10.21.2025

[00:00:00] Welcome to Discourse where we cut through the noise and make sense of the chaos. I'm your host, Wayne Unger. I'm a law professor and former Silicon Valley nerd, and I've spent years breaking down complex topics into digestible takeaways. And on this podcast, we'll take a deep dive into the pressing issues shaping our world in law, politics, technology, business, and more.

No echo chambers, no corporate influence, just thoughtful analysis and respectful civic dialogue. Because understanding different perspectives isn't just important. It's necessary. Let's get started.

Welcome back to Discourse. I'm your host, Wayne Unger, and we are recording today's episode on Tuesday, October 21st, and it is approximately 1:15 in the afternoon. And as always, things may have changed since. On today's agenda, well, we have several big stories to talk about, but I'm gonna treat it kind of as a fire round.

So the first big story is the ceasefire between Israel and Palestine, but then we also have to talk about the government shutdown and the [00:01:00] economy as a whole, possibly the relationship between the two. Specifically healthcare premiums, why the Democrats are holding out, and then some very, very quick stories.

We'll talk about this White House ballroom that is now under construction, which began with a major demolition of parts of the East Wing. But let's begin with the ceasefire for a second. The Donald Trump administration has brokered a ceasefire between Israel and Palestine, and I firmly believe in giving credit where credit is due.

We ought to give credit to the Trump administration for brokering this deal and if the reports are accurate. Part of the reason why this deal came to be the ceasefire agreement came to be is because Donald Trump forced Israel's hand and put in essence an ultimatum on the table, and part of that is attributable to Israel.

I think major mistake in attacking in Qatar. [00:02:00] Now, you might recall that in Qatar we had the negotiations between the two sides taking place. So we had senior officials from Israel and we had senior officials from Hamas all negotiating with Qataris as the mediator between the two parties.

Israel decided to attack in Qatar to attack the Hamas leaders. Now, ultimately, it was a. Failure of an operation. But that also made the United States very upset because Qatar is a strong ally and a strategic ally for us nonetheless. For example, we hold a military presence in Qatar.

And so I think according to the reporting, that that was a major tipping point for the Trump administration to go back to Israel and the Prime Minister Benjamin Netanyahu and say things like. If you don't agree to the ceasefire, we will no longer support you. Now, I have no firsthand knowledge of what happened, of course, with the, the, the negotiation between the sides [00:03:00] or even the negotiation between the United States and Israel's prime Minister.

But if that is true, if the, if the reporting is true, in my suspicions are true, where the Donald Trump administration went back to Israel and the Prime Minister and said, if you don't agree to this ceasefire agreement, then. We will no longer support you. Now, I'll be critical of the Biden administration because Biden could have done this way before Donald Trump took office.

Now there's always intelligence that I am not aware of. There's always top secret and classified intelligence in which I'm not aware of. I don't have security clearance. I don't have access to that intelligence. So there might be more to it. But I'm just commenting on what I know based on public reporting and.

If Donald Trump in fact went to Benjamin Netanyahu and said, it's time that you reach this ceasefire agreement with Hamas, or we will no longer support you. I am actually [00:04:00] quite glad that that ultimatum was placed because the ceasefire is now in place. I think we can celebrate the ceasefire. Now, of course, it's a very delicate and fragile ceasefire.

There have been already accusations of the other side breaking the ceasefire, so Israel is blaming Palestine for breaking the ceasefire. We also have Palestine blaming Israel for breaking the ceasefire. So. I hope, and this is sincere, that the ceasefire holds out and that it becomes a permanent ceasefire.

Now, there are deeper rooted issues in this conflict between Israel and Palestine, and those deeply rooted issues I don't think are gonna solve themselves anytime soon. Along the same note, we know that Donald Trump has been begging. Essentially begging for a Nobel Peace Prize. And of course, he did not win the Nobel Peace Prize this year.

Now, that's not to say he won't win it [00:05:00] in the future, but I certainly say, well, just because you have perhaps brokered peace deals abroad, but also look internally at the domestic relations in the United States where you have, in many ways armed conflict happening. You have unleashed ice upon the American population and they are going in busting down doors, drawing their firearms, arresting people, using tear gas, using pepper spray against protestors. So that in itself, you are actually creating conflict. And I say that to the Trump administration.

