Health Care
1:16 pm
Mon July 2, 2012

Health Care Decision Gets Judged In Court Of Public Opinion

Originally published on Mon July 2, 2012 2:45 pm

Transcript

NEAL CONAN, HOST:

This is TALK OF THE NATION. I'm Neal Conan in Washington. And topic A in this city remains the Supreme Court decision on health care handed down on Thursday. President Obama claims validation of his signature legislative achievement. Republicans, including presidential candidate Mitt Romney, vow to repeal it.

Questions abound about the surprise vote of Chief Justice John Roberts, the limits the decision may place on the powers of Congress, the option it hands to the states on the expansion of Medicaid, and of course its effect on the elections.

In an expanded edition of our regular Opinion Page, we'll hear from two commentators, read from selected op-eds. We want to hear from you, as well. What do you take away from the health care decision? 800-989-8255. Email talk@npr.org. You can also join the conversation on our website. That's at npr.org. Click on TALK OF THE NATION.

Later in the program, to Mexico, where the electorate turned back the clock yesterday and elected the presidential candidate of the party ousted 12 years ago. But we begin with health care, and here in Studio 3A, Jonathan Turley, law professor at George Washington University, always nice to have you on the program, Jonathan.

JONATHAN TURLEY: Thank you, great to be here.

CONAN: And with us from our bureau in New York, Jonathan Chait, a writer for New York Magazine. And thank you for joining us.

JONATHAN CHAIT: Thank you.

CONAN: And you will disagree on a great deal, but you both cited reports that Chief Justice John Roberts switched his vote to join the four more liberal justices to uphold the president's health law. Jonathan Turley, where's the evidence?

(LAUGHTER)

TURLEY: Well, we have major news organizations saying they've got very good and reliable sources to establish this. It would not be in any way uncommon for a justice to switch. It's actually not uncommon for what was thought to be the majority opinion to be the dissent. What is a little bit interesting here is the details that have been revealed.

This is a very secretive court. It's very insular. And this report comes with a lot of details about Justice Kennedy pursuing Roberts in the last month, trying to get him back into the fold, that originally when they went...

CONAN: The conservative fold.

TURLEY: Yes, and the report says that when they went into the conference after the oral argument, Roberts, as expected, voted with the conservative wing. And then he bolted about a month before, at least that's what the report says. Those are surprising details to come out of a court that is extremely cautious about leaks and that type of information.

CONAN: Jonathan Chait, you wrote that the purpose of this leak was to infuriate conservatives.

CHAIT: I think that's certainly possible. I think it's pretty clear that this story comes from conservative justices, either the justices themselves or from their clerks. And I think they're trying to whip up conservative outrage at John Roberts because the conservative justices who he didn't join are obviously enraged at him and think their fellow conservatives should share their outrage.

CONAN: And the reason for the switch, why do you think, Jonathan Chait?

CHAIT: You know, most people think, and I agree, that Roberts was looking out for his legacy and the legitimacy of the court and was afraid to make such a high-profile, partisan ruling that on the heels of previous high-partisan, high-profile, partisan rulings would cast the court as not really much of a court anymore but more of a super-legislature, currently controlled by Republicans, that just struck down laws that Republicans don't like.

I think that was a legitimate fear, and I think Roberts kind of, in an odd and surprising, in kind of legally unpersuasive way, went about allaying that fear with his ruling.

CONAN: Jonathan Turley?

TURLEY: Well, I know, many of my friends and many people I respect take that view. I'm less convinced. I mean, first of all, I hope that Roberts would not vote just to create the appearance of more of an agreement on the court if he felt that it was the wrong things to do. I think he did it because he thought it was the right thing to do.

And even though I disagree with him, actually, on the opinion, I respect the fact that he gave his vote the way that his conscience dictated, and I think he honestly believes this about the taxing authority.

I also don't see this as a vindication for Roberts, the court or how it operates. It's a 5-4 decision. It is one of the most splintered decisions of a major case in the court's history. It's baffling. There are so many opinions on issues; you've got a majority opinion from Roberts, concurrence from Roberts, another concurrence from Roberts, a concurrence from Ginsberg, a dissent from Scalia, a dissent from Thomas. I mean, this thing just shattered.

