More than 20 states have passed so-called "Right-to-Try" laws that give terminally ill patients access to experimental drugs. What bypassing the F.D.A. could mean for clinical trials, treatment outcomes and patient safety.
Chief Justice John Roberts joined the liberal members of the Supreme Court to uphold President Obama’s health care overhaul. Presidential hopeful Mitt Romney and other Republican leaders pledged to fight for repeal of the law. The House voted to make Eric Holder the first sitting U.S.Attorney General to be held in contempt of congress. New York Congressman Charlie Rangel and Utah Senator Orin Hatch survive hard-fought primary battles. Earlier in the week, the Supreme Court struck down several parts of Arizona’s immigration law, but upheld the controversial “show me your papers” provision. Ron Elving of NPR, Karen Tumulty of the Washington Post and John Harwood of CNBC join Diane for analysis of the week’s top national news stories.
- Ron Elving Washington editor for NPR.
- Karen Tumulty national political reporter, The Washington Post.
- John Harwood chief Washington correspondent for CNBC; reporter, The New York Times.
John Harwood, chief Washington correspondent for CNBC, responded to a listener’s question about the power of the National Rifle Association to determine who runs for office. Harwood said the bipartisan vote to hold Attorney General Eric Holder in contempt of Congress was a result of the NRA’s political influence. Ron Elving, Washington editor for NPR, explained the purpose of the Fast and Furious policy and discussed its implications for U.S lawmaking. Karen Tumulty, national political reporter for The Washington Post, said this was the first time that a sitting attorney general had been cited for contempt of Congress.
MS. DIANE REHMThanks for joining us. I'm Diane Rehm. The Supreme Court rules to uphold President Obama's health care law. Eric Holder becomes the first sitting attorney general to be held in contempt of Congress, and Utah Sen. Orrin Hatch and New York Congressman Charlie Rangel survive their primaries. Joining me for the domestic hour of the Friday News Roundup: Ron Elving of NPR, Karen Tumulty of The Washington Post, and John Harwood of CNBC and The New York Times.
MS. DIANE REHMAs always, you are part of the program, so I invite you to join us, 800-433-8850. Send us your email to firstname.lastname@example.org. Join us on Facebook or Twitter. Well, it's been quite a week, folks. Good morning to you.
MR. JOHN HARWOODGood morning.
MS. KAREN TUMULTYGood morning.
MR. RON ELVINGGood morning, Diane.
REHMGood to see you all. Ron Elving, the court said the law was upheld as a tax and not as part of the Commerce Clause. What's your reaction?
ELVINGThis was an alternative that was given to the court as a different way to look at it besides the Commerce Clause back in March when Donald Verrilli, the solicitor general of the U.S., argued the case before the Supreme Court. And the White House was putting it out yesterday that they had had a strategic discussion of all of this and that Eric Holder weighed in on this and that he had said that was a good idea. Of course, yesterday, rather, was not a good day for Eric Holder where he was held in contempt by the House.
ELVINGBut in terms of this case, it was always an alternative back to 2009 when they were putting this law together when it was just in the soup stage -- wasn't soup-yet stage. It was always an alternative for them to say, what we're going to do is we're going to enforce this with a tax. We either buy health insurance or you pay a tax.
ELVINGAnd they could've called it that from the beginning, but they didn't want to for the obvious political reason. They didn't want to take office and start raising people's taxes even if they were raising people's taxes as a penalty for something they could easily avoid by just getting health insurance.
REHMKaren, awful lot of people surprised at Chief Justice Roberts' move.
TUMULTYI do think that people thought that if anybody was going to go over to be the five in holding up the law, it was going to be Justice Kennedy. It turns out, he went the opposite direction. But in reading the opinion, I was most fascinated by one passage where Justice Roberts said, look, it is not the court's job to save Americans from their own political choices.
TUMULTYWhat the court is here to do is to -- if -- to find a way that if a law -- if Congress does something, our presumption should always be that we should look if there is any justification for it. And if people want to fight about the wisdom of a policy, that's what elections are for, that is what politics is for. That is not what the court is for.
REHMJohn Harwood, your reaction.
HARWOODWell, I think, as surprising as Karen indicated as the decision was, it was even more surprising the way it was reached. Some people thought that Roberts would be with the liberals but only if Kennedy was his wing man. And that didn't happen. There is an analysis which former Roberts' clerks and other people have put forward over the last 24 hours saying that this was a tactical defeat for the Conservative Movement but a long-term strategic victory because of the reasoning that Roberts invoked, that is, upholding the law or the mandate as a tax.
HARWOODBut having a narrower reading of the Commerce Clause and circumscribing federal power in the future, I think, is also worth noting since we're talking about taxes, and people have a general conception of what taxes mean. That the Congressional Budget Office has estimated that fewer than 1 percent of Americans would end up paying the tax because, of course, the tax is levied or the penalty is levied on people who can buy health insurance but don't. Well, the vast majority of people do, in fact, have health insurance and the ones who don't, if they can afford it, they're not subject to the penalty.