So, at least in my eyes, your good deeds of abroad cannot supplant your violent deeds here in the United States. That's all.

Now let's switch gears for a second and turn to the government shutdown. So I think we're 21 days into this federal government shutdown because Congress cannot reach a deal. So let's back up for a second. The Constitution is clear. [00:06:00] The Constitution says that Congress is responsible for funding the government it holds the power of the purse. That's what we kind of generally refer to it, but in a more technical sense, it holds the appropriation's power, meaning that it has the authority, Congress has the authority to spend the general funds out of the United States Treasury. Now, during the Trump administration, Trump two, we have seen countless challenges, of which I have commented on.

We have seen countless challenges to that general appropriations power, which is held by Congress. So for example, the president has decided, contrary to what Congress has said, contrary to what the law says as far as who gets what money. The president has decided to withhold funds from universities, from nonprofit organizations, from research institutions, from his own departments that all roll up into him.

He has [00:07:00] acted contrary to the funding directives from Congress, and the courts have, well, I should say the United States Supreme Court has allowed him to do that. Now, lower courts have issued injunctions, which were later overturned by the United States Supreme Court. And I won't go too far down the rabbit hole of talking about the procedural matters with respect to those injunctions.

But long story short is a lower court can issue what's called a preliminary injunction, which is a temporary stay or in a temporary injunction against doing something. So lower courts have ordered the Trump administration from not withholding funds from organizations, both internal to the government and external to the government, like universities, preliminary injunctions saying, Donald Trump, you must fund these.

And those have gone up on emergency appeals to the United States Supreme Court in which the United States Supreme Court [00:08:00] has stayed those preliminary injunctions, which basically means it has permitted Donald Trump to do these things that he sought to do, that the lower courts wanted to stop him from doing.

Now, there's a bunch of legality here, a bunch of procedural law at issue here that would probably take a whole episode or maybe even a whole month worth of episodes that I'm not gonna get into here. But we know that some of those actions are going before the United States Supreme Court this term. On the merits.

So the emergency docket is not necessarily a merits dock, uh, docket. October, in October of every year, the United States Supreme Court commences its term for the year, and it takes from October until really the end of June, beginning of July, is. The Supreme Court's term, that's when they sit and they [00:09:00] hear oral argument in a number of cases.

They read all the briefs that have been submitted to the court, and then they issue decisions. Uh, I would say for the most part, between January and June of the, of, of their term. Now, some of the most controversial cases, those that require very, very careful drafting of the opinions and often multiple opinions.

Those we don't typically see until May and June when the end of the term is coming up. Some of the cases that went up on appeal on the emergency docket, which means the court needs to act quickly on them and they do not benefit from full briefing. And oftentimes the court's order does not explain why it's ruling the way it is.

There's a lot of criticism regarding the emergency docket, and I would say rightfully so, because I think the court needs to explain every decision that it makes. I'm generally in that camp, even if the [00:10:00] explanation is short, but it needs to signal to the American people why it's making certain decisions, and certainly it needs to signal to lower courts why it's making certain decisions.

Okay, put all of that aside for a second. Put all of that aside for a second. Let's go back to this government shutdown. So we're 21 days into this government shutdown. By my count I, I may be incorrect on that. And we know that the House of Representatives has passed a continuing resolution to essentially keep the.

Funding levels that have already been set through previous congressional action in place until they can reach another agreement. So first, let me just criticize continuing resolutions for a second. I. Don't like them. I think it's Congress's way of taking the easy way out. Congress, you have a job and that job is to appropriate the general funds outta the treasury.

It is to create the budget and pass the budget that gives [00:11:00] directives to the rest of the government and to whole lot of other institutions how to spend taxpayer dollars. And you can't even do that. So continuing resolutions I don't think should be allowed. I know they're like temporary and they're stop gaps and they're just to bridge us from budget to budget.

But congress should be required. It should be a duty of Congress to pass a budget. And so when Congress doesn't do that, I think they fail in one of their primary duties given to them and, and authorities given to them by the constitution. I, I tweeted this out the other day and I said that when federal workers and contractors are locked out of their jobs due to a government shutdown, that's almost always rooted in politics, that Congress should be locked into the capitol until they reach a deal.

