MARY REICHARD, HOST: Good morning!
The Supreme Court considers a third challenge to Obamacare. The law will likely survive, but the case illustrates the problem of blurring lines among the branches of government.
NICK EICHER, HOST: That’s ahead on Legal Docket.
Also today The Monday Moneybeat. Financial analyst David Bahnsen joins us.
Plus the WORLD History Book. Today, the 400th anniversary of the Mayflower Compact.
And we’ll talk about a survey we’re conducting over the next few weeks to help us get to know you better.
REICHARD: It’s Monday, November 16th. This is The World and Everything in It from listener-supported WORLD Radio. I’m Mary Reichard.
EICHER: And I’m Nick Eicher. Good morning!
REICHARD: Up next, Kristen Flavin has today’s news.
KRISTEN FLAVIN, NEWS ANCHOR: Washington COVID restrictions » Washington state is reinstating lockdown measures in a bid to curb the rising rate of COVID-19 infections.
Governor Jay Inslee announced the restrictions at a news conference Sunday.
INSLEE: Outdoor gatherings are limited to no more than five people. Restaurants and bars are closed for indoor service.
But the most restrictive measures involve indoor social gatherings. With less than two weeks until Thanksgiving, people from different households are forbidden from gathering together unless they’ve quarantined for 14 days or tested negative for the virus and quarantined for seven days.
Inslee insisted the measures are necessary.
INSLEE: Average daily cases in our state have doubled in the last two weeks. It cannot go on like this. We have to get this under control, or our medical system will soon be overwhelmed.
The restrictions go into effect just after midnight on Tuesday and last for four weeks.
And Washington isn’t the only state enforcing new measures to curb the virus. On Friday, West Virginia Gov. Jim Justice issued a statewide mask mandate in all businesses and other indoor spaces.
And on Monday, the Navajo Nation will enforce a three-week stay-at-home lockdown for the entire reservation.
Admiral Brett Giroir, a member of the White House Coronavirus Task Force, warned Americans to remain vigilant, especially in the coming weeks.
GIROIR: But we are going to have to be careful around the holiday time because even a large gathering within your household can be a way that it can spread.
California, Maryland, Minnesota, New York, Oregon, and Virginia have issued new travel advisories ahead of Thanksgiving or put limits on the size of gatherings.
Trump rallies, Twitter storm » Thousands of President Trump’s supporters held a rally in Washington, D.C., on Saturday.
AUDIO: [Chanting, “U.S.A.! U.S.A.!”]
They marched from Freedom Plaza to the Supreme Court building, breaking out into cheers when President Trump’s motorcade drove by. As evening fell, the Trump rally clashed with hundreds of counter-protesters. Police arrested more than 20 people.
C.J. Wheeler attended the rally to show support for the president’s ongoing legal fight over the election results.
WHEELER: This isn’t over. It’s not even close to being over. And those people that are telling you right now that it is over, are lying to you. The vote has not been declared. No, there is no president-elect. It’s all a lie.
The president caused a Twitter storm on Sunday when he appeared to admit he lost the election. But, his personal lawyer, Rudy Giuliani, said the president’s tweet was sarcastic, not serious.
And the president’s legal team is now drawing attention to Dominion Voting Systems. Its voting machines are widely used across the United States. Giuliani claims the company’s software has been used to steal elections in other countries.
Hundreds of protesters arrested in Belarus » AUDIO: [Sound of stun grenades and tear gas canisters]
Meanwhile in Belarus, thousands of people rallied on Sunday to call for President Alexander Lukashenko to step down.
A human rights watchdog says police used tear gas and stun grenades to disperse the crowds. They reportedly arrested about 900 people.
Belarussians have held regular protests against Lukashenko since the disputed August presidential election. The autocratic leader claimed he won a sixth term in office. Opposition parties say the election results were rigged.
Protesters who gathered over the weekend held signs in honor of a fellow protester who died Thursday after police reportedly beat him.
