The U.S. Supreme Court upheld the 2010 Affordable Care Act. The decision is considered to be a major victory for President Barack Obama because it validates his signature legislative achievement. It is also one of the most important Supreme Court rulings in decades. Chief Justice John Roberts wrote the majority opinion, saying the law was a valid exercise of Congress’s power to tax. Today’s decision will still require the health care industry and the government to address rising health care costs. And with Republicans vowing to continue to fight to repeal the law, health care will be front and center in the 2012 presidential and congressional elections. Diane and her guests discuss the legal, political and practical implications of the Supreme Court’s ruling on the Affordable Care Act.

Guests

  • Jeffrey Rosen professor of law at The George Washington University; legal affairs editor at The New Republic.
  • Susan Dentzer editor-in-chief of Health Affairs, and an on-air analyst on health issues for The PBS NewsHour
  • Susan Page Washington bureau chief for USA Today.

Transcript

  • 10:06:56

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. We are all awaiting the Supreme Court decision on affordable health care. In the meantime, we'll be talking about the upcoming Mexican elections. But I assure you, as soon as that decision comes down, we'll be talking about it and its possible implications for all of us. In the meantime, Mexican voters head to the poll Sunday to elect their next president and possibly a new governing party.

  • 10:07:37

    MS. DIANE REHMJoining me here in the studio to talk about how Mexico's drug war and changing economy could influence the upcoming election and U.S. relations: Jo Tuckman. She is author of "Mexico: Democracy Interrupted." Joining us from a studio in Mexico City, Eric Olson of the Wilson Center's Mexico Institute, and Francisco Gonzalez of John Hopkins' School of Advanced International Studies.

  • 10:08:18

    MS. DIANE REHMWe will try to -- I see that the Supreme Court has struck down the Stolen Valor Act. We are still awaiting the decision on health care. And as soon as -- well, we have just learned that the Supreme Court has struck down the individual mandate on the Affordable Health Care Act, and, therefore, we will not be talking about the Mexico elections today. Those elections occur on Sunday. I'm sorry to our guests awaiting us in Mexico City. And to you, Jo Tuckman, I do apologize. Thank you for being here.

  • 10:09:21

    MS. DIANE REHMAnd in just two seconds, we'll be joined by our guests today to talk about what this decision means for the future of health care reform: Susan Dentzer of Health Affairs and the "NewsHour," Jeffrey Rosen of George Washington Law School, and Susan Page of USA Today. I know many of you will want to join us, 800-433-8850. Send us your email to drshow@wamu.org. You can join us on Facebook or Twitter. I'm certainly looking forward to hearing your comments and questions. Once again, the individual mandate has been struck down. The Supreme Court finds that measure unconstitutional.

  • 10:10:30

    MS. DIANE REHMAnd now, joining me in the studio, our guests for the morning. As you can imagine, this has been quite a morning. There was a great excitement there at the Supreme Court as everyone was awaiting this decision, and now we have it. Once again, the Supreme Court has struck down the individual mandate. So now, here in the studio: Susan Dentzer of Health Affairs and the NewsHour, Jeffrey Rosen of George Washington University School of Law, and Susan Page of USA Today. Good morning and thank you for being here.

  • 10:11:20

    MS. SUSAN PAGEGood morning.

  • 10:11:20

    MS. SUSAN DENTZERGood morning, Diane.

  • 10:11:22

    PROF. JEFFREY ROSENGood morning.

  • 10:11:22

    REHMJeffrey Rosen, what can we say at this point about what striking down the individual mandate actually means?

  • 10:11:34

    ROSENWe cannot say anything yet, Diane, 'cause none of us has read the decision. There have been some television news reports that the mandate was struck down but that the penalty survived as a tax. If that's the case, that is an extraordinarily interesting compromise that suggests that the court did not polarize. But we really need to read the decision before we can comment on it.

  • 10:11:54

    REHMSusan Page.

  • 10:11:54

    PAGEYou know, we're looking at SCOTUSblog, which is one of the great resources in town about things of the Supreme Court. And it says it's a complicated decision, but the mandate is constitutional. It sounds like they have redefined it as a tax. That is something that the White House debated at the time they were putting the law together, whether they should define it as that, they thought politically, it would be bad to call it a tax. So the court has apparently, according to SCOTUSblog, done this for them, redefined the mandate but let it stand.

  • 10:12:23

    DENTZERWell, we are...

  • 10:12:23

    REHMSusan.

  • 10:12:23

    DENTZER...literally trying to figure this out on the fly at the moment, Diane, because if the court has indeed decided that the penalty for the mandate is a tax, we still don't know what that means with respect to the Tax Injunction Act, which is the provision that says whether the court can actually decide this now or not. So we're literally kind of doing this on the fly.

  • 10:12:45

    DENTZERIt's also -- I think it's -- we can't quite say at the moment that we know the individual mandate has been invalidated. We don't literally know that yet. The opinions, the reports we're getting from the people who are listening to them being read live are that they're very complicated. So we're -- as I say, we're dong this on the fly. And at the moment, we just don't know.