And we have seen other initiatives to mitigate the shutdown effects [00:12:00] by forcing Congress. To act. One of those, for example, is say, Congress will not be paid just like the rest of the federal employees during periods of shutdown. Now, of course, those bills have not gone anywhere because Congress isn't going to vote against its own interest.

Those individuals, both the representatives as well as the senators, typically will not vote against their own interest. Okay. But I think that is something that needs to be put in place because right now we're 21 days in three weeks in. To a government shutdown in which, yeah, Congress, both representatives in the house as well as senators in the Senate, well, they can go on and continue to pay their bills.

They still get their money, but, but thousands, hundreds of thousands of employees across the world, who are all employed directly or indirectly by the federal government of the United [00:13:00] States, they go without their money. So we have heard stories, for example, and this is true, that you have many federal workers, like TSA agents in airports like air traffic controllers who have to, they must report to work because their jobs are critical.

They're mission critical, right? We can't just shut down the entire airspace through air traffic controllers essentially being furloughed during the time in which the government is shut down, they have to continue to show up for work. Now, we also know, based on the statistics, that those employees tend to call out at higher rates during periods of government shutdown because.

Well, can you blame them? Nobody wants to work for free. And while there is a law in place that was recently enacted, that requires all government workers to be paid back pay. Once the government reopens, you also have. Not surprisingly, the Trump administration threatening not to pay them back pay. So first we as American people should [00:14:00] be grossly upset at that just as voters.

But of course, all of those employees of the federal government should also be upset because essentially the Trump administration is threatening to break the law and is saying, Hey, we will break the law that's just impermissible because I think those workers, those federal employees who are either directly employed or indirectly employed by the federal government, they are legally entitled to back.

The Trump administration ought to honor that. Okay. Congress can't continue to pay its bills because it continues to get paid. So does Donald Trump, for that matter. Donald Trump continues to get paid, but no one else gets paid. The general federal employee doesn't get paid until hopefully the government reopens and that back pay is issued.

So let's talk about the, some of the, the root causes. Every government shutdown comes down to politics. It, it's always about politics. Now, the [00:15:00] Republicans have tried to brand this as the Democrats shut down. And more specifically, they've coined the term Schumer shut down being that the minority leader in the Senate is Chuck Schumer.

It is true. That the Democrats in the Senate hold the leverage and they're holding out. That is true, and I say that because in order to reopen the government, the Senate requires 60 votes. It's the Senate rules. Just go with me here. I'm not gonna explain that, but the threshold is 60 Now.

There are not 60 Republicans in the Senate. There's a thin margin in the Senate similar to the thin margin in the house. Except the house only needs a bare majority. It got that. That's why that passed the house. On the Senate side, Chuck Schumer leading the Democrats in the Senate, can essentially hold the keys to the federal government by not voting.

Now, is that their fault? Well, in part I would say yes. But we have [00:16:00] to look at the other side. The Republicans are in charge of all branches of government, right? They hold a super majority on the United States Supreme Court. They hold both chambers in Congress, the House and the Senate, and they hold the White House.

They have the bargaining power. So in that way, it's their responsibility to come to the table and get the Democrats on board. It's their responsibility because they're in charge. Of, in this case, the United States Senate and majority leader Thune in the United States Senate, I think has the responsibility to go to the negotiation table, sit down with Chuck Schumer and deputies, and say, okay, how do we get the requisite number of votes so we can get this reopened?

But the Republicans are digging in on their side saying that it's all the Democrat's fault and they're not to going to negotiate with the Democrats, but the Democrats, of course, are also digging in saying, we're not going to do this unless [00:17:00] the Republicans bring the Obamacare or the Affordable Care Act subsidies back onto the table here, so I'll get to those subsidies here in a second.

But my point here is it is not necessarily the whole story when the Republicans say that this is the Democrat shutdown, the Schumer shutdown because they hold the responsibility as the leaders. They have the majority across all branches of government. To sit down and figure out, well, how do we get some Democrats on board?

And while the Democrats hold the leverage in that way, we all know that if you're trying to lead an organization, you need to get the requisite number of people on board to the direction in which you want to lead it. And that's the failure of the Republican Party right now. So I think. The mere politics is in a way shameful because it's hurting hundreds of thousands of people around the world.

