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Supreme Court Decisions Tackle Technology

Mon, 21 May 2012 16:15:20 EDT

Photo by Mark Wilson/Getty Images News

It's late May, and the Supreme Court hasn't yet reached its potentially blockbuster decisions on President Barack Obama's Affordable Care Act or Arizona's immigration law. But the justices' recent actions still push ahead with legal interpretations for a modern America.

We spoke this afternoon with Marcia Coyle, our regular Supreme Court correspondent and Washington Bureau chief at the National Law Journal. She pointed out two cases -- a decision on the entitlements of children conceived through artificial insemination, and a grant to hear a case about government wiretapping -- that the court handled Monday.

MARCIA COYLE: Let's start with the decision. The decision was a fascinating yet narrow case involving the intersection of law and modern reproductive technology. The case involved twin children conceived by Karen Capato through in vitro fertilization after her husband's death from cancer.

Her husband had preserved his sperm after being diagnosed with cancer because he feared the cancer treatment would make him sterile. He and his wife wanted to add to their family. However, he died shortly afterwards and his wife conceived the twins about 18 months after his death. She applied to the Social Security Administration for survivors' benefits for the children. She won in the lower federal appellate court, but the Social Security Administration appealed to the U.S. Supreme Court.

In the decision today, the justices examined the interplay of several sections of the Social Security Act. Although Robert and Karen Capato's children met the definition of child under the act, the court unanimously found that they didn't meet the act's requirements for family status in order to qualify for survivor benefits. One of those requirements was whether the children could inherit under the intestacy law of their father's residence [in Florida] at death. Florida's law permits children born posthumously to inherit only if they were conceived during the father's lifetime.

NEWSHOUR: So what's the significance of this case? You mentioned it's narrow, legally, yet still an interesting decision.

MARCIA COYLE: It's narrow in the sense that the outcome here depended on the law of the state where the father lived when he died. For other children similarly situated, the outcome may depend on their state's inheritance laws. There are reportedly more than 100 applications for survivor benefits pending with the social security administration from posthumously conceived children.

The court has increasingly been confronting cases that involve legal fallout from modern technology. Just this term, the justices examined the use of GPS technology by law enforcement to track potential criminals and the impact of that on a person's Fourth Amendment rights.

The Social Security case was just another example of how technology is moving faster than the law. The Social Security Act was passed in 1938.

NEWSHOUR: Is the wiretapping case also another uniquely modern one to come before the court?

MARCIA COYLE: Wiretapping has been a tool of the government for a number of years. What's different now is the expansion of wiretapping authority of the government following the Sept. 11 terrorist attacks.

In the case the court agreed to hear today, Amnesty International, human rights organizations, a group of lawyers, journalists and others want to challenge the constitutionality of 2008 amendments to the Foreign Intelligence Surveillance Act. Those amendments expanded the National Security Agency's authority to conduct electronic surveillance of foreign nationals' communications. Amnesty and the others fear that the wiretapping will capture confidential communications by American citizens.

The issue the justices have agreed to decide is whether Amnesty and the other challengers have what is known as standing to go forward with their lawsuit. That is can they show that they have been injured or will face imminent injury so as to be able to bring their lawsuit.

NEWSHOUR: So it sounds like this case won't be heard by the court until next fall, in the beginning of next term. What are we waiting on before the court breaks for the summer?

MARCIA COYLE: I am watching five cases in particular. I'm just going to name the issues. They are challenges to the new federal health care law, to Arizona's anti-immigration law, to the constitutionality of life in prison without parole for juveniles under 14 who commit murder. [We're also watching] First Amendment challenges to the federal Stolen Valor Act and to the indecency regulations of the Federal Communications Commission.

NEWSHOUR: That sounds like two decisions with major political ramifications and three of general public interest. Could we see the court implementing some sweeping changes in June?

MARCIA COYLE: It depends, of course, on what the justices do with these cases. The health care and immigration cases obviously will have major implications for American policy and the ability of Congress to address national problems.

This is potentially a blockbuster term, even if those were the only two cases that the court addressed. But all five raise difficult issues, and the court traditionally hands down the most difficult cases in the final weeks of the term. The justices are on schedule to complete the term by the end of June. Stay tuned.

You can follow the NewsHour's coverage of the court here.

In Ariz. Immigration Case, Supreme Court Weighs Limits of Federal, State Powers

Wed, 25 Apr 2012 18:03:00 EDT

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GWEN IFILL: The U.S. Supreme Court heard arguments today over Arizona's immigration law. The justices appeared skeptical of the administration's claim that the state had overstepped federal law.

Following the arguments, supporters and critics of the measure made their case outside the court.

KRIS KOBACH, Kansas secretary of state: This law is a paradigm of cooperation with the federal government. The law mirrors federal law, so we drafted the Arizona statute so that it uses the exact terminology, the exact phrasing of federal law.

And so all it says is, if some behavior is prohibited at the federal level, then we're going to make it a state crime as well. That is mirroring and supporting the federal government. When the Justice Department sued Arizona, that was an unprecedented thing in America, because never before has the Justice Department sued a state for trying to help.

REP. LUIS GUTIERREZ, D-Ill.: It is clear that in America we shouldn't have laws in which 50 states have 50 different ways of treating immigration policy, especially laws that can only be enforced by making judgments on whether you have dirt on your boots, the color of your skin, the accent of your voice or your last name. That is no way to make law enforcement in the United States of America.

GWEN IFILL: Those were the arguments outside.

For more on how the arguments played out inside the court today, we are joined, as always, by Marcia Coyle of The National Law Journal.