REHMNow, I came down the elevator this morning with someone who said to me what the American people do not realize is that they have just had imposed on them a $1 trillion tax. Now, is that how it's going to be played, Ron Elving?
ELVINGWell, yes. There will be a number of people who will emphasize the costs of this health care law over all. And they won't talk so much about where the savings are which in the whole -- again, going back to 2009-2010, this was one of the great exercises that you have to go through. How is it going to save money, how is it going to spend money?
ELVINGAnd in the long run, after a lot of tweaking, the CBO, scoring it for Congress, said, OK, over the five, over the 10 years, it's actually going to save some money, so, therefore, you can go forward with it with the numbers that you're using. But if you just focused down on the side of the spending, you can say, this is going to cost this much money.
ELVINGIt's going to have to come from somebody. But a lot of the tax burden does not fall on individual taxpayers. And the suggestion that because John Roberts found this a tax, that penalty tax that John was just talking about a moment ago that only a few people are going to have to pay and most of the people who'll have to pay it are probably going to be eligible for the lower income exemption. That does not amount to $1 trillion, and that's a deceit.
REHMWell, Karen, you've got the House Republicans saying they're going to vote on an up or down on the health care law. What's going to happen here?
TUMULTYOh, I think what's going to happen is that they're going to vote to repeal it. But it still takes 60 votes in the Senate, and as long as Barack Obama is president, it takes his signature. So this is...
HARWOODWouldn't be -- wouldn't this be at least the second time they've repealed it?
ELVINGIt's way more than the second. They've done it several times.
TUMULTYSo it's -- this is political theater. There is, however, a real question about the degree to which, you know, the states are going to drag their heels going into the November election. And Mitt Romney was up there yesterday within minutes of the decision practically. First of all, it's interesting, within three hours of the decision, over $1 million of campaign contributions had poured into Mitt Romney's campaign, and he is still saying, on my first day in office, I'm going to repeal this.
HARWOODAnd, Diane, it also raises the stakes in the election in another way which is that, first of all, there's the presidential election, and Mitt Romney says that by executive order, he's going to, in effect, waive the requirements on states and denude the law that way.
HARWOODBut, secondly, if the Senate flips hands to the Republicans, there are some people who believe that when you consider the law as tax, as Roberts said, that they can use expedited voting procedures, that you can't filibuster to strip out some of the spending in the bill and prevent that -- in effect, prevent the law from being implemented. We'll see. But that's the argument.
REHMWhat about the court's limitation on the expansion of Medicaid? What is that going to mean for states, Karen?
TUMULTYYou know, well, one of the things that has been sort of lost in this whole debate, except by wonderful correspondents like NPR'S Julie Rovner, is that...
REHMWho'll be on this program on Monday.
TUMULTYOh, well, great. Well, I didn't even know that. But, you know, half of the expansion of coverage in this bill comes by expanding the federal Medicaid program. And the -- basically, what the original bill told the states was you either expand this program to cover absolutely everybody under 133 percent of poverty or you will have to lose all of your Medicaid money. What the court decided was that they couldn't penalize states for not going along.
TUMULTYBut there's a stick in there, and there is a carrot, and that is that the federal government, for the first few years in particular, picks up almost all the costs of this expansion of Medicaid. So the question will be whether the states will turn down essentially all this money that Washington is offering them to cover poor people.
REHMAnd as you can hear during the domestic hour of the Friday News Roundup, we are talking primarily about the political impact of this ruling. I want to let you know that on Monday with NPR's Julie Rovner, we're going to focus on how this will affect you as a consumer. So I hope you'll hold your consumer questions until then. John Harwood, is there going to be or has there already been a conservative backlash against John Roberts?
HARWOODYes, people are criticizing him. But, again, when people look at the underlying reasoning, there's some people who think that he's made a brilliant, long-term advance for the conservative movement because of his -- how he interpreted the Commerce Clause. I just wanted to add one thing to what Karen said.
HARWOODI think the -- how states react to this is going to be a fascinating test of the vibrancy and durability of the Tea Party movement and the debate over the role of government because some of the states that turn down, say, stimulus money, even though by all political laws that all of us have been accustomed to understanding since we've been covering this stuff, people take free money, right? And so states would take the 100 percent money in the beginning because everybody wants to do good things for people in their states.
REHMWho need it.
HARWOODExactly. But to the extent that we've had a polarization about the role of government and people come to the conclusion that, wait a minute, it's not free money. It's bankrupting the country. We're not going to take it. Then you have a real test within those states for conservative governors, for example, pitted perhaps against the medical industry or hospitals, which -- or nursing homes which want that money, and we'll see how that plays out.