  • 10:13:05

    REHMJeffrey.

  • 10:13:06

    ROSENWe absolutely don't know, and -- but I -- the fact that it's a complicated opinion suggests that it is not the kind of partisan polarized 5-4 Republicans versus Democrats opinion.

  • 10:13:16

    REHMAnd that's what you were talking about just the other day, Jeffrey.

  • 10:13:20

    ROSENYes, it is, Diane. This was my great fear and the fear of many people who care about the bipartisan legitimacy of the court, that five Republicans would invalidate the mandate with four Republicans dissenting. And if that's not the case, if, in fact, a complicated compromise was found that -- where both sides were able to come together, that is a tremendous vindication of Chief Justice John Roberts' efforts to avoid partisanship on the court.

  • 10:13:44

    REHMDo we not even have a vote?

  • 10:13:47

    PAGEWell, we -- again, I'm quoting SCOTUSblog, which says, "Chief Justice Roberts joins the left of the court." Now, that's something that Nancy Pelosi, among others, had predicted, that he would not let this be a 5-4 decision of a polarized court. That's not what he wanted. This big decision of his tenure-to-be, that suggests that it's not 5-4. But we don't -- I don't actually have a number here on how the vote split.

  • 10:14:10

    ROSENDiane, can I just express a sense of preliminary relief and a great satisfaction that the court avoided this bad outcome? There was so much hanging on this. So many liberals would've been permanently disillusioned with the court and question its legitimacy for a generation to come. And if indeed that outcome was avoided, there really is some possibility that the court could rise above the partisanship that Chief Justice Roberts so feared and in this most important case of his career come up with a compromise. I think that is a tremendous achievement.

  • 10:14:44

    DENTZERAnd it's...

  • 10:14:44

    PAGEYou know, that's achievement -- legally perhaps in this opinion but that will not be the impact politically in this country. The partisanship over this issue is going to be fueled by whatever it is the court decides today. And this is an issue that is going to rage from now until Election Day in November.

  • 10:14:59

    DENTZERWhatever one thinks about the Affordable Care Act, though, it's important to remember that the decision before the court was the narrow question, I mean, a huge question, but in effect relative to the Affordable Care Act, the narrow question about whether it was within the authority of the Congress under the Commerce Clause of the Constitution to regulate in the interstate market of health care in this way.

  • 10:15:21

    DENTZERSo that is what the decision says. It doesn't say you like the Affordable Care Act. It doesn't say it's the best way to run the health care system. All it says is that Congress was acting within its constitutional authority if, in fact, the mandate was held up, which is what we think is -- has happened at the moment.

  • 10:15:38

    REHMIt's fascinating to me that the Supreme Court would issue a decision that so many people are totally unclear about. We expected an up or down, did we not, Susan?

  • 10:15:52

    PAGEBut this may be that. I mean, we're hampered by the fact that we're on the fly here. But it looks to me that the entire Affordable Care Act has been upheld, except for provision regarding Medicaid and cutting off Medicaid funds to states. That's important, of course, to the people who are serviced by Medicaid, but it's not the core of the law.

  • 10:16:12

    PAGESo it looks to me like the law has been upheld. That is, I've got to say, if that's the case, that is great news for the White House. But, you know, it's also good news for the Republicans because they now have an issue that's going to continue for the rest of the year.

  • 10:16:24

    REHMAnd now CNN is reporting that the individual mandate "may be upheld." Supreme Court says it can stand as a tax, which is fascinating.

  • 10:16:41

    ROSENOf course, the question of whether or not it was a tax tied both sides in knots over the course of the litigation. The Obama administration had initially said that it was a tax and therefore couldn't be challenged until 2014. It changed its mind and said that it wasn't a tax for purpose of delaying the lawsuit, but it was a tax for being authorized by the Constitution. The justices seemed skeptical of that.

  • 10:17:03

    ROSENJustice Alito had ridiculed the solicitor general and said, today, you're saying it is a tax, and tomorrow you're not. But this is obviously, you know, some commentators, Walter Dellinger and others, had predicted that this might be a statesman-like compromise. The court appears perhaps to have said it doesn't matter what Congress said. It doesn't matter what the president said.

  • 10:17:22

    ROSENIt doesn't matter that both sides switched positions, and, during the debate, all the Democrats stood up and said, it's not a tax, and the Republicans said it is. And the moment that the ink was dry, they rushed into court and claimed the opposite. All the Democrats said it is a tax, and the Republicans said it wasn't. The court made its own independent judgment and, rather than engaging those complicated Commerce Clause arguments, said it was authorized by the taxing clause in the Constitution.

  • 10:17:42

    REHMJeffrey Rosen, he is professor of law at George Washington University, school of law. Susan Page of USA Today. Susan Dentzer of Health Affairs and the NewsHour. Throughout this hour and the next, because, clearly, this is going to take a lot of interpretation, we do want to take your calls and hear your questions, and our three experts will respond to them as best we can. We are, as you know, operating exactly as you are, trying to find out precisely what the Supreme Court ruling has to say. We'll take a short break now. When we come back, more and your calls.