I don't see how this creates a particularly impressive legacy. I also don't think that his opinion holds together that well. It seems to me inherently in conflict when he starts out by saying, look, this violates the Commerce Clause, 'cause you just don't have a limiting principle here.

And then he turns to taxing authority and gives a pretty limitless endorsement of taxing authority, and you're left sort of thinking OK, doesn't that sort of make the federalism this sort of Maginot Line? It's very impressive, it has these big walls, and you just showed a nice road around it?

CONAN: Yeah, it's called Belgium.

(LAUGHTER)

CONAN: Let's read some op-eds, as well. This is from Tom Friedman in the New York Times: It was not surprising to hear liberals extolling the legal creativity and courage of Chief Justice Roberts in finding a way to green light Obama's Affordable Care Act. But there is something deeper reflected in that praise, and it even touched some conservatives. It's the feeling that it has been so long since a national leader surprised us. It's the feeling that it has been so long since a national leader ripped up the polls and not only acted out of political character but did so truly for the good of the country, as Chief Justice Roberts seemingly did. Indeed, I found myself applauding for Chief Justice Roberts the same way I did for Al Gore when he gracefully bowed to the will of the Supreme Court in the 2000 election and the same way I do for those wounded warriors, and for the same reason - they each, in their own way, took one for the country. To put it another way, Roberts undertook an act of statesmanship for the national good by being willing to anger his own constituency on a very big question. But he also did what judges should do - leave the big political questions to the politicians.

And Jonathan Chait, that seems to be the inevitable result of this decision. We're going to decide it at the polls come November.

CHAIT: I guess that's right, and that's - if you can't remember the last time a politician just did what he thought was right regardless of what was politically good, he can't remember very well because, you know, President Obama did it on gay marriage, what, two weeks ago.

(LAUGHTER)

CHAIT: Feels like a year, but, you know, that wasn't something that helped him. But no, that's right. I mean, I think what this does clarify is that that's what is at stake at this election. The election is primarily now about universal health care. That's not what the candidates want to fight about, but that's what the primary thing at stake is. It's will we continue to have 30 million to 50 million people lacking basic medical insurance, or will those people get some kind of coverage?

CONAN: Jonathan Turley, is it too strong to say that this is about will we continue the progressive tradition since Teddy Roosevelt and Franklin Roosevelt and the New Deal and even Part D that was introduced by George W. Bush, or are we going to roll back and cut back services to the people?

TURLEY: Well, we're going to have to see what the backblow on this really is. I think it has energized those people that oppose health care. A majority of people polled seem to oppose the individual mandate. We'll see how that changes now that it's become an established fact.

But you also have a majority of states that were in court opposing it. That's a lot of people that don't like it. It doesn't make for a very good victory lap when most of the people in the stands are not happy with the result. And so we're going to see how far Congress is willing to go here.

I don't think - I'm not too sure how it plays. Obviously, Romney was doubling down on this immediately after the decision. That's very different from his reaction to the immigration decision, where he was sort of flailing on the beach trying to find where he should land. On immigration, they seem to view this as just as good an issue as the White House seems to believe it is. Someone's obviously wrong.

CONAN: Let's see if we can get a caller in on the conversation. This is George and George on the line from Baton Rouge.

GEORGE: Hi, how's it going?

CONAN: Good, thanks. What do you take away from the Supreme Court decision?

GEORGE: Well, I had a question about their decision to qualify the individual mandate as a tax. So if you can justify the individual mandate as a tax, isn't there something in the Constitution about punitive taxes being unconstitutional? And why wouldn't this be considered a punitive tax or a punishing tax?

CONAN: Jonathan Chait, I think the logic was this was a persuasive tax like, for example, the deduction on mortgages; it's trying to influence behavior.

CHAIT: Well, I'm not the one here who's a law professor, so maybe he's the one who should answer the question. But I don't think there's anything specifically in the Constitution against a punitive tax. I think there's something - you can't have a bill of attainder. You can't say we don't like Rush Limbaugh, and Rush Limbaugh has to pay a special tax, but...

TURLEY: The Rush Limbaugh thing is in the Constitution.

(LAUGHTER)

TURLEY: But it's part of the confusion that the opinion left in its wake because the opinion begins with a ruling by all the justices that the Anti-Injunction Act doesn't apply because this is not a tax. And then you have Chief Justice Roberts saying but it is a tax for the purposes of federal jurisdiction and the use of taxing authority.

