One of the most closely watched legal cases in decades wrapped up yesterday afternoon. Ahead of this week’s Supreme Court hearing on the Affordable Care Act, people lined up all weekend hoping to secure one of the few seats open to the public. The historic nature of the case, and its possible political ramifications, have attracted much attention. A ruling is not expected until late June at the earliest – right in the middle of the presidential election campaign. A decision either way could well have a galvanizing effect on one or both sides. Join us as we breakdown the arguments, try to glean how the justices might vote and consider what happens next.

Guests

  • Stuart Taylor author and journalist, covering the health care case for Kaiser Health News, and a contributing editor for National Journal
  • Susan Dentzer editor-in-chief of Health Affairs, and an on-air analyst on health issues for The PBS NewsHour
  • 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. The Supreme Court is expected to hand down a ruling on the Affordable Care Act by late June. We've assembled our own panel of experts to assess the last three days and what the arguments may tell us about how the court might vote: Susan Dentzer of Health Affairs, Joan Biskupic for Reuters News and Stuart Taylor. He's covering the health care case for Kaiser Health News. He joins us by phone.

  • 10:07:31

    MS. DIANE REHMI hope you will weigh in with your own comments and questions. Call us by phone on 800-433-8850. Send us an email to drshow@wamu.org. Join us on Facebook or send us a tweet. Good morning to all of you.

  • 10:07:54

    MS. SUSAN DENTZERGood morning, Diane.

  • 10:07:55

    MS. JOAN BISKUPICGood morning, Diane.

  • 10:07:56

    MR. STUART TAYLORMorning, Diane.

  • 10:07:57

    REHMGood to have you all with us. Joan Biskupic, begin with day one and what the argument was on that day.

  • 10:08:08

    BISKUPICOK. This was really a sensational trio of days, and the first one was a procedural question about whether the justices could even get to the heart of the matter. The centerpiece of the Obama-sponsored health care overhaul, as we all know, is the requirement that most Americans buy insurance by 2014 or face a tax penalty. The question on day one was, can a challenge be brought now before people have actually paid the penalty and sought a refund?

  • 10:08:40

    BISKUPICWhat we saw, Diane, was a majority of the justices ready to get over that potential barrier. No one seemed to take it as something that would stop the lawsuits from going forward because, if it did stop the lawsuits from going forward, this would become an issue for election year, say, 2016 rather than election year 2012.

  • 10:09:04

    REHMSusan Dentzer, how did you see it?

  • 10:09:06

    DENTZERThat's exactly right. The court is not going to let that procedural hurdle stand in the way. They had to -- they will -- it'll be interesting to see what they -- how they get their way out of this because they essentially have to decide that the penalty for not meeting the minimum coverage requirement is a penalty collected in the manner of a tax, but is not necessarily a tax.

  • 10:09:28

    REHMBut it's not a tax.

  • 10:09:29

    DENTZERRight. So -- but, yes, in essence, they're not going to let that stand in the way of handing down a decision on the rest of the law.

  • 10:09:37

    REHMStuart Taylor, would you agree?

  • 10:09:40

    TAYLORYes. They're going to get to the merits as they call it, and day two and day three were a lot more exciting than day one and very surprising to a lot of people, I think.

  • 10:09:52

    REHMAll right, Stuart, take us to day two.

  • 10:09:57

    TAYLORDay two was sort of the main act, which is whether the provision that Joan was describing, the so-called individual mandate requiring that people purchase insurance, even if they don't want it, whether that is unconstitutional. And the argument is that none of the delegated powers of Congress authorize Congress and the president to require people to buy things they don't want. The government argues that the -- that its power to regulate interstate commerce and its power to levy taxes are both broad enough to justify that.

  • 10:10:36

    TAYLORAnd I think the striking thing was that, at least going in, five of the justices, the more conservative justices and the swing vote, Justice Anthony Kennedy, all sounded as though they were very receptive to the challengers. It wasn't -- that wasn't altogether stunning, but if you roll back to a year or two ago in this -- when this litigation started, there were many people who thought, oh, it's a no-brainer, the Supreme Court will uphold it by 8-1. Well, the Supreme Court is not going to be upholding it by 8-1, and whether it's going to be striking it down or upholding it by 5-4 or 6-3 is now the big question.

  • 10:11:13

    REHMSusan Dentzer.

  • 10:11:14

    DENTZERI'm not sure I agree totally with Stuart about Justice Kennedy in particular because I think both Justice Kennedy and Justice Roberts were asking very probing questions of both sides. Stuart is right. The essence of the government's argument is that under the Commerce Clause, the government does have the right to regulate interstate commerce and that this is a so-called comprehensive scheme, a comprehensive way of regulating the market in which the individual mandate, really called in the law the minimum coverage requirement, is a piece, an important part of that scheme.

  • 10:11:46

    DENTZERAnd the government went on to argue that this is a timing issue. Basically, we are all always in the market for health care or just about to get into the market for health care. And if insurance is a way of signaling I know I'm going to get into that market somehow, some way, at some point, and I need to be protected against the cost and, frankly, protect the rest of America from having to pick up my cost of care, then this is an issue about timing.

  • 10:12:12

    DENTZERThe government is stepping in and saying, you're going to pay in advance. You're not going to pay at the point of sale because, frankly, it's impractical to give you insurance when you're already sick.

