Next week the Supreme Court will hear oral arguments on the Affordable Care Act. The Act is perhaps the most significant piece of domestic legislation since the creation of Medicare in 1965. The decision has the potential to greatly impact future federal legislation for generations to come. Reflecting its significance, the court has scheduled six hours of oral arguments. And more briefs have been filed than in any other case in the court’s history. At the center of the arguments is the so-called “individual mandate”. Opponents of the mandate say it’s unconstitutional. The government says it has precedent on its side. But what really matters is what the court rules.

Guests

  • Carrie Severino chief counsel and policy director, Judicial Crisis Network
  • Ron Pollack executive director of Families USA, a national non-profit organization for health care consumers.
  • Joan Biskupic Legal affairs editor for Reuters News. She has written biographies on Sandra Day O'Connor and Antonin Scalia.

Transcript

  • 10:06:56

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. On Monday, the Supreme Court begins considering the constitutionality of the Affordable Care Act, President Obama's signature health care law. Here with me to examine the legal questions at the heart of the case, Carrie Severino from the Judicial Crisis Network, Ron Pollack from Families USA and Joan Biskupic from Reuters News. Do join us, 800-433-8850. Send your email to drshow@wamu.org. Join us on Facebook or Twitter. I'm glad to have you all here.

  • 10:07:42

    MR. RON POLLACKGood morning, Diane.

  • 10:07:42

    MS. JOAN BISKUPICThank you. Thanks for having us.

  • 10:07:43

    REHMGood to have you. And, Joan Biskupic, let me start with you. Some say this is the most important case that the court has seen in generations. They're going to take six hours to hear arguments. Lay it out for us.

  • 10:08:05

    BISKUPICSure. We're finally here after two years. Remember the legislation was signed March 23 of 2010 by President Obama, signature domestic achievement. We've heard many voices on both sides dueling about whether this is constitutional. And now we'll finally hear from the justices over, as you say, record three days, six hours -- modern record for time they're going to devote to this. Monday, what's up first is a threshold question that actually will determine whether they eventually reach the merits of whether their new requirement that everyone buy insurance by 2014 is valid.

  • 10:08:46

    BISKUPICAnd that first question has to do with whether this is a tax because federal policy generally says if you are going to have to pay a tax penalty, you first have to pay it and seek a refund before you can litigate. Now, the Obama administration and the challengers say this is not a tax. Justice says you should be able to reach the merits of this, but the Supreme Court's going to first focus on that on the first day. So your listeners are not going to hear about broccoli. They're not going to hear about joining gyms. They're going to hear about something called the Anti-Injunction Act.

  • 10:09:19

    BISKUPICBut then, that will be over, and the main event is day two, Tuesday, when the justices will take up the constitutionality of what many people refer to as the individual mandate. That's the requirement that most people in the United States purchase insurance by 2014. And as we know, that's the centerpiece of this that would bring many more healthy people into the system. The administration says that that's important to start spreading cost around and -- because everybody, one way or another, is going to need insurance or need medical care. The challengers, of course, say that this is an overreach.

  • 10:09:59

    BISKUPICIt exceeds the Congress' power to regulate interstate commerce. Third day, once we get past that key one -- which I'm sure we'll address mostly this morning -- there are two issues on day three. One has to do with the Medicaid expansion. As you know, there's a federal state cooperative program that provides medical care for poor people who can't afford it. And in the new law, the pool of people who would qualify for Medicaid is expanded, which puts more of a burden on the states. And the states are saying that this is too much for them.

  • 10:10:35

    BISKUPICAnd it's essentially coercing them into continued participation that they don't want to have. Finally, also on Wednesday, the question is, if the provision that requires most Americans to buy health insurance is struck down -- again, that's the centerpiece -- does it doom the entire law? And this is a sweeping -- you know, sweeping piece of legislation that has so many elements, some of which have already kicked in. As you know, young people are now allowed to stay on their parents' insurance longer.

  • 10:11:05

    BISKUPICThings are -- some pieces are very popular. Some pieces are unpopular. If the centerpiece, individual mandate, is struck down, does it doom everything?

  • 10:11:12

    REHMJoan Biskupic, she is legal affairs editor for Reuters News. That's a wonderful summary, and I must say, this truly is unprecedented. Three days of hearing, six hours. Ron Pollack, what is for you the primary issue?

  • 10:11:40

    POLLACKWell there's -- there are a few primary issues here that Joan described. So one obviously is this -- Joan called it individual mandate.

  • 10:11:50

    REHMRight.

  • 10:11:50

    POLLACKAnd I call it the individual responsibility provision, and we'll -- I'll talk about why I think it's an individual responsibility provision. And there's this expansion of Medicaid.

  • 10:12:00

    REHMRight.

  • 10:12:01

    POLLACKNow, with respect to the individual responsibility provision, what's really interesting, you really can capsulize this case by looking at the lead plaintiff in that case. The lead plaintiff is a woman named Mary Brown. Mary Brown is from Florida. Mary and her husband decided, we don't want health insurance, and, if we need health care, we're going to pay for it. Well, lo and behold, Mary's husband needed significant health care, and it cost thousands upon thousands of dollars. She lives in Florida. She went to doctors and hospitals in Florida, Alabama and Mississippi. She couldn't pay for it.