REHMSo, Ron Elving, this law has been unpopular. Is there -- or what can Democrats do before the election to change people's vision?
ELVINGThey might try going back to the very beginning and recasting the way they put this law forward. I think when it came out in 2009, there was a presumption that people were going to kind of give it the benefit of the doubt and that Republicans were going to participate and that there was going to be some sort of working out of the differences. That didn't happen, and it became a very partisan exercise.
ELVINGAnd that made it extremely difficult to sell it to people, and the individual parts of the bill, in many cases, for example, keeping your children on your own health plan until they're 26, that's very popular. The pre-existing conditions element, that's very popular. So if you take the individual parts of the bill, many of those are enormously popular, but the overall image of the bill is as a big federal Big Brother being imposed on you. And the Democrats need to go back and recast it as something for each individual American to benefit from.
REHMRon Elving, Washington editor for NPR. Short break here. When we come back, we'll talk about the court's immigration ruling and Eric Holder.
REHMAnd welcome back to the Friday News Roundup, the domestic hour on Fridays as we do each week and invite you to be part of the program. Call us on 800-433-8850. We're on Facebook. You can join us on Twitter. Ron Elving is here. He's with NPR. John Harwood is with CNBC and The New York Times. Karen Tumulty is with The Washington Post. And, of course, we had another big ruling this week, John Harwood, on immigration. Tell us what it said.
HARWOODWell, in the immigration ruling on the controversial law in Arizona, the law struck down three major provisions -- or the court struck down three major provisions but upheld the one that was the most polarizing, which is the papers, please, provision where people -- police officers who stop someone in the course of doing their jobs are able to ask for their immigration papers.
HARWOODThis is something that led Mitt Romney and his reaction -- because Mitt Romney is trying to repair some of the damage that he suffered among Hispanics during the primaries -- he emphasized state's rights but didn't talk a whole lot about Arizona. He said he disagreed with the decision. President Obama, who won three out of the four -- or the administration did --emphasized the part that remained and said nobody should have to live under suspicion because of who they are and how they look.
HARWOODAnd Democrats are hoping to continue riding this issue to drive a wedge between Republicans and Hispanics. I want to make one other point about your question to Ron earlier about how Democrats respond to the health care and whether they need to change the image of the law. We had a NBC/Wall Street Journal poll this week that underscored how, in so many respects, the political parties are talking to radically different audiences. The overlap is shrinking.
HARWOODIf you look at the popularity of the health care law by race, overall in the country, 35 percent of the American people said the health care law was a good idea, 41 percent, bad idea. But break it down: whites, 29 percent good idea, 50 percent bad idea. Mitt Romney has a large lead among white voters. African-Americans, 67 percent say they think the law is a good idea, 4 percent say it's a bad idea, and with Hispanics, 48 and 20. Now, that's where there's some play in overlap in the middle. But these parties are talking to much different coalitions.
TUMULTYWell, that's right, and among Democrats, support for the law is, I believe, above 90 percent, whereas among Republicans, seven out 10 of them oppose it. What's interesting, though, is that independents are also not particularly enamored with the law, although by a much closer margin, I think it's something like 6-4.
ELVINGAnd there's a chance. We don't know this yet, and we're all waiting for polling breathlessly. But there is a chance that the imprimatur, the sort of cloak of acceptability, respectability, legitimacy that's given by John Roberts' decision in this case -- not just the fact the four liberals were for it, but that John Roberts wrote it, that everybody is talking about it as John Roberts' opinion -- that could lend a little bit, at least open a window of acceptability for the law, for people, independents that Karen has just mentioned, to take another look.
ELVINGNow, it may close very quickly, and they are going to be inundated with information and antipathy information towards the bill, towards the law. But there is at least a window in which the White House and supporters of the law might be able to get people's attention again and say, look at the parts of the law you like. Let's talk.
REHMAnd what about on the immigration law, how does that break down?
ELVINGWell, on the immigration law, of course, you do see a tremendous amount of feedback from, say, the Tea Party conservatives about states' rights and about the need to regularize immigration law in this country. And you see a lot of criticism of the president for not having led. In other words, he didn't prioritize passing a comprehensive overhaul of the immigration laws in his first couple of years in office when he had a Democratic and majority and could've done it.
ELVINGNow, of course, Congress is in irons. This capital city is paralyzed politically with polarization, and you're not going to get an immigration law right now. He could have done more in the first two years, and that's the point that Mitt Romney has made, and that's a polling point that I think he can make against the president. But among Hispanics -- and as John mentioned, this is the critical swing vote in November of 2012 -- among Hispanics, the president's position on the Arizona law is clearly more popular.