  • 10:12:23

    REHMJoan.

  • 10:12:24

    BISKUPICYes. And that was a contention that got a lot of scrutiny from these two key justices in the middle, Chief Justice John Roberts and Justice Anthony Kennedy, and they repeated it back to the challengers. And I would remind everyone that this is just part one of the justices' discussion in resolution of this case. They hear arguments. They challenge both sides. That's what it's always about.

  • 10:12:47

    BISKUPICAnd, indeed, they were very scrutinizing of the government, but it's the government that's up there defending its overhaul in the face of adverse ruling by the 11th Circuit. That's the case they took, the Florida-based case that has come up there with 26 states challenging it, where a lower court sided with the states. So it was, in some ways, the government's lift to try to convince the justices that it should be upheld.

  • 10:13:13

    BISKUPICI do think, though, that what's going to happen now, they'll take a preliminary vote on Friday, and a lot could happen behind the scenes. Now, it will be up to the justices on the two sides to try to persuade those in the middle. And I did not hear any definite sense from either the chief or from Anthony Kennedy. I think they're both still in play, and they'll have their own conversation on paper with written drafts going back and forth. And in June we'll see where they come out.

  • 10:13:42

    REHMIs that how you heard it, Stuart?

  • 10:13:45

    TAYLORYeah, I agree, but with this qualifier. And I think the only difference is between (unintelligible) differences in emphasis. If all of you were going by with the energy with which Justices Roberts and Kennedy challenge the government's position versus the rather philosophical musing-type quality of their questions to the challengers, you might come away thinking, well, it's going to go down 5-4. But as Joan has said especially, you can't be sure about Chief Justice Roberts or Justice Kennedy.

  • 10:14:19

    TAYLORBoth of them did probe the challenger's position at least enough so that you thought, well, you know, you can't count them as definite votes for either side. But I think what was striking and surprising to a lot of people was the energy with which they tore into Don Verrilli, solicitor general, or to his position.

  • 10:14:36

    BISKUPICIt was also clear, however, that Chief Justice Roberts was trying to get out of Solicitor General Verrilli some statement about what's the limiting principle here. If the government -- as one of the other justices, Scalia said, if the government can do this, what tells us the government can't make us all eat broccoli?

  • 10:14:52

    REHMBroccoli.

  • 10:14:53

    BISKUPICThat was one of the many analogies that was flying in the air on...

  • 10:14:57

    TAYLOREight times, the word broccoli used...

  • 10:14:58

    BISKUPICYes, exactly. Exactly. And what the government is saying here is that, in essence, this is, again, back to this notion of a comprehensive regulatory scheme. So not to put words in Solicitor General Verrilli's mouth, but if the government could concoct some kind of exquisitely comprehensive scheme to regulate the food market that actually required, you know, finely tuned regulation of vegetables, then, possibly, the government could have us all eat broccoli.

  • 10:15:27

    BISKUPICBut it would have to be part of an extremely elaborate scheme to regulate interstate commerce and one that essentially would have had, really, to have the public welfare at stake, which is what the Congress has said is at stake in the Affordable Care Act.

  • 10:15:43

    REHMBecause, over and over, the question was made about the analogy between food and insurance. Why was that such an important analogy to make?

  • 10:15:56

    BISKUPICWell, it's an easy thing. Remember the mantra of, they'll force us to eat broccoli, they'll force us to join gyms, they'll force us to buy American-made cars. It's been an easy thing for critics to latch onto and for the public to latch onto in some ways. But to extend what Susan said about the government's approach to the interstate insurance market, the government is saying, this is a scheme that's already out there. We're not trying anything new. We're just -- we're already -- we're already in the business here, and we're just elaborating on regulations that are already there.

  • 10:16:29

    BISKUPICAnd that's crucial because the challengers are stressing how unprecedented this law is. And they're coming at -- the challengers and the government are coming at it from different frameworks, and clearly Justice Scalia, who was the first to raise broccoli, those eight times that Stuart notes, you know, is coming at it from the point of view of the challengers also. This seems radical.

  • 10:16:50

    BISKUPICAnd what the government has here is the job to convince the majority, and it already has the four liberals, I'm sure. But it's got to convince either Kennedy or Roberts that this is not radical, that this is a part of longstanding commerce power.

  • 10:17:06

    REHMAll right. I want to get to day three, severability, before we go to our break, Susan.

  • 10:17:15

    DENTZERSo the question that was taken up on day three was, if the minimum coverage requirement, the individual mandate goes down, does the entire law have to go down? Does a part of the law have to go down or what? And, in essence, the government was arguing two things. First of all, stay away from this, justices. Don't go there. That was argument number one. You don't have to address the severability issue.

  • 10:17:37

    DENTZERTheir second argument was there would be two features that should go down with the individual mandate, and that is another aspect of this comprehensive regulatory scheme. It's the requirement that in the individual insurance market, that there would be so-called guaranteed issue, which means an insurance company has to sell you a product, even if you are already sick or you have pre-existing conditions, et cetera.

  • 10:18:03

    DENTZERAnd the second piece of that is what's called modified community rating, which is a pricing structure which says, we're going to charge everybody in the community about the same insurance premium with a couple of exceptions -- older people can still be charged more, and if you smoke, you can be charged more. But, generally, we'll have this level premium for everybody. And that was one of the issues that the government was arguing. Those will have to go away if the individual mandate dies.