Marcia, in some ways, last time we had a big case at the court, it involved health care, and it was a rematch of the lawyers involved in those two cases.

MARCIA COYLE, The National Law Journal: Yes, it was.

GWEN IFILL: But it couldn't have been more different.

MARCIA COYLE: Absolutely.

Arizona was represented by Paul Clement, who's a former solicitor general during the Bush administration. And the United States was represented by its top lawyer, Solicitor General Donald Verrilli. The two men have very different styles. Solicitor General Verrilli is soft-spoken, deliberate, cautious. Mr. Clement is -- speaks quickly, very confident, aggressive.

And I -- at the end of today's argument, the chief justice complimented both of them on good arguments.

GWEN IFILL: Let's talk about this case, because the law that we're talking about in Arizona has four distinct parts which are under challenge.

Let's walk through them one by one and what the arguments were. There's one segment which is about warrantless arrests, the ability of the state or the sheriff or the police to arrest people without showing proof.

MARCIA COYLE: That's right.

The provision says that if the police officer has probable cause, which is a higher standard than, say, reasonable suspicion, but probable cause to believe that somebody that he has or she has stopped has committed an offense that could result in deportation from the United States, that officer does not need a warrant to arrest that person.

GWEN IFILL: Was that argued at all. . .

MARCIA COYLE: Actually, there was -- there was virtually nothing on that provision.

GWEN IFILL: So that's something which maybe would stand because it wasn't being challenged. But we don't want to be predictive.

MARCIA COYLE: No, I wouldn't read the tea leaves on that one yet.

GWEN IFILL: Okay. The other -- another part of the law would require that immigrants carry -- legal or illegal -- carry I.D.

MARCIA COYLE: Yes.

In fact, two of the provisions create new Arizona crimes. And that provision, that section says that, if an undocumented alien in the country fails to follow federal immigration registration laws -- that is, register with the federal government and carry a registration document -- it's a crime punishable by jail time and possibly fines as well.

GWEN IFILL: And this one -- and there's another one, which was about job seekers having to prove. . .

MARCIA COYLE: That's right. And that one also was discussed during arguments briefly. And that makes it a crime for an undocumented alien to work or to attempt to solicit work in any way.

GWEN IFILL: But at the heart of this argument today really, and what the discussion in the court was, was about this question of suspicion and about under what circumstances a law enforcement official can actually stop and arrest someone.

MARCIA COYLE: Yes, Section 2-B of the law authorizes law enforcement officials, when they stop a person, if they have reasonable suspicion to believe that the person is in the country illegally, then the law enforcement officer -- officer is authorized to do an immigration status check.

And that means give the name to federal authorities to run through databases to see if the person is here illegally. There was concern by some justices, such as Justices Sotomayor and Justice Breyer, about the duration of this kind of a stop. Some of the concern is that, okay, maybe you're stopped for going 10 miles over the speed limit.

How long will you be stopped if the officer wants to do an immigration status check? Because you may be a citizen, as well as you may possibly be an illegal immigrant. And Mr. Clement tried to reassure the justices, saying this status check takes somewhere between 10 and 11 minutes.

Mr. Verrilli countered, well, yes, the actual check may take that long, but, first, you're put in a queue for about an hour before the check runs. So there is that disagreement there.

GWEN IFILL: But it seemed that more of the justices were raising questions about the federal government's challenge of this law.

MARCIA COYLE: That's right.

A number of the justices, including Justices Sotomayor and Justice Breyer, seemed to feel that this was basically a notification law. The police officer has the status of the person stopped checked and then notifies the federal government.

GWEN IFILL: The chief justice said as much.

MARCIA COYLE: He did. He said it looks to me like it doesn't interfere with the federal government's enforcement priorities.

In fact, he said to Mr. Verrilli, it seems to me that the federal government doesn't really want to know who's legal and who's illegally in this country.

GWEN IFILL: Is it possible to strike down some portions of this law, uphold other portions of it?

MARCIA COYLE: Absolutely, Gwen.

In fact, my sense of the argument was that they are going to parse each of the four provisions challenged here, and one may withstand scrutiny and some of the others may not. The registration provision, for example, Justice Ginsburg pointed out that it appeared to her that Congress had enacted a comprehensive registration scheme for aliens in this country, and that may well show that the Arizona new crime conflicts with that law.

GWEN IFILL: And there are other states who've tried to mimic Arizona who are watching this very closely.

MARCIA COYLE: Yes. There are about six states. Some have even enacted tougher laws. So whatever the court says is going to mean a lot to them.

But I think, in general, what we've seen here is this -- this is going to be a very important decision for how far states can go in terms of enacting immigration-related statutes. But it's also an even larger case in this sense that we will see what the boundaries are between federal and state power.

GWEN IFILL: And no matter what, it won't be a 5-4 decision, because there are only eight justices sitting on this.

MARCIA COYLE: That's a good point. Justice Kagan recused herself from the case, probably because when she was solicitor general she had some involvement in the lower court litigation.

GWEN IFILL: Okay, Marcia Coyle, National Law Journal, as always, thank you.

MARCIA COYLE: My pleasure, Gwen.

The Daily Frame

Wed, 25 Apr 2012 12:31:00 EDT

Click to enlarge.

Activists opposed to Arizona's controversial immigration law, S.B. 1070, paint a banner Tuesday at the office of the Puente Movement, a community group in Phoenix. The U.S. Supreme Court is set to hear arguments over the law on Wednesday. Photo by Jonathan Gibby/Getty Images.