  • 10:12:40

    POLLACKAnd she and her husband declared bankruptcy. Now, she's allowed to declare bankruptcy, but guess what? It means that her bill is either going to be consumed by the hospitals or the doctors, or it's going to be passed on to government. Or it's going to be passed on to all of us. And so the reason I call it an individual responsibility provision is because if people don't take the responsibility to purchase insurance when they can afford it -- and the Affordable Care Act provides them relief so that they can afford it -- then it passes on the bill to all the rest of us.

  • 10:13:20

    POLLACKAnd, mind you, the average added cost for health insurance for families to pay for the uncompensated health care costs of the uninsured is over $1,000 a year. So Mary Brown and her husband, you know, they decided they didn't want insurance. But they, like everybody else, needed health care. And we're paying the bills.

  • 10:13:42

    REHMRon Pollack of Families USA. And to you, Carrie Severino, in that mandate or responsibility -- whatever you wish to call it -- comes the Commerce Clause into this whole argument. Has that, in the past, been used to allow for something like this individual mandate?

  • 10:14:17

    MS. CARRIE SEVERINOWell, Diane, as you said, this is an unprecedented type of argument, this six hours, and that's in part because this is an unprecedented law. Even the Congressional Research Service, a non-partisan -- essentially Congress' think tank -- agreed Congress has never done legislation like this where it took people who are not part of a market and mandated that they enter into the market in the first place.

  • 10:14:39

    MS. CARRIE SEVERINOSo while there are other cases that we can draw parallels from, really, there is no case on point that says, can Congress bring people into the market in the first place in the -- under the guise of regulating commerce? So is that a regulation of interstate commerce?

  • 10:14:55

    POLLACKSo, Diane, let me just say one thing. It's one thing to talk about buying insurance, but all of us -- all of us need health care. We need it when we're born, and we...

  • 10:15:05

    REHMAnd that's the difference.

  • 10:15:06

    POLLACKYes. And, mind you, $2.5 trillion is spent now each year on health care. It consumes one out of every $6 in America's economy. So, clearly, Congress, if it has the constitutional right to regulate commerce, it certainly can regulate how we pay for one out of every $6 in the economy.

  • 10:15:32

    REHMJoan.

  • 10:15:33

    BISKUPICI just want to point that out that this -- the discussion between Carrie and Ron goes to the heart of what people will hear on Tuesday, two different points of view kind of coming at it and crossing each other, and it'll be interesting to see what the justices perceive because the challenges are -- challengers are saying, this is new. You're conscripting people to come into a market when they'd rather just be home, and they've made a decision not to be part of it.

  • 10:15:57

    BISKUPICBut the U.S. Solicitor General Don Verrilli contends in his written file, and then what he'll say is, folks, you're really already in this market essentially. You're already...

  • 10:16:07

    REHMBecause you were born.

  • 10:16:08

    BISKUPICRight. Right. Well, you're going to need health care coverage one way or another. You're going to need some sort of medical care. So what's happening is that people are kind of talking from different points of view here. And that's going to be a key issue for the justices. Will they see this from a framework of unprecedented -- there's nothing like this that has happened before -- or is this actually part of what Congress does? It regulates business in the states that affect a national market, and that's the key.

  • 10:16:42

    REHMNow, there is a question an awful lot of people have had. If you already have your own health insurance, is the government somehow going to take that away from you and force you to buy some government-regulated health insurance that they're providing?

  • 10:17:08

    BISKUPICNo. This is for people who are currently uninsured.

  • 10:17:11

    REHMUninsured. Go ahead, Carrie.

  • 10:17:12

    SEVERINOBut the mandate does require that the health insurance to meet that mandate meets certain guidelines. So if your current insurance doesn't meet those guidelines, you do have to change, so not everyone can keep their insurance necessarily.

  • 10:17:26

    REHMSuch as, guidelines like what?

  • 10:17:29

    SEVERINOWell, for example, we can see the fallout that's coming from the (word?) HSS regulations saying these are the...

  • 10:17:35

    REHMOh, on contraceptives.

  • 10:17:36

    SEVERINO...coming the list -- with a list of preventative care services that include the contraceptive mandate, looking at, for example, the health care that's provided currently by these Catholic institutions and other institutions that are opposed to it. They don't cover that yet. And now, the government is saying that insurance is going to be insufficient to meet it. So when the president says, you can keep your insurance if you like it, there is -- there are definitely people out there who can't.

  • 10:17:59

    POLLACKThe vast majority of people get their health care coverage through the workplace.

  • 10:18:02

    REHMRight.

  • 10:18:03

    POLLACKAnd you're going to keep that. So that's not going to change. What does change, really, in terms of real impact is that we've tens of millions of people who don't have health care coverage. And they're going to get a variety of things. They don't just have an obligation. They're going to get some things. They now are going to go into a marketplace. They can choose plans, and they will get tax credit subsidies if they are middle class.

  • 10:18:27

    REHMRon Pollack, he is founding executive director of Families USA. Carrie Severino is with the Judicial Crisis Network.