He says it's not a direct tax. But what's fascinating for those of us who were concerned about the federalism issue is that he describes the tax power as what the court has embraced as a, quote, "functional approach." And he says that it's OK to, quote, "seek to influence conduct of citizens," obviously through the taxing authority.

And that left a lot of people scratching their heads, saying, well, then really doesn't that sort of turn federalism into so much eye candy because if you can, you know, use this to influence citizens, if that's all you need, then who has to bother with federalism.

And the dissent by Scalia and the rest of the conservatives really went after Roberts and accused him of what most people would describe as judicial activism. That is, they're saying you rewrote the statute. You called a penalty a tax - it's not - and then you went on to add this business about states being able to opt out.

CONAN: Let's - thank you, George, and this is another op-ed piece, this one from Charles Krauthammer in the Washington Post: National health care has been a liberal dream for a hundred years. It is clearly the most significant piece of social legislation in decades. Chief Roberts' concern was that the court do everything it could to avoid being seen, rightly or wrongly, as high-handedly overturning sweeping legislation passed by both houses of Congress and signed by the president. Result? The law stands, obviating any charge that a partisan court overturned duly passed legislation. Yet at the same time, the Commerce Clause is reined in. By denying that it could justify the imposition of an individual mandate, Roberts draws the line against the inexorable decades-old expansion of congressional power under the Commerce Clause fig leaf. Obamacare is now essentially upheld. There's only one way it can be overturned. The same way it was passed - elect a new president and a new Congress. That's undoubtedly what Roberts is telling the nation; your job, not mine. I won't make it easy for you.

We're talking with Jonathan Turley, professor of public interest law at the George Washington University. Also with us, Jonathan Chait, a writer for New York Magazine. And we want to hear from you. What's your takeaway from the Supreme Court decision on Thursday on President Obama's health care law? Give us a call, 800-989-8255. Email us, talk@npr.org. Stay with us. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

(SOUNDBITE OF MUSIC)

CONAN: This is TALK OF THE NATION from NPR News. I'm Neal Conan. From the moment the Supreme Court handed down the decision that upheld the Affordable Care Act, interested parties, from pundits to politicians to court-watchers to wonks, have taken to the op-ed pages to hash out winners and losers, pros and cons.

The next act in the health care drama will take place in the states, where governors will have some flexibility on whether to decide which parts of the act to opt out of and which to adopt. Already, several Republican governors, including Nikki Haley in South Carolina, Scott Walker in Wisconsin, Bobby Jindal in Louisiana and Rick Scott in Florida indicated they will opt out of the act's expansion of Medicaid and its provision for state-based health insurance marketplaces known as exchanges.

Today we're covering all the ins and outs of the Supreme Court decision in an expanded edition of our Monday Opinion Page. We want to hear from you, too, of course. What do you take away from this decision? 800-989-8255. Email us, talk@npr.org. Let's go to Larry(ph), and if I push the button properly, Larry's with us from Tucson.

LARRY: Hi, Neal, how are you?

CONAN: I'm well, thank you.

LARRY: Good. I think Judge Roberts voted for upholding it for the wrong reason, and that's what really has me dismayed. If you're conservative, you follow these principles, if you're liberal you follow whatever, but the fact that Congress passed the law and the president signed the bill, I mean, it should not be this extreme.

But the thing that I'm most concerned about as an honest independent is the Democrats don't even know how to explain what's in the legislation, and the Republicans are so busy saying that they're so against something that they were so (unintelligible) and wanted to see happen. It makes no sense.

Romney doesn't have a leg to stand on, in my opinion. He's really hurting his credibility. And Obama's killing himself because the masses and people that this is really going to benefit have no understanding. I have an idea. I want to bring this up: Let's take Medicaid and view it in a totally different light and make people pay for it based on either volunteering for nonprofits or come up with a different way for them, because it's fee-based, to have more shared cost.

CONAN: And interesting idea, but I apologize, not the topic of today's conversation. We're trying to focus on the health care law we've got and rather than substituting, at least not until next January, if Republicans take over the White House and both houses of the - of Congress. But we'll revisit it then, perhaps, but thanks very much for the call.

