opinion and the dissenting opinion in the Fifth Circuit. The argument against the individual mandate now is simply, well, it was upheld as being construed as a tax. And the chief justice opinion, NFIB versus Abilia has said it's most naturally read as a penalty. However, as a saving construction courts go out of their way to save statutes to, to not have to declare something unconstitutional.

And what the chief justice said there was he could do that by interpreting the provision as a tax. Well, there's very clear Supreme Court precedent saying if a law is not actually raising revenue, it is not a tax. Right. So in 2017, when Congress zeros out the tax penalty, it is no longer raising any revenue for the federal government. Therefore, it cannot be a tax. And by pulling out that peg, then there would be no other basis that Congress could have acted within its constitutional powers under the Chief Justice's opinion. So that's the argument that the majority of the Fifth Circuit accepted.

Now, the dissenting opinion, in large part, made the argument that, David, you just articulated, which is this is completely toothless. There's no penalty. There's no requirement for you to purchase insurance. Rather, it's a choice, and the choice is you get to either go out and buy insurance or you pay a $0 penalty that doesn't compel you to do anything. pay a zero dollar penalty that doesn't compel you to do anything. And so that's, you know, for the entirety, I think of this Obamacare litigation over the individual mandate. This has been one of the arguments that defenders of the Affordable Care Act have made, which is, well, this isn't actually a requirement. It's just a choice. Right. The choice before, of course, was buy insurance or pay the tax penalty. Now it's buy insurance or pay a zero dollar tax penalty, which is do nothing.

conservatives, certainly Republicans, complain in this administration that what Democrats and progressives haven't been able to do at the ballot box, they try to do through the courts. I think there's a decent argument that this is exactly that as well. But on the right, you know, when Congress passed that 2017 law, they could have zeroed out a lot more of Obamacare than they did. They chose to only go after the mandate. And so then this now ends up in the courts, whereas it, to me at least, clearly is a political issue larger than a legal issue. And yet, after what they passed, the repeal motion or whatever whatever 41 times in the House previously and then when they actually had the White House, the Senate and the House didn't actually do it.

So I just want to make that political note that this has some other problems as well. Oh, yeah, yeah. And I think there's lots to talk about the political angle of this in connection with the severability. And the severability, now this is where this gets really controversial. So I am 100%— I mean, this is like David's, like, David lives in a, like, severability, like, hot tub. It's like his happy place. He's been so pumped about talking about severability, you guys.

Like, this is it. I really have been. I don't know if I was more pumped about this conversation about severability or seeing Rise of Skywalker this weekend. So. No spoilers. So I saw Rise of Skywalker. This is like completing my extended weekend. I saw Rise of Skywalker and now I get to talk severability. So let me, Scott, let me, let me give give you Christmas come early for the French family so so let me give you the argument I made in my newsletter last week and you tell me why I'm wrong so in the newsletter last week I said okay if you take 2010 Obamacare to Obamacare as passed

the individual mandate was pretty in a lot of ways I got some commenters saying no, no, it was this or no, no, it was that. But I think it's pretty clear that the individual mandate was the beating heart of Obamacare. Without the individual mandate, the thing didn't work. I mean, the actuarial tables wouldn't work. tables wouldn't work. You would have a real problem of people, sort of the free rider problem where you have people who sail on without insurance until the moment they get sick or the moment they get in an accident. And when you do that, the system financially can't work. So it was sort of, if you're going to have that guaranteed issue, if you're going to have the guarantee of covering pre-existing conditions, if you're going to have that guaranteed issue, if you're going to have the guarantee of covering pre-existing conditions, if you're going to have that promising universal coverage,

they didn't create a product that was so incredibly compelling that every single American wanted to rush out and get it. They created these insurance markets and said, then you have to participate. You have to be a part of it. And then that's kind of the only way this whole thing works. And so that's Obamacare 1.0 or Obamacare as envisioned. Then along comes Congress in 2017. And it's like it ripped the beating heart out of Obamacare, but instead of killing it, created like undead Obamacare, like zombie Obamacare. So this is Obamacare without its heart, but Congress still wants it kind of lurching and moaning around the American health care industry. And so if Congress, when it ripped the heart out of Obamacare but did not strike down other provisions of Obamacare, doesn't that kind of end the severability analysis?

