Last night Senate Democrats defeated an attempt by Republicans to repeal President Obama’s health care legislation. The vote went strictly along party lines, though both parties joined forces to repeal an unpopular tax provision on small businesses. In January, House Republicans voted to repeal the act. Earlier this week, a federal judge in Florida ruled the law void, bolstering those trying to overturn it. It’s the fourth suit to have been decided. Two ruled part or all of it unconstitutional while the other two upheld it. Twenty more cases are pending. We’ll discuss what this means for the future of health care reform.

Guests

  • Jeffrey Rosen professor of law at the George Washington University and legal affairs editor of "The New Republic." He's the author of "The Supreme Court," "The Most Democratic Branch," "The Naked Crowd," and "The Unwanted Gaze."
  • Mary Agnes Carey senior correspondent with Kaiser Health News. She's most recently served as associate editor for CQ HealthBeat, a daily report on health care policy. She has also served as Capitol Hill Bureau Chief for CQ.
  • Julie Rovner health policy correspondent for NPR, author of "Health Care Policy and Politics A-Z," and contributing editor for National Journal Daily.

Transcript

  • MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Senate Republicans lost their bid to overturn the health care reform law last night. Democrats pushed the vote, using it as an opportunity to explain the law's benefits. Republicans' hopes to repeal the law were bolstered earlier this week when a Florida federal judge ruled the entire law unconstitutional. Joining me in the studio to talk about what this means for the future of health care reform, Julie Rovner of NPR, Jeffrey Rosen of George Washington University Law School and Mary Agnes Carey of Kaiser Health News. Please join us. I know you have many questions as well. Feel free to call us or e-mail us or send us a tweet or join us on Facebook. Good morning, everybody.

  • MS. MARY AGNES CAREYGood morning.

  • MS. JULIE ROVNERGood morning.

  • MR. JEFFREY ROSENGood morning.

  • REHMGood to have you all here. Julie Rovner, tell us a little bit about why this vote came up last night.

  • ROVNERWell, the Republicans, of course, had been vowing that they were going to force a vote on this repeal ever since the House voted on its repeal bill a couple of weeks ago. So this was basically the first bill that had been up in the Senate. Since then, the Senate's been out. This is on a completely unrelated bill on the Federal Aviation Administration. But the Senate Majority Leader Harry Reid had said it would be an open debate, so amendments were allowed on anything. Therefore, Senate Minority Leader Mitch McConnell said that he was going to offer this amendment. This was not, of course, the House bill per se, but it was an amendment to repeal the law.

  • ROVNERBut because repealing the law would cost money, because the law itself saves money, they needed a budget point of order. Anything that costs money, you would need to wave the Budget Act. Therefore, they needed 60 votes. And they didn't get 60 votes. They -- so it was all sort of kind of theatrical. And that was the discussion.

  • REHMWhat was the debate on the floor like, Mary Agnes?

  • CAREYWell, it was contentious, but also predictable. Republicans think this bill is too big, that it will kill jobs. It's too much government intrusion into your life. To Julie's point, Mitch McConnell was saying, only in Washington could you say a bill this big, which creates an expansion of the Medicaid program and insurance exchanges, would actually cost us money if we repeal it. And so Republicans really used this debate to make their points about the law.

  • CAREYAs did Democrats to say, if you repeal the law, look at all the provisions that would go away: children up to 26 staying on a parent's health insurance plan, seniors getting discounts on their brand-name drugs when they fall into the doughnut hole, eliminating a process known as rescissions, canceling insurance once you get sick unless you committed outright fraud. And the Republicans, at this point, do not have a legislative alternative, so Democrats hammered away on that as well.

  • REHMWhat about the figures from the Congressional Budget Office and how they have been used and, some would say, abused?

  • CAREYI think, depending on your perspective, the Congressional Budget Office is either your savior, if you're trying to pass a bill, or it's the villain -- in this case -- if you oppose what they've come up with. Republicans have made the case. And it is true that the Congressional Budget Office can only score what is before it, but that is what they did. The bill does have tax increases that kick in before benefits. Republicans have pointed to that, saying that shows fault with the numbers. But the Congressional Budget Office is the official scorekeeper for Congress.

  • CAREYAnd let's look back to 2003 when Republicans wanted to pass the prescription drug benefit. They were extremely happy at the CBO's finding of how much that was going to cost. And I remember at the time -- I want to say it was going to cost maybe $400 billion over a decade. Republicans pointed to that continuously. The CBO says, this is the cost. The CBO, you know, will say that it is affordable in the sense of what they were considering in legislation how much it would cost. So a lot of your opinion on CBO depends on your perspective on the legislation.

  • REHMSen. John McCain called it garbage in, garbage out.

  • CAREYThat is his perspective at the way the bill is written. But, nonetheless, the CBO -- until that rule is changed, the CBO is the scorekeeper for Congress.