  • 10:20:04

    REHMAnd welcome back. The Supreme Court did this morning issue a ruling on the affordable health plan. And, Jeffrey Rosen, you now have the crux of the issue and how the Supreme Court has ruled.

  • 10:20:23

    ROSENThis is from the SCOTUSblog. It calls it the money quote from the section on the mandate. Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.

  • 10:20:43

    REHMOK. Now, interpret that for us.

  • 10:20:46

    ROSENWell, this is remarkable because it suggests that the justices were not agreed about the commerce question, but as to whether Article One of the Constitution authorizes a tax, all sides could agree. They rooted the decision in a textual power in the Constitution, avoiding the fear that unlimited congressional power would be endorsed. And they also ignored the shifting political positioning of the parties on both sides.

  • 10:21:13

    ROSENThe president and Congress made their own independent determination that this was a tax, regardless of what Congress called it, and, therefore, rooted their decision in the constitutional text. It's a wonderful example of how both sides, liberals and conservatives, can come together on an argument that really was not front and center. The challengers wanted to focus on liberty and on commerce and all sorts of other things. But a group of law professors -- initially, Jack Balkin, I know, at Yale Law School was a champion of this cause.

  • 10:21:41

    ROSENHe's a leader of a movement called the New Textualists, who are a group of liberals who believe that constitutional text and history can sometimes justify liberal as well as conservative results. And by refusing to make broad and unbounded arguments and insisting that liberals could defend the mandate in conservative terms, he appears to have won over at least Chief Justice Roberts.

  • 10:22:02

    REHMSusan Dentzer.

  • 10:22:03

    DENTZERThis also shows that the court accepted the argument that the Affordable Care Act is not mandating that you have health insurance so much as it is telling that you have a choice, which is either to purchase health insurance or pay this tax. So the argument that was made by many -- the government can make us eat broccoli, which was the alleged analogy to this -- the court has essentially rejected that. The court has said individuals have the choice here to forego insurance and pay the tax and then, as Jeff just said, under the taxing power, that Congress have the authority to set up this system.

  • 10:22:42

    REHMSusan Page.

  • 10:22:43

    PAGEReports now that it is a 5-4 decision. On one side, Kagan, Ginsburg, Breyer and Sotomayor, the liberals, plus Roberts.

  • 10:22:52

    REHMInteresting.

  • 10:22:52

    DENTZERWhich is very much what we are told that Justice Roberts did not want. He did not want a narrow decision. It suggests that he spent a lot of effort, probably trying to get some of the other justices on board. There was a hope that it would be a 6-3 decision. This suggests he was not able to do that in the end if, in fact, it was a 5-4 decision.

  • 10:23:14

    ROSENBut could I just express some appreciation to Chief Justice Roberts for the courage that this act must have required? If this report is correct, all four of his conservative colleagues rejecting the mandate as both a tax and under the commerce power. Justice Anthony Kennedy, the swing vote, refusing to side with the liberals in this case 'cause he was concerned that the relationship between the federal government and individuals would be transformed.

  • 10:23:38

    ROSENRoberts cares so much about avoiding not just 5-4 decisions, but 5-4 decisions on partisan lines of all Republicans and all Democrats, that he alone switched sides and joined the liberals. I think that says a huge amount of the kind of -- about the kind of court he wants to lead and a kind of chief justice he wants to be.

  • 10:23:54

    REHMAll right. Let's get down to practical terms and what this means for me and you and everybody else out there. Susan Dentzer.

  • 10:24:04

    DENTZERWhat this means is that the law will move forward unless, of course, Congress votes to repeal it and a president -- obviously not President Obama, but a future president votes to sign -- repeal legislation. Otherwise, the law goes forward now as planned. In 2014, there will be a broad expansion of coverage.

  • 10:24:23

    DENTZERRoughly 16 million people will go into a new Medicaid program. Another 16 million or so individuals will be newly enabled to buy health insurance coverage through health insurance exchanges with the assistance of federal subsidies. And they can choose to forgo buying coverage, but they will pay a penalty.

  • 10:24:43

    REHMDo we know what that penalty might be?

  • 10:24:47

    DENTZERYes. In the first year, it's limited to $95. It goes up from there to a total of $695, or there's a different formula for families. But, in fact, it's, of course, a fraction of what it would cost to buy health insurance.

  • 10:25:03

    REHMSo many people might still opt out and say...

  • 10:25:07

    PAGEAlthough, you know, it's interesting. The experience in Massachusetts, which also has an individual mandate and which has also had a fine if you don't participate -- and a low fine, not a big fine -- has found that most people do want -- do comply with it. I mean, it's turned out to be a big spur to people.

  • 10:25:23

    REHMSo they don't pay the tax.

  • 10:25:24

    PAGESo they don't pay the fine for not participating.

  • 10:25:27

    REHMYeah, right.

  • 10:25:28

    PAGEThey choose to get into one of these systems. And, of course, Massachusetts and this federal law make it easier by setting up ways for insurance exchanges so people who don't have coverage through their employer can get coverage. This expansion of Medicaid also a very important part of this law and one of the things that really expands coverage to people who do not now have it.

