U.S. Federal Judge Strikes Down ObamaCare
CYRIL VANIER, CNN ANCHOR (voice-over): Unconstitutional: a federal judge in Texas strikes down ObamaCare. The law stands for now but will it survive this latest legal challenge? The special counsel isn't done. CNN learns Robert Mueller still wants to interview the president. And CNN is in Guatemala with the family of the little girl who died in the custody of U.S. Border Patrol. Live from the CNN Center here in Atlanta, I'm Cyril Vanier. It is great to have you with us.</s>VANIER: At this hour, the law that brought health care to millions of Americans has been struck down by a U.S. judge. The Affordable Care Act -- or ObamaCare as it's known; it was former president Barack Obama's signature piece of legislation -- but a judge has ruled it unconstitutional. Right now it remains in effect. That means those who want it can still sign up but that ends in just hours on Saturday evening. If the judge's decision is upheld, millions may end up losing their health care. President Donald Trump, who tried to repeal this legislation earlier in his presidency, tweeted, the ruling was not surprising and it was, quote, "great news for America." Why the top Democrat in the House promises to intervene to uphold what she calls the lifesaving protections for people "with preexisting conditions and promises to reject the Republican efforts to destroy the Affordable Care Act."</s>VANIER: Former assistant U.S. attorney in Los Angeles, David Katz, joins me for an indepth look at this. The Affordable Care Act has survived legal challenges before. So what's different this time around?</s>DAVID KATZ, CRIMINAL DEFENSE ATTORNEY: Well, there were about 70 efforts to repeal it. It's also been litigated. It's gone up to the United States Supreme Court and it's been affirmed. But that was the earlier version. So what just happened now is not going to be the last step. But it's a troubling first judicial step. It's troubling for 130 million Americans with preexisting conditions. It's very disturbing to 12 million people who are on ObamaCare as of 2018. And tomorrow is their signup day, so it's critical that people realize they need to go tomorrow and sign up because this is not the last word and many people think the appeals will succeed and that this district court, trial court ruling, will be struck down.</s>VANIER: So ObamaCare has been found -- you say ObamaCare was affirmed. It was found to be legal by the Supreme Court and lower courts. The individual mandate, because that's what's at issue here, the individual mandate was found to be legal by the Supreme Court. And fining people who did not purchase health care -- that's the individual mandate -- that was also legal. But once that fine was set at 0 by Congress, as it has been in the latest federal tax law, then this whole thing becomes illegal? That's the basis for the judge's thinking, right?</s>KATZ: Well, the Republicans tried to get rid of ObamaCare, the ACA, a million different ways. And if these zealots were really clever maybe they did it. Maybe they booby-trapped it in a way that the judge said, you know what, now the whole package is unconstitutional. But that's very dubious, Cyril, whether that's really going to stand up.</s>VANIER: Detail the argument for me. I want to make sure I understand it.</s>KATZ: The argument goes like this. The Supreme Court ruled 5-4 that the ACA was constitutional not because -- the commerce clause -- there were five votes to say it was no good, it was unconstitutional under our federalist commerce clause. But five justices were willing to say, including Chief Justice Roberts, that it was OK as a tax. The argument goes --</s>VANIER: And that's the individual mandate, right? If we consider the individual mandate as a tax, then that is legal?</s>KATZ: Yes, that certainly was the ruling 5-4 that it functioned as a tax. That if you didn't buy the insurance, you had to pay a tax. And that was within the taxing power of the United States federal government, even though --</s>VANIER: So what changed with this Texas federal judge?</s>KATZ: Well, as of next year, there is no more individual mandate. That was what the Republicans put in the new ACA. And so that's why I say maybe they have booby trapped it in a way that at least satisfied that trial judge down in Texas. Now mind you, there's 1,000 trial judges in America. This case was in front of the dream judge, the go-to judge for the zealots who were challenging ObamaCare. And the case was heard by a judge who's ruled against ObamaCare provisions --</s>KATZ: -- before. He's a conservative Republican appointed by George W. Bush. And as I say, this particular judge had ruled against ObamaCare, so people don't think it's a total accident that the state attorneys general ended up in front of him. And then the Trump administration refused to defend the legislation, although it's the law of the land. That's why Democratic states' governors and attorneys general came in, like California's, and defended it. So that's who the appellants are going to be. And, of course, Pelosi said that the Democrats, once they're in power, are also going to ask to intervene in the lawsuit. So it'll be as appellants, the ones challenging what the Texas trial judge just did, it'll be the House of Representatives, once it's Democratic, and a couple of dozen states, like California with their state attorneys general, complaining that Californians and other state citizens can't get ObamaCare and this ruling is wrong to throw out ObamaCare.