  • REHMSo, now, Julie Rovner, what can Republicans do now?

  • ROVNERWell, certainly -- now, Senate Republicans have said that they're going to continue to force votes on this -- on every bill that comes up. And they -- I have no doubt that they will, which is their right as the minority party. Every time there's a bill that has an open amendment process, as this one did, they can continue to force these out. They will almost certainly continue to lose these votes the Democrats are holding together. Even Ben Nelson, who's probably the most conservative Democrat in the Senate, has posted -- there's a press release on his website that says, you know, fix it but don't repeal it. So they're...

  • ROVNERAnd, indeed, the other thing that passed last night was -- overwhelmingly, the Senate voted to repeal this small business paperwork requirement, which was -- which is not a health -- it was just not related to health care, but was included in the health bill as a way to raise some of the revenue -- about $17 billion worth of the almost trillion dollars that it takes to fund this. So that's something that now everyone has agreed should go away, and even the president has agreed that that should go away.

  • REHMAnd what about the Republicans challenging Democrats by saying, we will defund certain provisions, and, in that way, we'll render this whole law moot?

  • CAREYThat is their hope. But then again, in Congress, it's always all about the votes. Republicans control the House of Representatives. They do not control the Senate. The appropriations process where they hope to defund implementation of the health law, I expect Republicans to be successful in the House. The Senate will not, I believe -- not embrace the C funding mechanism, the same sort of attack on the appropriations language the Republicans want to have. And then, most likely, there would be a conference at some point, as they usually are -- usually in appropriations bills. The Senate has one viewpoint. The House has a viewpoint. You have to have to have a modified product. So that would be the subject of negotiation between both chambers.

  • ROVNERAlso, most of the funding for this law is automatic. Most of the funding for this law does not flow through the appropriations process. Now, one of the things they can try to do is cut off funding, you know, try to take away staffing for the Department of Health and Human Services, cut off funding that way by, you know, not letting them have the people that they would need to write the regulations for this. But even so, I mean, one of the things that the administration has already done is move one of the critical agencies that was implementing this bill into the agency that runs Medicare and Medicaid. That's sort of a way of trying to protect that particular group of people. So there's kind of, you know, predator and prey going on if you will.

  • REHMJulie Rovner, she's health policy correspondent for NPR, author of "Health Care Policy and Politics A-Z." Mary Agnes Carey is senior correspondent with Kaiser Health News. Do join us, 800-433-8850. Send us your e-mail to drshow@wamu.org. Feel free to join us on Facebook or Twitter. And to you, Jeffrey Rosen, this week, a judge in Florida ruled the health care law itself unconstitutional. Explain the grounds on which he made that ruling.

  • ROSENThe centerpiece of his analysis was the scope of the Commerce Clause, the part of the Constitution that authorizes Congress to regulate interstate commerce. And, since the 1930s, the Supreme Court has taken a pretty expansive vision of that power. They've said that even if you're not regulating economic activity, as long as the activity has a substantial effect on interstate commerce, it can be regulated. This judge said this is not economic activity. It's economic inactivity. In other words, the decision not to purchase health care is not economic activity at all, and Congress has never regulated economic inactivity.

  • ROSENHe had a parade of horribles, as the lawyers say. He said if this law were upheld under the Commerce Clause, then Congress could compel people to buy broccoli or eat vegetables or do all sorts of other terrible things. And this would eliminate any restrictions on Congress' power, and for that reason he wasn't going to allow it. He also rejected a second argument, which is that Congress has the power under the Necessary and Proper Clause to -- well, the Necessary and Proper Clause says that Congress can make all laws which shall be necessary and proper for caring into execution the foregoing powers. And proponents had said the power doesn't have to be explicitly written down as long as, in the famous words of Chief Justice John Marshall, let the end be legitimate. Let it be within the scope of the Constitution.

  • ROSENAll means which are appropriate and plainly adapted to that end, which are not prohibited but coexist within the letter and spirit of the Constitution, are constitutional. And the proponents had said, the fact that this has never been done before doesn't matter since insurance is, in fact, an economic activity and the regulation of insurance is an economic activity. And there's no way to have a functioning health care bill unless you have a mandate because, if people can choose not to buy insurance and wait until they get older, then the insurance companies will go bankrupt if they're required to fund preexisting conditions. The argument was this is clearly necessary and proper to carrying out the regulation of something which has huge interstate commerce effects, and therefore it should be upheld. But the judge rejected that argument.

  • REHMWhy did Judge Vinson, who was the judge involved -- why did he not suspend the law immediately?

  • ROSENWell, it's a very good question. He did do something that the other court, which had struck the law down, did not do, which is to invalidate the entire law.

  • REHMRight.

  • ROSENAnd he did that because he said I can't figure out what law Congress would have passed if the mandate were taken out, therefore, I'm going to strike down the entire thing. And that was quite a dramatic step. But for technical reasons that have to do with the fact that it was a declaratory junction rather than an injunction, which prevented the law from being enforced, he didn't, in fact, order the law to stop being enforced.