If you're a judge, the judge is saying, well, wait a minute, Congress looked at Obamacare 1.0, didn't like it, created Obamacare 2.0. It might be a monstrosity. It might not work very well. It might not make a ton of sense anymore. But it's Congress's rotting creation. And it's horrible to look at and behold, but there it is. You've painted a beautiful picture. Yes, that sounds more like Halloween than holidays. Look, I think a lot of this comes down to the ambiguity in what do we even mean by severability? And to back up to kind of a first principle here, when the courts are approaching this,

so first of all, if you're even reaching an issue of severability, you've already found there is standing, there's a legal case or controversy. And you've also said on the merits, some provision of law is invalid. Then you get to, well, what remedy does a court issue? And in this case, obviously the stakes are high in that regard. But the first question I think you have to say is, what are you even looking at when you say severability? And what the Supreme Court has said before is when a provision is found invalid, you would ask, what was Congress's intent? Some version of a question along the lines of, would Congress have wanted to leave in place other provisions that are related

to the unconstitutional provision, or would Congress have said, no, those provisions are just so intertwined, we would have never passed this law without the provision that was unconstitutional. And so that's the type of analysis that's going on here. Of course, as you mentioned, we've had 1.0 and 2.0. So there's a debate within the case. And there are multiple facets that I think are unique to this Affordable Care Act litigation. But Congress initially enacted into statutory law language describing how central the individual mandate was to the entire law. I can't think of any other stat. I'm sure there may be a few examples, but that is not something that Congress regularly does. So when you fast forward to 2017 and Congress zeroes out the penalty, but also leaves in place that statutory language saying how central the individual mandate is to the Affordable Care Act, well, what do you do with that?

And there's a debate between the majority and the dissent, and we can talk more about that. majority in the dissent. And, you know, we can talk more about that, but this is to say that there's also an argument, you know, justice Thomas has hinted that maybe court shouldn't even be doing any form of severability analysis. Yeah. This is the question I was going to have for our first year law student, Federalist Society members who are listening by the thousands right now. Yes, that's right. Who are trained so well not to trust legislative history and are, I think, currently being sort of trained up in this Justice Thomas mold of what I'll almost call like an absolutism when it comes to to originalism. How do you square that with severability law to begin with? Severability jurisprudence, I should say. Yeah, and going back and looking at what did Congress intend?

How do you figure that out without using legislative history where you actually don't have, I don't even think, of the four conservative justices, are any of them willing to look at that legislative history? Probably not. Well, and that's also why this case is so unique though, because you do have that statute. of course, you also have a severability clause

that Congress passed saying it wanted to sever provisions. But that was in a different aspect of the or different part of the statute. Anyway, that's to say that there's a lot of moving parts here. Will you also dive into briefly the Department of Justice on the severability question switches positions? They in both iterations in the Trump administration, say that the mandate is unconstitutional, but they have two different severability arguments that they adopt. Well, you go through the first one,

which is a limited severability. We obviously, we get the full severability. You kill the zombie. But this one, you like hack off like the zombies, I don't know, like an arm and a leg or something. Then you treat him like the Black Knight in Monty Python and the Holy Grail. But a flesh wound.

So the, that's right, severability is not just a binary concept in that you would possibly sever the individual mandate, leave the rest of the Affordable Care Act, or just eliminate wholesale the entire Affordable Care Act. Rather, an argument was put forward that initiated it started under the Obama administration's Department of Justice because the Supreme Court asked them to to brief up the issue of what do we do if we find the individual mandate on. This is the 2012 case. This is the initial and if I'm versatility and what the Obama administration's Department of Justice said was we don't believe the individual mandate is unconstitutional.

But if you find the individual mandate to be unconstitutional, you also need to invalidate two other provisions of the Affordable Care Act, which is the guaranteed issue and community rating provisions. Give us a couple beats on those. Well, this would be the preexisting condition. OK. Yeah. Is the main thrust of that. So that was the Obama administration's position. The Trump administration's Department of Justice back in the trial court said the Trump administration agreed with what the Obama administration said on severability.

Now, to be very clear, various individuals, including the former U.S. Solicitor General who defended the Obama administration's position before the Supreme Court, said that you couldn't just import that analysis in the Trump administration when you had this new congressional enactment. So I just want to be very clear about that. But what the Trump administration said was, if the individual mandate goes down, the guaranteed issue and community rating provisions also need to go down. Now, the trial court initially said all of the Affordable Care Act goes down. It's a fun opinion, right? That was sort of the grenade thrown into the bunker where he was just like, blow it all up. Well, this is the part that the Fifth Circuit Court of Appeals sent back down and asked for additional analysis on.

Anyway, that was the Trump administration's initial position on severability. But after winning or after the whole thing gets blown up at the trial court, then they agree basically with the trial judge and say, yeah, and the whole thing. And then on appeal, the Trump administration said, no, we actually agree with the trial court. All of the Affordable Care Act must fall given that the individual mandate is unconstitutional.