Supreme Court to Weigh Contentious Arizona Immigration Law

Tue, 24 Apr 2012 18:32:00 EDT

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JUDY WOODRUFF: And to our two-part look at immigration.

On the U.S. Supreme Court docket Wednesday is a tough new law in Arizona.

NewsHour correspondent Tom Bearden traveled there recently and sets the scene for tomorrow's arguments.

TOM BEARDEN: Daniel Bell's family has raised cattle on this land along Arizona's southern border since the 1930s. But in the past few years, he's had to repair the simple barbed-wire fence that separates the U.S. from Mexico more and more often, because the steady stream of people entering the country illegally are always cutting it.

DANIEL BELL, Arizona: So this is a common occurrence every day that we deal with on the ranch.

TOM BEARDEN: Do you ever get mad about this?

DANIEL BELL: It gets frustrating. It definitely does.

TOM BEARDEN: Bell says the ranch has become a much more dangerous place, too.

Do you fear for your life out here?

DANIEL BELL: Yes, when we're out in places like this, where we don't have communications, and you're always thinking, what am I going to do if something happens?

TOM BEARDEN: Have you ever come across armed people coming across the border?

DANIEL BELL: Yes, I have, on several occasions. And the most recent one was actually when we were building this fence. We were hauling material in with a mule and we came around on a trail that's used by smugglers, and ran right into a group of about 10 people. The first guy was carrying a long arm, an AK-47.

TOM BEARDEN: An assault rifle?

DANIEL BELL: An assault rifle, yes.

TOM BEARDEN: That massive fence down there is one of the reasons why so many illegal migrants are crossing over the border ranch lands. When the federal government put it up, it forced them to move out into the desert. And what happened after that is one of the reasons why the state legislature passed the law that the Supreme Court is now reviewing.

Rancher Robert Krentz was murdered on his land in March 2010. Some authorities suspect he was killed by an illegal immigrant, but the case remains unsolved.

MAN: I'm tired of those folks who simply advocate we don't enforce our laws. I'm tired of those folks who simply ignore the damage to America and the deaths of folks like Rob Krentz.

TOM BEARDEN: Former state Senate President Russell Pearce authored the bill.

RUSSELL PEARCE (R), former Arizona state senator: What's coming across that border today are gangbangers, drug smugglers, human smugglers, child molesters, bad guys. They live in fear of their lives. Their waterlines are cut. Their animals are slaughtered. Their dogs' throats are cut. Their fences are torn down. They're threatened. Some of them have their windows and doors boarded. They pray for daylight. If they hear noises, they don't dare come outside.

TOM BEARDEN: Gov. Jan Brewer signed the bill into law two years ago. It's often referred to as Senate Bill 1070.

The law makes it a state crime to be in the country illegally or to seek work while here. It requires local law enforcement to verify the citizenship of anyone they suspect might be undocumented. And it gives police the authority to make warrantless arrests in such situations.

Those key sections were blocked by a federal judge after the Justice Department sued, arguing that for each state to set its own immigration policy would wholly subvert Congress' goal, a single national approach. And that's the question before the Supreme Court now, whether federal immigration law preempts the state of Arizona from making its own rules.

That argument doesn't sit well with Phoenix resident Connie Liston, a supporter of the law.

CONNIE LISTON, Phoenix, Ariz.: I wouldn't object to someone asking me if I am a U.S. citizen. When I come back from Mexico every trip, they ask me that question. I don't think it should offend anyone.

TOM BEARDEN: About two-thirds of Arizonans supported Senate Bill 1070 when it was first passed, and polls show the same numbers continue to support it today.

But it's a complicated picture, says Bruce Merrill, founding director of the Survey Research Center at Arizona State university.

BRUCE MERRILL, Arizona State University: There's two very strong components. One is the border itself; 75 percent to 80 percent of the people in Arizona really want more done to keep people from coming across the border.

But the issue is, what do you do with the families that have been here for 25, 30 years? About a third of them have children that are United States citizens, and should they be allowed to stay here and be given a path to citizenship? Sixty-five percent of the people in Arizona feel that these families should be given an opportunity to gain citizenship.

TOM BEARDEN: Families, perhaps, like Sandra's, who spoke to us on the condition we use only her first name.

You came across the border without papers?

SANDRA, illegal immigrant: Si.

TOM BEARDEN: Sandra entered the U.S. illegally 18 years ago with her four children, seeking medical care for a son with special needs.

SANDRA (through translator): Not all the illegals are the same. It depends on why we're here. Many of us come here to work, to study.

TOM BEARDEN: Sandra says SB-1070 terrified undocumented workers.

You said you lived in fear. Tell me about that.

SANDRA (through translator): It's a feeling that's always there. It's a fear that's always there. In the morning, when we go to work, we always say goodbye, thinking that maybe we won't see each other. Always, every single day, we leave with that thought, that maybe we won't be back home.

PETRA FALCON, Promise Arizona: SB-1070 has created ongoing human tragedies.

TOM BEARDEN: Petra Falcon runs an immigrant rights group that opposes the law, and works with families like Sandra's every day.

PETRA FALCON: What is happening since SB-1070 is that families continue to be stopped on the road, and that leads to incarceration. That leads to separation of families. That leads to deportation. People cannot find work because it's assumed that they don't have papers.

TOM BEARDEN: Arizona's undocumented population has dropped sharply in recent years. It's unclear how much of that is due to the law, the downturn in the economy, or some combination. Not everyone is sympathetic.

JOE ARPAIO, Maricopa County, Ariz., sheriff: The last I heard, coming into the United States happens to be illegal.