TUMULTYOne thing, though, that was interesting about the case itself was that the government -- the administration did not fight this case out on civil rights grounds, not on -- under the Equal Protection Clause of the Constitution. Their basic argument was, you know, state -- this is -- immigration is a federal issue. States should -- are overreaching, and that was where the court seemed to come down as well in those three provisions that it struck out of the law.
TUMULTYBut what was interesting -- John mentioned that they allowed the so-called papers, please, provision to stand. But they also put the state of Arizona on warning that this may not be the end of it, that they are going to be watching very closely as to how this is implemented and if it does, in fact, seem to be racially discriminatory.
HARWOODAnd, Diane, on the polarization point that was Ron was talking about, it could end up -- if we see the diversion trends among Hispanics and whites, for example, in their presidential preferences -- getting a strong geographic dimension, as well as a demographic one with Democrats making a stronger play in the Southwest for states like Colorado, Nevada, Arizona even, Republicans taking their path to 270 on the Midwest where you have more white working-class voters that they can appeal to.
REHMRon Elving, Justice Scalia wrote some very strong words about this immigration ruling. Both Linda Greenhouse in The New York Times, E. J. Dionne, The Washington Post, wrote about Scalia's writings. What was your reaction?
ELVINGOn Monday afternoon when the court ruled in the Arizona case -- or I shouldn't say Monday afternoon. In the morning when they were reading the opinions, a lot of the reaction came in the afternoon. But Scalia took the unusual step of emoting to some degree from the bench and not only reading his dissent but talking about the politics around the immigration issue.
ELVINGAnd he specifically brought up the recent decision by the president to stop deporting the 16-year-olds, people who were brought to this country under the age of 16 by their parents illegally but who have, otherwise, good records, no criminal record, going to school, serving in the military. This is in essence the DREAM Act that the president wanted.
REHMWhich was not part of the decision.
ELVINGNo. It had absolutely nothing to do with the decision. And, in fact, the president only changed the policy earlier in the month of June, whereas this case had been argued a long time ago, and it was no part of the case whatsoever. But Scalia brought it up and started talking about how upsetting that was to him, and clearly, he had something, some kind of burr under his saddle not just on this case, but something else was bothering him.
ELVINGAnd I think a number of other people noted at the time how unusual this was, how personal it seemed, and he seemed to be mad at Chief Justice John Roberts about the Arizona decision but so mad that people wondered if there might be another decision that Scalia disagreed with the chief justice on. And that was what was really motivating that diatribe. And he didn't want to do it on the very last day of the court, which, of course, was Thursday, the health care day. So he did it on Monday.
HARWOODMuch more natural to trash talk Obama than to trash talk Roberts.
REHMKaren, any thoughts on that?
TUMULTYWell, I just think it'll be interesting to see how many of the Supreme Court justices are picnicking together on the July Fourth.
HARWOODWell, kind of like Eric Holder at the congressional picnic on the eve of his contempt thing.
REHMAll right. And you just raised Eric Holder becoming the first Obama cabinet member, the first sitting U.S. attorney general to be held in contempt of Congress. This is a complicated story. Let's have it from whichever one of you can explain it succinctly to our listeners. John Harwood.
HARWOODWhat, you mean, you think it's more complicated than Republican and Democrat?
REHMYeah, right. Right, right, right.
HARWOODLook, this is an operation that went by the name of Fast and Furious under which weapons crossed the border into Mexico with the knowledge of people in the government, with the idea that…
REHMWith the knowledge of people in this government.
HARWOODCorrect. With the idea that they would then track where those weapons went. There was a similar operation that occurred during George W. Bush's presidency. But, of course, this one occurred on Obama's watch. There was a -- some of the guns in question were found on the scene of a shootout in which a U.S. agent lost his life. The agent's family is very upset about that. Republicans have been prosecuting an investigation.
HARWOODThe administration has withheld some documents that are relevant to the period after this came to light. And the Republicans on the Hill are not satisfied, and they're pursuing this. I think it is -- given the history of Republicans' and Democrats' total, permanent war over the last 10 to 20 years, it's reasonable to presume that there's a heck of a lot of politics in their decision.
TUMULTYYeah. The theory behind the Fast and Furious operation was that, you know, the way it was working was that they were catching a lot of small fish in these things, but they really wanted to catch bigger operators in the Mexican drug cartels. So the idea, which the ATF later decided was boneheaded, was they were going to kind of let the guns go -- they were -- they called it gunwalking -- and then hopefully catch people at higher levels trafficking in these guns.
TUMULTYThe question is whether the FBI, whether the Justice Department in Washington was involved in this very flawed decision or whether this was just essentially something that the regional ATF guys had cooked up on their own. And I think that is one of the things, one of the real substantive issues that they -- Congress is trying to get at here. But it also plays into a whole bunch of conspiracy theories that have been floated by, you know, the National Rifle Association, Gun Owners of America, that, you know, this was -- that this was part of some bizarre plot on the part of the Obama administration to...