And I assume, so when the House of Representatives and the Democratic states come in to defend the constitutionality of the mandate, do they have any, you know, sunlight in severability at all, or is it purely severable? I mean, there are going to be backup arguments that they make, but the main thrust of their argument is if the individual mandate is invalid, you can completely sever it. And the main argument there is the one that you just made, that in 2017, Congress zeroed out the tax penalty. They could have done all sorts of

things. That's the only thing they did. And that's the congressional intent that matters for severability analysis. And in the meantime, by the way, since the 2017 zeroed out penalty, to David's point a little, but maybe it undermines your point somewhat. Yes, there's no more penalty. The mandate is still in place and the world has not ended. So to your point, it's not a zombie. It's actually walking around, you know, eating food, not biting people or whatever zombies do. It's eating hamburgers, not people. Okay. That's right. Uh, I don't know if you've seen Santa Clarita diet. It's this like really weird quirky show. Yes, yes, yes. I gave it a try. I highly recommend if you're,

if you have the very weird sense of humor, but it's sort of like, you know, what if zombies were just like us? So really it's more like it's been fine. It's been two years and the economy has not collapsed. The health care industry has not collapsed and all continues. It's almost as if you get a trial run on severability. Scott, to your point earlier about what courts would really look at in terms of the legislative intent. They zeroed out the penalty. Life continues. Why is the court, why, what will the court look at to even determine severability at this point? It's a little bit of a rhetorical

question. Well, the Supreme Court needs to clarify that, ultimately. Yeah, you know, so to be really clear, if you're one of the small minority of listeners who have not read all of the opinion, the Fifth Circuit opinion, what the Fifth Circuit remanded the case to the district court to do, and you're right, Sarah, I mean, that district court opinion should have led with a trigger warning for people. It was a hand grenade into the public. I mean, he's one of our most fun district judges. Like you want to read just great opinions in general, highly recommend. Yeah, it was something else. So the Fifth Circuit remanded to say, hey, take a really close look at the whole thing whole at the whole thing, at the whole law. And maybe all of it, if once you take the second look, maybe all of it is is struck down, should be struck down and maybe some of it. And so you could end up with a situation where some of the unpopular provisions of Obamacare are struck or or remain, and some of the popular ones are struck down. And that brings us to sort of like the political analysis. So, I'm sure that there was

this kind of give and take. And I have my own answer to this, but I'm kind of curious as to, so Scott, you're at a party in DC.C. and a Republican political consultant comes up to you and they're sitting there working on a really tough Senate race in a purplish state. And they say, Scott, man, look, I understand Obamacare mess with Texas and you don't mess with Texas. And I'm totally with you on striking down the individual mandate. That's a crowd pleaser. But I mean, if you get rid of like this guaranteed issue, the pre-existing conditions, pre-existing conditions provision, and all of a sudden insurance agencies don't have to insure everybody, that's a political loser for us. And we kind of don't really have

a replacement. And going into 2020, you could really, you could unite the Democrats. I mean, Joe Biden could run on saving the popular parts of Obamacare. And the thing that you'll have done is give him this, you know, where he doesn't have to worry about the unpopular part anymore. have to worry about the unpopular part anymore. And, you know, hey, take your win and be okay with it. Don't go the whole way. Don't like dunk on opposition and flex over their prone body. Just go for the dunk. I'm thinking of all the fun end zone dances we've seen this NFL season. Act like you've been there before, man. Don't do the fake selfie in the end zone. Yeah, Scott and his whole defensive lineup with a pick six

just sit there and make their pose. Take out the Sharpie, jump in the Salvation Army bill. So how do you respond to that argument? Well, look, first of all, I'm definitely going to let the political prognosticators take care of that. I mean, I'll tell you, as Solicitor General and advising the Attorney General of Texas, I mean, it was legal advice. And it was, you know, what were the priorities of, you know, the Attorney General of Texas, Ken Paxton, and what his Attorney General administration wanted to accomplish. You know, and as far as the political issues, look, I get it. I understand the Affordable Care Act.

It was the signature legislative accomplishment of the Obama administration. And so litigation about that, of course, is going to be hot button. Of course, it's going to be political. And as a lawyer, as a litigant, you understand that there's going to be the that political backdrop at the same time as a litigant, you understand that there's going to be the, that political backdrop at the same time as a lawyer, you know, you're making legal arguments based on legal doctrine from neutral principles. And so, you know, luckily I don't talk to lobbyists. I don't have lobbyists coming up to me in DC and making political arguments because that's not, that's not what

my job was as the Solicitor General of Texas. And, you know, again, I understand that there's a political backdrop to it. And this is part of the reason why we're talking about standing in severability and the consequences seem rightfully so, so stark. So two points on this. One, and I think this is a point that I'll be making throughout life. And I think this is a point that I'll be making throughout life. When I see Twitter conversations or even news stories, but especially op-eds, there's sort of this all things are strategy and Republicans are a monolith of strategy and Democrats are a monolith of strategy. When, in fact, this is a great example where that's not true. It's not that, you know, the five poobahs get into a room and decide the strategy. And then the, you know, tens of thousands of, you know, strategist itos, you know, follow those marching orders. The legal conservatives have their own take on

Obamacare compared to the political operatives who run Senate campaigns. And I think in the Democratic Party, it's even more fractured by groups and interests. At least that's what we've seen in this primary so far, which is fascinating. It makes the country work. I'm all for it. But my second thing, my political point on this case, is the chances of it affecting the 2020 election at this point, based on that fifth circuit opinion are as close to zero as you can get. And I, uh, we ran through a little of this in, Oh no, we didn't, we didn't, it got cut. I wrote it for the newsletter and now I get to

talk about it. Oh, well, free Sarah is, this is, this is. This podcast frees you from the heavy hand. I think she just got the whole crew. She's in the end zone. She's doing a pose. Okay, here are your options on this Fifth Circuit opinion. One, rehearing on Bonk. I think it's, you know, less likely than 50-50, but not crazy that they could hear it en banc. En banc briefing would take several months.

