On Thursday’s episode of "The Andrew Klavan Show," the host speaks with constitutional lawyer and Trump 2020 advisory board member Jenna Ellis about the Trump administration’s attempts to eliminate the individual mandate in Obamacare. Transcript and video below.
Andrew Klavan: The Trump administration is now saying that Obamacare is not constitutional. They are supporting a judge who said this. First of all, do you agree with that?
Jenna Ellis: Absolutely. And so, from just a purely constitutional perspective health care is not a subject matter that is given to federal Congress to write the law. So regardless of the policy considerations, we can debate all day what should be health care provision and policy in America, but that is not given to Congress that's given to the states to decide and really the individual as well. Because when we look at the separation of powers everyone always thinks of it horizontally as being between the legislative, executive, and judiciary. But we forget that there's the vertical as well which is between the federal government, the state government, and the individual. Because what's not reserved to the federal government or to the states, we know from the ninth and tenth amendment, is reserved to the people. And so we the people have some vested powers as well. And so, health care as a subject matter we have to make sure to confine that within the proper portion of government or the people to be able to decide those things and that's not given to the federal government. So just from a purely constitutional perspective, I would agree. But the whole idea of Obamacare was fundamentally flawed anyway if we want to get into the merits of that. So, I certainly agree with the administration on that.
Klavan: Well I mean they've all already found it constitutional and now basically the argument is “Well we got rid of the mandate.” So, so what? I mean what is the argument now of the mandate's gone it's less constitutional than it was before.
Ellis: Well that was really how Chief Justice Roberts justified his opinion back in the Obamacare decision was to say that because it was the individual mandate then that can be a tax which then that goes into the federal government's side. So, he justified it as being able to be a regulatory power based on the individual mandate. So, if you get rid of that then you get rid of his justification for it. Which is why everyone is saying now that was really the Achilles heel of Obamacare.
Klavan: So now politically all the wise sachems in the media are saying “Oh what a mistake Donald Trump has made. He's just gotten cleared by Mueller that he's riding high. Why would he go and attack poor people's health care?” Because people kind of like Obamacare now. They've kind of gotten used to it. what people like is what's going on. Once it's in place people always like this free stuff it seems free or is easier to use or whatever. Is he making a political mistake here?
Ellis: Not at all. And one of the things that why I really support Donald Trump and I think he's been an amazing president is because he gets things done. And so, he's not going to just ride the Mueller wave and say you know we're going to then rest on our laurels. He has gotten more done in the first two years for conservative policy than most presidents would do in eight years. And so, I think that this is just being consistent with what he's always done for the past two-plus years, which is to just continue with his agenda, get that going, and it doesn't matter what's in the news cycle. Certainly, he'll rant about that on Twitter. I happen to love his Twitter feed. I think it's an amazing distraction for the media. I think it's hilarious. But I think he's just continuing on with what he would've done regardless if the report dropped this weekend or not.
Klavan: And so, when he said that the Republicans are going to be the party of health care, do you have any idea what he's talking about?
Ellis: Yeah. So hopefully the Republicans will be the party that says “we're going to give this decision back to the people” because what people don't realize when they're looking at Obamacare and all this free stuff is that somebody at the end of the day is going to pay for it. Government doesn't have its own resources. They have to take from the people. So either we're going to collectively pay a tax and I'm going to end up, if I don't need as much health care as the next guy, then I'm going to end up paying more Because that's what socialism does, right? So when you have a single payer health care that's ultimately the result. And I also think that the Democrats are pushing for single payer health care because they want government-funded abortion. That's really the bottom line. And what they're driving.