  • 10:20:04

    REHMAnd we're back, talking about the Supreme Court's beginning to hear the health care law on Monday. There will be three days of hearings constituting a full six hours, totally unprecedented in the history of the court. Even Bush v. Gore, apparently, was only debated for four hours. Joan Biskupic, this fundamental question, the mandate requiring all individuals to have health insurance, that's at the core here. And what are the arguments going to be on both sides?

  • 10:20:53

    BISKUPICWell, the main constitutional grounding for this is in the Commerce Clause of the Constitution, which says Congress can regulate business among the states and is part of kind of an effort to build a stable national economy, you know, protect the markets, that kind of thing. And what the federal government is arguing here is that the requirement that people buy insurance, who are part of the medical system anyway in the government's mind, is part of that effort to regulate commerce and that it's a -- that's it's fully grounded there.

  • 10:21:28

    BISKUPICAnd there are a couple of other related provisions that they point to. The challengers say this is an unprecedented use of the Commerce Clause, and it effectively -- there are a couple arguments from that side. But one is that, you know, you're really not in the stream of commerce if you're just essentially not doing something, making a decision not to enter it. So what both sides are doing are -- they're trying to draw on past cases that interpreted the Commerce Clause and say, here's what's relevant right now. And they're actually competing.

  • 10:22:00

    BISKUPICBut the main thing that the government contends is that historically, the Supreme Court has broadly interpreted Congress' power to regulate commerce and, in fact, has allowed Congress to intervene when things weren't purely economic or where it was looking at, frankly, homegrown crops as in a 1942 case or even a medical marijuana case that we had more recently. So the government contends, look, in the past, U.S. Supreme Court have broadly interpreted it. And this isn't even pushing the edges.

  • 10:22:30

    REHMCarrie Severino.

  • 10:22:31

    SEVERINOYes. I think the real distinguishing feature here is that, even in the very expansive cases of Wickard v. Filburn that you identify, where it was someone growing homegrown wheat and using it on their own farm, medical marijuana, there, you're doing something. You're regulating a person who is engaged in wheat growing or marijuana growing. Here, it's just by virtue of being part of the -- a resident of America. You are -- you're being regulated.

  • 10:22:57

    SEVERINOAnd while the government says virtually everyone is going to be part of the health care market, you'll notice, in its briefs, it always has to say things like virtually or nearly or almost certainly will because, in fact, they -- not everyone is part of the health care market. And what they're doing is regulating based on a presumption they will become part of the market, not once they are part of the market. That may be good enough for government work, but I'm afraid it's not good enough for the Constitution.

  • 10:23:19

    REHMRon Pollack.

  • 10:23:20

    POLLACKYou know, it's really interesting. If you look at the opinion of the 11th Circuit Court of Appeals, which is the only court in the Court of Appeals that invalidated this individual responsibility provision, they, in effect, said, look, the plaintiffs who are challenging this, they say it would be constitutional for Congress to say, before you go into a hospital, you must have health insurance. They said that's constitutional.

  • 10:23:43

    POLLACKBut to be required to purchase insurance before you need to go to a hospital, that's unconstitutional. Can you imagine what would happen? People are in an ambulance. They're about to get health care, and they buy health insurance. You know what that would do with premiums? But with health care, this should not be a closed case. Remember, we are spending $2.5 trillion on health care. Eighteen percent of the economy is on health care, one out of every $6.

  • 10:24:14

    POLLACKTwo-thirds of what the uninsured are required to pay for their health care, they can't pay for it. So they pass on this bill to everybody else. The average premium add-on for all of us who have family coverage is more than $1,000. The average hospital bill for somebody who's uninsured is over $22,000. Clearly, Congress should have, as part of this Commerce Clause, when almost everybody needs health care that they can regulate how it gets paid for.

  • 10:24:46

    REHMJoan.

  • 10:24:46

    BISKUPICInterestingly, the judges on the lower courts who have upheld this, even the conservative ones, have pointed to that 17, 18 percent of gross national product. And that has mattered to them, and that could matter to the justices in the middle or the conservatives who we might in some political ways think it might be poised to strike this down. But I actually think that that could potentially matter to somebody like Justice Anthony Kennedy, who's often in the middle, or maybe even Chief Justice John Roberts.

  • 10:25:16

    REHMTalk about the issue of whether or not this health care act is a tax.

  • 10:25:26

    BISKUPICWell, when members of Congress were, you know, sponsoring it and when President Obama was promoting it, the word tax was not one that came readily to...

  • 10:25:34

    REHMRight. Right.

  • 10:25:35

    BISKUPIC...the (word?) sphere. But it's -- the penalty that one must pay if he or she doesn't purchase insurance is part of the tax code. You would be paying it as part of filing each April 15. And that's why that key Anti-Injunction Act, that has such an awful name that's going to be the center of Monday's dispute, is so critical because the government is saying that it is essentially part of the tax code, but it's not a tax. It's more of a penalty. And it is -- I think that both terms have been used throughout it, and that's going to -- that might...

  • 10:26:11

    REHMTax and penalty.

  • 10:26:11

    BISKUPICAnd penalty, right.