TOM BEARDEN: Joe Arpaio is the sheriff of Maricopa County. He holds prisoners detained on immigration charges in tents, exposed to the extremes of Arizona's weather.

ENRIQUE PENA, prisoner (through translator): In a little while, the heat is going to average 110 degrees, and the heat accumulates. At night, it's a hellish cold.

TOM BEARDEN: Arpaio is known for his get-tough attitude toward crime, including his color of choice for prisoners.

JOE ARPAIO: The pink underwear which you can see, it matches the sheets. But you know what? They don't like it, don't come to jail. Very simple.

TOM BEARDEN: The 79-year-old sheriff says he'll continue to enforce all of the provisions of Senate Bill 1070, no matter what the Supreme Court decides.

JOE ARPAIO: I'm still going to do what I'm doing. I'm still going to arrest illegal aliens coming into this country. I'm still going to raid businesses. I'm still going to crack down on crime-suppression operations.

TOM BEARDEN: Arpaio is currently under investigation by the Justice Department for alleged racial profiling. That's something President Obama has said is a potential risk when it comes to enforcing SB-1070.

PRESIDENT BARACK OBAMA: Now, suddenly, if you don't have your papers and you took your kid out to get ice cream, you're going to be harassed. That's something that could potentially happen.

TOM BEARDEN: The sheriff of Santa Cruz County, Tony Estrada, shares that concern.

TONY ESTRADA, Santa Cruz County, Ariz., sheriff: I don't think there's any question that there will be racial profiling, because obviously the bill is tailored to looking at a particular group of people. You're looking upon Hispanics. And you'll be looking at a lot of people that come into this community. And they're all going to be suspects in one way or another.

They asked me, will you enforce SB-1070 if it becomes law? My response is, I will. I have a responsibility to do that. But it's going to be at the bottom of my priorities, because I cannot afford it.

TOM BEARDEN: The administration touts the fact that illegal crossings have decreased on President Obama's watch. Border Patrol agents apprehended some 340,000 migrants in 2011, down from a peak of over a million in 2005.

But Russell Pearce, who lost his state Senate seat in a recall election last November after taking criticism as the author of SB-1070, says that's not good enough.

RUSSELL PEARCE: Crossings are down for a lot of reasons at the border. One is, Arizona has gotten better. We do have more Border Patrol there. But the violence is up. And what's going on across America itself, it's a national crisis.

The administration -- and I will tell you, there's a lot of misinformation about what they have done. They have done very little.

TOM BEARDEN: Back on the front line of this issue, Dan Bell and his ranch hands spend time and money cleaning up the debris left behind by the steady stream of border crossers.

DANIEL BELL: There's a blanket, water bottles, just all kinds of things. And each little canyon we go up, you'll find trash just everywhere scattered out.

TOM BEARDEN: Even so, Bell isn't convinced that SB-1070 is the answer.

DANIEL BELL: Well, I think if you're looking at the metropolitan areas, where somebody gets pulled over and can't produce a license, that's where SB-1070 would kick in. But right here on the border, I don't see where it would do us any good.

TOM BEARDEN: Justices are expected to issue their decision by late June.

JUDY WOODRUFF: Online, you can see an impromptu encounter between Sheriff Arpaio and one of the inmates in his jail.

In Washington today, Sen. Charles Schumer said Democrats will introduce legislation to block Arizona's law if the Supreme Court upholds it. Meanwhile, five states have passed laws modeled after Arizona's. Federal judges have blocked all of them from being fully implemented, pending the high court's ruling.

Attorneys general in 11 more states have filed a friend-of-the-court brief against Arizona's law, siding with the Obama administration.

We'll have full coverage of the Supreme Court arguments tomorrow.

Just Ask: What Health Benefits Do the Supreme Court Justices Receive?

Thu, 19 Apr 2012 13:09:00 EDT

The Supreme Court Building. Photo by Tim Sloan/AFP/Getty Images.

Rob Rabie has some health care advice for the Supreme Court, straight from St. Johns, Ariz.

"Perhaps the justices would better appreciate the problem if they were to forego their health insurance plans for a year or so and just pay the medical bills out of pocket like many Americans," he said. "I am sure they could all afford it, but I suspect sticker shock would be rampant."

The idea that nine justices with access to "generous" health care insurance will be deciding the fate of the entire health reform law makes Rabie nervous. His concern was shared by several others who wrote to the NewsHour in the aftermath of the Supreme Court hearings last month, most with two underlying questions:

What kind of health insurance does the government offer Supreme Court justices? And how might that play into their decision over whether to strike down the health care reform law?

The answer to the first is simple: The plans are pretty generous, but certainly not to the extent that many expect.

All federal employees can access health care insurance through the Federal Employees Health Benefits Program. That includes Supreme Court justices, members of the Senate, congressional aides and the janitorial staff in the Department of Health and Human Services.

The Supreme Court declined to provide specifics on the health plans of the individual justices or how many of them even participate in the Federal Employees Health Benefits Program. Some federal employees elect to receive their coverage elsewhere -- through a spouse's plan, for instance.

Regardless, they have the same options as everyone else in the federal government -- no more, no less. By far, the biggest advantage of being a member of the club is its not-so-exclusive size. About 8 million federal employees, retirees and their family members are enrolled.

The large, diversified pool is ideal for private insurance companies -- businesses built around the concept of trying to spread risk among the young, old, sick and healthy. So a wide number of them participate, increasing competition, upping the government's bargaining power and maximizing the chances that its employees will get a good deal.