In the meantime, Jonathan Chait, the politicization of this, you're not a constitutional scholar, but you do follow politics, and this is going to be the subject between now and November.

CHAIT: That's right. I think if you want to look at the political fallout here, the biggest thing is what didn't happen. If the Supreme Court had said this law was unconstitutional, then the epithet unconstitutional would have been attached to it by the Republicans and used against Obama, I think effectively, throughout the campaign. So that's the biggest political bullet that Obama dodged.

Now the kind of the partisan structure of who's on what side has already been set by the Republican campaign. The Republican campaign forced Romney, who basically imposed, as the caller said, essentially the same plan in Massachusetts and was running on the same plan nationalized four years ago, was forced to move way to the right and disavow that, that plan as socialism and an assault on freedom. So I think the Republicans are locked into that view for a long time.

CONAN: And Jonathan Turley, it is going to force more specificity from the Republicans on what they want to do. They have, as the caller rightly said, criticized what they describe as Obamacare. They've not been very specific about what they would do to replace it.

TURLEY: Frankly, I think that there's real punishment waiting on both sides. You know, you have Obama, who won a victory of a law that the majority still do not like when it comes to the individual mandate. In some ways, he might have been better off to lose in front of the Supreme Court. I mean, he would be the guy who tried to get national health care but that citizens would not be facing the individual mandate that they didn't seem to like.

But I think that Jonathan's point is a very, very good one, as well, that the Republicans have vulnerability here. But it's clearly going to be one of those issues that frames people. I think that the big political aspect of this is that people that don't like this law are overwhelmingly motivated. I think that's what's very clear, and you can see that in how the Republican Party is moving solidly on this issue.

CONAN: Here's an op-ed from the National Review Online by Avik Roy on the political part of this: There is much confusion and disagreement among Republicans as to whether or not Obamacare can be repealed by reconciliation, which would require 50 votes in the Senate - and a Republican vice president - instead of the filibuster-proof 60.

Governor Romney has committed to repealing Obamacare via reconciliation: We have to repeal Obamacare, and I will do that with a reconciliation bill. We can do it with 51 votes. But the Senate majority needed to repeal Obamacare is far from guaranteed. Indeed, if the election were held today, Republicans would probably fail.

Today, Republicans control 47 seats in the upper chamber. Olympia Snowe's retirement in Maine - a likely pickup for the Democrats - means Republicans must gain four more seats to control the Senate and probably six to gain a governing majority. Based on the latest polls in each race, if the election were held today, Republicans would get only to 49, and even 49 is not assured.

And Jonathan Chait, there's considerable doubt some parts of the bill, presumably the funding parts, the tax part, could be dealt with by that technique called reconciliation, that's the way a procedure is handled in the United States or can be, but other parts of the bill can't.

CHAIT: Right, that's part of the big debate that everyone's gaming out when they're trying to imagine what a Republican administration would look like under Romney. First of all, they'd have to get a Senate majority or at least get 50 so they could break it with a vice presidential tie.

Then they'd go about seeing how much of the bill they could gut through a majority vote, reconciliation. Now remember, you couldn't take everything out permanently that way because the regulations in the law would still be in place. You can't repeal regulations by a budget measure.

Now, the regulations are really the key thing, regulations that say insurance companies can't discriminate against people with pre-existing conditions and setting up the insurance exchanges. What you can do is, number one, defund programs that subsidize people's insurance like Medicaid and the tax subsidies for people who need some help from the government to afford the private insurance that they're going to try to buy now.

Bu the laws that regulate the insurance market would stay in place, and that means when the Democrats get power back eventually, if Romney wins, they could re-fund that. But Romney could really cut off a lot of funding with a reconciliation bill, make it unaffordable for a lot of people to get insurance, and then administratively, he could really make a wreck of the law.

And I think Republicans are really determined to do it. They're really driven to gut this law. They just think it's illegitimate. They thought it was not only wrong but strikes at the heart of their conception of what America is all about. So they're so determined to attack it, I think they're willing to create a lot of damage in order to take that law down.

CONAN: And Jonathan Turley, as we suggest, turning down - governors turning down essentially free money from the federal government to expand Medicaid because they don't want to spend it that particular way, there would be a requirement, I think 10 years from now, that it would only by 90 percent from the federal government. And indeed saying they will not set up these exchanges that are required by the law, which means the federal government, if it's a Democratic president, would set them up for them.