  • REHMSo it's inevitable, I would assume, since there are 20 more cases sort of waiting in the queue that this is going to the Supreme Court. But that could take years.

  • ROSENIt could take years. Here's the immediate timetable. So we have two courts that have struck the health care bill down, this one this week in Florida and one in Virginia in December. Then there are two courts that have upheld it in Michigan and Virginia. Those will be argued on appeal in May. The two Virginia cases will be argued before the Fourth Circuit Court of Appeals, and then Michigan, the following month in June. Most people expect that the Supreme Court will hear this next year and, therefore, will decide it by the spring of 2012. Now, it's possible that Virginia has asked the Supreme Court to hear it right away, and it's possible the court could take it sooner. But that's not necessarily going to happen.

  • REHMJeffrey Rosen, he's professor of law at the George Washington University. We'll take a short break. When we come back, we'll talk further and take your calls.

  • REHMWelcome back. Jeffrey Rosen is here. He's professor of law at the George Washington University. He's also legal affairs editor of The New Republic and the author of "The Supreme Court: The Personalities and Rivalries That Defined America." Also here in the studio, Mary Agnes Carey, senior correspondent with Health -- with Kaiser Health News and Julie Rovner, health policy correspondent for NPR. Jeffrey Rosen, go into a little more detail for us about what the Commerce Clause actually is, says and how it's been interpreted by the Supreme Court in past years.

  • ROSENThis is a wonderful question of the kind that first-year law students love to debate, and now citizens around the country can have the same pleasure because this is at the core of the constitutional discussion.

  • REHMOh, and, by the way, before you go on, I just want to say I'm a big fan of broccoli. Now, go ahead.

  • ROSENAnd I like asparagus. I mean, I'd be happy to be forced to eat that as well.

  • REHMOkay.

  • ROSENAbsolutely. So the Commerce Clause gives Congress the power to regulate interstate commerce. And at the time of the framing of the Constitution, it was -- commerce was viewed as things like trade and exchange, but it wasn't viewed as covering manufacture. So there was a whole series of decisions in the Gilded Age that said that Congress could not regulate manufacturing. It can only regulate trade and exchange. That gained steam in the 1930s and became very controversial when the Supreme Court struck down parts of the new deal and said that Congress couldn't prohibit the interstate transportation of goods produced with child labor. And, famously, the court struck down a law fixing employee hours and wages in interstate business because it was only an indirect effect on commerce.

  • ROSENPresident Roosevelt threatened to pack the court with justices who would be more sympathetic to the New Deal. And in the famous switch in time that saved nine, the Supreme Court changed its mind -- the swing vote. The Justice Kennedy of his day began to uphold the New Deal and adopted a much more expansive vision of interstate commerce in a case called Wickard and Filburn, involving a farmer who grew wheat in his backyard for purely personal consumption. The court said, well, that actually is a valid regulation of interstate commerce because, if you grow your own wheat, you're less likely to buy wheat across state lines. And, even if the commercial effect is slight, that's enough to justify the regulation.

  • ROSENSo between 1937 and 1995, the court did not strike down a single law as exceeding Congress' power to regulate interstate commerce. Everyone thought this was settled. The Congress has broad authority. It's not the business of judges to interfere with these, essentially, economic regulations. But in a case in 1995 called Lopez, where Congress tried to regulate guns in schools, the court struck that down on the grounds that guns in schools are not economic activity. And the effect on interstate commerce wasn't substantial enough. It was too attenuated to justify the regulation. Then the court struck down the Violence Against Women Act on the grounds that violence against women -- beating your wife is a terrible thing, but it's not an economic activity.

  • ROSENAnd even though women might be afraid to travel across state lines if they're being beaten, the court said, that's too attenuated an effect on commerce to justify. The final piece of the puzzle, the final case, was a case called Gonzales and Raich recently, where the court -- the conservative majority of the court upheld Congress' power to regulate medical marijuana on the theory much like the wheat case in the backyard. These were some people who were growing medical marijuana for their personal consumption, and the court said even that personal consumption might have some interstate effect. So in light of that case, many scholars had thought, before these health care suits, that this was a no-brainer.

  • ROSENIf a tiny bit of backyard marijuana could affect the interstate market for marijuana, surely the insurance market for health insurance, which has much broader -- billions of dollars of interstate effects -- $17 trillion, I think, is the entire health care market -- would be even more dramatic in its effects. But two lower courts have disagreed with that and have tried to return to this pre-New Deal understanding of the Commerce Clause.

  • REHMNow, here's a question from Ken. He posted on Facebook. He says, "If the government cannot force us to buy health insurance because it's unconstitutional, then how can the government force us to buy auto insurance?" Julie Rovner.