  • 10:25:47

    REHMAll right. So let's talk briefly about the politics, Susan, what this means, and then we'll go to the phones.

  • 10:25:56

    PAGEYou know, I'll say two things: great news for Barack Obama, great news for Mitt Romney. And why I say that is it would have been a catastrophe for this to be struck down as unconstitutional by the president. He devoted so much of his capital in his first term to getting this passed. He is a constitutional law professor in the past. This would have been disastrous. He's got to be pleased. But, you know, Mitt Romney has got to be glad, too, because this -- one of his big campaign issues is he will repeal this law.

  • 10:26:22

    PAGEIf the court had turned it down entirely, he would be forced to go for a lot more specifics about what he would offer in its place. Now that repeal message has won, he can go to Republicans and independents and say, if you don't like this law -- and a lot of Americans don't -- the only way we're going to get rid of it is by electing me.

  • 10:26:41

    DENTZERDiane, we're now getting some more fascinating detail about this decision. It turns out the plot has thickened. It turns out that the court held that the mandate actually violated the Commerce Clause. That is to say, under the Commerce Clause, Congress did not have authority to do this, but it didn't matter because the penalty was a tax.

  • 10:27:00

    DENTZERSo it is upheld under the taxing power that Congress has in the Constitution. The other interesting thing is, even though it was a tax, the court also held that the Anti-Injunction Act didn't apply because, as the language goes, the label tax was not controlling. So this is a fascinating contortion of decisions here. We're going to look forward to reading this.

  • 10:27:22

    REHMI should say. Jeffrey.

  • 10:27:24

    ROSENYou know, Chief Justice Roberts has said that his hero is Chief Justice John Marshall, and Marshall would have been proud of this. Marshall engaged in the kind of twistifications, to use Thomas Jefferson's phrase...

  • 10:27:33

    REHMTwistification.

  • 10:27:35

    ROSEN...where he would come up to the abyss of embracing one legal argument and then twirl around at the last minute and embrace the other one, and that -- Roberts has done that. He has just split the baby in the most exquisite way, joining with the conservatives on the commerce argument but with the liberals on the taxing argument, suggesting that all of the energy devoted to saying that the Commerce Clause didn't justify the mandate didn't matter because there was this independent source of authority.

  • 10:27:58

    DENTZERAnd...

  • 10:27:58

    REHMAll right. Go ahead, Susan.

  • 10:27:59

    DENTZERAnd it looks further that the four more liberal justices were willing to uphold the mandate under the Commerce Clause, but Justice Roberts was not. So it truly was his vote on the taxing power that saved this.

  • 10:28:14

    REHMAll right. Now, Jeffrey, you spoke the other day, when we were talking about the court's decision on immigration, about the blog that Justice Scalia had written, a surprising blog, rather vehement in tone, rather negative in tone, and E.J. Dionne has written about that this morning. Do you expect that Justice Scalia will write similarly about this decision?

  • 10:28:50

    ROSENWell, I cannot wait to read Justice Scalia's statement if he chose to file a separate statement. But I imagine that his head will explode when he learn that Roberts had defected from the conservatives on the taxing question and actually upheld the mandate. He seems to take it so personally.

  • 10:29:06

    ROSENLots of people were speculating that his attack on Kennedy in the Arizona case was an act -- he felt like an act of personal betrayal. And there's something about the unvarnished partisanship that he is showing from the bench that suggests that he is very much opposed to Roberts' attempt to avoid these partisan divisions.

  • 10:29:26

    REHMAnd John Broder of The New York Times says, outside the court, a loud cheer goes up as word spreads that the health care law is largely upheld. Chants of, yes, we can, ring out as opponents are largely silent. Going to open the phones now, 800-433-8850. First to Logansport, Ind. Good morning, Aaron.

  • 10:29:59

    AARONGood morning. I just wanted to comment that, on something that's important and large, it's important to remember that the constitutionality of this, it either is or isn't constitutional. And to have division on this suggests and confirms that it's somebody's opinion whether or not it's constitutional. If someone can disagree with another person and not be sure, then it's just someone's opinion. So we have -- whoever's on the Supreme Court, it's their opinion whether or not we're going to go with what rules.

  • 10:30:39

    DENTZERWell, welcome to the U.S. government. We set up this system where the Supreme Court is the ultimate court of the land and can decide whether acts of Congress are constitutional. So we now have the nine justices clearly deeply split, deeply split. In fact, we're just learning that Justice Kennedy has written in his dissenting opinion that the entire act was believed at least by many -- several of the justices, clearly four here, to be invalid in its entirety. But they were overruled by the majority, and that's the way the system works.

  • 10:31:13

    ROSENAnd, really, I think the contrast between Justice Kennedy's view -- which supports the caller's notion that it either is constitutional or it isn't, we're going to strike down the whole thing -- and the far greater humility expressed by Chief Justice Roberts and the liberals shows the difference between different conceptions of the court's role in society. The longer I teach constitutional law, the more I'm convinced that you can argue it round or argue it flat.