The federal program offers 206 health plan choices, according to the Office of Personnel Management. "It's unusual, even for a large employer, to offer so much choice," Gary Burtless, a labor economist at the Brookings Institution, said.

Even more unusual are the perks of the plans themselves. Several include a national network of physicians. All are available without a waiting period. And unlike many private-employer plans, they're not allowed to deny coverage or charge higher premium rates based upon an employee's pre-existing conditions (if the health care reform law goes forward, the practice will be banned for all U.S. plans starting in 2014). Perhaps the biggest perk: Federal employees also have the option of keeping their coverage after retirement.

Aside from those major advantages, the plans available to federal employees aren't "more or less generous" than those offered by other large U.S. employers, Burtless said.

"They're typical. Civil servants in the United States are not getting a Cadillac insurance plan while they're at work," he said, referring to the rare, extremely generous plans that offer very low deductibles and benefits so rich they cover even the most expensive procedures.

In fact, several studies conducted in recent years show premiums, deductibles and employer contributions running more or less neck-in-neck between the federal options and other large-group insurance plans. If federal employees pay less at the doctor's office than the national average, for example, they often shell out more for premiums. And contributions from the federal government -- 70 percent of total premiums -- might cost taxpayers about $43 billion per year, but the percentage is comparable to the national average of about 72 percent.

Now for the second question: How does all of that intersect with the Supreme Court hearings on health reform?

Well, that's anyone's guess.

According to a recent Washington Post poll, just 40 percent of Americans think the justices will rule based primarily "on the basis of the law." If they do so, the federal government's employee health care program won't be a factor. But 50 percent of the nation -- including people like Rabie -- believe the justices' "partisan political views" will interfere. And if that's the case, it opens the door for nearly anything to play a role.

Again, it's unclear whether the justices even participate in the Federal Employees Health Benefits Program. If none of them do, all of this information is a moot point.

But that's unlikely, according to Donald Devine, a former director of the Office of Personnel Management. "I would assume most of them do choose it," he said. "It's a generous program even if it has some controls on it."

Still, even while Devine says the program "may look good compared to the plans of many Americans," he also cautioned against drawing direct connections between the federal health insurance program and an eventual ruling on the health care law.

After all, he said, federal judges have access to the same health care options as the Supreme Court, "and they've come down on both sides of this thing all across the country."

Health Reform on the Brink: Uninsured in Missouri

Mon, 16 Apr 2012 09:58:11 EDT

Editor's Note: This story is part of a series profiling the views of ordinary Americans and their experiences -- good, bad or indifferent -- with the health care reform law. The stories are told from the perspective of the interviewees. They do not reflect the views of the PBS NewsHour.

There's no way -- just no possible way that number could be right, Lisa Hill thought. But there it was, in black and white, typed up neatly on an insurance company form letter: $7,972.25 per month.

That's how much health insurance would now cost the five-member Hill family -- just shy of $100,000 per year.

Lisa had recently been forced to quit her job at a title agency in St. Louis to take care of her sick 17-year-old who had struggled with leukemia, autism, and epilepsy. Her husband had no insurance through the family-owned plumbing company. The temporary COBRA insurance that carried over from Lisa's old job had run out, her son's pre-existing conditions had driven individual-plan premiums through the roof, and this was the new reality for the Hills: $7,972.25 per month.

"I called them up to make sure they didn't mean $8,000 per year, and they confirmed the amount," she said. "And I just told them, 'You're crazy.' So we went without insurance -- my whole family did, actually. For three months."

A lot has changed in the two years since Lisa opened that letter. Today, she no longer worries about health insurance for her son. She's fully aware that many Americans disagree passionately, but Lisa supports the health care reform law. She says it brought her peace of mind.

The "No-Worry" Years

For the vast majority of her life, Lisa never gave insurance a second thought. Her father was a machinist; her mother stayed home with the kids. The entire family enjoyed regular doctor check-ups and good dental care. The system worked well for them.

Adam changed that. In 1991, Lisa gave birth to a boy who always seemed a "little bit different." As he grew, he was always quieter than the other kids. A little angrier. He preferred to play with his toys by himself. And then one day, he turned gray.

After a frantic dash to the emergency room and blood tests for anemia, hepatitis and a number of other conditions, one test came back positive. Adam had Acute Lymphoblastic Leukemia. "It was not what I was expecting to hear," Lisa said. "I thought maybe it was a virus."

Still, Lisa considered herself lucky. She had "excellent" insurance through her employer at the time, MetLife. So two and a half years' worth of trips to the hospital and countless rounds of chemotherapy made little dent in Lisa's bank account. Out-of-pocket costs were minimal -- just a $20 copay here and there. "Nothing unreasonable," she said.

Cost Curve

Adam eventually stabilized, and so did life. Lisa began working for a St. Louis-based title agency -- a company she selected because it was small enough to feel comfortable but big enough that its group health insurance plan didn't discriminate against Adam's history of leukemia -- a pre-existing condition.

"I needed the insurance," she said. "More than the paycheck, we needed that insurance."

That's because Lisa had recently married the owner of a plumbing company -- a man who was entrepreneurial and financially successful, yet uninsured. The contractors her husband worked with received health insurance through the union, but their union plan didn't cover company owners, office workers or their families.

And all of that was fine in the beginning -- as long as Lisa's company provided high-quality insurance. But then the title agency started "shopping around for a better deal," she said. Nearly every June between 2001 and 2009, the plan changed to one with higher deductibles and co-pays. "Toward the end, I think the maximum out-of-pocket was $8,000 per person and $35,000 for the family," she said. "It was just horrific. It was terrible."