  • ROVNERWell, of course, this came up over and over and over again during the debate. And this is a wonderful description of the Commerce Clause. I spent a semester in college going through exactly what Jeffrey just did in five minutes. But there were two answers to that. One, of course, is that auto insurance is state and not federal. But the real -- the -- what the judges have been talking about in these cases is that you can choose not to buy a car, that your choice is, if you don't buy a car, you don't have to buy -- or you don't drive, you don't have to have auto insurance.

  • ROVNERAnd the argument here is that this is novel because you have to have health insurance if you breathe, and you don't have a choice of not breathing. And that's what these judges have said, that this is something novel that we've never seen before. But, of course, the other judges say, if you don't have something that -- everything is novel once. Everything is -- everything, the first time you see it, is new.

  • REHMBut this whole law has been based on the fact that you mandate this insurance. And that's what got the health insurance companies to agree to become part of this whole pro-health care movement.

  • ROVNERThat's right. The last thing the health insurance industry would want would to be required to cover the 32 million new people who get insurance under the law and not have an individual mandate. Because the fear is, if you don't have that, people will wait until they're sick to get into the system, and the healthy people balance out the sick people. And, again, if you don't have a mandate, healthy people may stay out, people will wait till they get sick, and insurance will climb -- the cost of it -- for everyone.

  • REHMJeffrey.

  • ROSENAnd there's one more thing to say about the mandate and car insurance. Julie absolutely makes the crucial distinction. But the defenders of the law, including the U.S. government, also say this is -- you're not required or compelled to do anything. You can choose not to buy health insurance. You just pay a tax.

  • REHMRight.

  • ROSENSo therefore you're not compelled. You pay a tax, and Congress explicitly has the power to tax. It's enumerated in the Constitution. The opponents say, but during the debate, the Obama administration said it wasn't a tax. Now, they're changing their mind in court and saying that it is a tax. So much of the legal battle will turn on whether the administration's representations are legally binding, or whether judges should make their own mind up about whether this, in fact, is a tax.

  • REHMI want to backtrack a little bit because what the Obama administration hoped was that bringing this thing to a vote would allow the administration to talk about the good parts, to make sure people understood what they would lose if this law were overturned. How has public opinion been affected thus far? Is there any change in the public's thinking about health care?

  • CAREYInterestingly, the most recent poll that we saw from the Kaiser Family Foundation -- who's been doing this monthly poll -- showed that, overall, disapproval of the law is up, although that was probably during the big push by the Republicans to repeal it. And yet the popularity of these individual pieces of the law is also up, so the pieces of the law that have taken effect, keeping your, you know -- your adult children on your health plan, some of these protections -- not allowing insurance companies to rescind your policy, those sorts of things -- are extremely popular. But the -- as I say, the -- you know, when you say, do you approve or disapprove of the law? That has ticked a little bit upwards. Now, that could change.

  • CAREYOn the other hand, if you break that down even more, what you do find is that Republicans are overwhelmingly against the law. Democrats are overwhelmingly in favor of the law. So it is really a very partisan breakdown and getting more so, I think. So that's why you see that the Republicans are pushing very hard for repeal. Democrats are holding together very much so in defense of it. It is just -- it is -- it remains an extremely partisan exercise.

  • REHMAt the same time, yesterday, Sen. Barbara Mikulski said, you want a repeal? Then give us what you want. Now, isn't part of what Republicans want the very same things that the public is in favor of -- keeping young people on insurance until 26, not outlawing preexisting conditions, et cetera?

  • CAREYIt's exactly right. And that's what Republicans have said. Republican staff have told me that and members have said that. But they say they want to do it in a way that won't be as expensive and not as intrusive as the Democrats' health law. But then that gets back to the whole discussion of the individual mandate. Republicans don't approve of that idea, even though some of them...

  • REHMThe idea they don't approve of.

  • CAREYOr the idea that the government requiring you. They talk about they shouldn't have it in this law, even though Republicans have favored it in the past. Many of them changed their minds now. But the point is, if you don't have that, how will this all work? There are people who say an alternative could be that you simply put in enrollment periods. And, if someone doesn't get in at a certain time, they have to pay a higher penalty later. That's what the Medicare part B program does. For example, if you don't get in when you are first eligible, it costs you more later to do it. There are Republicans that argue that could be just as effective as the individual mandate requirement.

  • ROVNERIt's really hard to see how you could make this work with what the Republicans are saying they want. They have -- they've been pretty vague. They've talked about high-risk pools. There are high-risk pools now in many states that have enrolled very few people because they're very expensive. Indeed, the temporary high-risk pools that are leading up to 2014, when most of the people will be enrolled under this law, have not enrolled that many people. They're not as expensive, but you can't get in unless you've been uninsured for six months, which seems to be a rather large block for a lot of people.

  • REHMSo, Jeffrey Rosen, you got these four lawsuits. The mandate does not go into effect until 2014. What do these four rulings mean in the meantime?