It has an indirect [00:18:00] effect, an indirect economic effect of taking millions and soon to be billions of dollars out of the economy. People are gonna miss their, their bills. Mortgages will be due, say on November 1st, as an example. And if a federal worker is living paycheck to paycheck and that paycheck doesn't come in on November 1st, then they will most likely miss that mortgage payment.

So the ripple effect of a federal government shutdown is vast, not only affecting individual workers, but affecting the economy as a whole. Meanwhile, the politicians in Congress just play politics with everybody's lives. I think that that's a shame. Now let's talk about why the Democrats, at least according to public reporting, why the Democrats are holding out here and why they do not want to join the Senate Republicans and vote to reopen the government.

The Democrats are holding out because the Obamacare. That's the [00:19:00] informal name. The legal name though is the Affordable Care Act. The Affordable Care Act presents subsidies for the healthcare plans that are available on the Affordable Care Act marketplace. So we know that since Obamacare, you can go on to the marketplace healthcare dot uh, dot gov, I believe it is, and you can purchase a healthcare plan.

Let's look at the breakdown of the Affordable Care Act. And I teach this in my constitutional law courses because it is relevant in so far as the Commerce clause. I can, I can again, spend many episodes talking about that, but for the purposes of this episode, the Affordable Care Act, its goal was to bring more Americans under health insurance to make sure that healthcare could be more affordable Now.

The Democrats dream ideal, is this world in which everybody has healthcare, [00:20:00] because healthcare in many people's eyes should not be a privilege, but rather a right. You should. And part of part of being part of the the richest country in the world, you should be able to have access to healthcare, and that access to healthcare should not be cost prohibitive.

You should not have to seek healthcare when it's an emergency or even preventative healthcare, and then have those healthcare bills bankrupt to you. But that's very much the reality . Part of the Affordable Care Act plan was to launch this marketplace and to subsidize those healthcare plans that are sold on the marketplace so that individuals can afford healthcare insurance.

So these are the government subsidies that are at issue here with this government shutdown. Democrats want a renewal of the subsidies. Makes sense. They want the Democrats in the Senate want to make sure that [00:21:00] healthcare is kept at a lower price point than it would be if the companies that provide those plans could charge fair market value for those plans.

Now the Republicans argue that if the Democrats really wanted to do this, that they should have just made the subsidies permanent. Well, the thing here is the subsidies are government spending. By definition. That's what a subsidy is. So the government has to approve the spending to subsidize these plans on the marketplace.

And as we know, Congress holds the power of the purse. So even if, even if the Democrats made them permanent subsidies, a subsequent Congress. Could always undo that. And that's exactly, that's, that's what they did with respect to the individual mandate. This goes back to the fundamental design of insurance marketplaces.

So insurance. As an industry works by bringing [00:22:00] more policy holders to the table where all of those policy holders pay a premium and that money gets put into a pool. Essentially, I'm simplifying here, go with me. All of that money that goes into the pool by the policy holders is what funds the claims.

And so if you have a claim, an insurance claim, you file that claim, the insurance company evaluates the merits of that claim, and if it is a qualified or a covered act under your policy, then the insurance company will pay out. According to the terms of the policy, and so all of that money from all of the policy holders that go into the pool, well, that pool of money is then used to pay out claims.

And just from a business practice standpoint, ideally the insurance company pulls more money in in revenue from policy holders, then it has to pay out in insurance claims and insurance companies go bust when, [00:23:00] for example. Uh, say a property insurance when, for example, a natural disaster wipes out a whole neighborhood, and that insurance company now has higher than expected claims, and that could deplete its pool of money received or its pool of revenue received from policy holders.

That's the fundamental risk to insurance companies. So insurance companies always have to predict what rate. Or price for a policy, it must sell to the policy holder in order to have a sizable pool of money to pay out claims and hopefully predicting that they will make more in revenue than they will pay out in claims.

Okay, well, here's the fundamental dynamic that is happening with healthcare in the United States. The baby boomer generation continues to age, and of course, as you age, you need more medical care. That's just a fundamental truth that is [00:24:00] objectively true. That is not a political argument. That is objectively true as a population ages that aging population needs more medical care.

So baby boomers are living longer than past generations and they are putting a demand on the healthcare industry as a whole for healthcare services. Now that makes the healthcare industry a very lucrative industry to be in right now as more customers are entering the healthcare industry for various services.