REHMTo do what?
TUMULTYTo essentially wreak havoc so that people in America would vote for more gun control.
ELVINGReinstate the assault weapons ban that expired. That -- that's the focus.
HARWOODI do think we have to stop and call this for what it is. That is crazy talk.
HARWOODIt is preposterous.
ELVINGBut it is the best opportunity the NRA has had in some while because there hasn't been much gun limitation legislation in quite a while. It's the best opportunity the NRA has had to go to Congress and say, we're going to score this vote. This is important to us, and here is why, and we want you with us on that. And that is an enormously potent lobbying effect. In the end...
REHMBecause what it does.
ELVINGWell, because if you don't have a perfect record with the NRA, you don't run for Congress in a lot of districts, and that includes whole states for senators.
HARWOODBut the underlying theory is complete fiction.
ELVINGThere is no evidence for it. It is totally a theory, but it was enough to get the NRA to score it. And that's not ultimately fiction because if you don't get a perfect NRA score...
ELVING…then you've had it in a lot of districts around the country.
REHMOK. So the administration has turned over some 7,500 documents and has said they're not going to turn over any more. Where does it go from here, John?
HARWOODNot very far because now that the House has done this, it goes to the Justice Department to pursue this citation, which, of course, the Holder Justice Department will decline to do, as the Bush Justice Department declined to pursue contempt citations against White House officials.
REHMSo the whole thing is wasted time, wasted money, wasted energy?
TUMULTYWell, you can inflict a lot of political pain in these fights over documents. I mean, those of us who were in Washington for Whitewater, those of us who remember what the Democrats did during the U.S. attorney firings during the Bush administration, it's -- politically, it can be very, very damaging.
REHMBut the House also voted to authorize civil action against Holder. Does that sort of pave the way for a federal court challenge to President Obama's assertion of executive privilege?
ELVINGTheoretically down the road, but no one expects Eric Holder to be the attorney general a year from now. Everyone expects that if Obama is re-elected, there will be a new attorney general. And certainly if Obama is not re-elected, there will be a new attorney general. And this civil case will take a very, very long time to grind through the courts. And I think John is right. It's pretty much over.
HARWOODBut I also think, Diane, that the -- Karen talked about the damage that can be inflicted by these fights over documents. I think the White House likes this fight because I think they believe that they can cast the Republicans as extreme, as pressing an agenda that is separate from the core issues facing the country about reviving the economy.
REHMJohn Harwood of CNBC and The New York Times. And you're listening to "The Diane Rehm Show." The House and Senate negotiators working on deals for the highway bill and student loans, Karen.
TUMULTYThere is an absolutely huge headline in here. It turns out that Congress is actually able to get stuff done.
TUMULTYBasically the -- Congress was...
ELVINGA highway bill. Imagine.
TUMULTYAnd they, you know, they were up against a deadline, a couple of deadlines. One is that -- I believe it was on July 1 the interest rate on student loans was going to double. That was going to be very, very unpopular. And then the other thing that was happening was that the government's ability to levy fuel taxes to fund these highway programs was also going to expire. And then, finally, the third kind of deadline, Congress wants to go on recess.
TUMULTYSo they were actually able to come to a deal on student -- on a number of things. The Republicans compromised. They gave up the fact that they wanted the Excel pipeline in this thing. The Democrats gave up some environmental restrictions they wanted, and it looks like they're getting it done.
REHMSo what is that going to mean for students with loans? Ron.
ELVINGIt will probably mean that they won't notice that because -- that this has happened because their low rate will remain low. However, there are a number of new provisions that are going to make getting a student loan a little bit more difficult, maybe in a few cases more expensive, a little bit more onerous. That's going to be in there. So some students, the sharp-eyed students are going to notice that this is getting a little tougher for them, but at least they won't see the cost of the loan double. And that would have gotten their attention.
REHMAnd what about the money going into the highway and transit systems? John Harwood.
HARWOODWell, it means a lot of projects that have been ongoing will not be interrupted. You know, you still got a long-term debate with the -- which the administration has been driving, about whether or not the amount of money we're investing in our infrastructure is anywhere close to being adequate. And the administration is pushing the idea for this infrastructure bank, which Republicans have resisted. So this is a partial resolution, but not a complete resolution of the debate between the parties.
REHMAnd, finally, before we break, how significant is Charlie Rangel's win and Orrin Hatch's win? Karen.
TUMULTYWell, a couple of things. First of all, Charlie Rangel won very, very narrowly, and, in fact, there are some votes still being counted in New York. He won this by an ethics controversy. He won this by the fact that his district had been redrawn. I think this does prove that all politics is local. And Orrin Hatch, unlike his colleague Bob Bennett two years ago, saw a challenge coming from the right, from the Tea Party.