  • 10:18:31

    REHMSusan Dentzer, she is editor-in-chief of Health Affairs and on-air analyst on health issues for the "PBS NewsHour."

  • 10:20:04

    REHMAnd we're talking about the Supreme Court hearing arguments for and against the Affordable Care Act, how the judges reacted and why, which was a question for me right from the start, why, in this particular case, Stuart Taylor, the justices hired their own attorney. Why was that?

  • 10:20:34

    TAYLORVery good question. In fact, they hired two. And the reason why is that there were two positions in this marathon six-hour, over three days, argument that both sides agreed on or -- and that the court thought, well, there's a position neither of these two people are taking. It's important that we should consider. The first was the Anti-Injunction Act issue, the whole jurisdictional issue of day one, where the question is whether they can even get to the individual mandate issue now or whether they have to wait till 2015 when the first penalties would be due.

  • 10:21:11

    TAYLORThe court appointed a lawyer named Robert Long to argue, yes, they have to wait, because neither the challengers nor the government wanted to wait. They both said the Anti-Injunction Act doesn't apply, so -- and, you know, the court is very careful about its jurisdiction. We need to make sure we're not deciding cases we're not allowed to decide. So Robert Long was kind of the way to make sure that that point of view is adequately considered, and I think it will be adequately considered.

  • 10:21:37

    TAYLORBut Chief Justice Roberts thanked him for his argument, but the questions made it pretty clear that the justices weren't buying it. On day three, on severability, how much of the law survives if the individual mandate is struck down, the two sides had different positions. The challenger said, strike the whole thing down, clean slate, all 2,700 pages into the trash, whereas the government had just a couple of provisions that they thought were so closely related to the individual mandate that they should go down with it.

  • 10:22:10

    TAYLORNobody was arguing that nothing else should go down but the individual mandate, which is a position that the lower court had taken. So the court appointed Bartow Farr, another top notch Supreme Court advocate, to argue that position, that nothing else should go down. Again, I think the court felt that it needed to hear that argument, but, having heard it, I don't think the court was buying it.

  • 10:22:33

    REHMWhat about Medicaid, Joan?

  • 10:22:34

    BISKUPICRight. And then after the morning arguments on the severability question that Stuart just referred to, in the afternoon, they took up the question of was Congress acting within its power when it expanded the Medicaid program, which we all know is the joint federal state program that offers medical care to the poor.

  • 10:22:53

    REHMAnd didn't they also bring up Social Security?

  • 10:22:57

    BISKUPICThat's not part of this law, but that was looming as yet another, you know, social entitlement program.

  • 10:23:00

    REHMRight.

  • 10:23:02

    BISKUPICAnd there was a lot of give and take. No lower court has accepted the challenger's argument, the state challenger's argument that Congress was essentially coercing the states when it expanded the eligibility for Medicare because states will end up having to pick up more costs, and they're already financially strapped. And lawyer Paul Clement had a very difficult argument to make -- to say, OK, even though this is a voluntary program, states are going into it.

  • 10:23:29

    BISKUPICThey could drop out of it if they wanted, but they are effectively coerced because of all the money that's already coming in to help poor people in the states. And at one point, Chief Justice Roberts said, look, strings have been attached to this thing. You know, from day one, the states knew what they were getting at. And now, the federal government is tugging harder on those strings almost too bad. I do think it's tough to call a lot of things in these cases that were heard this week, but I think that there's not a majority to strike down the Medicaid expansion portion. I think we can say that.

  • 10:24:01

    REHMYou know, it was interesting listening to the arguments over the Internet. We heard lots from Justice Roberts, Justice Kennedy, Scalia, Breyer. We heard from Ruth Bader Ginsburg. We heard not a word from Clarence Thomas. Tell me about that, Joan.

  • 10:24:28

    BISKUPICWell, first, I do think it was very exciting for the public to hear eight of their nine justices...

  • 10:24:33

    REHMAbsolutely.

  • 10:24:34

    BISKUPIC...because nobody can get into the court under usual circumstances, so that was exciting to hear their voices and where they're coming from. Clarence Thomas has not asked a question during oral arguments since February of 2006. And even before that, he rarely asked questions. As we all remember, he came on the bench in 1991. He was engaged. He was paying attention, but he just does not ask questions. He's given various reasons for that.

  • 10:24:57

    BISKUPICI think he -- you know, he would probably serve himself if he would ask questions because people wonder if he is engaged. But he looked alert, and he talked to his fellow justices. He just does not ask questions. He says that he would rather hear from the lawyers than just add to the chatter from the bench.

  • 10:25:13

    REHMSusan, I gather he did have contact with Justice Breyer during the argument.

  • 10:25:21

    DENTZERThat's what those who are in the court asserted, that he does -- he's actively pointing out sections of briefs and so forth. But I just want to go back, Diane, to the severability question...

  • 10:25:32

    REHMGood.

  • 10:25:32

    DENTZER...and particularly to, as Stuart was saying, the argument that was made by the amicus that was appointed to argue in that case. And what the amicus was doing, Mr. Farr, was walking the justices through the very intricate workings of the health insurance market and trying to explain to them that there have been states that have put in place these other two provisions, guaranteed issue and community rating, without the minimum coverage requirement.