The sitting, you know, May-ish, June-ish. This is the Fifth Circuit, my home, of course. So just imagine the big room in New Orleans and all the good food. Okay. Painting the picture, you know, even if the en banc sits early this summer, the opinion comes out in the fall. There's no way for the Supreme Court to get to it before the 2020 election. Not possible. Option number two. The litigants have 90 days, right, Scott, to file at the Supreme Court for cert on the limited question of, well, they could ask the Supreme Court to take the whole thing, that it was good enough. They could ask them to take just the individual mandate part, et cetera.

I think that's exceedingly unlikely that the Supreme Court would grant hearing on this, given that the court, the Fifth Circuit sent it back on the severability question, mostly because the Supreme Court likes to punt. And if you give them a decent reason, they'll take it. This is like a very good reason to take it. So that is the only way that the Supreme Court would even grant cert here this year. So they'd have 90 days, blah, blah, blah. They're not hearing it till the fall to OT20. And that means no decision, certainly, before the 2020 election still. Next up, of course, it follows the path it's on right now, which is it goes back to the trial court.

Trial court decides or rethinks through severability. Then it goes back to the Fifth Circuit. Then it goes back to the fifth circuit. Then it goes back to the Supreme court. Still not hearing it. Obviously then before the 2020 election. So if you are a 2020 Senate candidate, house candidate and presidential candidate, it makes a great talking point.

In fact, it's the perfect political talking point. And I'm surprised that we didn't hear it at the debate on Thursday that, you know, this hangs in the balance, but there will be no decision in time for that election. And that's fun for everyone. Well, and there's also a very short answer to the political consultants that y'all are, you deny it, but I know, five out of seven nights a week easily you're at these Beltway cocktail parties. I mean, from everyone in my Twitter mentions,

that's exactly how you Washington, D.C. folks are. It's like, what's the night off? Is it Wednesday night and Sunday night? In the sitcom version of this, it flashes to Scott and I sitting on the couch at 7 p.m. Like, hey, are you tired? Yeah, I'm a little tired. And then we just get in our jammies.

But I would, if I were you and I was at my, you know, it's Tuesday. And I'm like at, you know. Yeah, the Tuesday cocktail party. The Tuesday cocktail party at the publisher of the Washington Post's house. Right. I would take a sip from my exquisitely prepared Manhattan. And simply. From the wine cave? Oh.

And simply respond to the Republican consultant and say, it is my job to ensure that laws are—it's my job to enforce the Constitution. It's your job to pass constitutional laws. And I, you know, I have this, I have this real, I have this belief that if the Supreme Court steps up, now, again, I'm on the severability point. I, on the actual mandate itself, I'm with you 110%. On the severability point, I really want to see that district court opinion on remand and see what I think about it. But I think about this about a number of legal challenges we've seen of late, including to DACA, including to the travel ban. And that is, look, there are outcomes, policy outcomes you might really, really, really, really prefer here. You might really want to see DREAMers protected. You might really not want to see the president exercise such incredible blanket authority over entry into the United States like in travel ban.

But you know what? There's underlying statutes here. And there's underlying statutes here. And there's underlying constitutional provisions here. And the best way to achieve enduring policy victories that you prefer is not with the stroke of a presidential pen. It's with the enactment of a constitutionally valid, and I say that constitutionally valid, federal statute. And the more the courts enforce this order created by the founders, the better off our democracy is going to be in the long run. So that's the long answer to the Republican consultant, putting aside the putting aside the ins and outs of severability itself. putting aside the ins and outs of severability itself. It seems like... But I think this goes to my point earlier, though,

that I think one of the more dangerous things happening is that we're not... Congress is so scared of its own shadow in a lot of these respects. They're not willing to make any of these hard decisions, and that's why it's all ending up in the courts, and that's why both sides, liberal and conservative, are using the courts for policy ends. And I think it's a dangerous direction for the courts. I don't falling for the courts in a way that it wasn't

pre the 2012 case, really, because then after the courts make a decision, each side gets to beat up on the courts and say this was a political decision. And so we're dragging the courts down to where Congress's favorability is. I mean, it's hard to get down that far. But oh, yeah, but we're heading that way. And I think it's a dangerous, dangerous thing that we're doing to the courts, Scott. I mean, I've said for a while that put aside the Affordable Care Act case, because that was actually a congressionally passed statute. And we can talk about that. Still needs to be constitutional, though. No, that's right. That's right. But, you know, the second term of the Obama administration,