Dustin Johnson wins Masters, sets record » Dustin Johnson won the Masters on Sunday, polishing off a five-shot victory with the lowest score in tournament history.
He called the victory a dream come true.
JOHNSON: As a kid, you dream of playing in the Masters, and, you know, dream about putting on a green jacket. I still kind of think it’s a dream, but I… hopefully… hopefully it’s not.
It was a unique tournament from start to finish. The event at Georgia’s Augusta National is normally held in the spring. Organizers postponed it to November this year because of the pandemic. COVID-19 also prevented the normal crowds from gathering to watch the play and cheer memorable moments.
Johnson finished at 20-under par, 268. That matched Jordan Spieth’s finish in 2015 and broke by two shots the record Tiger Woods set in 1997.
I’m Kristen Flavin.
Straight ahead: the battle over Obamacare returns to the Supreme Court.
Plus, a return to the Plymouth Colony.
This is The World and Everything in It.
NICK EICHER, HOST: It’s Monday morning and we’re glad you’re here for another week of The World and Everything in It. Today is the 16th of November, 2020.
Good morning to you, I’m Nick Eicher.
MARY REICHARD, HOST: And I’m Mary Reichard. We’re in the middle of the month and we’re encouraged by the number of new givers who’ve stepped up and made a first-time gift to support the program.
Thank you for doing that.
But if you haven’t yet, I’ll remind you we do have some friends who are matching each new gift that you give—as an incentive—so it goes twice as far and it’s a demonstration that no one gives alone. We’re all in this together, so thanks very much for considering coming on board with a gift of support.
EICHER: If you’re listening on an iOS device, using the Apple Podcast player, check out the episode notes and you’ll find a convenient link to wng.org/donate and you can even use your Apple Pay for an added layer of security.
Maybe you’d rather text-to-donate, and that’s an option, too. Just text the word “Give” to the number 218-300-2121 and then just follow the link and follow the instructions. Text “Give” to 218-300-2121. Trying to make things as convenient as we can.
REICHARD: One other note: We’ve decided to offer a listener survey. We’d like to know more about you—some basic info, nothing overly personal: what part of the country you live in, how often you listen, which other podcasts you use, that type of thing. You can visit listenersurvey.org and it takes about two minutes. I just filled it in myself to be sure. Just a couple of minutes and it’ll help us a lot. Listenersurvey.org.
EICHER: It’s time for Legal Docket. Today, Obamacare: take three. Or as Justice Samuel Alito put it during oral argument last week:
ALITO: This does seem like deja vu all over again…
REICHARD: I’d have to agree with that!
And it’s not surprising. The Affordable Care Act—Obamacare—came into being without bipartisan support. It was cloaked in secrecy even during the writing process.
OBAMA: Let me just start by setting the record straight on a few things I’ve been hearing out here.
And President Obama said some things that turned out to be untrue.
OBAMA: Under the reform that we are proposing: If you like your doctor? You can keep your doctor. If you like your healthcare plan? You can keep your health care plan.
EICHER: That was the nature of the debate, such as it was, that led to passage of Obamacare more than 10 years ago.
But many millions of people did lose their doctor and did lose health insurance plans and saw costs spiral out of control. But it’s also true that others gained health insurance.
The Supreme Court has already twice rescued Obamacare from constitutional challenges.
REICHARD: Here’s a brief refresher.
Obamacare became law in 2010. It required most Americans to either buy health insurance or else pay a hefty penalty. Democrats cited the Constitution’s Commerce Clause as authority to demand that citizens buy something.
Two years later in 2012, the Supreme Court heard the expected challenge that was overreach. A majority five justices agreed that the individual mandate violated the Commerce Clause because it required Americans to buy something. The Constitution does not grant the federal government police power like that over individuals. But the majority 5 still saved the law by construing the penalty as a tax that raises revenue. That is under Congress’ power. This, even though President Obama said the mandate was not a tax.