  • 10:31:36

    REHMIndeed.

  • 10:31:37

    ROSENThere is almost no question that it's clear, and the court has recognized that.

  • 10:31:38

    REHMLet's -- to Jackson, Mich. Good morning, Brandon.

  • 10:31:44

    BRANDONGood morning. The reason I'm calling today, Diane Rehm, 'cause from what I'm understanding is that with being middle-aged, in my mid-20s, and just being off of my parents' insurance, what about those children who are just going to college and staying on their insurance -- parents' insurance? What will the insurance companies do now with that law, which has great bipartisan support?

  • 10:32:12

    DENTZERThe law goes forward. The provision that required people to be able to stay on their parents' plans up to the age of 26 goes forward and is intact. We'll note that several insurance companies said they were going to continue it regardless of what the court decided. Now they don't have to make that decision. It is upheld.

  • 10:32:32

    REHMYou know, I thought that was interesting that so many of the insurance companies came out and said, we're going to uphold this anyhow, we're going to continue with this practice. I found that very interesting. But with this ruling -- not to worry, Brandon -- the young people stay on their parents' insurance until the age of 26. And you're listening to "The Diane Rehm Show." To Miami, Fla. Good morning, Don.

  • 10:33:07

    DONGood morning, Diane. I have a suspicion that a lot of the confusion that we hear about the health care law across the country and the negative attitude toward it in the majority of people is due to the excessive deceptive propaganda that is being thrown out to -- into the sphere of politics by the right-wing conservatives. And one of the purposes of deceptive propaganda is to first confuse the populace, and that's what's going on. And I think that's evident when you see that if people are asked about the individual aspects of the health care law, they're in favor of it. So why be against it in general?

  • 10:33:57

    REHMSusan.

  • 10:33:58

    PAGEYou know, Don's right that when you ask about individual provisions like letting kids stay on their parents' insurance policies until age 26, people do like that. But the fact is...

  • 10:34:08

    REHMOr pre-existing conditions.

  • 10:34:10

    PAGEOr pre-existing -- allowing people to buy insurance even if they -- requiring insurance companies to sell you an insurance policy, even if you have a pre-existing condition, people like that. But the individual mandate is not supported by a majority of Americans. And I think that one of the things that may have happened with the difficulty they've had, the administration has had in selling this law, is people like all these provisions.

  • 10:34:30

    PAGEBut they're nervous about a big federal government mandate, a big law that -- and that -- that's one of the things that has been -- that has cost President Obama's support generally -- you know, the stimulus spending, the help to the auto companies, the health care law. Some Americans see this as government overreach, even if you like some of the effects of it. It's one of the failures of this administration, I think, to sell the provisions of this law that people like in a way that convince people that they wanted the law to continue.

  • 10:35:01

    REHMAnd you used the word sell. I would use the word educate. And it seems to me that those opposed to it were far more assertive in educating the public...

  • 10:35:17

    DENTZERWell, and as others have made the point, the vast, vast majority of Americans have health insurance and want to have health insurance. This individual mandate was really only going to be a factor for a group of Americans who did not have coverage and could not get out of the requirement for other reasons. You could be exempted because of lack of affordability.

  • 10:35:38

    DENTZERYou could be exempted if you have religious reasons not to be covered. So it really was a case -- I think Susan has it right -- where the philosophical notion of the government telling you to do something was what so many people took umbrage of. The reality of most people wanting and having health insurance is the fundamental reality.

  • 10:35:57

    REHMAll right. To Berlin, Germany. Good morning, Anne.

  • 10:36:01

    ANNEGood morning, Diane. I have a question. As an American who lives overseas, how do your experts explain that some programs -- for example, Medicare is extremely popular, but Medicare for all is considered something to be avoided.

  • 10:36:26

    REHMWhat do you think, Susan?

  • 10:36:27

    PAGEYou know, Medicare is one of the most popular programs that the government has. And it's funny. Sometimes you talk to recipients of Medicare, they think of it not as a government program, you know? They think, keep government out of my Medicare...

  • 10:36:38

    REHMYeah, yeah.

  • 10:36:38

    PAGE...which is interesting since it's -- it is a government program. You know, every -- countries have different traditions when it comes to providing health insurance. And there are countries that have single-payer systems, so it's like Medicare for everybody, you know, a government-run system that is available to all citizens. That's not our system, and I think the administration decided, from the start, that that was not something that was going to be acceptable to most Americans.

  • 10:37:02

    PAGEThis was attempted -- this was an attempt to devise a system that recognized some of the traditions in America for providing health care, but managed to extend coverage to more people.

  • 10:37:12

    REHMSusan Page of USA Today. We're going to take a short break. And as we do, we're going to be looking at more and more details of the Supreme Court decision to uphold the Obama health care law. I hope you'll stay with us. We'll take more of your calls when we come back.

  • 10:40:04

    REHMAnd, as I'm sure most of you know by now, the Supreme Court has upheld President Obama's health care law in a splintered, complex opinion that gives President Obama a major victory. Basically, the justices said the individual mandate -- that's the requirement that most Americans buy health insurance or pay a fine -- is constitutional as a tax. And, of course, we're going to take more of your calls, and we have three wonderful folks here in the studio.