TUMULTYHe was prepared for it. He spent a lot of money. He also altered his voting record somewhat in that he obtained 100 percent vote rating from the American Conservative Union over the past two years. So...
HARWOODSomething that Dick Lugar was not willing to do in as full a measure as Orrin Hatch was.
REHMWhat do you mean he altered his voting record?
TUMULTYHe didn't alter his -- he moved to the right to essentially appease a lot of Tea Party people.
ELVINGHe changed his voting habits.
REHMHe changed it.
TUMULTYHis habits, not his record. Sorry.
REHMAll right. That sounds a little better. All right. We'll take a short break. When we come back, it's time for your calls. 800-433-8850.
REHMAnd welcome back. It's time to open the phones and take your calls. First to a caller here in Washington, D.C. Conrad, you're on the air.
CONRADGood morning, Diane.
CONRADI am calling just to make a note that I haven't heard anybody make in the debate yet which is with reference to the health care decision. I think that this is -- in addition to all the other implications, it's a victory for the principle of lifetime appointments to the Supreme Court. Does anybody else -- does anybody think that Chief Justice Roberts could have written this decision if he had to worry about losing his job?
ELVINGThere was a joke going around yesterday that John Roberts was sure going to get a primary now. Well, he can't get a primary. He's not elected in the first place. And in the second place, he's there for life. And, you know, we've heard about him saying things to some of the other younger justices about, look, we're going to have to work together for 30 years. And he may very well do that with some of the younger justices. So he is interested in that long haul.
ELVINGHe probably wouldn't have been interested in the job if it weren't for the long haul. But it depends on whose ox is gored because on a particular occasion, you're going to hear some of the same people who are praising the idea of lifetime appointments to the Supreme Court or the federal bench in general. And then you might hear the same people very unhappy with the idea of how long Antonin Scalia has been there since the early 1980s.
HARWOODIt is a decision, Diane, that Orrin Hatch would not have embraced before that party -- that primary that he survived on Tuesday. And, you know, you were asking about how did he alter his voting record. It's kind of like if you decided that you were not satisfied with the gargantuan ratings for your show and you needed National Rifle Association listeners to tune in to "The Diane Rehm Show" and started having shows about the hysteria on Fast and Furious. That's the kind of behavior-altering that you might see.
HARWOODOr you could start serving tea.
REHMI could. To Chelsea, Mich. Good morning, Barb.
BARBI admire and appreciate you.
BARBThank you. I have a question about the Fast and Furious issue. I saw on "The Rachel Maddow Show" a woman from Fortune magazine who did an extended piece about how it never really was about letting guns walk. The problem was that the ATF agents were not allowed to arrest people because the prosecutors would not let them. So one example is -- one of the Arizona laws is that you have to say that you are buying guns for yourself.
BARBBut in reality, you can go in and buy, say, 50 AK-47s and then on your way to the parking lot, you can change your mind and pass them up to other people. And the law can't touch you because it was legitimate to change your mind.
TUMULTYI'm not enough of an expert on the Justice Department. But I read the Fortune magazine report as well, and I found it to be a very interesting story. But the -- nonetheless, I mean, if those were the laws and -- the ATF should have been aware of them as they were setting into motion this policy. And they have gone publicly and now acknowledge that the whole idea was not a good one.
REHMEnd of sentence. Thanks for calling, Barb. To McHenry, Ill. Good morning, Phil.
PHILGood morning all. I want to see if your people can't help me understand something. I read The Wall Street Journal and the Chicago Tribune this morning and then went online. They all say that Roberts' voting as he did was a political decision because of the way he did it. But if he had voted with his voting record in his past "convictions," it would have been a very -- condemned as a very political vote. And they quoted an NPR analyst as having said this yesterday afternoon. I wanted that explained to me. I don't totally understand it.
HARWOODThe reputation of the court has suffered in recent years as the entire country has become polarized on -- along partisan and ideological lines, dramatized most completely in the Bush v. Gore decision when you had Republican-appointed justices forestalling the recount in Florida, Democratic-appointed ones trying to make it go forward. We've seen in polling that people have a lesser opinion of the court. John Roberts, in his roles as the institutional leader of the Supreme Court, was surely mindful of that.
HARWOODNow, you can't get inside of his head and know exactly why he made this reasoning, but one of his clerks wrote a piece indicating that that was part of -- or speculating that that was part of his thinking. But, again, he did it in a way -- this is where the political description might be appropriate -- that was, with respect to the commerce clause, consistent with his principles, consistent with his own background but also applying some restraint to how he advanced his principles.
HARWOODHe talked in his confirmation hearing about being an umpire who called balls and strikes, and he quoted all over Wendell Holmes in the decision about how if it's a close call, about whether it was valid or not, you lean on the side of it being presumptively valid and let the voters decide. And that's, in the end, what he did.