EICHER: Three years later in 2015, the Supreme Court upheld a separate challenge to the way the IRS extended tax credits.
Then in 2017, a Republican Congress zeroed out the penalty for failure to purchase health insurance as part of tax reform, cut the “penalty” or “tax,” whatever you like, to zero.
REICHARD: And that’s the crux of the current argument: Is the individual mandate, with its penalty zeroed-out, unconstitutional? After all, Democrats said Obamacare wouldn’t work without the penalty.
So this time around, 18 Republican-led states sued on the theory the mandate cannot be a tax any longer because it raises no revenue. That’s the very definition of taxation.
Therefore, the whole law must fall because it rests on a fallacy.
On the other side, 16 Democrat-led states defend the law. They argue taking away the penalty merely turned purchasing insurance into an exhortation to do something, a person’s choice.
Former Solicitor General under President Obama, Donald Verrilli, argued in support:
VERRILLI: There is just no way that Congress would have preferred an outcome that throws 23 million people off their insurance, ends protections for people with preexisting conditions, and creates chaos in the health-care sector.
Caveat, though: that law? It’s still on the books. So who’s to say the government can’t about-face and require you buy insurance?
Arguing against Obamacare on behalf of the federal government, Acting Solicitor General Jeffrey Wall. He mentions “shared responsibility payment.”
That means the mandate penalty.
WALL: This case pushes at the line between faithfully following what Congress actually does, rather than what it may have intended to do. When Congress eliminated the shared responsibility payment, it left standing what is now a naked command to obtain insurance and it left standing the findings that that mandate is essential to the operation of other parts of the Act. Those choices have legal consequences.
Justice Alito pointed out the strange facts of this case with regard to the first Obamacare challenge versus this one:
ALITO: At the time of the first case, there was strong reason to believe that the individual mandate was like a part in an airplane that was essential to keep the plane flying so that if that part was taken out, the plane would crash. But now the part has been taken out and the plane has not crashed.
Creating a conundrum should the court side with the Republican states: how can we say the mandate is essential to the operation of Obamacare, when in actual practice, it clearly is not essential?
Arguments touched on who has standing to sue. But the bulk of the argument dealt with the legal concept of severability. That is, can the mandate be severed, cut out, removed, and yet still leave the rest of the law intact?
Justice Kavanaugh seemed to think you could.
KAVANAUGH: Looking at our severability precedents, it does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the act in place—the provisions regarding pre-existing conditions and the rest. How do you get around those precedents on severability, which seem on point here?
Lawyer for the Republican states, Texas Solicitor General Kyle Hawkins, pointed to the text of the statute. It says the mandate is absolutely essential for Obamacare to function. How can something be crucial to the whole and yet severable from it?
Justice Kavanaugh’s inclination to rescue the law aligned with Chief Justice Roberts. Listen to his comment to Hawkins, again for Texas:
ROBERTS: It’s hard for you to argue that Congress intended the entire act to fall if the mandate were struck down when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act. I think frankly that they wanted the Court to do that. But that’s not our job.
Hawkins countered it is the court’s job to follow the text of the law. (And I need to clarify here that the chief justice may not be exactly right. He’s correct if he means Congress in 2017 and 2018 failed to repeal Obamacare. But he’s incorrect if he means literally what he said, that Congress didn’t even try. Republicans in Congress did try. They simply failed to win enough votes to succeed.)
One thing’s certain: the longer Obamacare is around, the more economic reliance on it grows.
Several possible outcomes are possible. But I think it’s most likely that the Chief Justice and Justice Kavanaugh will join with the liberal Justices Breyer, Sotomayor, and Kagan to save Obamacare. Again.
Now, a brief treatment of the very first case in which Justice Amy Coney Barrett participated.
ROBERTS: We will hear argument first this morning in Case 19-547, United States Fish and Wildlife Service versus Sierra Club.