  • 10:26:12

    POLLACKYou know the old expression, if it looks like a duck, it walks like a duck, it quacks like duck, it's probably a duck? Well, here, the internal revenue system is what's invoked to collect this. And it's true that, in different provisions of the statute, they didn't call it a tax. I mean, how many politicians want to call something a tax? But it's going to be collected on April 15. The internal revenue system is going to be doing this. It is a tax, and that gives it an independent constitutional authority for the Congress to pass this legislation.

  • 10:26:47

    REHMCarrie.

  • 10:26:48

    SEVERINOBut as Judge Vincent, the district court judge, commented, when you have -- of course, no one wants to pass a tax. That's precisely why it's safer that we have a very broad constitutional authority to pass taxes. There's not as much scrutiny. And so when you have the legislators going in there and trying to avoid the political scrutiny, that the courts say, that's going to get political scrutiny because the legislators can't just pass a tax willy-nilly, they have to really have the electorate watching that.

  • 10:27:14

    SEVERINOIf they go in on one side and say it's not a tax when they have the electorate watching and then they go back to the courts and say, oh, but it is a tax, actually, you can't have it both ways.

  • 10:27:23

    REHMSo -- and, finally, let's go to the severability question, how that is going to have an impact on this entire argument, Joan.

  • 10:27:35

    BISKUPICWell, and that's another one that sounds dry and dusty, but is so critical because we know that there are so many provisions in this sweeping law. Many, as I said, have already taken effect, many more to take effect down the road. And a key question is, if the individual mandate, the insurance requirement, somehow is struck down, does that doom the whole law? And the justices have devoted separate set of arguments to it, appointed a separate council.

  • 10:28:06

    REHMExactly.

  • 10:28:07

    BISKUPICWell, that's because no lower court had said that it definitely should all be doomed -- actually, a lower court judgment, but not an appeals court. Nobody said the -- no appeals court judge, which is the second tier that comes right up to the Supreme Court, has said the whole thing should be doomed if it's struck down. So what the court did was appoint a Washington lawyer by the name of Bartow Farr to make the case so that the court has a full rounded-out view of whether this should be invalidated if the individual mandate goes down.

  • 10:28:39

    REHMCarrie.

  • 10:28:41

    SEVERINOWell, I authored an op-ed with leader McConnell in this issue. We worked together on amicus brief, and the analogy that he used is the -- that this is more like a Christmas tree bill, is what it's called. You have a main issue that the court is trying -- that the Congress is trying to do, and that's sort of like the stem and the trunk and branches of the tree. The individual mandate is really like the trunk of that tree. It's central to the whole thing, and that's what the senators and the congressmen writing the bill said. You can't take it out. They said that would gut and kill the entire reform.

  • 10:29:09

    SEVERINOAnd then even the government is agreeing that there are certain things that are so closely related to it, like the other requirements that no pre-existing conditions be used and things like, that if you take the mandate out, those will spiral the entire health care system out of control. It will not -- it'll cause terrible harm to the health insurance system. Those, at least, have to fall. What leader McConnell said is the rest of these ornaments we've put on the tree, how can we say then that, once the fundamental tree is gone, the remaining ornaments should now float somewhere mid-air?

  • 10:29:41

    POLLACKYou know, there are two things to say about it. First, there is longstanding tradition of the court that when you declare something unconstitutional, you try and have as narrow a ruling as possible because you don't want the court to, in effect, become a legislature. But there are so many provisions of this legislation that don't even have a colorable relationship to this individual responsibility provision. You've got young adults who can stay on their parents' policy till their 26th birthday -- 2.5 million people already getting that.

  • 10:30:15

    POLLACKYou've got seniors who are getting help with their prescription drug benefits -- has nothing to do with this provision. You've got small businesses that are receiving tax credit -- has nothing to do with this provision. You've got middle class families that are going to be getting tax credit subsidies to help them afford coverage -- has nothing to do with this provision. You're going to have new marketplaces to buy health insurance -- has nothing to do with this provision. So all of these things, clearly, are irrelevant to the issue about the individual responsibility provision.

  • 10:30:51

    REHMCarrie.

  • 10:30:52

    SEVERINOI think one way that all of these things do tie together, though, is the president said he wouldn't sign a bill that didn't balance at least in 10 years. Now, we can see that, after 10 years, it might not balance, but at least the CBO score for 10 years had to balance. And a lot of those provisions were crucial, especially things that seem irrelevant, like a tax on tanning salons, right? How is that related to the individual mandate? But some of that tax is going to help pay for this whole system, to make it balance financially. And the president himself said he wouldn't have signed the bill.

  • 10:31:18

    POLLACKYou know, that's really -- what's interesting about that is, if you remember, the president actually was not one of the strong supporters of the individual responsibility provision. This was part of the debate he had with Hillary Clinton during the campaign. But what the court usually does as a test is it says, if we invalidate a provision, would the Congress have wanted these other provisions to have been adopted, or would they have wanted them all struck? I don't think there's any question that the Congress would have wanted these provisions to stand.

  • 10:31:53

    REHMJoan.

  • 10:31:54

    BISKUPICWell, I think there's an argument there. But there's also several competing views up at the Supreme Court about how much you look to the intention of Congress, and this is going to be one that will test even someone like Antonin Scalia, who says he doesn't like to look at legislative history because there's so much history behind this one. And there are so many dueling intentions that will guide the Supreme Court when it comes to the severability issue, which, as I say, is crucial, although it's not the main event.