TUMULTYThe reason conservatives love this -- what he did with the commerce clause is that they greatly fear that if Congress could use the commerce clause to force people to buy health insurance, they could use the commerce clause for a whole lot of other stuff.
TUMULTYAnd, yes, famously, that they could force people to eat broccoli, and so one thing that conservatives like about this decision is that he did argue that you can't pass this under the commerce clause. And they are hoping that this is going to be a precedent in the future that, you know, the commerce clause is of limited use.
REHMHere's an email from Eileen in Lansing, Mich. "Please consider the possibility that John Roberts might have been tired of hearing his court called the Kennedy court where every lawyer argued only to Kennedy, the swing vote. Some of this health care decision makes me think, among other things, he was taking his court back big time.
ELVINGThis is going to be said about this situation because...
REHMIt's already been said.
ELVING…we have seen magazine covers of Anthony Kennedy with a headline the only justice who matters. We've seen many people describing this as the Anthony Kennedy court or just the Kennedy court. He's the only person you need. He's always the fulcrum. He's always the swing vote. Now, in this particular case, it's not clear what would have happened if Kennedy had joined Roberts in this particular view, but it was clear right from the beginning that Kennedy wasn't going in that direction.
ELVINGHe was going south with the other three conservative justices. And so it was all up to Roberts. There's some speculation that he might even have gone one way in the first conference in March and maybe changed his mind between then and June. We don't know that. Probably, we'll never know that. And that's an object of speculation. I want to make that very clear. But at some juncture or another, other issues came into effect for John Roberts, including, I think, this question of activism.
ELVINGHe said over and over in his opinion. He said, we need to consider that anything Congress passes has a certain presumption, and we really need to be clear that it's unconstitutional. If we can find a way to see it as constitutional, that's what we should do. To do anything else is judicial activism, that horrible beast that we've heard so much about from conservatives for decades.
HARWOODOn this point that Ron just raised about the magazine cover with Anthony Kennedy, the only justice who matters...
HARWOOD...can we just take a moment to celebrate the blow that was struck in this decision against the premature blowhard punditry about where the court was going that turned out to be complete B.S.?
REHMWoo. Here we go to Joseph in West Palm Beach, Fla. Good morning.
JOSEPHGood morning, Diane. Just wanted to say there a lot of people in this country, I mean, who go to the health care law, who really don't understand it and never did, and they gather their information based on what the republicans tell them that it's about. My wife and I are both 60 years old. She has a pre-existing condition. She had a stent procedure done about 11 years ago. She's really healthy. She works out every day, doesn't have any problems and hasn't had any since.
JOSEPHHowever, I work for a small company, and if I were to purchase the insurance that they offer, it would cost me over $2,000 a month. Presently, we're on COBRA, and it runs out at the end of this month. And we don't know what we're going to do because I can't find anybody who's going to insure my wife. If people knew that, that there were real faces behind all of this rhetoric, they might have a different view of it. Thank you very much.
REHMThank you for calling. Karen.
TUMULTYYou know, Joseph, that makes such a good point. And I -- in fact, when I was at Time magazine did an entire cover story on my own brother's inability to -- first of all, as soon as he got sick, his health insurance decided it wasn't going to cover it. And then he couldn't buy anything else. What people -- and most of us are covered by our employers.
TUMULTYAnd if you are covered by a large employer, you're really insulated from a lot of what goes on in the insurance market, among people who work for small businesses or people who are in the situation of essentially having to go out there and kind of fend for themselves as they try to buy insurance. And, you know, there are just a lot of people in this country who cannot buy insurance.
REHMHere's an email from Christine in Crofton, Md., who says, "I'm very concerned by the comment insinuating that the NRA can determine who does or does not run for political office. Does the NRA truly have that much power?" John.
HARWOODThey've got a lot of power as Ron suggested. And that's why you saw 17 Democrats voting with Republicans yesterday on what otherwise would have been a down the line partisan kind of exercise.
REHMOn what issue?
HARWOODOn the Holder contempt citation.
HARWOODSorry. The people are afraid, conservative Democrats as well as Republicans, that if you get on the wrong side of the NRA, that money and primary challenges will come your way, and that's -- the same is true on the left with some interest groups, labor unions or environmentalists in certain districts. So it's not unique to the right, but it is true of the NRA.
TUMULTYAnd it definitely depends on what part of the country we're talking about. This is particularly true for members who run in rural districts. I think that's -- and also parts of the Midwest. The NRA is very powerful.
HARWOODAlso notable, Ron Barber, who replaced Gabrielle Giffords in Arizona, voted with the Republicans.
REHMAll right. To Rachel in Houston, Texas. Good morning.
RACHELGood morning. How are you?