This dispute is over the scope of The Freedom of Information Act. That’s a federal law that provides that any person has a right to request access to federal agency records.
Here’re the facts: Nine years ago, the EPA proposed a regulation for use in power plants. Agencies that protect animal life wrote draft opinions that said the proposed regulation would hurt endangered species. So based on those warnings, EPA changed its proposal.
An environmental group called The Sierra Club made a FOIA request for those early drafts of the proposal. EPA declined the request, citing an exemption that says no disclosure is necessary if the documents deal with what the agency calls the “deliberative process.”
Justice Clarence Thomas had a basic question about that for Sierra Club’s lawyer, Sanjay Narayan:
THOMAS: How far back in the process can we go before it is not discoverable and it’s a part of the deliberative process, as opposed to something that is subject to FOIA?
NARAYAN: Well, I mean, in this case, I think the important thing is that … this analysis that it’s a jeopardy opinion was complete and reached a conclusion.
In other words, nothing about that conclusion says “deliberative process.” He suggested a test for the court to adopt: if a draft document has “appreciable legal consequences,” then it should be disclosed.
But lawyer for the government against disclosure, Matthew Guarnieri, argued the opposite. These documents are, his words, the “molten core of the deliberative process.” That’s privileged and exempt from FOIA disclosure.
Justice Kavanaugh pointed out that agency officials might just slap a “draft” stamp onto everything to evade FOIA.
Justice Amy Coney Barrett picked up on that:
BARRETT: You said that if a government official simply stamps “draft” on it and sent it over and, as Justice Kavanaugh is positing, did so in order to avoid FOIA disclosure requirements, you said that a court might look at other factors to determine whether it’s still final. What other factors would a court consider?
GUARNIERI: I think a court might look…
Sierra Club had an odd bedfellow here: the National Association of Home Builders. Each desires access to government documents that illuminate government thinking.
And that’s this week’s Legal Docket.
MARY REICHARD, HOST: Coming up next on The World and Everything in It: The Monday Moneybeat.
NICK EICHER, HOST: Joined now by financial analyst and advisor David Bahnsen.
DAVID BAHNSEN, GUEST: Good morning. Good to be with you.
EICHER: I was looking at a Wall Street Journal piece and being reminded that back in 2008 when the Obama-Biden team came into office, they faced some serious economic trouble. And so the task fell to Biden to get a stimulus bill past Congress. So fast-forward. 2021, here he comes—presumably—takes office in January with economic troubles, not fundamental economic troubles, but economic troubles nonetheless. So is there anything from history that would give us an indication how Joe Biden will operate in the next stimulus round? What do you think?
BAHNSEN: I think that the differences between 2008 and the COVID moment so far outweigh the similarities that it’s difficult to extract a feeling for what will end up being the case. I think the political challenge for president-elect Biden is going to be in this: the people that are exclusively hurting right now are in the category of people that are longtime constituents of the Democratic party.
So, for him to continue the policies that are hurting the people he is setting out to go about providing economic relief for, there’s an incredible political risk here. Raise minimum wage right now, it could kill job creation for lower income people hurting in the COVID pandemic in the service economy. Further lockdowns, it could kill those lower income, lower skill workers who are suffering right now in the current environment.
So, I think politically he has a tough needle to thread and I don’t think there’s a lot of similarities to what the Obama administration did in early 2009.
EICHER: The press corps authorized to ask questions of Joe Biden have asked zero questions to elicit information that would tell us anything about Biden’s COVID plans. I cut together a montage here—less than a minute—to help illustrate why the information flow is a little weak.