  • 10:32:23

    REHMJoan Biskupic. She is legal affairs editor with Reuters News. And you're listening to "The Diane Rehm Show." I'm going to open the phones. We've got callers with lots of questions. And let's go first to Cleveland, Ohio. Good morning, Andrew. Thanks for joining us.

  • 10:32:48

    ANDREWHi. Thank you for taking my call. I am one of the many of Americans and millions of Americans, I guess, that currently doesn't have health insurance. And the biggest deterrent for me is it seems that, with the insurance premiums that I could afford, they come with a deductible that is so astronomically high that it would seem that if I was securing health insurance, I would be trading a large mountain of potential debt for a small mountain of potential debt.

  • 10:33:22

    ANDREWAnd so my question is, do we know anything about the products that the Affordable Health Care Act is proposing to have Americans required to buy? Do we know that they are going to be insurance products that the average American can afford to use?

  • 10:33:41

    REHMOK. And, Andrew, before you leave us, I'd like to ask you, number one, how old you are, number two, whether you've had any medical issues and, number three, if so, how have you paid for them?

  • 10:34:01

    ANDREWWell, OK. I'm glad you asked me all those questions. I'm currently -- I just turned 37.

  • 10:34:05

    REHMOK.

  • 10:34:06

    ANDREWI'm married, without children. I recently, this past fall, had a inner ear infection with my one ear that only works at 100 percent. I have one ear that's deaf that I had since I was child, and I have one ear that works 100 percent.

  • 10:34:25

    REHMOK.

  • 10:34:26

    ANDREWI called the Cleveland clinic to visit the doctor that I had seen two years prior. And I was informed that, because of the lapse in time, I would be treated as a new patient. And that singular visit to that ear doctor would cost me, without insurance, upwards of $364 to darken their doorway...

  • 10:34:47

    REHMOK.

  • 10:34:47

    ANDREW...not even talking about tests or any other kind of administration they would have to do once I was inside.

  • 10:34:52

    REHMOK.

  • 10:34:53

    ANDREWI ultimately talked to my wife's boss, and she recommended a wonderful DO who saw me kind of, you know, on the quiet. And we -- we made an arrangement on the side to get her paid as best I could. But that's -- you know, that's what people are faced with. It's almost...

  • 10:35:14

    REHMOK, but -- OK. Let me ask you, when you say that the Cleveland clinic was going to charge you $364, and you feel that was a price far too high, when you went on the OT -- on the QT to someone else, how much did you pay there?

  • 10:35:42

    ANDREWSixty.

  • 10:35:44

    REHM$60, and you went...

  • 10:35:47

    ANDREWYes.

  • 10:35:48

    REHM...to a regular MD?

  • 10:35:52

    POLLACKI went to a DO, but, yes. (unintelligible) ...

  • 10:35:55

    REHMWhat's a DO? What's a...

  • 10:35:57

    ANDREWYou know, I'm -- I know -- I can't remember. I'm sure your panelist...

  • 10:36:01

    REHMYeah. Yeah.

  • 10:36:02

    SEVERINODoctor of osteopathy.

  • 10:36:04

    REHMOh, OK.

  • 10:36:05

    SEVERINOIt's just a different system...

  • 10:36:05

    REHMAll right. Well, people have a choice to do exactly that. But what happens to him, Joan Biskupic, if, in fact, he feels he cannot afford the health insurance, nor can he afford the penalty, so he opts out? How much of a penalty does he pay for opting out? Do we know?

  • 10:36:32

    BISKUPICWell, I think everything's -- your other panelist would know the details more, but everything is tied to what you can afford, what you already make, what your household income is. And that will depend on -- 'cause not everybody is -- falls under the requirement. People who are too poor...

  • 10:36:46

    REHMEarn a certain amount...

  • 10:36:47

    BISKUPICYes, right. And then they fall under things (unintelligible)...

  • 10:36:49

    POLLACKSo Andrew is going to be helped in a variety of ways under the Affordable Care Act. First of all, he's probably a middle class person. He's going to get tax credit subsidies that are going to make it more affordable to buy coverage. But he was also worried about deductibles and co-payments.

  • 10:37:07

    REHMSure.

  • 10:37:08

    POLLACKAnd there are limits that are going to be placed on how much you have to pay out-of-pocket as part of your insurance plan. So he's going to be helped both in terms of paying for the premiums, and he's going to have limitations in out-of-pocket costs for deductibles and co-pays.

  • 10:37:24

    REHMQuickly, Carrie.

  • 10:37:25

    SEVERINOWell, we still don't know what all of those limits are, just as we're finding out what the preventative care things are.

  • 10:37:28

    REHMSure.

  • 10:37:29

    SEVERINOSo these things are the government saying, trust us on this, but we don't ultimately know yet what it will be.

  • 10:37:35

    REHMCarrie Severino. She's chief counsel, policy director of the Judicial Crisis Network. Short break. More of your calls when we come back.

  • 10:40:04

    REHMAnd welcome back as we talk about the forthcoming debate over the Affordable Health Care Act, which begins on Monday in the Supreme Court, a three-day hearing that will ultimately comprise six hours of debate. Let's go to Gary in Rocky Mount, N.C. Good morning to you.