  • 10:40:50

    REHMSusan Dentzer of Health Affairs and the "PBS NewsHour," Jeffrey Rosen, professor of law at George Washington University -- he's also legal affairs editor of The New Republic -- and Susan Page, Washington bureau chief for USA Today. Jeffrey Rosen, you've been saying that, in your view, Justice -- Chief Justice Roberts is a hero. Here is an email from Sharon, who says, "Chief Justice Roberts is a conservative darling. Are they going to attack him now? And what can Gov. Romney say about him?"

  • 10:41:41

    ROSENVery interesting question. Certainly, Chief Justice Roberts has deeply disappointed his constituency, and there will be some who will attack him. On the other hand, Chief Justice Roberts has been such a reliable friend to conservatives. And, in many ways, this strategic vote to uphold the health care mandate will give Roberts more political discretion next year, for example, to lead a court that strikes down by 5-to-4 votes, affirmative action, the Voting Rights Act.

  • 10:42:09

    ROSENThere is a lot coming down the pike where Roberts will burnish his conservative bona fides once again, and it really wasn't someone who was keeping his powder dry for those cases. He knew he couldn't preside over the 5-to-4 court that struck everything that liberals care about downing. By giving this huge symbolic victory to liberals, he really increased his discretion to be more conservative in other cases.

  • 10:42:29

    REHMSusan.

  • 10:42:30

    PAGEAnd, Jeffrey, you said he disappointed his constituency. I don't think he would see it that way. I think he would see -- I don't think he sees himself as having a constituency of the conservatives who pushed him as a nominee for the court, right? Once you become the chief justice of the United States, it's like the whole country is your constituency, and perhaps that's one of the factors that led him to the decision that he made in this case.

  • 10:42:56

    ROSENCan I just...

  • 10:42:57

    REHMSure.

  • 10:42:57

    ROSEN...respond by saying absolutely right? I mean, this decision clearly shows that he sees his constituency as being the country as a whole and not a particular group of the left or the right. He was not swayed by the mandate's popularity. He wasn't swayed by the tremendous pressure on him. He did what he felt was right according to the rule of law. And the fact that that's so hard to do in this polarized environment, the fact that it's such a striking exercise, on the one hand, you might say, why should he be a hero?

  • 10:43:24

    ROSENAfter all, two of the most respected conservative lower court judges in the country upheld the mandate under the commerce power without any hesitation at all. So by just creating this twistification, he's just being strategic. But I just want to -- I'm sorry to stress this point, but...

  • 10:43:38

    REHMThat's all right.

  • 10:43:39

    ROSEN...I just have been waiting for this moment for almost six years 'cause I sat down with Chief Justice Roberts at the beginning of his first term. And he was just setting out the vision that he wanted to articulate, and he said it was so bad for the country to have these 5-to-4 decisions. He really wanted to avoid it. He wanted narrow, unanimous decisions. He's had very mixed success. He's been hammered by many people, including me, all this time. This just shows that he meant what he said, and I think he does get credit for that.

  • 10:44:03

    REHMSusan Dentzer.

  • 10:44:04

    DENTZERI want to go back to another aspect of the court's decision we have not discussed yet, which was the decision on the Medicaid expansion. A number of the states had argued that the formula that the Congress had adopted in the Affordable Care Act, whereby the federal government was going to pay 100 percent of the tab of expanding Medicaid to a new population of people, about 16 million people.

  • 10:44:29

    DENTZERSome of the states had argued that that was a coercive action, that the states had no free will to turn that down if the federal government was picking up 100 cents on the dollar of the cost and then eventually dropping down to 90 cents on the dollar. Court thoroughly rejected that argument. It did say, though, that the federal government -- if the states do not go along with the expansion, the federal government can only cut off their money for that expansion population.

  • 10:44:56

    DENTZERIt cannot cut off the support it gives to the state for all the rest of Medicaid. That's a very important distinction that the court has now drawn. But the larger point is that the Medicaid expansion now will proceed. And to the point of the earlier caller, people love Medicare. Medicaid is now on its way to becoming our largest public health insurance program. It will be, far and away, the largest in terms of enrollment going forward, and that is the clear outcome of this decision.

  • 10:45:26

    REHMAll right.

  • 10:45:26

    PAGEBut of great concern to a lot of governors, Republican and Democratic, because there's some assumption that while the government is going to pay 100 cents on the dollar now and then 90 cents on the dollar, that there'll be a time down the road when the federal share gets lower. Medicaid is a huge expense for states.

  • 10:45:42

    PAGEIn some states, it's squeezing out money for education, roads and other projects. So this is one of the, you know, we -- a lot has got settled today, but there are huge provisions on how these gets implemented, how it works, how it gets paid for that we're going to be dealing with for years to come.

  • 10:45:56

    REHMAll right. To Cleveland, Ohio. Good morning, Mike.