  • 10:26:00

    DENTZERThe outcome has not been optimal by any stretch, but states have gone that direction. And sometimes they've done that and thrown out those schemes. Sometimes they've done that and fixed it. And there are alternatives to the individual mandate. There are ways to pull people into insurance that are a little bit gentler than having this penalty. Now, the other important point to make is that the penalty is only $95 when it goes into effect in 2014.

  • 10:26:29

    DENTZERSo it is not a very steep, strict mandate. And the insurance companies, frankly, have complained for a long time that the mandate isn't going to be tough enough to get people into the environment.

  • 10:26:40

    REHMDidn't I understand, though, that, after a certain point, it would be $2,000 per individual?

  • 10:26:48

    DENTZERNo. No, it...

  • 10:26:49

    REHMNo.

  • 10:26:50

    DENTZERIt goes up to a maximum of $695 or 2 percent of overall...

  • 10:26:52

    REHMI see. I'm glad you corrected me. Stuart Taylor, I know you have to leave us very soon for your work for Kaiser Health News. But Justice Kennedy, along with Justice Scalia and Chief Justice Roberts, had been considered possible swing votes ahead of the hearing. To you, did they look like that on Tuesday?

  • 10:27:23

    TAYLOROn Tuesday, on the individual mandate argument, Scalia did not seem like a swing vote. He had seemed, based on some of his past writings, as a possible vote for the government. But everything he said on Tuesday, and, in fact, on Wednesday as well, seemed hostile to the government's argument. It seemed to indicate that he's going to vote to strike down the individual mandate. Justice Kennedy was much more musing, philosophical.

  • 10:27:46

    TAYLORI mean, he said some things in challenging the government's argument that sounded like the things you would say if you were inclined to strike down the individual mandate. For example, he said, this changes the relationship of the federal government to the individual in a very fundamental way. That's verbatim. But then, when he was talking to the other side, when he was talking to the challengers in a kind of musing, philosophical way, he said things like, well, most questions in life are matters of degree.

  • 10:28:11

    TAYLORAnd a young person who is uninsured has some effect on rates of insurance -- and sounded like he was more open to upholding it. Roberts really sounded energetic, as I mentioned earlier, in saying things like, oh, that's so rough in terms of limits on federal government power if we uphold this. And he did sound a lot tougher on the government than on the other side, but he was a little bit open. When he was questioning the challengers, he repeated a couple of the government's arguments, didn't exactly embrace them, but repeated them and said, what about that?

  • 10:28:44

    TAYLORSo he's -- I think he's in play, as Joan said. And -- but Kennedy is probably the one to watch the most. It's not entirely clear whether Roberts would feel that if Kennedy is going to give at least a 5-4 to uphold the law, that he should join to make it 6-3 for various reasons, one of which might be that, in that point, he would control the opinion -- the chief justice who signs -- he writes the opinion when he's in the majority -- and could avoid being too broad.

  • 10:29:16

    REHMJoan.

  • 10:29:17

    BISKUPICYeah, I agree. I think that Chief Justice Roberts is the most likely to end up writing the opinion because how he goes will probably determine how the majority goes. I think that there are serious questions of law, but also serious questions of the institution and the role of the court in the sweep of history that the chief justice is very mindful of. And, you know, if they end up with a 5-4 split vote and nobody wants to budge, that's one thing.

  • 10:29:44

    BISKUPICBut I think there's going to be some flexibility at the center, especially for the two justices we focused on, the chief and Anthony Kennedy. And I do want to say I completely agree with Stuart on Justice Scalia. He was the leader of the opposition, the most challenging of all nine of them up there on the government's position.

  • 10:30:05

    REHMAnd what does that indicate to you?

  • 10:30:07

    BISKUPICI think that he's about to vote to strike down the individual mandate.

  • 10:30:10

    REHMAnd if the individual mandate is stricken, where does that leave us?

  • 10:30:16

    BISKUPICWell, if he votes, he could just be one of three votes.

  • 10:30:19

    REHMOne vote, but if it is stricken by...

  • 10:30:22

    BISKUPICWell, then it's the centerpiece of the law...

  • 10:30:25

    REHMRight.

  • 10:30:25

    BISKUPIC...and the government is saying that two other crucial parts have to be struck with it. And as Susan said, the outside counsel said, no. You don't have to doom anything else if you doom the individual mandate.

  • 10:30:35

    REHMAll right. And, Stuart, before you leave us, can you give us your prediction?

  • 10:30:43

    TAYLORPredictions are unsafe.

  • 10:30:44

    REHMI know.

  • 10:30:45

    TAYLORI -- if I have a leaning, you know, I wouldn't bet a lot of money. But I sort of think that Kennedy is going to shrink back from striking it down and that you may end up with a 6-3 decision to uphold the whole thing, which isn't necessarily what you'd walk away with from the argument, but -- having watched Justice Kennedy for a long time.

  • 10:31:05

    TAYLORAnd one thing that Kennedy may be reachable on that Solicitor General Verrilli was focusing, is, to put it (word?), if they strike it down, it would be a 5-4 party line vote in terms of the parties of the presidents who appointed the justices. By nine -- you know, by five unelected life-tenured justices to strike down the most important democratic enactment since 1965, based on a pretty debatable constitutional theory, that's a huge thing.