MONTAGE: How do you expect to be able to work with Republicans when so many have thus far refused to even acknowledge your victory? … Mr. President-elect … will you authorize legal action … or would that be too divisive, do you believe? Thank you, Mr. President-elect, and congratulations to you both. Have you tried to reach out at all to the president and, if he is watching right now, what would you say to him? ‘Mr. President, I look forward to speaking with you.’ And … how will you move ahead if the president continues to refuse to concede? … Thank you, Mr. President-elect, do you plan to campaign in Georgia before your inauguration to help Democrats … and how important is a Democratic-held Senate to your agenda? … Sir, what do you say to the Americans that are anxious over the fact that President Trump has yet to concede and what that might mean for the country? … And just to follow up on a previous question, how do you expect to work with Republicans if they won’t even acknowledge you as president-elect? ‘They will. They will. Thank you all so very much. Thank you.’
This little press availability came the day after he named a committee, a COVID task force, and he’ll be naming others to it. When he announced it, he took no questions and why would he? But does it seem that he’s headed toward lockdown or am I reading it wrongly?
BAHNSEN: I don’t think you’re reading anything. I think that’s what the media’s reporting based on a person he puts on a committee who said something like that. Policy is not really formed by committee and I don’t mean to be crass or cynical here, but in my hope that he doesn’t go to more draconian lockdowns. It’s not because I’m giving him a lot of credit. It’s because I do think it would take him 10 minutes of political consultation to realize that would be a very bad idea for his introductory popularity into the White House.
Now, here’s what I do suspect will happen, though. I believe that there will be—much like we’ve seen in Europe the last couple weeks—posturing around greater draconian measures but that are mostly toothless. Saying we’re re-locking down but we’re keeping the schools open and the businesses open and the this open and the factories. That’s not a lockdown. So they can rename non-lockdown lockdown, but that’s really not quite the same thing, is it? I’m not overly optimistic that he won’t go there, but I’m not fatalistic about it either, Nick.
EICHER: What do you make of the vaccine news? It was right after we talked last week, that Pfizer made its COVID vaccine trial announcement.
BAHNSEN: Look, we did know that a vaccine was coming and we talked about it a lot and I think that most people that were putting politics and other conspiratorial things aside have known that at some point a vaccine would come. But there is real news around this that came last Monday, which was not just that a vaccine is now on the horizon. It is that the success rate is multiples of what it needed to be to be a successful vaccine.
This is coming in at about 92 percent. That’s like measles level success. Well, when’s the last time you met somebody with measles? So I think that it’s not just that we’re getting a vaccine. It’s that we appear to be getting multiple vaccines at an exponentially higher perceived success rate. This is overwhelmingly good news for getting to that point where we leave this godawful COVID period in our rearview mirrors.
EICHER: David Bahnsen, financial analyst and adviser. Thank you.
BAHNSEN: Thanks for having me, Nick.
NICK EICHER, HOST: Today is Monday, November 16th. Good morning! You’re listening to The World and Everything in It. Thanks for joining us! I’m Nick Eicher.
MARY REICHARD, HOST: And I’m Mary Reichard. Next up: The WORLD History Book. And what a stretch of history this one covers, from the 1600s to the 1990s.
EICHER: Bringing us a survey of events spanning from the Mayflower to Milli Vanilli, here’s WORLD senior correspondent Katie Gaultney.
MUSIC: [THE AMERICAN ADVENTURE]
KATIE GAULTNEY, SENIOR CORRESPONDENT: While America is as divided as ever over politics today, at least we mostly agree on what model of government works best for the United States. It wasn’t so straightforward for the Pilgrims, who signed the Mayflower Compact 400 years ago this Saturday as a way to outline what sort of government they should adopt.
An excerpt of William Bradford’s journal, Of Plymouth Plantation, read here for PBS, explains the purpose of the document:
PBS CLIP: It was thought good there should be an association and agreement that we should combine together in one body and submit to such government and governors—as we should by common consent agree to make and choose…
The Mayflower had been bound for Plymouth Colony in Virginia, but harsh conditions made it necessary to dock in Massachusetts. As tensions between the Puritans and the non-Puritan passengers arose aboard the Mayflower, 41 passengers signed a social contract to ensure law, order, and their very survival. WORLD’s Myrna Brown recently spoke with Alan Smith, governor of the Georgia Mayflower Society, about how foundational the document was.