No, that's right. That's right. But, you know, the tail, the second term of the Obama administration, obviously the Trump administration here, when you have all of these states suing the federal government, these are almost across the board suits about administrative agencies actions. The Affordable Care Act case is different. The tax bill case is different. And so that's that opening. Well, why is that happening? Because Congress isn't passing hardly any laws. If Congress were passing a lot of these laws, you wouldn't have the ability to go into court to undo many of these. There wouldn't even be legal challenges in the first place. So that's why a lot of this is spilling into court. Again, I'm not sure the founders really thought that that is the way that we should be addressing policy in our country. But here we are. And that's where we see the exponential rise of nationwide injunctions, something that the court has hinted at that it's about to deal with if it if it isn't dealt with some other way. But I don't see it getting dealt with any other way other than the Supreme Court having to wade into the muck and tell us what's going to happen. having to wade into the muck and tell us what's going to happen.

So last question before we let you go. So tell me I'm wrong about this. I think Texas was back until LSU broke its spirit on its home field. Is that right or wrong? What do you think? Did you watch that game? Texas was in that game. No, I know. That's why I say broke its spirit. I mean, like if you're routed, it's not quite the same as, look, we're taking on a top 10 team. Everyone says we're back. We're on the verge of victory. And then Heisman Trophy winner Joe Burrow just like rips our heart out in the last moments of the game and stomps on it on our own field.

And we were so close and yet so far away again. And it just, I don't know. I don't know. You know. Look, I understand, you know, this isn't the Vince Young era and the former Mac Brown era at Texas, but I think the program's looking up. Look, the other thing about it is the atmosphere. Have you been to a game in Austin?

I have not. I've only been to SEC football games. I don't go to second-tier leagues. All right, well, we're going to get you there. There's going to be so much brisket, all the smokers, all the tailgates right around the stadium. Yeah, if you don't get the meat sweats, you haven't done it right. You're going to leave. Your ears are going to be ringing in the stadium.

We're going to get you there. Yeah, okay. Awesome. Awesome. I will definitely come. I have pledged many places to broaden my college football experience. I spoke at Notre Dame and I, you know,

I had said I'd never been to, I made the same crack. I'd never been to a second tier football league game. And I almost lost the, there was near a near riot. So as a Purdue Boilermaker, I can, you know,

echo those sentiments having been to a Notre Dame game. I will say Scott takes out the trash without being asked and many other good attributes. However, when the Purdue basketball team loses, he just has to go off into a corner. You just can't really interact for a couple

hours. I have to watch that Purdue Virginia NCAA tournament basketball highlight for the rest of my life. Well, Scott, thank you a ton. We really appreciate it. And it's great to be with you and Sarah, let them go build those hours so that, you know, Sarah can have her spin drift on subscription from Amazon. But thank you so much. This was, this is gonna,

that was the best discussion of the Obamacare case. It is going to come up in the 2020 election, I think more than once. So we will be referring back to this, I think a number of times. So thanks a ton. And now we're going to go from Texas to great Britain, from healthcare to Harry Potter.

Have you heard that there's a wonderful restaurant in London called the Texas Embassy, which is the former Texas Embassy when we were a public from 1836 to 1846. And the enchiladas aren't maybe super authentic, but they're very tasty in their own way. So we just moved to the Texas embassy in downtown London. The British enchilada.

I've never tasted such. There's like some goat cheese going on, but it works. Yeah, yeah. So Sarah, have you read the Harry Potter books? I have not, but I have watched all the movies. Okay, me too. Me too. I have to admit that I'm a bit of a Tolkien snob.

So I never got into Harry Potter, like just sort of as a matter of principle, which sounds and and this actually will tie in uh the hunger games to me is sort of the we have a generation of young women tween women growing up with that as an icon and i just found that to be a really interesting feminist zeitgeist moment uh from whatever that was now seven or so yeah ten or so years ago and i found that more interesting than the Harry Potter cultural phenomenon because of that, because Katniss was such an interesting female lead where like boys never come to save her. She comes to save them. And, and these young women growing up thinking like men are maybe more of a hindrance than a help. Well, I thought, I mean, this is a digression, but I thought the books were fantastic. And the

book number three of the trilogy got a lot of heat for the way, I think part of it for the way it ended in a way that was on first glance, in first glance, because of, you know, who she ended up with. It could have been storybook, but wasn't storybook because obviously, you know, these are two people who were unbelievably damaged by their experience. And you don't really read too many fantasy books. And this was something that Tolkien actually got pretty darn well, that take their characters through hell and back. And you know what they are at the end of it? Characters who've been through hell and back. Right. Versus like fairy tale. And I'm just the same person they are at the end of it? Characters who've been through hell and back. Right, versus like fairytale