  • 10:31:37

    TAYLORNow, conservatives used to be the ones who used the words judicial restraint. Now, it's liberals. And I think the conservatives are thinking, you know, where do you guys get off, talking about judicial restraint? But that's a very, very big part of the background of this picture.

  • 10:31:53

    REHMStuart Taylor. He is covering the health care case for Kaiser Health News. He's a contributing editor for National Journal. Thanks so much for joining us, Stuart.

  • 10:32:08

    TAYLORThanks. Wish I could stay and hear the rest, but on to the next fire.

  • 10:32:12

    REHMAll right. Thanks a lot. Bye-bye. Do you each agree with Stuart's assessment? Susan Dentzer.

  • 10:32:22

    DENTZERI do, for the following reason: First of all, the court has traditionally cut the government a very wide swath on this issue of the ability of the Congress to regulate interstate commerce. Now, it's very clear that if Justice Roberts writes this opinion, which he almost surely will, he will try to articulate a very fine limiting principle here. He's going to try to find, whether it's in the government's arguments or something else, some way of saying, there is a line that the government cannot cross here.

  • 10:32:54

    REHMNo broccoli.

  • 10:32:55

    DENTZERRight, right. No broccoli or something.

  • 10:32:57

    REHMRight.

  • 10:32:57

    DENTZERRight. No burial service mandate...

  • 10:32:59

    REHMRight.

  • 10:32:59

    DENTZER...whatever it is, so that will be clear. But, you know, as Stuart said, first of all, there's the political context of this. Then there is the -- all the precedent of the court for decades on the ability that it has -- and let's keep in mind, the founders saw these as three coequal branches of government, right? So if -- but -- and the court is always sensitive to that. And, yes, as Solicitor General Verrilli said yesterday, as he was wrapping up his arguments, you know, Congress has debated this issue for a long time. This is a serious national problem.

  • 10:33:37

    DENTZERNow, you may not like the solution, but to essentially say, we're going to throw it all out, you know, we're going to not defer to the Congress on these grounds would be truly unprecedented.

  • 10:33:48

    REHMJoan.

  • 10:33:49

    BISKUPICI think that's it. And I think that Chief Justice Roberts -- who rarely makes a public speech without invoking history and talking about what anniversary we're on, you know, tied to the New Deal or something else -- is very mindful of that. I think that if this were a run-of-the-mill law, something that had been just one small part of the current president's domestic agenda, it would be one thing. But this is a major plank, and I think they are very aware of that.

  • 10:34:17

    REHMJoan Biskupic, legal affairs editor for Reuters News. And you're listening to "The Diane Rehm Show." We're going to open the phones now first to Cleveland, Ohio. Good morning, John. You're on the air.

  • 10:34:37

    JOHNHi. Good morning. You know, in November here, the state of Ohio voted against having this health care. Now, I know federal issues, they might trump the state, but the Ohio voters made a clear message, saying that they didn't want it. And they voted it hands down in every county. That said, it shows our inability here to act as human beings. And you can see that there's more of a corporate mindset and money involved in this kind of thing. I don't -- because my question would be, well, what about the Hippocrates (sic) Oath and how doctors deliver care?

  • 10:35:14

    JOHNIs there an issue here that is preventing doctors from giving good care and what they have to do? You know, sometimes you go to a doctor's office now, and they don't even treat you like a human being. OK? I've seen that personally.

  • 10:35:31

    REHMI'm not sure that that's part of what we're talking about here, but...

  • 10:35:38

    BISKUPICWell, here -- let me just mention one thing when the caller talked about Ohio and its decision.

  • 10:35:42

    REHMYeah.

  • 10:35:43

    BISKUPICStates are free to do whatever they want. This does not have anything to do with what a state might enact 'cause, of course, we saw Massachusetts enact a similar kind of law and Ohio, as the caller said, reject one. The talk in the courtroom didn't get down to the nitty-gritty of how people might be treated by doctors or not treated.

  • 10:35:59

    BISKUPICThere were some references to insurance costs and whether insurance companies would be bearing more costs and be more reluctant to be participants in this if the individual mandate that would help fund them is removed. But it's -- you know, all of the justices, or most of the justices are older people who've experienced care and would have their own concerns. And I think that those things are in the backdrop. But when it comes right down to it, what they have to figure out is what's constitutional or not.

  • 10:36:27

    REHMYou know, I was interested in Justice Kennedy's closing remarks, I think, on either the first or the second day, which seemed to indicate that he understood the idea that young people who are healthy may not want to buy into this now, but that those who don't buy into it are spreading the cost to the rest of us.

  • 10:37:02

    DENTZERYes. And I think he used the words, we understand that a young person who chooses not to be insured is proximately close to potentially accessing -- could be close to accessing the health care and health insurance market. Actually, Diane, when he said that, I was flashing back to my many years of reporting in this area and thinking about the uninsured young man in his 20s, whom I once met, who had developed a mole on his back. And it turned out to be metastatic melanoma.

  • 10:37:29

    REHMAh.

  • 10:37:30

    DENTZERAnd so he went from being totally healthy water-skier, to being deathly ill and eventually died, uninsured.

  • 10:37:37

    REHMSusan Dentzer, she is editor-in-chief of Health Affairs. Short break. We'll be right back.