RACHELGood. I just wanted to talk about the Fast and Furious thing a little quick. I was curious to what end the operation -- what they were trying to prove or what the point of it was and also how politicians with the NRA plan on being able to use what happened in -- as far as lawmaking goes when it didn't even happen on U.S. soil.
ELVINGThe idea behind Fast and Furious was to catch bigger gun dealers and to tie some of the gun sales and illegal gun trafficking to some of the big cartels in Mexico and use it as a way bus stop this enormous evil that is consuming so much of Mexican society. That was a very grand and, ultimately, misdirected ambition. As far as how it's come backed to bite people here, I think John already mentioned earlier that there was a shootout in which some of the guns that had gunwalked in to Mexico came back and killed a U.S. border agent. And that has been the emotional cutting-edge of this issue all along.
REHMHere's an email from Robert, who says, "How does Mr. Holder's behavior compare with Karl Rove's refusal to honor a congressional subpoena?"
TUMULTYWell, I think what is, you know, groundbreaking here is that this is the first time an attorney general has been hit with one of these contempt of Congress citations.
REHMAnd here's another from Gary in Ann Arbor. "The initial irony of the Fast and Furious affair is that Arizona's own lax gun laws make it a major source of weapons for the drug gangs, causing the violence that frightened its citizens into passing anti-immigration laws."
REHM"So we -- and the second irony," says Gary, "is that Arizona wants to drive out illegal immigrants seeking work while attracting illegal gangs seeking guns."
ELVINGYes, there is irony in all these things and certainly a great deal of irony in the way that the existence of guns in the hands of outlaws forced people to feel fear, which they then translate into a need to have more guns of -- for themselves, which then makes the whole society less safe.
REHMAnd you're listening to "The Diane Rehm Show." To Albuquerque, N.M. Good morning, Sid. Welcome.
SIDYes. Thank you for the call. A great show. I have a question that I was wondering I could -- maybe your guests could answer is, I read the opinion yesterday by Justice Roberts. And in the opinion, while he's addressing the Commerce Clause and the tax -- taxing power by Congress, he points out that Justice Ginsburg questioned why the court needs to find the Commerce Clause unconstitutional or not given the fact that they found that it was constitutional under the Congress' power to tax.
SIDAnd typically, Court of Appeals and the Supreme Court will avoid finding an argument unconstitutional if they find it constitutional on an alternative argument. And I'm just wondering why the guests feel that Justice Roberts got importance to overrule on the Commerce Clause despite the fact it was upheld under the taxing clause.
ELVINGWell, as John as pointing out earlier, it was a very important thing to John Roberts to limit the Commerce Clause here and say that it was fine to regulate commerce between states, but it was not fine to compel people to buy things that they had never wanted to buy before.
HARWOODTo an effect, create commerce in order regulate it.
ELVINGThis was as important to him as anything else that was before the court in this case. They could have just said, well, look, we're going to pay any attention to the Commerce Clause argument because we're going to uphold it as a tax. But since it was obviously the focus of the primary argument of the government and the primary argument of the administration in defending the law, it was pretty hard to ignore.
REHMOne final issue and that is about JPMorgan Chase. There is now an estimate that the losses could run as high as even $9 billion. Is Jamie Dimon, the head of JPMorgan Chase, likely to be invited back to Washington to speak to members of Congress?
HARWOODYou bet. If you saw the reaction he got when he testified on the Hill, people -- despite this tremendous embarrassment he suffered -- have a high opinion of Jamie Dimon and JPMorgan and the political donations that come from people connected with JPMorgan.
REHMSo you're saying they'd just like to have him back for a chat?
HARWOODThat's part of the reason. It's not the only reason. Look, Wall Street's an important part of the American economy and Jamie Dimon is, as President Obama has said, one of the best respected bankers in the country. That being said, this is a big stain on JPMorgan, a big setback for the shareholders. They've lost $23 billion in market value since this happened and...
REHMAnd who's going to pay for this?
ELVINGWell, ultimately, the stockholders of JPMorgan. And if JPMorgan should go belly up, then the rest of us will have to pay for it. And the taxpayers will have to get involved in some kind of bailout because this is one of those too-big-to-fail banks. But when -- if Congress cared enough about this and really felt that this was another example of where Wall Street had gone so far straight ahead to be reigned in, they could actually pass legislation. But if they have a hearing, they can just, you know, give him a hard time, ask him some sort of tough questions.
REHMAnd he has been one of the ones strongly against further bank regulations.
ELVINGAbsolutely, especially the Volcker Rule.
REHMRon Elving of NPR, Karen Tumulty of The Washington Post, John Harwood of CNBC and The New York Times. Have a great and peaceful weekend, everybody.
HARWOODAnd have a great Fourth of July, Diane.
ELVINGHappy Fourth of July.
REHMThank you. And thanks for listening. I'm Diane Rehm.
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