TURLEY: Well, I think that's right. The Congress always assumed that governors would never walk away from this money. There is a lot of money that they would have to give up. But I think what is missing in that calculus is this is the article of faith for Republicans. This is it. And you've already seen governors come out of the box saying we're going to turn the money down, we're going to do it.

Now, what's fascinating is they didn't have this option under the law. This was sort of grafted on by John Roberts. And I have to say that is the most surprising thing about this opinion because many people, when this law was being considered, argued for an opt-in, opt-out provision. I was one of them. I was on the Hill and I spoke on the constitutionality of the law, and that was rejected. It was not put into the law. And then Roberts basically said I'm going to, through interpretation, say that they have to be given a chance to opt out. And what it did is it put something on a law that wasn't designed for it.

And now you could have a serious problem for the law itself, because this law is based on two premises to make it work. One is getting young people in...

CONAN: Healthy people.

TURLEY: Healthy people who will pay in, and we won't have to pay out. And then second is uniformity across the country. What happens if - you've got a majority states opposing this in court. What happens if a large number of them just says we're not going to go in, we're not going to expand? What happens to that workable base? And we just don't know.

And that was part of the concern about the Roberts decision is in oral argument, Roberts and others said we don't even know what this law does. It's so big, none of us have read it. But he just grafted on a major provision.

CONAN: Let's go next to - this is Tyler(ph), Tyler with us from Grand Junction, Colorado.

TAYLOR: Yes, my name is Taylor(ph).

CONAN: Oh excuse me, I'm sorry.

TAYLOR: No problem. I'm glad to be on the call. My concern is - my reaction when I heard about the Supreme Court passing it was that very, very fundamentally, I mean just very basically, the federal government was given enumerated powers when the Constitution was written, giving them this very short list of things that they could do. Everything else was supposed to go to the states. My concern was, when I saw that they had passed this, was this might be a gateway for - call it persuasion for any other type of subject that they might be able to put on taxes now that they've said you can do it with taxes. You know, what else might they do 10 or 15 down - 10 or 15 years down the road, where they might start putting laws in to persuade us to do other things?

CONAN: This, I guess, Jonathan Turley, is the broccoli argument.

TURLEY: It is the broccoli argument, although we could call it the cellphone argument, because during oral argument it was Roberts who said if you have this ability under "commerce" clause, could you just start to require people to have cellphones? And he clearly believed that that was the gist of why this was wrong.

But when you read his opinion on the taxing authority, the first thought I had was, well, now can you tax someone for not having a cellphone? And if you can do this - I mean, an act of inactivity - why not that? And there is this slippery slope concern that exists out there, but you know, to get this cat to walk backwards would be a real effort.

You know, they don't have the votes on the court even if they're inclined to do it. And you know, this goes to what Justice Jackson said in 1953 when he said we're not final because we're infallible, we are infallible because we're final. And this is final.

CONAN: Papal, if you will.

TURLEY: Yeah.

CONAN: Thanks very much for the call, Taylor, and I apologize for mispronouncing your name.

TAYLOR: Thank you. Bye-bye.

CONAN: Here's another op-ed. This was from David Brooks in The New York Times: In his remarkable health care opinion Thursday, the chief justice of the United States restrained the power of his own institution. He decided not to use judicial power to overrule the democratic process. He decided not to provoke a potential institutional crisis. Granted, he had to imagine a law slightly different from the one that was passed in order to get the result he wanted, but Roberts' decision still represents a moment of, if I can say so, a Burkean minimalism and self-control. Hospitals are changing rapidly. This is at the end of the op-ed. Federal policy will change rapidly too. The policy changes over the next decade will overshadow Obamacare. Roberts has made a period of innovation and change more likely. He did this by taking the court off center stage and by letting the political process play out. Self-restraint. It's a good thing. More people should try it.

That from David Brooks in The New York Times. We're talking with Jonathan Chait, a writer for New York magazine, with us from Chevy Chase in Maryland on the phone. Jonathan Turley is with us here in Studio 3A. He's a professor of public interest law at the George Washington University. And you're listening to TALK OF THE NATION from NPR News.

And let's go next to John(ph), John with us from Pleasanton, California.