  • 10:40:04

    REHMWelcome back. We'll go right back to the phones for questions, comments for our very astute court watchers. Susan Dentzer, she is an on-air analyst on the health issue for the "PBS NewsHour" as well as editor-in-chief of Health Affairs. Joan Biskupic is legal affairs editor for Reuters News. Let's go to Kansas City, Mo. Good morning, Brian.

  • 10:40:38

    BRIANGood morning, Diane. How are you?

  • 10:40:39

    REHMI'm fine. Thanks, sir.

  • 10:40:42

    BRIANI'm a longtime listener, first-time caller.

  • 10:40:44

    REHMI'm glad.

  • 10:40:44

    BRIANI really appreciate your show.

  • 10:40:45

    REHMThank you.

  • 10:40:46

    BRIANYeah. I appreciate your show and what it provides to the public discourse.

  • 10:40:50

    REHMThank you.

  • 10:40:51

    BRIANYeah. I just want to make one comment about Solicitor General Verrilli. I think that -- I mean, I was really disappointed with how he handled himself. And, I guess, I should qualify by saying I am an attorney, so I understand, you know, the moment and how much pressure he must have been under. But it just seemed to me that he was unprepared and just not ready to conjure up the righteousness and the moral authority that comes along with the passage of the bill.

  • 10:41:23

    BRIANAnd I thought that Paul Clement really did an excellent job in that regard. I mean, it seemed to me that the strategy of the government was to focus on boxing the conservative justices into the law whereas Paul Clement just tested a more sort of abstract logical argument.

  • 10:41:44

    REHMJoan Biskupic.

  • 10:41:46

    BISKUPICActually, the caller hits on something that's an in important point here. Paul Clement's arguments were more broadly rhetorical, and he does have a smoother style. So for people listening in their offices or at home, it probably communicated better. The solicitor general's arguments were more rooted in law, and he had -- he opened his argument with a little bit of a catch in his throat. And in the room, you saw what was happening. You knew that he had to take a sip of water.

  • 10:42:15

    BISKUPICBut I've heard from others who said, oh, we wondered, you know, was he faltering? What was going on? So I think he started out just stylistically in a much lower key than, of course, Paul Clement, who has a more polished presence. But Don Verrilli, the solicitor general, is also an extremely experienced practitioner at the lectern, and I think that his style just tends to be more low key. I do think he was effective in the room. There's one point, though, that I would agree with the caller on.

  • 10:42:46

    BISKUPICWhen the justices asked for limits, that was not a strange question. That has been the question that has come up at every lower court hearing, and the government lawyer has always had trouble with that. But it's a very expected question. And at one point, when the justices said, what limits would you draw, and he gave a multifaceted, complicated answer, I thought, surely, you've had to know this before. But overall, I do disagree with those who say that he, in the words of Jeff Toobin of CNN, that it was a train wreck. It wasn't that at all.

  • 10:43:19

    REHMSusan.

  • 10:43:20

    DENTZERI would agree. And it was particularly on that question where Justice Roberts asked please tell us the limiting principle that Solicitor General Verrilli very much stumbled. On the other hand, I would say his closing comments where he really said to the court, listen, let's talk about the issue of freedom here -- I'm paraphrasing him -- is if you have people who are chronically ill, don't have access to health insurance, we grant them access to health insurance for the first time. They are able to get the care that they need to combat their serious, chronic or other diseases.

  • 10:43:54

    DENTZERThey're able to become healthier. They're able to live a much healthier life, work, raise families. Isn't that also a form of freedom? And don't we have to weigh that and the fact that Congress was trying to address that serious national problem of this barrier standing in the way of people having freedom? That was very eloquent, I thought. It was brief, but it was eloquent.

  • 10:44:19

    BISKUPICAnd that came -- in fact, the caller might not have heard that one yet because that actually didn't come on the crucial day two. That came at the end of day three. And he obviously wanted to make that his closing, even though it had nothing to do with the Medicaid law that was in dispute at that moment before the justices. I think he tried to use his last two, three minutes to make this impassioned plea.

  • 10:44:40

    REHMAll right. To Providence, R.I. Good morning, Steve.

  • 10:44:46

    STEVEYes. I appreciate being on. I -- in all the comments that I've heard in the court replays and soundbites and talking heads, such as your folks on there this morning, I haven't heard anybody -- I've heard the broccoli business. I've heard the funeral analogy and all that sort of stuff. I haven't heard anybody say the analogy of shoplifting, and that is that a store is there with goods and commodities that people go to get, but, when you go to buy it, anybody who had stolen from that store or that chain, you are now paying an inflated cost on your own good for that.

  • 10:45:27

    STEVEAnd, it seems to me, without blaming the victim -- I understand the person who doesn't have health care goes into an emergency room. We want to treat them. We don't want to put them on the street, although that would be interesting for some of these conservatives to have to face that consequence. But why doesn't somebody use the language of theft, of shoplifting, of stealing, that people who don't have insurance, that's what they are doing? It would seem to me some of these high moralizers would almost choke if they had to try to swallow the notion that it's stealing.

  • 10:46:00

    REHMAll right.