Alarm Bells

High school wasn't kind to Adam. Though he recovered "beautifully" from the leukemia, something else seemed to be wrong -- something just as dark as the cancer.

Several times per week, the school would call Lisa and tell her that Adam was acting "like he was on drugs," she said. "They didn't know what was going on and they weren't kind. Not until they realized the seriousness of his medical conditions -- then they became very helpful."

The calls increased in volume until Lisa eventually had to quit her job and put the family on a COBRA health care plan.

And it was during that time that disaster struck on a weekend trip to the family's vacation home in Illinois. Adam started having seizures shortly after they arrived, with several lasting for more than five minutes.

"The very last seizure, he had become very psychotic. He was talking about killing himself, about killing his family," Lisa said. "And I'm thinking to myself, 'Now on top of everything else that he has, we also have to deal with some kind of psychiatric issue.'"

It turned out to be autism, epilepsy, and -- after a thorough evaluation -- the determination of a "very low IQ score of 76."

Lisa admits that she could afford the expense, that she and her husband "do very well in life." After all, she drives a new car, lives in a new home, and owns several rental properties.

But Adam's hospital bills soon became overwhelming: $500, $3,000, $9,000, and they kept rolling in.

"And there are some of them that I will say we walked away from," she said. "I had to say, 'we're not going to pay it. He is 18, he's legally responsible himself and you're going to have to write it off.' With a $9,000 bill ... I mean, how do you afford that?"

To make matters worse, the COBRA ran out after Lisa had been unemployed for 18 months. The only option at that point was to transfer the family to an individual plan -- the one that cost nearly $100,000 per year.

And that's when the Hill family became uninsured.

Flickering Hope

Lisa's family was plunging toward a health care crisis of its own at the very moment that a debate erupted over health reform. For her part, Lisa saw hope in the part of the bill would prohibit insurance companies charging higher premiums to people with health problems or restricting coverage of pre-existing conditions.

She showed up to say as much at a town hall meeting hosted by Rep. Russ Carnahan, D-Mo. And it's there that she met some of the law's opponents.

"And I tried to talk to them and tell them, 'I'm for health reform and here's why,' and they called me fat. They called me lazy. They told me all I wanted was a free lunch and that I should get a job. And it just infuriated me."

She thought of her sick son, of her husband's business, of the fact that "we had worked our tail ends off our entire lives to provide a decent living for our families and have done decently." And then she got even more angry.

"I mean, it just amazed me at their attitudes -- that they don't feel that it's right that they 'pay for my son.' Well here's the thing: I wasn't asking for anybody to pay for my son. I wanted to purchase --- not be given -- purchase a policy for my son. And I wasn't able to do that. Not with his pre-existing conditions."

She began volunteering for the effort -- cold-calling area residents and asking them to support the bill, canvassing her neighbors, and organizing groups of volunteers to do the same.

Then, just as Lisa Hill was growing desperate, she found some relief -- a double dose of it, in fact -- half from the old health insurance system, half from reform. Three months after they lost coverage, the laborers' union extended their plan to the Hill family. That allowed the Hills to pay $1,200 per month for a plan that includes dental, vision, and health. Doctor visits are $15. Prescriptions are $25.

And a few months after that, President Obama signed the health care reform bill into law, allowing Adam to stay on the family plan through age 26. He can go to his oncologist, neurologist, psychologist, psychiatrist, and primary care physician as needed. All for $15 per visit. And after the age of 26, Adam won't be charged higher premiums because of his disorders. Insurance companies will be barred for charging higher rates for pre-existing conditions starting in 2014.

Of course, that could change if the Supreme Court rules that Congress overstepped its constitutional bounds when it passed the health care reform law. Many question whether the federal government has the legal authority to force the American public to buy a product. They also question whether other parts of the law can stand if the mandate falls.

But even if the Court strikes down the mandate alone, leaving much of the law intact, the pre-existing condition rule may need to come down, too. In the absence of an expansion of the market to help spread risks, many analysts say that forcing insurance companies to stop charging higher rates for those with pre-existing conditions would put an unfair burden on the industry.

Lisa listened to the Court proceedings in March with a building knot in her stomach. "I'm positively sick over it," she said. "If they reverse this decision, then Adam doesn't have insurance I don't have any clue of what he'll do or how."

Do you agree with Lisa Hill? In the weeks ahead on the PBS NewsHour's Health Page, we'll share the stories of ordinary Americans who love, hate, and feel indifferent about the Affordable Care Act. As the Supreme Court decides the fate of the law, we want to hear your verdict. Share your opinions here.

Photos courtesy of Lisa Hill. Starting from the top, the photos include: Adam Hill; Adam (front) and his brother Josh; Adam in high school; Lisa and her husband Ed with Adam at his high school graduation.

Four Women of the Supreme Court Agree: More Is Better

Thu, 12 Apr 2012 11:01:00 EDT

At a time when women have become an issue in the presidential campaign, it was fascinating to sit in on the first-ever public program involving all three current women members of the U.S. Supreme Court and the only female former justice, Sandra Day O'Connor.

On the occasion of the 30th anniversary of O'Connor's becoming the first woman to join the high court, the Court's Historical Society sponsored a discussion at the Newseum, the museum for news, in Washington, including Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, all of whom joined the Court well after O'Connor, in 1993, 2009 and 2010, respectively. O'Connor described how President Ronald Reagan's staff went to great lengths in 1981 to keep her first visit to the White House a secret, sending the personal secretary to then-U.S. Attorney General William French Smith in her own green Chevrolet to pick up O'Connor on a Washington street corner and drive her to meet the President.