  • 10:46:00

    MIKEHi. I was just calling to find out if anyone thinks that this ruling is going to eventually lead us down -- being as it's so confusing, I'm hoping that it brings us to nationalized health care. And I'm wondering if anyone thinks that we've gotten ourselves into such a boondoggle that we're going to revisit it and possibly get to that point where we have single payer.

  • 10:46:28

    REHMSusan Dentzer.

  • 10:46:29

    DENTZERWell, it's very, very hard, obviously, to see into the future. I would say that the one aspect now that militates against what the caller has laid out as a possible scenario is that half of the effort of expanding coverage in the Affordable Care Act was to get people into private health insurance.

  • 10:46:47

    DENTZERRoughly half of those who will gain coverage will probably gain that by buying coverage through these new health insurance exchanges with the assistance of federal subsidies. That will shore up and extend the private coverage market. So it probably makes it less likely in the near term that we'll converge into a single-payer system.

  • 10:47:06

    REHMI wonder what it's going to mean for those who remain uninsured and neglect, perhaps, to pay the tax and walk in to an emergency room. What's going to happen there?

  • 10:47:25

    DENTZERWell, they will have to become covered. In essence, if -- well, let me back up. If they are eligible for Medicaid, they will be enrolled into the Medicaid program.

  • 10:47:37

    REHMInstantly.

  • 10:47:38

    DENTZERBasically instantly, the way things work in terms of the hospital billing and so forth and so on. They can indeed remain -- choose to remain -- if they're not qualified for Medicaid, they can choose to remain uncovered and not to pay and -- rather to pay the mandate. It will be interesting to see what hospitals do in that environment in terms of -- they -- by law, they have to treat people who are in an emergency care situation and stabilize them.

  • 10:48:06

    DENTZERBut if you walked into an emergency department now and you were not in actual state of emergency, it will be interesting to see going forward how hospitals handle that.

  • 10:48:15

    REHMAll right. And let's go to Silver Spring, Md. David, you're on the air.

  • 10:48:22

    DAVIDHi. I'm a psychologist in private practice, so I see the impact of coverage and non-coverage on almost a daily basis. And the point that was just addressed of someone going to an emergency room and essentially buying insurance on the way to the hospital really defeats the entire purpose of insurance, which is to spread the risk as much as possible.

  • 10:48:45

    DAVIDAnd the best way to spread that risk is to have healthy people pay a little before they are sick and have to pay a lot. My concern is that rules may be passed that would put a waiting period on people so that they do not get coverage for anything for six months, let's say, after they enroll in order to prevent them buying insurance from the ambulance. But that would, again, simply pass the cost on to the rest of us...

  • 10:49:14

    REHMSusan Dentzer.

  • 10:49:15

    DENTZERWell, this -- avoiding that situation was precisely why the individual mandate was inserted into the legislation in the first place. The point is to get people covered. And as Susan made the point earlier, what has gone on in Massachusetts is, even in the face of a pretty light penalty for not buying coverage, many people have chosen to become enrolled in coverage.

  • 10:49:37

    DENTZERSo the mandate probably is going to have a, if you will, a social norming effect on people and making it the norm for people to have coverage. Most people -- you know, you -- most people buckle their seatbelts, right, even if the -- you have to pay a fine if you don't and if you're caught, but most people do.

  • 10:49:54

    REHMIf you're caught, yeah.

  • 10:49:55

    DENTZERAnd so the effect of the mandate will probably be similar to encourage people to buy coverage.

  • 10:50:00

    REHMYou know what...

  • 10:50:00

    DENTZERAnd they'll have better access going forward because of these new health insurance exchanges.

  • 10:50:04

    REHMAnd one thing I want to say is to apologize to listeners because, at the top of this hour, I said that the Obama health care plan was ruled unconstitutional following too closely on headlines that were coming out, and they came out before they really knew what was going on. And I repeated those headlines, and I do apologize to listeners. Jeffrey Rosen, repeat, if you would, the actual decision.

  • 10:50:45

    ROSENThe Supreme Court has held in a decision that we now have and that all listeners can get on the Supreme Court website, that the individual mandate will be upheld as an exercise of Congress's taxing power, although it -- five justices voted not to uphold it under Congress's commerce power.

  • 10:51:04

    REHMAll right. And, Susan, what could this mean for the Congress going forward? Do you expect to see an effort to go back and overturn this, or will members of Congress move on to other issues?

  • 10:51:22

    PAGECongress, harder to predict even than the Supreme Court perhaps, what it's going to do. But there's not -- I think there is no possibility that Congress acts on the health care act this year. That does not mean there won't be a lot of posturing and debate and maybe even a vote in committees or in the House on this. But the fact is this has now been settled for this year.

  • 10:51:43

    PAGEThere's no possibility that a repeal of the health care act could get through the Senate at this point. And if it somehow managed to get through the House and Senate, which I think is not realistic, then President Obama would certainly veto the repeal of this. So this act is in place for this year. It's going to be debated. Americans who want to weigh in on it will have a chance to do so when they vote in November.

  • 10:52:05

    REHMAll right. To St. Louis, Mo. Good morning, Mary.