and I'm just the same person I was at the beginning and I can just forget all of the death and destruction and I thought that the books captured a war-like, horrible, government out of control experience pretty well there. But anyway, we'll get to my feminist rant here in a bit. So JK Rowling, just to bring everybody up to speed, trended on Twitter. It's still very controversial. Various LGBT groups are angry at her. And she tweeted this. And she tweeted, dress however you please,

call yourself whatever you like, sleep with any consenting adult who'll have you, live your best life in peace and security, but force women out of their jobs for stating that sex is real. Hashtag, I stand with Maya. Hashtag, this is not a drill. And, you know, it's interesting. This is one of those things, Sarah, that if you're not on Twitter a lot, you would read this thing and you would think, okay, this seems like a pretty standard progressive statement of morality, right? I mean, do whatever you like, including respect people's free speech.

But if you're heavily steeped in sort of the hyper wokeness of part of Twitter, this is one of the most triggering. So it's like five lines. That's four of the five lines are like deeply triggering. Dress however you please implies that people who are trans people are cross dressers. Call yourself whatever you like implies that trans people are sort of like engaged in a name game, frivolity. Sleep with any consenting adults who'll have you. They're fine with that. Live your best life in peace and security. They'll fine with that. Live your best life in peace and security. They'll fine with that. And then, but force women out of their jobs for stating that sex is real. Very upset at that because

you're referring to a case about a woman named Maya Forstater, which is a kind of case that couldn't really arise in the U.S. But anyway, first, let's talk about the tweet and then we'll go to the Maya case. Did you follow that as that erupted? I did because I'm on Twitter too much. Aren't we all? So while that tweet was erupting, I was reading this wonderful book called Invisible Women, Data Bias in a World Designed for Men by a British feminist scientist named Caroline Criado Perez. And I really hope that men will read this book. I know a lot of women reading it. If you, first of all, it's a fast, quick read.

I'm not saying you'll agree with all of it or that you won't sort of push back in your own mind about all of it. But David, I would be so interested. I will send you this book if you will read it, if you don't already have too many stacked up on your nightstand right now, because I'd be so interested to have a conversation with you about this.

And it just runs through the statistics of women not being included in a lot of science. And I don't mean they're not allowed to become scientists. This is here. I'll just do a quick stat. When a woman is involved in a car crash, she is 47% more likely to be seriously injured than a man and 71% more likely to be moderately injured.

Even when researchers control for factors such as height, weight, seatbelt usage, and crash intensity. She is 17% more likely to die. Why is that? Why? Because we don't use female crash test dummies. We only use male crash test dummies. And our bodies, as women, we don't just weigh less than you.

We are actually designed quite differently, you know, where our weight is distributed, how it's distributed, our body mass at various places. And yet when it comes to drug tests, when it comes to seatbelts and all these other things, we use male as the default and women as the abnormal. And it results in all of this absurdity when it comes to, for instance, car accidents and women dying in them more. So I say all this because I am reading this book as this tweet is happening.

Yes. And this book is like at this point, if not the Bible of the gospel of the TERF feminists, the trans exclusionary radical feminists. Feminist, the trans exclusionary radical feminist. And that's what J.K. Rowling was announcing herself as was a TERF. Right. And that's it's it's a line of feminism that basically says, I hear you, but we need to take care of women's problems first before we can really put the oxygen mask on anyone else. Right. Is I think my best way of describing where TERFs fall on these things. And so anyway, it was just a funny moment

for me as I'm flipping through these pages, like, I'm 17% more likely to die in a car crash. This is bullshit. Well, and you know, I think the thing is, so yeah, the TERF mindset essentially says, look, there are biological distinctions that you cannot erase, that there is a biology of sex. There is an irreducible difference between men and women that is sex-based. And that if you begin to say that a trans woman is a woman, or for example, a man can get pregnant or a woman can have a penis, you're beginning to erase these sex differences. And you're not erasing them legitimately, you're erasing them artificially. This is not that there is something absolutely real there, that an irreducible biological reality that you cannot escape. And that's something that I think that an awful lot of people would listen to and say, well, yeah, I mean, yeah, biological sex is real.

It's an actual thing. It's not something that is an ideological construction. that is an ideological construction. And yet saying those words is in many and in some sectors of the West is become a firing or non-contract renewing offense. So David and I had a fun conversation last night where, and by the way, we don't have a ton of time left. So I want to sort of skip to the punchline of David says that if he represented this litigant here in the U S under our laws, and well, we can get to this in a second of this, the differences to the extent that you and I are not experts on British law. But that, that, that if you represented her here under our laws, that you would win.