  • 10:46:01

    DENTZERWell, I've never heard the analogy to shoplifting. But you have heard the description of people who are otherwise healthy, who could afford to buy insurance, as being free-riders. And one of the people who's used that phrase is Mitt Romney. And that was one of the reasons why he pushed extremely hard to get an individual mandate into the state-level health reforms that Massachusetts enacted. He said, we cannot have people free-riding on the health insurance system. As you noted, when somebody is uninsured, that person is likely to get health care.

  • 10:46:34

    DENTZERWe know that those who are uninsured get about two-thirds as much health care as people who are insured. It's just that they only pay about 30 cents on the dollar out-of-pocket for that care, so that 70 cents gets shifted to people who do have insurance or is picked up by federal taxpayers in the form of assistance to hospitals through Medicare and Medicaid and others who do take care of the uninsured.

  • 10:46:59

    REHMAnd what's the estimate that each of us pays for those who are uninsured, Joan?

  • 10:47:06

    BISKUPICWell, as the solicitor general said, about $1,000 more in a family policy. But there was a competing interest in how you view that. At one point, Justice Scalia said, people aren't stupid. They're not going to pay until they need it. And Solicitor General Verrilli said, well, that's the point. That's the point. Scalia might think it's sort of wise of some young people not to pay in until they're going to need it as older folks, but that's what's burdening the system.

  • 10:47:29

    REHMAll right. To Southlake, Texas. Good morning, Leslie.

  • 10:47:35

    LESLIEGood morning. Thank you so much for taking my call. I think part of my question was addressed with the discussion of freedom, but I'm going to make it a little bit personal. I have a child who was born with a severe heart defect, and they were able to work on her. She's doing very well. But my concern is for children like her who, not only the parents choose to have medical care given to, but to whom the doctors feel compelled and may even be legally obligated to give care.

  • 10:48:07

    LESLIEWhat happens to those young people when they get older and they need to be standing on their own? How do they afford health care? How do they afford insurance? And why are they not considered another protected class if, in fact, their medical issues arose at birth and they were compelled by the state, or the doctors were compelled by the state, to keep them alive and to make those life-saving changes?

  • 10:48:31

    REHMThat's an interesting point. Susan Dentzer.

  • 10:48:34

    DENTZERWell, under this law, in effect, they would be a protected class. We should note that a lot of the insurance reforms in the Affordable Care Act already apply to most -- many other people who have health insurance coverage. For example, if you have coverage under a large group employer policy, nobody is throwing you out because you have pre-existing medical conditions. Or if you choose to transfer from a large company with one policy to another company, nobody says, well, you had this when you were -- you had diabetes before. We're not going to cover you now.

  • 10:49:11

    DENTZERWhat the difference is with the Affordable Care Act that -- for those people who are not protected by those regulations now, we would extend those regulations so that, for example, your daughter, no matter what insurance policy she moved to in the future, would not have those restrictions held against her. She would be fully covered. That was the point. It was basically let's take the security blanket that protects most Americans. Let's stretch it to almost everybody.

  • 10:49:38

    REHMLeslie, I'm glad you called. Let's go to Chagrin Falls, Ohio. Good morning, Mark.

  • 10:49:48

    MARKGood morning, Diane. My question is really to better understand the government's position. One of your panelists said earlier that it's really a matter of timing, that essentially everyone of us at some point is going to be using health care and that, really, that the Affordable Care Act was really designed to try to regulate, you know, this very elaborate scheme, which I found kind of interesting because if that is the case -- when this whole issue with broccoli came up, I found it's kind of interesting because broccoli is -- eating broccoli is a choice.

  • 10:50:25

    MARKYou have a choice to eat it or not. You don't -- we're not -- absolutely have to eat broccoli. So I'm just trying to better understand if the government's position really is that, hey, you're going to access this health care system one way or another at some time or another, so what we really are trying to do is to regulate in the most fair and actable way that that'll happen.

  • 10:50:48

    REHMJoan.

  • 10:50:49

    BISKUPICYes. In fact, that was -- that came out in oral arguments in this way. There was a consensus from the bench that if the government forced you to buy insurance at the moment you needed the care, that would be OK. But obviously, there was a lot of talk about how impractical that would be, although...

  • 10:51:05

    REHMBecause?

  • 10:51:06

    BISKUPICWell, sometimes it could be an emergency situation. And, you know, some of the justices said, well, not always in an emergency situation. But what the government is arguing is, really, that is impractical.

  • 10:51:17

    REHMAnd would insurance companies necessarily cover you in that emergency situation?

  • 10:51:24

    DENTZERWell, the market would work. Imagine a fire insurance company that was only allowed to sell policies to houses that were already burning.

  • 10:51:30

    REHMExactly.

  • 10:51:31

    DENTZERRight? You'd go out of business in a heartbeat. So the insurance market only works, again, if the larger, the healthy and the sick alike are in the pool and you can spread the cost of treating the sick across this larger pool of healthy and sick individuals.

  • 10:51:46

    REHMI hope that answers it, Mark. Here is a tweet. "If overturned, what other future policy solutions might be prohibited, Social Security?"

  • 10:51:59

    BISKUPICNo. No, no, no. This really is confined to health care at this point. The way that the Congress enacted the law, not as, you know, directly under the spending power or the government does say it was part of its authority to tax people. But the main argument is under the Commerce Clause, and this would not extend to other government entitlement programs. If Medicaid were struck down, it would be far more consequential. I don't think that's going to happen.