Justice Ginsburg, who was then early in her tenure as a federal appeals court judge, told how she heard the news of O'Connor's appointment on the car radio one evening and was thrilled. Sotomayor said she was in her second year of work at a DA's office, after finishing law school, and found it hard to believe since she and women classmates had so recently discussed how long it would take for that barrier to fall.

There was no talk of current cases, but some behind-the-scenes humor. Justice Kagan explained that when she served as a law clerk for Justice Thurgood Marshall, while Justice O'Connor was still on the Court, O'Connor invited her to join her women's morning exercise group. Kagan said she never did, and one day, after she had gotten hurt playing basketball, she was on crutches as she hobbled past O'Connor in the hallway. In her words, "Justice O'Connor stopped, asked what had happened; then, sadly shaking her head, commented, 'You know, it wouldn't have happened if you'd been in my exercise class!'"

O'Connor nodded when she heard this, "It's true."

All the women justices -- O'Connor appointed by a Republican, the other three by Democratic presidents -- lamented the increased partisanship today in Washington. O'Connor was confirmed by a 99 to 0 vote; and Ginsburg's was almost as overwhelming. Sotomayor and Kagan experienced much tougher scrutiny and were confirmed by far closer margins.

Sotomayor shared a bit of inside information when she talked about her one-on-one meetings with senators, which she said were mostly "very civil." She said that helped her deal "with the public grilling, knowing that each of us was playing our role." She and the others agreed that as long as media pundits and many in the public expect justices to disclose ahead of time their preferences on social questions, this unfortunate pattern is likely to continue.

The three current justices paid tribute to O'Connor, both as a jurist and as a person. Justice Kagan repeated a story from Justice Clarence Thomas, who said whenever he missed more than a couple of the occasional lunches the justices have together each month, Justice O'Connor would stand at his office door to insist that he join the group.

Justice O'Connor summed up the dominant feeling of the evening, agreeing that it had taken a long time, but "it's fabulous to have so many women on the Court now." The large audience, which included many middle-aged lawyers and several middle- and high-school-age girls, cheered.

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SCOTUS v. POTUS: The Role of the Supreme Court, Historically

Wed, 04 Apr 2012 18:38:00 EDT

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GWEN IFILL: Finally tonight, As the Affordable Health Care Act hangs in the balance, law, politics and the Supreme Court are on a collision course.

Jeffrey Brown explains.

PROTESTERS: We love Obamacare!

JEFFREY BROWN: Protests on all sides swirled last week, as the U.S. Supreme Court found itself the center of national attention during three days of arguments on the health care reform law.

The sessions fueled speculation that the justices might strike down some or all of the statute. And on Monday, after meeting with the leaders of Canada and Mexico, President Obama warned the court would be overreaching if it does that.

PRESIDENT BARACK OBAMA: And I would just remind conservative commentators that for years what we've heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example.

JEFFREY BROWN: A day later, addressing newspaper editors, the president returned to the subject.

BARACK OBAMA: The point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it. But it's precisely because of that extraordinary power that the court has traditionally exercised significant restraint and deference to our duly-elected legislature, our Congress. And so the burden is on those who would overturn a law like this.

JEFFREY BROWN: But Republicans like presidential hopeful Mitt Romney suggested the president had gone too far in directly challenging the nation's highest court.

MITT ROMNEY (R): It's really quite a curious turn of events for him to start complaining about an activist court. Look, the whole idea of a court that is not an activist court is one that follows the Constitution. An activist court is one that departs from the Constitution.

In this case, the court is doing the job they were put in place to do, which is they will opine as to whether Obamacare violates the Constitution.

JEFFREY BROWN: This tug-of-war between the branches of government isn't new. In the 1930s, a conservative-dominated court threw out a number of President Franklin Roosevelt's New Deal programs.

Roosevelt answered with a plan to replace aging justices, the so-called court-packing scheme. In a 1937 radio chat, he explained his purpose.

PRESIDENT FRANKLIN ROOSEVELT: To bring to the decision of social and economic problems younger men who have had personal experience and contact with modern facts and circumstances under which average men have to live and work. This plan will save our national Constitution from hardening of the judicial arteries.

JEFFREY BROWN: Some 20 years later, Chief Justice Earl Warren and a liberal majority ordered desegregated schools and ended school prayer. That sparked a wave of "Impeach Earl Warren" billboards, especially in the South.

In 2000, the court was again in the spotlight, deciding the presidential election in favor of Republican George W. Bush.

And in his first State of the Union address, President Obama chastised the court's decision allowing unlimited corporate spending in national elections.

BARACK OBAMA: With all due deference to separation of powers, last week, the Supreme Court reversed a century of law that I believe will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections.

(APPLAUSE)

JEFFREY BROWN: As the president spoke, Justice Samuel Alito appeared to mouth the words "Not true."

The voices of dissent from protesters and perhaps the president may well be louder this summer, when the Supreme Court rules in the health care case.

And we join some of these issues now with Louis Michael Seidman, author of the book "On Constitutional Disobedience." He's a former law clerk to Supreme Court Justice Thurgood Marshall. And Randy Barnett, author of "Restoring the Lost Constitution," he represented the National Federation of Independent Businesses in its challenge to the health care law. And they're both professors at Georgetown Law School.

Welcome to you.

LOUIS MICHAEL SEIDMAN, professor, Georgetown University Law Center: Thank you.

JEFFREY BROWN: Randy Barnett, I will start with you.

What struck you in hearing the president earlier this week? How does it fit into some of the past examples we have heard?