And I said that if I represented her employer and she was an at-will employee, that I would win. Would you like to make your best case? Yeah. So the basic facts that J.K. Rowling is referring to is a case of a woman named Maya Forstater. And Maya Forstater was a policy analyst for a think tank. So she was- Non-governmental. She was a consultant. She's a non-governmental at-will employee. Yes. She's an at-will, I mean, she's even sort of at a lower status than at-will employee. She was like a consultant. Yeah. And so she had a contract that would be renewed or not renewed for a company that that for consultancy that did global development.

So at some point, unrelated, completely unrelated to her job and not at work, she began to get involved in this. She's essentially became a TERF publicly, became a TERF and began to tweet really pretty civil, you know, uncivil only if you think disagreement is uncivil, but really pretty civil and reasonable. Objection, Your Honor. And so she began to tweet things that made colleagues angry, but this was something that she was doing on her own time. And so one of the things that really got people upset was she made a comment about a guy named Philip Bunce, who on occasion, not all the time, dresses as a woman and goes by the name Pips. So this person, Philip Bunce, who dresses sometimes as a woman, claims

not necessarily that he's a woman, but says, for me, being gender fluid means I am non-binary at no fixed point on the gender expression spectrum. I personally have no desire to transition. And this person, Pips or Philip Bunce, was awarded a place on a list of the top 100 women in business. Now, I'd love to get your thoughts on that, Sarah. And on Twitter, Maya said things like, I've got a question for my male Twitter friends who have pledged not to appear on all male panels. If you were invited on a panel with Philip Bunce, one of the top 100 female champions of women in biz, and another guy, would you say yes or call the organizers and say, sorry, I don't do manels? That's what some feminists call an all-male panel is a mannel. Oh, sure, yeah.

And she says, Bunce does not masquerade as female. He is a man who likes to express himself part of the week by wearing a dress. He's a part-time cross-dresser who mainly goes by the name of Philip. Now, all of those things, you know, contestable, very offensive to people in the office. And so her contract was not renewed. Now, here was my point. In the U.S., across all 50 states, there is a state, a statute called Title VII that protects people from racist discrimination and also religious and gender discrimination or sex discrimination, sorry, and religious discrimination. And if she was a person of faith and making those arguments grounded in faith out of the workplace, not in

the workplace, out of the workplace, and the only problem that she was dealing with was people in the workplace being offended at her religious expression. I think I'd have a really pretty good shot at winning that case. You disagree, Sarah? I do. And in the British legal system that was at issue here in this case was the 2010 Equality Act. They say religion and belief. And so she was suing under that provision.

It was belief instead of religion. I also take your point that in our country, we prioritize religious freedom, I think, higher than they do legally speaking yeah um but nevertheless um i think that i i am concerned about your argument that you will take her comments and then sort of wash them through the religious machine to make them a legal case when that wasn't what they were. And I think that's a dangerous thing for the religious argument to be caught up in because. And I know you're like, I'm about to get the eye roll of the century from David. And I know you're like, I'm about to get the eye roll of the century from David. You can couch a lot of offensive things in a religious content after the fact to justify the offensive thing you just said. I think when it comes to at will employment in this case, you're right.

It's even less than at will employment. But I'm going to great like I'll give you at will status so that we can just argue over that. Like, I'll give you at-will status so that we can just argue over that. I think employers should have quite a bit of freedom for non-protected classes of people. In this case, she would not have been fired for being a Methodist. Right. She would have been fired for what she said. Maybe what she said happened to draw upon all sorts of her life, including that she's a Methodist. But I think it is dangerous to then try to fit that into her Anglicanism or whatever, you know, we want to call the version of your case here without now everything is protected.

As long as you happen to be religious. You can do anything you want because you cannot separate me from my religion. When in fact, that would just mean religious people can't get fired under your argument ever. Well, I think that so I'm not trying to retcon her as some sort of person of faith. And she her her argument was that it was a statement of belief, which we don't, I mean, California's UNRU Act is so broad. It protects people against creed, creedal discrimination. It protects people against political discrimination. Really, really broad, probably unconstitutionally broad when you think about it. But

sticking with federal law, I'm not trying to retcon her. I'm just saying that in the United States, an awful lot of these kinds of disputes come up in a explicitly religious context, in which people who are- That would be different. Yeah, it would be very different. But the reason why I was thinking about this, that, no, I agree with you. I think it's a tough case one way or the other, even if she's a person of faith in the US. Even if she's a person of faith in the U.S. Even if she's a person of faith in the U.S. and she was making this statement in Sunday school and talking about God's design for two sexes in Sunday school, that's one of your, I'm not going to say slam dunk. I'm not even going to say lay up. It's probably a wide open mid-range jumper of a case.

But if you are, you know, so, you know, context matters a ton. But I think the focusing down on the legal side of this misses the forest for the trees in one sense that number one, of course, we cannot apply the UK legal system to our own. But one thing that we can apply to our world, but God knows Twitter will try. Oh, yeah, yeah, yeah. Absolutely. One thing we can apply to our world is this growing fear that a lot of people have that if I say something offensive about politics outside of the workplace, not in the workplace, in the workplace, I do everything correctly according to work policies.