  • ROSENThey mean that the Supreme Court will have to resolve a dramatic split between the lower courts. The main reason that the Supreme Court hears cases is when lower courts disagree. And when you have two Virginia courts clashing and, very interestingly, scores of states seeking to join these lawsuits -- Utah and Idaho and other states trying to join as well -- this also raises interesting questions of legal standing. The judge in one of the cases said that states that fear that they will have to enforce an unconstitutional law themselves have standing to challenge it. Others claim that that's too broad a vision of standing, and the states shouldn't be able to join.

  • ROSENSo, basically, you have a lot of conflicting rulings and moving parts. But the solicitor general's office -- and I should say my brother-in-law, the acting solicitor general -- they're arguing these cases in May. He's the one who will stand up for the Obama administration before the Fourth Circuit and urge the courts to uphold the law. And then his office will continue to defend these appellate suits in June and over the summer, and then, at last, the Supreme Court to resolve it. And unless the court jumps in over the next few weeks -- as Virginia has asked it to do -- and moves it forward very quickly, the Supreme Court will hear it in the next fall and will decide sometime next year.

  • REHMBut haven't you already had some provisions going into effect? And what could that mean if the Supreme Court then says, sorry, we're not taking this?

  • ROVNERWell, that's the Democrats' argument, to not repeal it because they say consumers will lose many of these items that they find very valuable. We've talked a bit about them. The -- keeping the child until 26 on your health insurance policy, you know, recessions that don't uphold coverage for the seniors. And so that's an open question. What would that mean if they repeal the law? And what happens to those elements of the law that are already in place?

  • REHMSo how are states reacting right now, Mary Agnes?

  • CAREYRick Scott, the governor of Florida, came out right after the decision in saying that, to him, this means they don't have to move forward with the implementation. Other states are weighing their options. But the difficulty here is that's a pretty risky bet for states if you stop implementing the law because we don't know how the court cases are going to come out, and they have to have health insurance exchanges operating by 2014. There's a Medicaid expansion on the way. And while here -- we're at 2011 -- thinking that's three years away, it's a phenomenal amount of work for states if they would stop doing this. I think most states are going to continue with their implementation practices.

  • REHMMary Agnes Carey, senior correspondent with Kaiser Health News. And you're listening to "The Diane Rehm Show." Jeffrey Rosen, is there precedence for keeping part of the law in tact if the act itself is declared unconstitutional?

  • ROSENAbsolutely. And, in fact, that's the normal cause of the fears. In the course of being differential and practicing judicial restraint, judges are supposed to sever unconstitutional provisions of a law and allow as much as possible to stand. And there's an awful lot of Supreme Court doctrine along those lines. That's what made the Florida decision this week so sweeping and adventurous. For the judge to say, I can't figure out what Congress would have done, therefore, I'm going to strike down the whole thing, is arguably rather energetic, given the existing Supreme Court precedence. That's why the other court that struck down the law only severed the mandate, and that's why the other courts have upheld it.

  • REHMAnd, Julie, what about the medical community? Where does it stand on all this?

  • ROVNERIt's interesting. The medical community is kind of split. I think there's a lot of lack of understanding among the medical community. The organizations, the provider community, if you will, the organizations that represent doctors and hospitals and nursing homes, if you will, were all -- came along and were all very supportive of this law. But I think the rank and file don't quite understand how this law works and, I think -- and still are very confused about it. And I've seen various polls from doctors and from people who work in hospitals and are -- I just talked to someone yesterday who was out talking to a hospital association in one of the states, and he says, you know, the association leaders are all for the law and -- but the association members are still very upset about it. So it's really quite confusing.

  • REHMI'd like some clarification on this e-mail from David in Grand Rapids, Mich., who says, "As part of the attack on the new health care legislation, I was stunned to hear that Congressman Chris Smith has introduced H.R. 3, which will narrow the definition of rape, and that it received support from many Republicans. Apparently, Chris Smith is either not married, has no daughters or sisters. Rape is rape, no matter how you define it. Too many women know that bruises and broken bones alone do not define rape." Julie.

  • ROVNERThat's a bill that's actually coming up before the House Energy and Commerce Committee next week. It's not directly linked to the health law.

  • REHMHealth care.

  • ROVNERAlthough it is -- there is -- there are two abortion bills. And one of them would expand on the abortion funding prohibition in the law, which the House Republicans, in particular, did not think was strong enough, that they thought that they are -- they say there are loopholes in that law that allow -- that potentially allow for abortion funding despite the fact that there was a ban and that President Obama then issued an executive order reiterating that there will be no federal funding for abortion. They still say that there is not enough -- there's not stringent enough language. But this is a legislation that goes even further to limit federal funding for abortion, and it does...

  • REHMIn the case of rape.

