Obamacare v. Texas: Washington has skin in the game at the next ACA Supreme Court challenge

Washington State's Attorney General Bob Ferguson has become known for successfully litigating against the Trump administration. But, in a case scheduled to go before the U.S. Supreme Court in November, Ferguson will help argue in place of the federal government, in support of the Affordable Care Act, which is being challenged as unconstitutional by several states, led by Texas.

Following the death of Supreme Court Justice Ruth Bader Ginsburg, the stakes are even higher.

Attorney General Bob Ferguson is here now to help explain what's going on.

This interview has been edited for clarity.

First off, in a nutshell, tell us what this case is about.

Ferguson: Well, in a nutshell, this case is about the future of Obamacare, or the Affordable Care Act, and the impact of whether or not that important federal law that provides health insurance and critical protections for millions of Americans will be allowed to continue or not. Literally, it's an existential threat to the Affordable Care Act.

Now, you normally file suits against something the federal government is doing. This time, you're in the unusual position of defending the federal policy. Why did you decide to join the suit?

What happened was a group of Republican attorneys general challenged the Affordable Care Act in federal court in Texas. The U.S. Department of Justice, whose job it is to defend federal law, literally walked into that courtroom and said "We're not going to defend it. Judge, you can strike it down." So states like Washington, and California intervened -- just a fancy word for saying we went before that judge and said, "Hey, wait a second, Judge. If the Department of Justice won't defend that law, let us do it, because if it's struck down that has huge negative impacts for the people of our state." And the judge granted that.

So, you're right, it's a little bit odd, but the state of Washington and other states are literally in the case, as the defendants, defending the federal law, the Affordable Care Act, simply because the Department of Justice, to be candid, would not do the job they're supposed to do.

The other side in the suit, Texas and several other Republican-led states, are arguing that the Affordable Care Act is now unconstitutional, because of a bill that was passed by Congress back in 2017, which eliminated the financial penalty for people who refuse to buy insurance. So, how do you respond to the argument that if someone does not want to buy insurance that they shouldn't have to?

These issues do get relatively complicated, relatively quickly, but you're exactly right. What the Republican attorneys general are asserting is that the individual mandate no longer has a financial penalty. Therefore, the underpinnings of that previous U.S. Supreme Court case we had, in which Justice Roberts and four other justices upheld the Affordable Care Act, they relied on the taxing power of the federal government under the individual mandate. That's what the Republican AG’s are questioning. Our response is multifaceted, but number one, simply because there's not a financial penalty involved does not mean that that eliminates those protections for the importance of the individual mandate. There's simply not a financial penalty.

Number two, and perhaps even most significantly is, the Republican attorneys general, what they're really trying to do here is say "If that individual mandate no longer applies, you, Federal Justices, Supreme Court Justices, must strike down the entire law, because of that one small change." In other words, that would eliminate the Affordable Care Act in its entirety. We're saying "No, Justice, even if you think that individual mandate no longer applies, you keep the rest of the Affordable Care Act, essentially all of it, in place."

You've been involved with this case for some time. Oral arguments are scheduled about a week after the election. And now, we are dealing with the death of Supreme Court Justice Ruth Bader Ginsburg, which is leaving a seat on the court open. Given the current makeup of the Supreme Court, how confident are you that you'll prevail?

Well, it's a hard question to answer. I'm a glass half full kind of guy. I'll admit to that at the outset. But I think what I would say is, before the death of Justice Ginsburg, I was concerned, obviously, about the future of the Affordable Care Act, but confident in our case. With the change in the makeup of the Supreme Court, and the distinct possibility of a new Justice hearing this case, I guess I would say I'm extremely concerned right now.

That said, we have the better legal arguments. I'm confident about that. I know that folks on the right speak out against activist courts all the time, or activist judges. Look, I can't imagine anything more activist than this United States Supreme Court striking down a bedrock law that millions of Americans depend upon, literally, for their personal health, and their health insurance. To strike that down, after a decade of it being in place, and being ingrained in our society would, frankly, be the very definition of activism, and I certainly hope that does not happen.

Listen to the interview by clicking the play button above.