  • 10:52:10

    MARYHi. My question was about the Commerce Clause part of the decision in that there was a majority, it sounds like, that said it was -- that Congress acted beyond its authority under the Commerce Clause to enact the Affordable Health Care Act. And I'm wondering what impact do you see that having on Congress's power in the future in other areas of legislation, or whether you see this as an one off and that it doesn't really limit their power under the Commerce Clause.

  • 10:52:35

    REHMJeffrey.

  • 10:52:36

    ROSENIt's a great question. And I'm just reading now from the dissent written by Justices Scalia, Kennedy and Alito. And they suggest that their narrow vision of the Commerce Clause might indeed restrict far more federal power in the future. They say the striking case of Wickard v. Filburn, which held that economic activity of growing wheat for one's own consumption has been regarded as the ne plus ultra of expansive Commerce Clause jurisprudence to go beyond that.

  • 10:53:03

    ROSENAnd to say that the failure to grow wheat nonetheless affects Congress and can be federally regulated is to make mere breathing in and out the basis for federal prescription and to extend the federal power to virtually all human activity. This is so great, Diane. We knew Scalia would come through for us.

  • 10:53:17

    DENTZERGreat language.

  • 10:53:18

    ROSENAnd he goes on. You know, it's a great kind of libertarian screed. He says, we now have sizeable federal departments devoted to subjects, not mention among Congress' enumerated powers: the Department of Education, the Department of Health, the Department of Housing and Urban Development. All of these are justified under the broad vision of the taxing power and the commerce power.

  • 10:53:36

    ROSENThe dissenters don't like that, and they say that it is the -- exceeds federal power both in mandating the purchase of health insurance and denying non-consenting states on Medicaid funding.

  • 10:53:46

    REHMAnd you're listening to "The Diane Rehm Show." I am so stunned when people kept talking about Kennedy as the swing vote. And here he voted with the minority.

  • 10:54:03

    ROSENWell, the thing about Kennedy is he does sometimes go left and sometimes go right, but he never goes narrow. He's just extraordinarily certain of his libertarian convictions. He's very abstract. When he believes that autonomy is violated by restrictions on abortion, the abortion laws fall. When he believes autonomy is violated by mandating health insurance, health insurance has to fall.

  • 10:54:25

    ROSENHe's not a subtle comprising justice. He knows what he knows, and he's going to stick to it. And that's why he's voted to strike down more federal and state laws than any other justice on the Supreme Court. And it's really a relief that Chief Justice Roberts did not share his view.

  • 10:54:40

    PAGEYou know, it's -- we know that coming to decision, a consensus, on -- in cases like this is a political process. And I wonder, Jeffrey, if Justice Roberts hadn't sided with the four liberals, is it possible that Kennedy would've found a way -- did Roberts, in effect, make it possible for Kennedy to side with the conservatives?

  • 10:55:00

    ROSENInteresting. In some sense, he might have. But Kennedy, I don't think, is amenable to changing his votes along those lines. Once he decided that it was a violation of the commerce power, he wouldn't be swayed. And you saying that it's a political process is very interesting and helpful. A court functioning as a court recognizes that law is a matter of compromise and give and take. And, here, the liberals did give as well.

  • 10:55:22

    ROSENIt looks like just justices -- this is interesting -- just Justices Breyer and Kagan interpreted the Medicaid expansion to be permissible only if it didn't take away states' old funding but merely new funding. The two other liberal justices did not join with Roberts on that point. But this is Breyer and Kagan, the most pragmatic justices, and Roberts, the chief, trying to prevent the court from polarizing, getting together like justices in the old days.

  • 10:55:45

    ROSENWhen Chief Justice Earl Warren would go around to every justice in the Brown v. Board of Education case and tell them to make the decision unanimous for the good of the court and the good of the country, here, they're engaging in not horse trading but just give and take compromise. That is just a vision of a court acting like a court and not a group of polarized politicians.

  • 10:56:01

    DENTZERDiane, to the caller's earlier question about the commerce power, it's interesting to see what Justice Roberts wrote about that. Quoting from his decision here, he says, quite clearly, "The federal government does not have the power to order people to buy health insurance." And if this were -- he says, the statute reads naturally as a command to buy insurance and that, in fact, he applies he would not have upheld it on those grounds.

  • 10:56:26

    DENTZERHe does go on to say, though, as we have said earlier, that it is to be upheld because it is a tax and is within -- the penalty is a tax, and it was within the taxing power of the government. So, essentially, Justice Roberts is agreeing with Scalia and others on this question of what the government does not have the power to have you do. And that surely will have implications going forward with it.

  • 10:56:47

    REHMAnd, of course, Chief Justice Roberts is a conservative appointed by President George W. Bush. He provided the key vote in the court's decision to uphold President Obama's health care law. We're going to continue this discussion in our next hour with our three guests: Susan Dentzer, Susan Page and Jeffrey Rosen. And I thank you for listening and for tolerating the insecurity of this hour. We'll try to be more accurate and more secure in our next hour. Thanks for listening.

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