  • ROVNERAnd, yes. It does, indeed, rewrite the -- right now, there is -- the two exceptions that do allow federal funding for abortion...

  • REHMRape and incest.

  • ROVNER...are rape and incest. And this would, indeed, narrow the definition of rape.

  • REHMI'm flabbergasted. Julie Rovner, she's health policy correspondent for NPR. We'll take a short break. When we come back, it's time to open the phones, take your calls, your e-mails. I look forward to hearing from you.

  • REHMHere is our first e-mail from John in Michigan. "I don't know what the uproar about being forced to pay for health care is all about. The government has been forcing me to pay for health care all my life, to pay higher insurance and medical bills to compensate for a hospital's giving health care to uninsured people. So I'm already forced to pay for uninsured people to get health care in the most expensive and inefficient way possible. Every day, people show up at emergency rooms with conditions that could easily have been taken care of by a doctor's visit, and I get the bill," says John in Michigan. Julie.

  • ROVNERHe could be reading from the government's briefs in the case. That's exactly the point. There was a hearing yesterday in the Senate on the constitutionality of this law. The attorney general of Oregon testified, and that was exactly what he said. There's no constitutional right to freeload off your fellow taxpayer if you refuse to take responsibility for your own health care, I believe -- I'm paraphrasing what he said -- and that's what the government has been arguing. And that is why they say this is constitutional because not buying insurance doesn't mean that you don't consume health care. And when you don't have insurance and you do consume health care and you can't pay for it, other people do.

  • REHMJeffrey.

  • ROSENAnd another interesting response to the compelled purchase argument came up at that hearing yesterday. Charles Fried, a conservative Harvard law professor, a former solicitor general under Reagan, addressed this head-on. He said, the court, long ago, said that you can require people to do things in public health interest. In 1905, it upheld mandatory vaccinations because, if you're not vaccinated, then everyone will get sick. And then Fried said, as for the veggies, you know, can you force people to pay for veggies? I suppose forced feeding would be an invasion of personal liberty, but making you pay for them would not, just as making you pay for a gym membership which you can afford but don't use, would not.

  • ROSENFried basically said, really, the objection here is not to the scope of Congress' power under the Commerce Clause. It's that there's some free-floating natural liberty not to be forced to do things you don't want to do. And that's something that the court got out of the business of saying long ago when it said that striking down maximum hour and minimum wage laws was a kind of conservative judicial activism that shouldn't be revisited. So, really, the opponents of this law, according to Fried, were trying to get the courts back in the business of making up new free-floating liberties that weren't written down on the Constitution and using that to very much change the regulatory structure.

  • REHMAll right. To Russell in Durham, N.C. Good morning to you.

  • RUSSELLHi. My question is in regards to what extent the new health care bill has or even implemented by, maybe, small businesses and even private citizens, and whether or not there's any verbiage in the repeal about protecting businesses and citizens who have already taken steps and paid money out-of-pocket to comply with this law, and whether or not they'll be protected under a repeal from, you know, getting their money back...

  • REHMMary Agnes.

  • CAREYThe House repeal bill did not have language on that issue. And I don't think the Senate bill does either. And so that is a very valid question. And, also, for example, if you were getting coverage on a high-risk pool right now -- you're a cancer patient, it's the only one way you can get coverage -- what happens to you? You would have been spending your own money to get some premiums. You might have been getting some help. But if you have extended your own money to cover your child up to age 26, do you get that refunded?

  • CAREYThat remains, you know, incredibly unclear. One of the big issues that Democrats keep pointing out is it's something like 3 million seniors who've got these $250 checks, which was the first benefit last year to start to close the doughnut hole, theoretically. Because the way the House repeal bill is written, it's written -- it says, you know, it was -- it is repealed as if this was never in effect. Would those people have to actually send those $250 checks back? The way the House bill was written, they would.

  • REHMHmm. All right, to Grand Rapids, Mich. Michael, you're on the air.

  • MICHAELYes, thank you. I think this case shows nothing more than what was developing to the -- really, the disrespect for the rule of law. And all you have to do -- I think people who really want to learn about this, do two things -- three things. Read the Michigan case, which held it constitutional. Read the Florida case, which gave a very thorough analysis of it. And then go to YouTube and search for Stephanopoulos Obama health care, and you will see the constitutional scholar that we have for our president argue for five minutes that there is no tax in this.

  • MICHAELYet, as soon as the law was challenged, his administration -- him included, Sebelius, and his attorney general -- filed briefs, swearing up and down that there are taxes in this. So if they want to pass this type of law, be honest. You know, one of the professors there indicated that this is aggressive because they're finding the rights. The problem is Americans don't understand constitutional law at all. Abortion -- the right to get an abortion was because of a new found right in the 9th Amendment to privacy that had never been there before.

  • REHMAll right, sir. Thanks for calling. Jeffrey Rosen.