But that also puts a strain on the economics of the healthcare industry, where if most of the costs to healthcare services are paid out by insurance. Well now insurance payouts, those claims are increasing, but those paying into the system have decreased. So the Obama administration, when it [00:25:00] was negotiating the Affordable Care Act, one way of solving for this was what's called the individual mandate.

The individual mandate essentially said, everyone. Must who is eligible must get health insurance. And if you do not get health insurance, then you must pay a penalty on your taxes. Now this. Penalty. The individual mandate was like, say $2,000. Don't quote me on the exact number, just go with me here. It was a four digit number, so if you chose not to get health insurance, well then you would have to pay into the IRS.

You would have to pay the federal government and that payment, that revenue could then be reused as a subsidy to bring down the cost of healthcare for policy holders. But the Republicans repealed the individual mandate and that threw the entire cost structure of the Affordable Care Act out of whack.

[00:26:00] Let me explain.

So the idea was to provide a negative incentive, or you've heard the analogy, carrot and stick, where the carrot is a positive incentive that drives you forward towards getting that or wanting something. But the stick is that negative incentive that pushes you in a certain direction because there's a penalty behind it.

Well, in this particular case for the Affordable Care Act. The stick that the Obama administration wanted to use was this individual mandate where if you don't get health insurance, you face this fine. The constitutionality of this individual mandate was challenged in the United States Supreme Court in a decision written by the Chief Justice Roberts.

Said that that was constitutional, that it was acting as a tax where if you do not get health insurance, you are subject to an additional tax. That tax being say, $2,000. So this was an incentive because we [00:27:00] know we can drive general behavior amongst the population via tax policy. If you want to incentivize people to get married, you provide tax benefits for married individuals.

If you want to incentivize the growth of a particular industry, say the solar industry, then you provide tax incentives that. Incentivize the growth of that industry. That's how this works. You can change a whole society via tax policy. The Obama administration recognized that and said, okay, we want more people to buy into health insurance.

That brings more money into the health insurance marketplace, and when we bring more money in. That in theory lowers the cost for everyone because if the claims hold constant and you bring more people to pay into the pool, well now each person that's paying into the pool doesn't have to pay as much because the cost of the claims are spread out amongst a larger [00:28:00] population, a larger population of policy holders.

That's how insurance works. So the individual mandate was a core part of the Affordable Care Act and the whole economics behind the Affordable Care Act.

Republicans hated this idea, right? Republicans hated the individual mandate and they hated Obamacare as a whole. Because, well, for many reasons. With respect to the individual mandate, though it was an additional tax. They challenged it in courts, but they lost at the United States Supreme Court.

And so the Republicans had to do the old fashioned way of just repealing the individual mandate by passing another law, and they did so by repealing the individual mandate. Now, individuals face no penalty if they chose not to buy insurance. And because they face no penalty, many people chose not to buy insurance.

Go figure. But that also meant that the number of policy holders who were paying into the system [00:29:00] decreased because again, people opted not to buy the health insurance because there's no individual mandate anymore. There's no tax anymore That would penalize individuals who chose not to buy health insurance Now.

That means less people paying into the pool, same number of claims being paid out, same number of dollars in claims being paid out. Now that means each person paying into the pool has to pay more. I hope I explain the basic economics of, of the Affordable Care Act in a way that's digestible here. But in short, the Dems say.

Well, we want the subsidies to continue so that no one who is buying on the healthcare insurance marketplace has to pay an exorbitant amount of money because it's subsidized by the United States Federal Government. So the Dems are holding out because they don't wanna see constituents across the country who are buying [00:30:00] marketplace plans.

They don't want to see them have incredible astronomical increases to their policy premiums. Now the Republicans are saying, Nope, we're not gonna negotiate. Now you have to reopen the government because you are holding the government hostage and we won't allow it. And now it's a matter of chicken. Who is going to blink first?

Unfortunately, the Republicans and the Democrats in the United States Senate are playing chicken with people's lives. That's my opinion here. So the Republicans are saying we won't negotiate the Obamacare subsidies because we can negotiate those down the road. They don't expire until the end of the year.

We have enough time. The thing here is. The Democrats may realize as I think they do, that this is the only leverage that they will have before the end of the year. So they either use it now or trust the Republicans in the United States [00:31:00] Senate to open the negotiation. If, for example, they reopen the government, but the Republicans have not necessarily been proven to be trustworthy.