JOHN: Hello. Thank you. The big takeaway for me - and I'm someone who thought actually the bill - the law would be supported. I was just surprised that it was Roberts instead of Kennedy. But the big takeaway for me is the position I've been moving to for a few years, which is the Supreme Court matters in elections. In fact, it's for me become the single most important criterion in deciding who to vote for president.

The older members of the court, I believe, are the liberals who are in danger of stepping down on the next president's term. We've had a lot of 5-4 decisions. And for me the importance of voting for - the court is the most important reason for voting, the makeup of the court. And for me that trumps everything else.

And just quickly, on the cellphone argument, that sort of doesn't work for me either because if I don't have a cellphone, it doesn't cost the taxpayers anything for me not to have one. But if I don't have insurance, it does cost taxpayers when I use the emergency room.

So it is a unique product as far as I'm concerned, and that's what I think is the basis for making a different call here. But the Supreme Court is the reason people should vote.

CONAN: All right. Thanks very much for the phone call. And Jonathan Chait, I think he said the liberals are the older people. I think that's certainly the case in Justice Ginsburg, but Justice Scalia is getting up there as well. And the next term, whoever's in office, may get to appoint, some people say, as many as three new justices.

CHAIT: I think that's certainly right, and I think a lot of people in the country have a kind of outdated understanding of what the real stakes of the Supreme Court are. You had a couple generations after World War II where the activism was on the liberal side. New kind of rights were being interpreted or created, depending on your point of view, by the liberals.

But the conservative side, I think it beat back that movement and beat it back so far that they've started to create a new wave of conservative activism, where the Supreme Court, much as it did up until the middle of the New Deal, was striking down laws passed by Congress because conservatives didn't like them, because conservatives in the court were interpreting the Constitution to require economic policies that they agreed with.

CONAN: Mm-hmm.

CHAIT: And that's what the conservative legal movement has been building toward for several years. And Roberts, even while declining to strike down this law, signaled that he'd be very open to striking down further laws by trying to - by accepting what I thought was this very, very strained at best argument that the "commerce" clause was so limited that you couldn't regulate the insurance market.

CONAN: The situation that Jonathan Chait just described back in the 1930s, well, Franklin Roosevelt had a - had an approach to that. He wanted to expand the Supreme Court, Jonathan Turley, and you said wrong reason. Good idea though.

TURLEY: That's right. It was 1937, and he was facing, much like today, four conservatives, and they were called the four horsemen. And he had three reliable liberals. They were called the three musketeers. I wrote a column in The Washington Post last Sunday that brought up a proposal I made for about 10 years, that we expand the Supreme Court. I do think FDR had the right idea for the wrong reason.

Our court is demonstrably too small. I mean, if you take a look at the high courts of other countries, ours is the smallest. Some of them go above 140 in terms of their final review stage. But the result is that we have this concentration of power that I think would bother - would have bothered the framers. Our Supreme Court has been larger in the past. It's been smaller in the past. It's not set in the Constitution.

But this opinion shows, in my view, how dysfunctional this is, how nine is one of the worst numbers you can pick. I suggest that you go to a 19-member court, which is the average that you see in the appellate courts and when you look at world courts in other countries. But look at this opinion. I mean, when one justice concurs, it has seismic effects upon the meaning of the opinion.

When one person like Roberts flips at the last minute, it has just enormous implications for the country as a whole. I think the framers would have been deeply disturbed by that, but the question is, why do we want that? Why not have a larger court like other nations where these people don't have such concentrated power?

CONAN: And the sound you just heard was Jeff Sessions' apoplexy at the idea that Barack Obama would get to appoint not merely the next three but perhaps the next 13 members of the United States Supreme Court.

TURLEY: Under my proposal, you would phase in over - I have the point that out. No one would get 10 justices.

CONAN: OK. Anyway, thanks very much for your time today. Jonathan Turley of George Washington University Law School with us here in Studio 3A. Jonathan Chait, thank you for your time today too.

TURLEY: Thank you

CHAIT: Thank you very much.

CONAN: Jonathan Chait, a writer for New York magazine, with us from his home in Chevy Chase. And thanks to everybody who called and wrote. We're sorry we couldn't get to you all. Transcript provided by NPR, Copyright National Public Radio.

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