  • ROSENIt is a very interesting question. Is there legal and constitutional consequence to the fact that the president, at one point in the debate, said it wasn't a tax, and is now saying that it is a tax? And people can disagree about that. Ultimately, it's up to judges to make their own mind up. The Supreme Court will have to decide whether it is, in fact, a tax or a penalty. And I wouldn't -- since Congress' intent matters more than the administration's representations, I'm not sure that that should settle the case. But you mentioned, also, the Michigan case upholding the law. And, of course, that points in the other direction. And people should read it for the most thorough account of what the arguments in favor of the law are.

  • ROSENThat Michigan judge said this whole economic inactivity distinction is unconvincing. The decision not to purchase health care now and to pay for it later is a quid, essentially, economic activity of the kind that Congress has always regulated. And, therefore, for judicial restraint reasons, we should uphold the law.

  • REHMBill in Winchester, Va., writes, "It's hard for me to imagine that anyone could think the Roberts Court would not strike down the health care plan. Thus far in his tenure, Roberts has shown himself to be no friend of precedent. He is a highly conservative activist judge. I'm sure he will lead the court to rule against health care, no matter what precedents are cited or what our constitution may say on the matter." Do you have any thoughts on that, Jeffrey Rosen?

  • ROSENI mean, this is the $60,000 question that law students and teachers and citizens everywhere are trying to predict, trying to imagine what the court will do. Many people think it will come down to justice. Anthony Kennedy -- and, indeed, that's sort of funny to read the lower court decisions, which are very explicitly citing Kennedy in a very flattering way, trying to win his vote. On both sides, they're saying, as the wise Justice Kennedy observed, you know, please uphold this or, please, strike it down. So it may well come down to him. What will Chief Justice Roberts do? I mean, he's proved to be less disrespectful of precedent than Justices Scalia and Thomas. He's taken a more incremental approach.

  • ROSENOn the other hand, Scalia has accused Roberts of faux judicial restraint, essentially moving in little increments, but essentially having a very conservative agenda. Certainly, it would be hard for a chief justice who came into office wanting collegiality and unanimity and talking about modesty toward Congress to preside, not only over striking down campaign finance reform but also over health care, the two pillars of the Democratic regulatory agendas. So it will be, very much, a defining moment for the Roberts Court. But exactly how the justices will come out, I think, only the fortune tellers know.

  • REHMTo St. Augustine, Fla. Good morning, Donna.

  • DONNAGood morning. I'm a retired registered nurse and licensed midwife of 40 years in medical care. And I wanted to -- I do have a question. But I am so proud of our president for addressing this issue. His main complaint of the people when he was campaigning was the horrendous cost of health care, bankrupting people and the cost of constant increase in premiums. So I support this bill on many levels. But my question is that with Florida stating that they are, as a state -- that they are against the health care issue and pursuing this on the national level, I'm curious about the legalities of this without them taking a state vote because I'm very much against Florida taking these steps, or our representatives taking these steps without my vote being heard.

  • REHMInteresting. Mary Agnes.

  • CAREYWell, I don't know the Florida Constitution, to know what power the governor has to do this. But I would think he could -- depending on what he does or doesn't do, maybe the Justice Department would try to move for a stay against any actions he took to get them to continue implementation. Perhaps they could do that.

  • ROSENAnd it's very interesting. As you say, they're -- in many of these states, the governor or the attorney general has decided to join these health care lawsuits, even though a majority or narrow majority of the citizens may be in favor of health care. And that question of what to do when the state disagrees with the law is very much alive. Some states are moving toward passing nullification resolutions. There's a new senator, Mike Lee from Utah, who said that Utah should be able, as a state matter, to pass a law saying they're not going to abide by federal health care. Now, that would almost certainly be unconstitutional according to existing precedents, which say that the states have to obey the supremacy of federal law. That's why there's one other constitutional provision on the table.

  • ROSENProf. Randy Barnett, who's the leading scholar opposed to the constitutionality of this health care bill, has proposed a federalism amendment that would allow any state to repeal any law or regulation by which it disagrees by a three-quarter vote. So you see that there are many efforts to empower the states to thwart the federal government.

  • REHMShort secession.

  • ROSENShort secession.

  • REHMGo ahead, Mary Agnes.

  • CAREYAnother thing to keep in mind here is a lot of these states have already taken some funding from the federal government for, maybe, high-risk pooling or to set up the health insurance exchanges or on rate review issues. Now, Florida returned a grant yesterday, I think, about a million dollars, to the federal government over a dispute over the insurance rate review issue. So some officials in Florida -- pardon me -- said that coincided with the governor's statements and -- was on a separate track, rather. It wasn't because of the ruling and the governor's statement, but that's an issue. If they are not going to implement the law, what do you do with the federal money you've already taken?

  • REHMYou bet. All right, to Blanco County, Texas. Good morning, Bobbie.