SMITH: It really is the grandfather in so many ways of the guiding principles behind that declaration of independence, the Constitution, even the Articles of Confederation… They had the awareness that we are going to be a different kind of people that are not going to be defined strictly by your birth status.
Next, we fast forward 360 years…
MUSIC: [VIVA LAS VEGAS by Elvis Presley]
The Sunset Strip in Las Vegas brings to mind glitzy casinos ablaze in neon. But on November 21, 1980, it wasn’t the marquis that lit up the sky. It was a catastrophic fire at the MGM Grand—now Bally’s Las Vegas—40 years ago this Saturday.
DOCUMENTARY CLIP: [RADIO COMMUNICATIONS]
The hotel was crowded when a small fire began in a snack shop called The Deli. The show “Disaster Chronicles” explained how the fire quickly got out of control.
DOCUMENTARY CLIP: Officials later estimated the fire traveled across the casino—the length of a football field—in less than 20 seconds.
Eighty-five people died in the blaze—most from smoke inhalation. Six hundred and fifty more sustained injuries. The fire inspector said the blaze spread so quickly because resort managers hadn’t installed enough sprinklers.
DOCUMENTARY CLIP: If there’d have been sprinklers in there, we would have had some water damage pour down in that Deli area, and that would have been it.
It remains the third-deadliest hotel fire in U.S. history, and the deadliest disaster in Nevada. The tragedy highlighted the need for more attention on high rise safety. Within a year of the MGM fire, the state of Nevada began requiring public buildings to have smoke detectors in rooms and elevators, and fire sprinklers and exit maps in hotel rooms. Today, Nevada is a leader in fire safety regulation.
MUSIC: [Girl You Know It’s True by Milli Vanilli]
Nowadays, with autotune and stylized pop stars, it’s not shocking to hear over-engineered vocal tracks or watch lip-synced performances. But three decades ago, scandal rocked the music world when a botched live performance revealed German-French pop duo Milli Vanilli was lip-synching. Shortly after, the truth came to light: frontmen Rob Pilatus and Fabrice Morvan hadn’t sung at all on their hit album. Session musicians provided all the vocals.
Their debut hit, “Girl You Know It’s True,” catapulted the former back-up dancers to fame. Under the direction of music producer Frank Farian, Rob and Fab provided the look of a pop sensation and pretended to provide the sound.
NEWS STORY: You may not recognize the names, but more than likely, you’ve heard their music. Milli Vanilli, the striking European duo that calls their style “melody rap,” has made it big in America.
Their single charted on the Billboard Hot 100 for 26 weeks, peaking at No. 2 in April 1989.
GRAMMY AUDIO ARCHIVE: And the “Best New Artist” is… Milli Vanilli.
It took a live performance in front of 80,000 in Connecticut for the scheme to unravel. The vocal track began skipping…
MUSIC: [TRACK SKIPPING]
And in what feels now like poetic justice, the word “true” never came.
The fallout from the incident came swiftly and decisively, with media backlash and lawsuits demanding record refunds.
NEWSCAST: One of the biggest con jobs in rock and roll history…
In fact, it was 30 years ago today that the National Academy of Recording Arts and Sciences stripped Milli Vanilli of its “Best New Artist” Grammy Award.
That’s this week’s History Book. I’m Katie Gaultney.
NICK EICHER, HOST: Tomorrow: Calls to modify the Electoral College system aren’t as loud this year as they were in 2016. Wonder why!
But they do still exist, and we’ll tell you about different proposals to do it.
And, we’ll find out why more women than men are dropping out of the workforce this year.
That and more tomorrow.
I’m Nick Eicher.
MARY REICHARD, HOST: And I’m Mary Reichard.
The World and Everything in It comes to you from WORLD Radio.
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