</s>VANIER: So one important thing I have to say for our viewers -- this comes from the White House statement -- this law stands as we speak, right? The quote is this from the statement, "We expect this ruling will be appealed to the Supreme Court. Pending the appeal process, though, the law remains in place." So that's important for everyone to know. We don't have a conclusion right now. The law is still what it is and what it was before this ruling. Look, Donald Trump has appointed two conservative justices to the Supreme Court. Does that mean if, this case goes all the way back to the Supreme Court, it is more likely to be struck down than last time?</s>KATZ: Well, it's a little frightening, as I say, in terms of the people who need this care. We don't want to return to the days -- Republicans say we're going to return to the days when people had choice. But the reality was 20 million Americans, poor Americans, in particular, people who had pre-existing conditions, the only choice they had was to go to the emergency room and hope they could get care when they were --</s>VANIER: But there's a matter of law in this new Supreme Court with a new bench?</s>KATZ: Well, Scalia voted with the four. So Gorsuch or Kavanaugh will vote as Scalia did, let's say. The question is, will one of them vote like Kennedy? If one of them votes like Kennedy, there's the four. Then what will Chief Justice Roberts do? Now you have to look at the new law as a whole. And I don't buy it, that it's still not a tax. I believe it's still a tax. It still has punitive aspects if you don't get it when you look at the law as a whole. On top of that, I've always thought they were wrong about the commerce clause. Once you look at the case again with the new act, I believe it is within the commerce clause. They found other things didn't violate federalism. In America, the idea is that the states have all these rights and they retained a lot of rights and the federal government has to be careful not to encroach on the states. But the idea of controlling health care, it's the biggest part of the economy. It's a huge part. The idea they're reaching into everyone's life regarding some trivial matter, this is the most important matter in many, many people's lives, their health care.</s>VANIER: David Katz, former assistant U.S. attorney, thank you so much.</s>KATZ: My pleasure, thank you.</s>VANIER: CNN has learned that special counsel Robert Mueller still wants to speak with President Trump but his lawyers are dead set against it. Pamela Brown has the details from Washington.</s>PAMELA BROWN, CNN SENIOR WHITE HOUSE CORRESPONDENT: Special counsel Robert Mueller's team continues to be interested in interviewing the president, two sources familiar with the matter tell me. Now Mueller's stance on interviewing the president has been constant for a year and a half. We're told nothing has changed in that sense from the first day, the sources said. The president and his lawyers are still very much opposed to any potential interview. The president's legal team have resumed some discussion with the special counsel In the weeks since the president responded to written questions, mostly regarding collusion and the time period before the inauguration, these sources said. And the two sides have agreed to hold off on discussing any interview while the president wrote responses to the questions, which were returned just before Thanksgiving. That was seen as a first step to concluding more than a year of back- and-forth between the two sides. And the president's lawyers had hoped it would bring Mueller closer to finishing his probe. But we're told Mueller's interest in talking with the president continues and it includes an interest in asking questions about the president's state of mind in regard to actions under scrutiny in the obstruction probe. There has been no indication Mueller is moving to subpoena the president, one of these sources said. And asked in Mueller had follow up questions to the president's written responses, the source declined to comment. Now the president's attorney Rudy Giuliani reiterated that opposition to mean on any potential interviews, stressing the mistrust by the president's lawyers of Mueller's aggressive investigation in their view. He said, "I am pretty disgusted with them." The office of the special counsel declined to comment -- Pamela Brown, CNN, Washington.</s>VANIER: "I will not be --</s>VANIER: -- "the villain of his story," the words of Michael Cohen. Donald Trump's former attorney gave his first interview since pleading guilty in a case stemming from the Russia probe. And he told ABC News he's done being loyal to the U.S. president. He said Friday that his then boss directed him to pay hush money to women who alleged affairs with Mr. Trump. He said the scheme was directly tied to Mr. Trump's presidential ambitions.</s>GEORGE STEPHANOPOULOS, ABC HOST: He's saying very clearly that he never directed you to do anything wrong. Is that true?</s>MICHAEL COHEN, FORMER TRUMP ATTORNEY: I don't think there's anybody that believes that. First of all, nothing at the Trump Organization has ever done unless it was run through Mr. Trump.</s>STEPHANOPOULOS: He was trying to hide what you were doing, correct?</s>COHEN: Correct.</s>STEPHANOPOULOS: And he knew it was wrong?</s>COHEN: Of course.</s>STEPHANOPOULOS: And he was doing that to help his election?</s>COHEN: He -- you have to remember at what point in time that this matter came about, two weeks or so before the election, post the Billy Bush comments. So, yes, he was very concerned about how this would affect the election.