  • 10:40:32

    GARYGood morning, Diane.

  • 10:40:33

    REHMHi.

  • 10:40:34

    GARYOne of your -- yeah, one of your guests earlier in the program made the argument that because -- just by virtue of the fact that you're born, that you'll eventually require the services of the health care industry. By that argument, you know, everyone on a daily basis requires food, shelter and clothing, and everybody will eventually die. And, you know, if you use that argument and extrapolate it, then the government -- you know, everybody should be forced to participate in government programs that manage those as well.

  • 10:41:07

    GARYI just don't think government has any business or any place in telling me if, where, or how I must participate in the health care industry.

  • 10:41:16

    REHMThat's an interesting point followed by a listener tweet who says, "I'm all for the Affordable Care Act, but wonder what precedent the individual mandate will set. What else could the government force people to buy?" Joan.

  • 10:41:37

    BISKUPICWell, that's interesting, and it goes to, again, which framework you're going to start with. Many of the judges who have heard this in lower courts have raised this question to the government of what's the limitation.

  • 10:41:46

    REHMYeah.

  • 10:41:47

    BISKUPICWill we now be required to eat broccoli, to join gyms, all those kinds of things? And it's -- in some ways, it's been an awkward question for the government to answer, but what the government has said is that that's kind of the wrong way to look at it because health insurance is not like broccoli. It's not like joining a gym. You're already -- it's -- insurance is part of a national market that, the court has said before, can be regulated by Congress and that people are already part of this.

  • 10:42:13

    BISKUPICSo if you go from the point of view that this is a radical mandate, then you necessarily will be thinking about what's next. But the government is saying it's not even a radical mandate in the first place. It's part of what's already out there in the national economy.

  • 10:42:27

    REHMCarrie.

  • 10:42:28

    SEVERINOWell, that does go against, however, what the Congressional Research Service said, which is this is an unprecedented way of doing it. Yes, they regulate insurance. But they've never forced anyone to get into the market. And this limiting principle idea has really dogged the government all through the courts. The main commerce cause -- clause case says, yes, we may have a broad Commerce Clause power, but it has to be limited. We have a government of limited powers.

  • 10:42:50

    SEVERINOAnd if you take it a step too far, then all the rest of the limits don't mean anything because, basically, as the caller said, food is definitely an important thing. Everyone needs it. There are so many markets that we all, as a default matter, do participate in, but that doesn't mean the government can mandate us to participate in them.

  • 10:43:08

    REHMAnd here's an email from Mary, who says, "Why should I be forced to buy a product from an industry," as she puts it, "that extorts people?" How do you respond, Ron Pollack?

  • 10:43:23

    POLLACKWell, you know, she's right that there are lots of practices of the insurance industry that need to be curtailed, and the Affordable Care Act does so, a bunch of them. First, insurance companies no longer can deny coverage due to a pre-existing condition. They used to do that. They no longer will be allowed to do that. They can't charge a discriminatory premium based on your health status. If you had asthma or diabetes, they would charge a whole lot more. They no longer will be able to do that.

  • 10:43:55

    POLLACKThey will no longer be able to charge women higher premiums -- and women are charged higher premiums. That is coming to an end. The amount of money that is collected in premiums -- now, the overwhelming majority of it -- will have to be spent on health care as opposed to marketing, advertising, administration and profits. When premiums get increased, there will now be review of those increase to make sure that they are fair. There no longer will be a lifetime cap on what insurance companies places a limit. So the insurance industry is going to be regulated significantly.

  • 10:44:31

    REHMAnd they are going to get a lot more clients, Carrie.

  • 10:44:34

    SEVERINOThat's right. The insurance industry, at the end of the day, was in favor of this law, and that's because it gives them a guaranteed income stream of all of these people. And the people the mandate is primarily aimed at aren't the ones who couldn't afford for the care and were getting uncompensated care. Most of those people are going to be exempted from it or from the penalties because of their low income in the first place. It's the healthy, young individuals who actually can afford it but have decided that health care isn't actually a good financial deal.

  • 10:44:58

    POLLACKBut it is these healthy, younger people who are exactly the people who are going to get the subsidies. They are in entry-level jobs, and they're going to get significant premium subsidies that will make coverage affordable.

  • 10:45:11

    REHMAll right. To Peoria, Ill., good morning, David.

  • 10:45:16

    DAVIDGood morning. I could go on and on about this topic, but I'll try to be brief. My question is related to the mandate itself. If this is struck down, will this not open a Pandora's box for all the other things that are mandated? For example, in Illinois, we are required to carry insurance on our automobile by law. We can be ticketed and punished, fined, whatever for not having that.

  • 10:45:43

    REHMSure, sure. Joan.

  • 10:45:45

    BISKUPICNow, I don't -- it wouldn't -- in the case of Illinois, you know, states have different responsibilities and powers to do that kind of thing. And, generally, the federal government is allowed to be -- you know, to regulate insurance generally. This is a specific one that I don't think that -- if the court strikes it down, it's going to be a very big deal in the health care area. But it should not be a big deal elsewhere.