  • 10:52:30

    BISKUPICBut what the important thing for all of us -- for the government, for states, for businesses and for individuals -- is it will mean the end of this health care overhaul, and Congress would be sent back to try to do this. And as we all know, Congress is having trouble doing small things, let alone big things anymore.

  • 10:52:49

    REHMJoan Biskupic of Reuters News and you're listening to "The Diane Rehm Show." Now, I did not hear this myself, but Sheila writes, "I was shocked to hear one of the Supreme Court justices say, do you expect us to read 2,000 pages?" Susan.

  • 10:53:10

    DENTZERYes. That was Justice Scalia, and it came up in the context of the severability argument. And it's funny. I had the same reaction, which is, well, you're supposed to sit judgment on this law. Why not? It's not -- many -- there are many others of us who have done it. They -- but, you know, they don't even have to read the entire law. They could just look at the titles of the law. Many -- remember, this is called the Patient Protection and Affordable Care Act.

  • 10:53:34

    DENTZERIt had two major parts to it. One was, let's deal with the insurance market and let's deal with the Medicaid expansion. And then there was a whole lot of other stuff that was -- some of it related to healthiness and prevention, a requirement that national chain restaurants post on their menus the calorie content of the dishes. You know, that doesn't have anything to do with the minimum coverage requirement, et cetera.

  • 10:53:59

    REHMAll right. Let's go to University Heights, Ohio. Art, you're on the air.

  • 10:54:07

    ARTThank you so much for taking my call. I'm a big fan of your show.

  • 10:54:09

    REHMThank you.

  • 10:54:09

    ARTGreat discussion. My question is, if the law gets struck down, what happens to the facets of the law that has already been implemented? For example, the one that allows young adults to stay on their parents' policies, will the insurance companies now have some kind of recourse against any payments they've made for those particular children?

  • 10:54:35

    REHMOh, my, how complicated. Susan Dentzer.

  • 10:54:38

    DENTZERIt -- we don't -- honestly, we don't know, number one. Number two, it will depend because some states have put in place this restriction anyway or this obligation on insurance companies, and, of course, many entities that were not necessarily having to fulfill this have done this anyway. So, honestly speaking, we don't know, and we'll have to see what the court decides on the specific questions of severability.

  • 10:55:02

    REHMSo the debate begins this Friday?

  • 10:55:06

    BISKUPICThat's right. They vote in a small conference room off the chambers of the chief justice, and they go around the table in order of seniority.

  • 10:55:14

    REHMAnd they do it openly?

  • 10:55:16

    BISKUPICNo. We would love to be there. You mean...

  • 10:55:19

    REHMNo, no, I mean, openly among themselves, yeah.

  • 10:55:20

    BISKUPICOh, no, no. They don't pass -- yes, they don't pass little slips of paper and something like that.

  • 10:55:23

    REHMRight, right.

  • 10:55:24

    BISKUPICRight. But there are no clerks or secretaries in the room. It's a private voting.

  • 10:55:27

    REHMNobody?

  • 10:55:28

    BISKUPICRight.

  • 10:55:29

    REHMAll right.

  • 10:55:29

    BISKUPICIt's a private vote. And in most cases that vote holds, but in big complicated cases...

  • 10:55:36

    REHMLike this?

  • 10:55:37

    BISKUPICYes. That vote might not hold. But what will happen is, say they are able to come up with 5-4, 6-3 or even the extreme 8-1 -- unlikely, but let's say that -- the chief justice, if he's in the majority, then will assign the opinion. And in this case, since there are four discrete issues, there probably will be several different opinions signed for the majority. And then the justices in dissent, the most senior member of that group will assign the main dissenting opinion. Then other justices can write concurring statements.

  • 10:56:06

    BISKUPICBut it's the majority opinion that can draw the five votes for whatever the proposition is after hearing all these arguments over the past three days that will control.

  • 10:56:14

    REHMDo you expect a 5-4 vote either way, Susan?

  • 10:56:20

    DENTZERIt's obviously possible. I think hearkening back to what we were discussing earlier and the court's awareness of itself as a political force, I think it's unlikely. I think they're going to look for ways to have the decision not be quite so narrow as that, but time will tell.

  • 10:56:38

    REHMAnd, Joan.

  • 10:56:40

    BISKUPICI think that the chief justice has an incentive for the court's reputation in America for it not to be 5-4. But what do you do if both sides are dug in? This is a very important issue to so many people, and it might just end up that way.

  • 10:56:55

    REHMHow well do they listen to each other?

  • 10:57:00

    BISKUPICWell, I think a lot goes on in this process now. They do listen to each other, but they all have very strong views of their own.

  • 10:57:08

    REHMJoan Biskupic, legal affairs editor for Reuters News. Susan Dentzer of Health Affairs. She's an on-air analyst on health issues for the "PBS NewsHour." We shall wait, but, what, June -- late June, early July...

  • 10:57:31

    DENTZERYep.

  • 10:57:31

    REHM...it'll be fascinating.

  • 10:57:33

    DENTZERIt will.

  • 10:57:33

    REHMThanks for being here.

  • 10:57:34

    DENTZERThanks, Diane.

  • 10:57:35

    BISKUPICThank you.

  • 10:57:35

    REHMAnd thanks for listening, all. I'm Diane Rehm.

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