  • BOBBIEGood morning, everyone. I would like to see the health care law, as it is, repealed. I'm -- have voted Democrat in the past. But I hope the Republicans can get this through although it looks like they won't. We have a real bad health care problem in this country. Insurance doesn't really solve it very well -- for me, especially. I'm uninsured. And we have an education problem with college graduates having huge debts. Why don't we have a government program where we subsidize some doctors for medical care, their education?

  • BOBBIEAnd then they can go into clinics and practice and help people without insurance, or anybody that has a health problem. So, you know, the -- for instance, the auto insurance that we have to get, the liability insurance, I've never filed a claim. And yet I am paying for other people to have accidents, and I have to pay their bills. So it's the same thing with medical care.

  • REHMBut isn't that the very argument the administration makes for having a health care law? Julie.

  • ROVNERWell, yes. But -- now, most people -- and, I think, it's a little bit different with health care than with auto insurance because, with auto insurance, many people will never file a claim. With health care, almost everybody will use health care at some point. I mean, if you've been lucky enough never to use health care, that's a wonderful thing. But, eventually, everyone will. And, in fact, this law does subsidize doctors' education. And there is a huge increase for community health centers for people who will remain uninsured or underinsured, so that does exist in the law.

  • REHMJulie Rovner. She is health policy correspondent for NPR. You're listening to "The Diane Rehm Show." And now to Amelei (sp?) in Florence, Italy, one of my very favorite cities. Good morning to you, Amelei.

  • AMELEIGood morning. I'm very much in favor of universal health care in the United States, and I don't understand the mentality of people who are against it. And, I think, on some level, the idea of mandatory health insurance is a moral issue. People who, for example, are against the whole thing and don't want health insurance, don't want to pay for it. If they have a terrible illness or are in an awful accident, they go to the hospital. They expect to be cared for, whether they have insurance or not, on an emergency basis. And a hospital will not turn them away. Would they expect the hospital to let them die because they didn't have their insurance policy? Of course not because, morally, we all understand that, in a situation like that, you try to save someone's life.

  • REHMSo, in addition to being a political, a legal, issue, it's also a moral issue in Amelei's eyes.

  • ROVNERWell, a lot of people see it that way. I mean, for example, what would you do if you don't have health insurance? Now you go to an emergency room. There's a federal law that requires you to be treated and stabilized. Do we want to do away with that? Do we want to put hospital workers in the position of saying, I'm sorry, where's your health insurance? You're treated. You're not treated. I mean, this is a very complicated, emotional, passionate argument for people on all sides. But it seems that people on both sides of the aisle agree the current system isn't working.

  • REHMJeffrey.

  • ROSENAnd a call from the beautiful city of Florence reminds us that the international approach to health care might have constitutional implications, too. Justice Kennedy has been quite sympathetic to looking to international arrangements and international opinions and trying to figure out whether a particular regulation is permissible. And he might well say other countries, especially in Europe, in Italy and in France, have much more heavy-handed, centralized single-payer systems that infringe individual liberty far more. This more modest coalition of public and private regulation by that standard should be well within the international consensus, and that might influence his decision.

  • REHMJulie.

  • ROVNERI went to Switzerland a couple of years ago where they have a similar system to what we are trying to institute here. They have an individual mandate. They are required to purchase health insurance. And I should add that, you know, people are mistaking this individual mandate. You're not required to buy insurance. You're required to have insurance. So if you're getting insurance through your job, nothing's going to change. These are -- we're really only talking about the people who are uninsured, who are going to have to go out and buy it.

  • ROVNERAnd there will be subsidies if you have anything, you know, approximating a moderate or low income. But, in Switzerland, everyone does have to buy it for themselves. Most people don't have employer-provided insurance. And they are shocked, shocked that people in the United States would find it odd that they would -- that people would find this as...

  • REHMWhy do you think it's taken us so long to get around to this, Julie?

  • ROVNERWell, and -- when I talked with people in Switzerland, some of their -- you know, some of their (word?) about this. And they said, it's just, you know, we have this -- one of them said, we have this Wild West mentality about being rugged individualists. And, you know, we want to do things on our own. They have a much more inclusive -- you know, it's a European mentality, much more inclusive feeling.

  • REHMJulie Rovner, a health policy correspondent for NPR. Jeffrey Rosen, he's a professor of law at George Washington University. Mary Agnes Carey, she is senior correspondent with Kaiser Health News. This is just the first or second or third chapter -- at least 20 more to come. I hope you will come back and be with us. Thanks for listening, all. I'm Diane Rehm.

  • ANNOUNCER"The Diane Rehm Show" is produced by Sandra Pinkard, Nancy Robertson, Susan Nabors, Denise Couture and Monique Nazareth. The engineer is Tobey Schreiner. Dorie Anisman answers the phones. Visit drshow.org for audio archives, transcripts, podcasts and CD sales. Call 202-885-1200 for more information.

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