I treat everybody very well. I do my job very, very well. But if I say something out of the workplace that makes people upset, that our increasingly politicized and polarized society means that I will then have colleagues who won't want to work with me anymore and will get me fired. And that there's this sort of stifling sense of, I can't say what I think about important things anymore. If I work, especially in large companies, multinational companies, Fortune 500 companies, that I'm on pins and needles, not just in the workplace, but outside of the workplace as well. And I could lose my job just if someone under learns that I have wrong

think. And I think that is a real thing that is a fear, perhaps overblown, because there's not a huge number of examples of it. But it's a fear that starting to grip in the US and piling on people even as popular and wealthy as powerful as JK Rowling kind of contributes to that. as J.K. Rowling kind of contributes to that. Two responses. One, yep, that's why Donald Trump got elected. Yeah. Yep. Yep. Big part of it. You know, I think that's real. I think that's real. And two, I am sympathetic to what you are saying. On the flip side, we have two cases going to the Supreme Court that I hope you and I will spend some time talking about before the opinion comes out, as well as after that, that deal with this on the flip side, firing someone for being gay or for being transgender. so I want to turn this around on you. If I am a gay person who is married to a woman in my private life, you know, on the, you know, not at work, I'm not bringing my wife with me. Um, and you fire me for that purpose. I don't see a ton of difference in that argument to what you're saying that that person is also afraid of being themselves outside of work and

being fired for it. And so I think this is part of the conversation that has actually torn the country apart without us really being able to talk about from each side, why each side feels that that is happening to them when in fact the other side thinks it is being done to them by that side. Well, that's a hundred. Well, number one, the idea that both sides in this country feel that they are thoroughly persecuted is 100% correct. One of the most insightful things that I've read is in the run up to 2016 is one of the things that's polarizing us so much is that both sides believe that they're losing. polarizing us so much is that both sides believe that they're losing. And that's something that you tell that to somebody on either side, and they're like, what? The left wins everything. And then the left will say, what are you talking about? Going into 2016, the Democratic Party was at a 100-year low in electoral offices, which is true. They lost a thousand seats, state legislator, state legislative

seats by the time that Barack Obama left office. Yep. Going into 2016, more pro-life laws had been passed in the previous four years at the state level than had been passed any time since Roe. And they're listening to conservatives say, we never win anything. And they're thinking, you conservatives are insane. And so both sides are sitting there thinking they're going they're losing. And that's a very real thing. And, you know, to me, I have an easy answer to that question because I have hired LGBT employees. I have promoted LGBT employees. run an equal opportunity workplace at FIRE, the Foundation for Individual Rights in Education. And I had a pretty, I had a, my rule was, look, I'm a person of conservative, theologically orthodox Christian faith. And by golly, you know, what that tells me is if I have a gay colleague and they're killing it at work, they're doing a great job at work and they're a great colleague, I'm going to support and I'm going to promote the heck out of that person. I might

disagree with them outside the workplace, but if they're not bringing, and I apply this to a conservative who I might agree with, if they're bringing drama into the workplace and they're messing with the workplace by their on at work activity, that's one thing. If they engage in out of work activity that some people in the office don't like or don't approve of, you know, my argument is we got at some point, at some point, somebody in this country has to chill out. At some point, somebody in this country has to say, exercise real actual tolerance and not the fake tolerance that you see on college campuses, which is really meaning we're going to not be tolerant of anyone that we believe to be intolerant. Actual real tolerance. And so if my workplace is functioning well, if they're doing

a good job, I want them. I want them, period. Now, those rules are a little bit different if you're talking about running a religious ministry. You know, you could have a pastor who's killing it in the pulpit, but then having an affair with, you know, a married person outside of the pulpit, and you can't have that. That's a different kind of organization than, like, say, an insurance agency or civil liberties organization. And so, you know, I think that there's a lot of people in this country who feel that we need to exercise that tolerance. And then we have people on the wings on either side who say, nope, nope, nope, nope. You know, we need to surround ourselves with like-minded people at all times.

And to perhaps bring this full circle, because in my mind, this includes the Obamacare case and so many others. And so what do we do? We run to the courts. And I think that's a good place to leave it off, because that is what has happened. We have two cases at the Supreme Court, one of a gay person who was fired from their job and one of a transgender person who I believe was working at a funeral home who was fired for their job. And that is the question. But to your point about the larger point, instead of working this out at the private level, which is what used to happen on both sides, we now go to court about both. happen on both sides. We now go to court about both this woman in Britain, which I'm sure we will see repeated here at some point to your point. And maybe you'll represent them. And then

I'm busy at the dispatch, dispatch, the dispatch.com sign up, subscribe. It's free for now. And then on the flip side where people get fired on the left. So again, I just think it's a dangerous place we're heading with the courts. And with that, David, thus concludeth episode three. Thank you.