</s>VANIER: President Trump denies ordering those payments but Cohen accused him of lying and said prosecutors have evidence supporting his claims. Meanwhile, President Trump has picked an acting White House chief of staff. There he is. He announced Mick Mulvaney will take over the job at the end of the year after current chief of staff John Kelly leaves. The White House said Friday that he will keep his current job as director of the Office of Management and Budget. A senior administration official says there's no time limit for Mulvaney to remain as chief of staff. CNN political commentator and Republican strategist Alice Stewart joins me now. She's also the former communications director for Ted Cruz, who ran against Donald Trump in 2016 and, more recently, against Beto O'Rourke for a Senate seat in Texas. That will become relevant later on in this conversation. Let's start with Mick Mulvaney. He'll be the acting chief of staff now for Donald Trump. Do you think this changes anything to the Trump presidency?</s>ALICE STEWART, CNN POLITICAL COMMENTATOR: Not really, Cyril. I think Mulvaney, evidently two jobs weren't enough for him so he needed to have one more. But this has always been and we always knew this was an unconventional presidency. And in terms of who holds what job and what job title people have, this is going to be different than what we've seen in the past. And I wouldn't be surprised if we keep him in this interim position for quite some time. I will say this, of all the names that have been run out there, in terms of who would fill the slot, Mulvaney is a good one. He's been a loyal soldier to President Trump in whatever position he has had. He is a good advocate for this president and his policies and he's someone certainly very well respected amongst the staff.</s>VANIER: -- I'll just jump in -- loyal and respected but not a heavyweight. Chris Christie was in the running and then he withdrew his name. Nick Ayers made some waves earlier, some high profile congressmen as well. Mick Mulvaney flies a little bit under the radar when you compare him to those names.</s>STEWART: And that's not a bad thing. This next person who fills this role is going to be different than when the president came in. With all going on, certainly as we're moving closer to 2020, this person has to be someone who can work with Congress and understand the legislative aspect of the role. He has to be political and manage those aspects as we're moving towards 2020. And now that the Mueller probe is really tightening and he has to understand the investigative part of the role moving forward and work with the staff to oversee the staff, the staff part of that role. So this is -- the dynamics have changed with the administration, which means the dynamics of the chief of staff are changing. So you don't need to be heavy-handed. You just need to be able to do exactly what the president wants.</s>VANIER: Absolutely. Work with the staff but first and foremost work with this president. The president tweeted on this topic, he said, "For the record, there are many people who wanted to be White House chief of staff. Mick M. will do a great job." That's sort of eyebrow raising when you know at least three people withdrew their names from consideration over the last 8-9 days. It's been overall a terrible week for the president. Nobody wanted to be his chief of staff for a while. His former associates are falling one by one. We saw Michael Cohen going to jail after implicating the president now in felonies. Donald Trump's friend, David Pecker at AMI, cooperating with investigators. Trump's inaugural committee is under criminal investigation. Has this been one of the worst weeks for the president so far?</s>STEWART: I think a lot of Fridays that is a statement of the week.</s>VANIER: I have asked the statement before.</s>STEWART: But this has been an especially busy and troublesome week, as the Mueller probe zeroes in. But I can tell you this, I was at the White House today for some meetings and I can tell you that --</s>STEWART: -- the staff there are focused on their mission at hand. Whether they're dealing with the economy and creating jobs and pushing that agenda or whether they're focusing on immigration and building the wall or whether they're looking at foreign policy issues. They are not being sidetracked by a lot of what they view as the palace intrigue as to who fills what position.</s>VANIER: It's beyond palace intrigue when we're talking about people going to jail implicating the president or when we're talking about criminal investigations. It's beyond palace intrigue.</s>STEWART: Oh, I agree with you on those issues. I totally agree with you, that is serious and that is a concern. I'm referring to the chief of staff and how and when that position will get filled. And they view that as people getting too wrapped up in the day to day staffing positions.</s>VANIER: -- big picture.</s>STEWART: But all of those other issues, absolutely, yes. Those are serious. And we don't know what will happen with Michael Cohen, the new revelations with him and the Mueller probe is getting closer. And that is serious. But I'm just referring to their job inside the White House. They're looking at their individual job and responsibility and they're not getting sidetracked. But, yes, the Mueller probe is certainly becoming an issue and it's something that not just the president but a lot of those inside the White House will be focusing on in the days and weeks to come.</s>VANIER: Thank you very much, Alice Stewart, for joining us.</s>STEWART: Thanks, Cyril.</s>VANIER: The U.S. opens an investigation as a family mourns the young migrant girl who died in U.S. custody. We'll hear from her family when we come back.