  • 10:46:09

    REHMAnd that goes exactly to our next email from Doug, who says, "What is the appropriate role for the nine unelected justices on the Supreme Court? The Affordable Care Act is a hard-fought, much-debated response to a pressing national policy which, without doubt, fundamentally affects our national economy. If the act turns out to be a bad policy, then overturn it through the ballot box, not by appealing to the unaccountable judiciary." Joan.

  • 10:46:51

    REHMWell, you know, as a matter of fact, some lower court judges believe that philosophy also, that a couple of key conservatives who have voted to uphold the act have said, look, as a policy matter, Congress might not be right, but that's not for us to say. That's for the people who elected them to say. Vote them out of office if you don't like it. Don't turn to us to make a policy judgment here. So there is an issue of how much deference to the will of Congress the courts might give.

  • 10:47:22

    BISKUPICBut I just want to make clear, also, that the reason it's even before the Supreme Court is that there's a very fundamental and important constitutional question here about whether Congress exceeded its powers. But traditionally there has been fairly generous deference to Congress on these policy matters. We'll see what happens.

  • 10:47:39

    REHMCarrie.

  • 10:47:40

    SEVERINOI think that's -- this is why we need the Supreme Court, and the court shouldn't be looking at policy issues. The reason we see the likely vote splitting on liberal conservative issues is because the liberals in the court tend to be very deferential to congressional power and don't -- aren't as concerned about this limiting principle-type issue than the conservatives have been. But all of the justices, hopefully, will be making a decision based on the Constitution.

  • 10:48:03

    SEVERINOWe have that there as a backstop because we don't want the Congress passing any old law it comes up with. It could come up with lots of laws that violate our freedoms in important ways, and has, and that's why we have the Supreme Court to say, here are the limits. Even if a majority of the American public wants anything, from segregation to violation of First Amendment rights, we can't have that.

  • 10:48:22

    POLLACKYou know, if this goes into the political process, you're going to have Gov. Romney, who actually was a champion of the individual mandate, and you have --f you know, this individual mandate was not a Democratic Party proposal. This was offered by the Heritage Foundation, by the American Enterprise Institute, Bob Dole, Gov. Schwarzenegger. This is actually a Republican proposal. When Gov. Romney signed the so-called Romneycare, the Heritage Foundation was sitting on the dais with them and patting him on the back.

  • 10:48:58

    REHMCarrie.

  • 10:48:59

    POLLACKSo this may go into political process, but it's going to be a very strange argument for Gov. Romney to say this is a bad thing.

  • 10:49:06

    SEVERINONot so hard, actually. As Joan pointed out, there's a big difference constitutionally between the federal government's powers and the states, which have very broad powers. They have all -- they have their constitutions, but they can be very broad. The federal government is limited and enumerated, and that's an entirely different question than what a state like Massachusetts can do.

  • 10:49:20

    REHMAll right. Let's go to Charlottesville, Va. Hi, Michael.

  • 10:49:26

    MICHAELHello. Great show. Great show as usual.

  • 10:49:29

    REHMThanks.

  • 10:49:30

    MICHAELMy question for you is -- and I work -- I'm a volunteer in fire and rescue. And I don't have health insurance. I can't afford it. And my question, I guess, the bottom line is, how come we have Medicaid, Medicare in this affordable health act? Why can't we scrap all of the government programs and have just one? I mean, it's got to cost so much money paying out in these three departments in the government. And if we consolidate it, can't we save money?

  • 10:50:12

    REHMAll right.

  • 10:50:13

    POLLACKWell, what Michael is talking about is like single-payer-type system that Canada has. I don't think we're going to get that in the United States, but remember the importance of Medicare and Medicaid. Before Medicare and Medicaid were enacted in 1965, over half of America's seniors had no health insurance. Now, virtually, every senior has health insurance. Medicaid provides care for kids, for pregnant moms, for people with disabilities, for seniors. When seniors go to nursing homes, say, when they have Alzheimer's, it's Medicaid that pays for it. So these are very important programs.

  • 10:50:54

    REHMMedicaid doesn't pay for all of it unless you're under a certain amount of the income.

  • 10:51:01

    POLLACKThat's correct. That's absolutely right. And one of the things that the Affordable Care Act does is it improves the eligibility standards. You have right now -- take the two states that are the lead plaintiffs in the case, Florida and Texas. In Florida, if you have -- you're a family of three. The parents, if they have income -- a family income above $11,000, they're ineligible for Medicaid. In Texas, if you have income above $4,964 as a family of three, you're ineligible for Medicaid. But it's even worse than that.

  • 10:51:42

    POLLACKFor people in both of those states, as is true in many other states, if they are adults and they don't have dependent children, it literally makes no difference what their income is. They literally can be penniless, and they're ineligible for Medicaid.

  • 10:51:58

    REHMSo how does the Affordable Care Act change that, Joan?

  • 10:52:01

    BISKUPICWell, let me just tell you, in fact, this is what we're all going to be listening to on Wednesday afternoon, bringing up the rear of these three days is going to be question over whether it was constitutional for Congress to have expanded Medicaid eligibility, which means that more poor people would obtain benefits. But with the states that are challenging it say, look, even though this is a voluntary program, even though we have on our -- we're not forced to be part of Medicaid, we have traditionally been part of Medicaid.