And to be fair, the Democrats haven't proven to be trustworthy either. So the Senate Democrats are like, no, this is really our only time to negotiate this, and we're gonna put this at the forefront. That's gonna be our issue to negotiate. Now we'll see who blinks first. The Republicans have begun a campaign on social media saying that, well, this is why Obamacare has failed.

This is why Obamacare has failed because these premiums, we have raised the cost of healthcare and it's all Obama's fault and it's all Pelosi's fault, except they conveniently do not mention that individual mandate in which the Republicans repealed. That threw off the entire cost structure for the Affordable [00:32:00] Care Act and perhaps the Republicans.

This is a mere speculative guess. Perhaps the Republicans do not want to deal here because they want to use that as a political message they want to use. The massive increase that astronomical increase in healthcare premiums as a political point to support the overall repeal of the Affordable Care Act, which it's, which the Republicans have been trying to do for years.

And perhaps the Democrats realize that. Here is what I would love to see. I would love to see the government reopen as soon as possible. I would also love to see the subsidies for the Affordable Care Act premiums to continue, and I would also love to see a revisit of the Affordable Care Act to figure out how do we make it more cost effective for policy holders to buy into the health insurance plan, but so long as the [00:33:00] Republicans continue to govern, that will not happen because the Republicans for years.

As we know have opposed the Affordable Care Act. God forbid. God forbid, we create a plan that increases the number of individuals who are covered by healthcare insurance so that they are not burdened by the high cost of healthcare services here in the United States.

Our entire healthcare system. Its financial model ought to be revisited. And I'm not saying that we need to change it altogether. I'm not saying that we need to throw out the current cost model and the current pricing model and just start from scratch. I'm just saying we ought to revisit the model as a whole and figure out where we can better the model.

In other news. In other news, the Trump administration has started the construction on this White House ballroom. You may recall that on a couple of episodes ago I mentioned that I generally support this White House Ballroom because, [00:34:00] for example, no space at the current White House. Is large enough to hold these larger event gatherings.

And for that reason, if the White House wanted to hold a large event gathering, it would have to go offsite. And when it goes offsite, the costs suddenly rack up. You have the cost with respect to the presidential motorcade, you have the cost for the event space. You have the costs for all the Secret Service who are required to be there.

You have all the advanced costs. All these costs begin to go up. When you decide you're not gonna hold an event at the White House, you're gonna hold it offsite. So in that way, it could be a positive investment into the future of the executive branch by saying, okay, we're gonna build a ballroom to where we can hold larger events on site.

And even more so, the Trump administration has said that it will be entirely privately funded. I said I generally support that, but at that time when I said that I did not know, because the Trump [00:35:00]administration was not clear on this, that they were gonna tear down a portion of the existing East Wing. I thought it was gonna be built as a separate building or as a traditional addition.

I didn't realize that they take a bulldozer. And so let me be very clear here. I do not support the tear down of the, any portion of the current White House, and that's what the Trump has done. And coincidentally, of course, many on social media have now tweeted out the picture of this demolition of the East Wing and has said, well, ain't this symbolic of the Trump administration literally tearing down the White House?

Of course implying that figuratively, he's tearing down the United States government, be that as it may be, that as it may, the Republicans are correct in saying that there have been [00:36:00] renovations of the White House in the past. For example, I believe it was FDR who built the East Wing. Great. Fantastic. The West Wing was also not a part of the original White House, and of course we've had multiple renovations over the years of the interior to the White House now, so perhaps we're a little upset over this, and I understand that.

I don't wanna see the East Wing torn down or damaged in any way, but nonetheless, we are here.

So we will see what this White House ballroom will look like. If the Oval Office in its current state that looks like Donald Trump just vomited gold everywhere. If that is any indication for what the decor will look like in the White House Ballroom, oh boy. Oh boy. Because it won't be pretty, it will be gaudy just as any Trump building is.

It's gaudy.

 That's it for today, and I thank you once [00:37:00] again for joining us.

That's it for today's episode of Discourse. Thank you for tuning in and being part of the conversation. You can catch future episodes of discourse wherever you get your podcasts. If you found this discussion insightful, be sure to subscribe, leave a review and share it with others who value thoughtful analysis over the noise.

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