  • 10:52:29

    BISKUPICAnd as you expand the eligibility, our bill goes up, and we can't pull out anymore. That's the core of the argument.

  • 10:52:37

    POLLACKSo that there is one thing then I have to say about that. The Congressional Budget Office has told us a number of things that go to the very question that Joan raised. First, they said, just on the Medicaid provision, the state extra expenses will be less than 1 percent higher through 2019 than what they would have been spending in the absence of the affordable care. But we learn something else.

  • 10:53:01

    POLLACKAnd that is, when you take the Affordable Care Act in its entirety, the states are actually going to save -- not spend -- save more than $100 billion between now and 2019 'cause they won't have to pay for the care of people who don't have insurance, who get charitable care through the state.

  • 10:53:18

    REHMRon Pollack of Families USA, and you're listening to "The Diane Rehm Show." Carrie, you wanted to comment.

  • 10:53:27

    SEVERINOJust to go with -- to what Ron was saying, that may be, first of all, on a short window, the increases may look small. But even 1 percent of that in figure is a huge amount to states who are already very budget strapped and are limited in how much more they can extract from taxes from their individuals, their citizens in the states. But the biggest problem is, the farther out you look, the cost goes up, and the Congressional Budget Office only has a small window. The act was very well designed for CBO purposes because it looks more affordable over the short term than it really is over the long term.

  • 10:53:58

    POLLACKNo, but, Carrie, over the -- when you look at the entire Affordable Care Act, and well beyond 2019, the states are going to save money because, right now, they pay for the uncompensated health care costs of people who are uninsured. And as tens of millions of people who are uninsured today gain coverage, they won't have those expenditures, so the states will be saving money.

  • 10:54:17

    REHMAll right. Joan.

  • 10:54:19

    BISKUPICLet me just say, as a legal matter, this could really make a difference. One of your earlier caller said, if they strike down the individual mandate, what will be the repercussions? If they were to strike down the Medicaid expansion, which no lower court judges has done -- they've taken the question, but nobody has bought the state's argument -- that could cause a major effect for other entitlement programs.

  • 10:54:40

    REHMAll right. I'd like to hear from each of you how you believe the justices might rule. Start with you, Carrie.

  • 10:54:51

    SEVERINOI think it's a very hard case to call. When I was clerking on the court, I found that, even with the inside information, you never could really predict what was going to happen, especially on a momentous case like this. Right now, I think I'm actually leaning toward thinking it might go 5-4 against the mandate. I think you've got four votes pretty much in the pocket in favor of the mandate in terms of the liberal justices. Justice Thomas, I think, is the one very clear vote against it.

  • 10:55:12

    SEVERINOBut, I think, if there's a good bet -- in Justice Kennedy's case because his work is so protective of individual liberty and of the -- looking at how the constitutional structure and protections work to protect that individual liberty, that, I think, he'll be very defensive of violations of the constitutional structure in this case. When you see him making the typically more liberal results that he comes to, it's always in defense of the individual. Here, I think the individual is in the side of the unconstitutionality of the mandate.

  • 10:55:39

    REHMAll right. So you see 5-4 against.

  • 10:55:43

    SEVERINOYes.

  • 10:55:43

    REHMRon Pollack.

  • 10:55:44

    POLLACKWell, as a former law school dean and someone who's argued cases before the Supreme Court, I know it's hazardous to ever predict where the court is going to come out. But if you force me to bet, I would say the court is going to find the Medicaid challenge absolutely frivolous. But with respect to the individual responsibility provision, I think it's going to be something like a 6-3 or 7-2 opinion upholding the law.

  • 10:56:08

    REHMUpholding. Joan Biskupic, as a court reporter, watcher, writer for all these years, what is your thinking?

  • 10:56:19

    BISKUPICWell, some of us who are so inside still fell stung by what -- how we predicted Bush v. Gore. Oh, they'll never take that.

  • 10:56:25

    REHMYeah.

  • 10:56:25

    BISKUPICBut -- so anyway, with that caveat, I do think, given where these particular justices are, that they will uphold the mandate. But, hey, let me just say that it's always risky to predict the court, especially risky before we've even heard anything from them.

  • 10:56:40

    REHMExactly.

  • 10:56:41

    BISKUPICSo all your listeners will be able to hear the audio Monday through Wednesday as we will, sitting there in a courtroom, have a much better clue about what they're all about.

  • 10:56:50

    REHMAnd I'm so glad you mentioned that. That's so important that we will hear those arguments as they are made. Joan Biskupic of Reuters News, Ron Pollack of Families USA, Carrie Severino of the Judicial Crisis Network, thank you all.

  • 10:57:13

    POLLACKThanks for inviting us.

  • 10:57:14

    BISKUPICThank you.

  • 10:57:15

    SEVERINOThanks, Diane.

  • 10:57:15

    REHMAnd thanks for listening. I'm Diane Rehm.

  • 10:57:18

    ANNOUNCER"The Diane Rehm Show" is produced by Sandra Pinkard, Nancy Robertson, Denise Couture, Monique Nazareth, Nikki Jecks, Susan Nabors and Lisa Dunn, and the engineer is Tobey Schreiner. A.C. Valdez 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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