RANDY BARNETT, professor, Georgetown University Law Center: Well, I think what the president said on Monday was just flat-out wrong.

And as evidence of that, I will cite what he said on Tuesday, in which he took it back. On Tuesday, he said something that comes closer to being accurate and it was a clear admission that what he had said on Monday was a grave distortion of the role of the judiciary relative to the presidency or the Congress.

And so -- but I think this is part of a broader problem of the politicization of whatever's going to come out of the Supreme Court in June.

JEFFREY BROWN: Michael Seidman, wrong on Monday, wrong to speak out?

LOUIS MICHAEL SEIDMAN: I thought he was right on Monday, he was right on Tuesday. What he said seems to me to be completely unexceptional.

JEFFREY BROWN: Unexceptional given past. . .

LOUIS MICHAEL SEIDMAN: Yes.

As long as there has been a Supreme Court, there have been political attacks on the court, some of our most revered presidents, as your setup piece mentioned. In addition to Roosevelt, Thomas Jefferson ran against the court in 1800. Abraham Lincoln, his entire platform in 1860 was against the court and what the court had done.

So there's nothing unusual about this. And the president he didn't -- he didn't threaten anybody. He didn't try to pressure the court. He's entitled to his opinion about the constitutionality of the health care bill and he -- and it may not be tactically wise for him to say what he said, but he certainly has a right to say it.

JEFFREY BROWN: Why do you see this as different from these past examples?

RANDY BARNETT: Well, first of all, on Monday, what he said is that it's somehow improper for a group of unelected people, to use his words, to strike down a law that has been passed by a Congress. That's literally what he said.

And, as we all know, since Marbury vs. Madison, that's perfectly okay. On Tuesday, he refined what he said on Monday, and he was more clear about the basis on which he was criticizing it. But, on the other hand, with these historical examples -- maybe Mike knows -- I don't -- I don't know that any of these were done while a case was under submission to the court while it was deliberating.

JEFFREY BROWN: You mean before it was decided?

RANDY BARNETT: Before it was decided.

I think Roosevelt was quite vocal in criticizing decisions of the court, but not criticizing deliberations of the court. I think that's something new and something different.

LOUIS MICHAEL SEIDMAN: Well, first of all, Roosevelt did criticize -- there were New Deal measures that were before the court at the time Roosevelt was criticizing in the court.

Secondly, Randy Barnett is my good friend, but he actually misquoted the president. I don't think he said it was improper. He said it was unprecedented. And there are almost no precedents that I can think of, of a Supreme Court striking down a -- the major domestic legislative accomplishment of a sitting president.

Even the New Deal confrontation involved relatively peripheral New Deal measures, or, in the case of the National Industrial Recovery Act, a measure that was about to expire. Rightly or wrongly, I think the president had it about -- whether the court is right or wrong, the president had it about right, that this would be unprecedented or close to unprecedented.

JEFFREY BROWN: Now, you brought up the broader politicization. The president certainly has been criticized by some -- and you just made the argument. The court has been taking a lot of hits for being overly political.

I will just cite one of many. Maureen Dowd in today's New York Times column. The court has -- quote -- "squandered even a semi-illusion that it is the unbiased, honest guardian of the Constitution." She said the conservative majority's reasoning seemed -- quote -- "shaped more by a political handbook than a legal brief."

RANDY BARNETT: And what is she responding to? She's responding to questions asked during an oral argument.

That's the Supreme Court's reasoning she's talking about. She's not waiting for the Supreme Court to issue a ruling, write an opinion, and read the opinion to see if the opinion makes sense as compared to the legal arguments of the opposition. That's exactly what we're seeing.

I have an article from The Daily Beast here that says impeach the Supreme Court justices if they overturn the health care law, regardless of what they say, regardless of the basis on which they rule. That is wrong.

JEFFREY BROWN: Are they not -- well, go ahead.

LOUIS MICHAEL SEIDMAN: Well, look, I'm not in favor of name-calling. I think there's way too much of that, and people ought to be civil when they talk about this.

At the same time, I think you just have to be extraordinarily naive to think that politics has nothing to do with what the court is -- with the court's deliberations in this case. We're asked to believe that it's just a coincidence that all of the questioning hostile to the case came from judges, justices appointed by Republican presidents, and all of the questioning favorable to the law came from justices who were appointed by Democratic presidents.

I just can't -- I'm not quite able to believe that that's just a coincidence.

JEFFREY BROWN: Well, I mean, this goes to a broader question. And I think a lot of people still wonder about this. To what extent is it fair to think of the court -- you can start this, Randy Barnett -- is it fair to think of the court as a political institution in some sense?

RANDY BARNETT: Well, they're appointed by a politically elected president and they're confirmed by a politically elected Senate. So they do come from different perspectives based on the views of the president who appointed them.

But I will say that if there's one thing that would be political for this court to do, it would be to uphold this law because it is the signature piece of legislation by the president. If that was the reason why those conservatives on the court who think it's unconstitutional change their vote, in order to uphold the law, that would be a political decision. It would not be a legal one.

JEFFREY BROWN: You're shaking your head. You think it is inevitably in the political arena?

LOUIS MICHAEL SEIDMAN: Of course it is.

First of all, if people are skeptical about the non-political nature of the court, they have nobody to blame but themselves. These are the people who gave us Bush v. Gore, where a majority of the court disregarded all of the theoretical and doctrinal positions that they're normally associated with in order to hand the presidency to George Bush.

Secondly, we have just many, many examples throughout our history of courts that have been influenced in one way or another by electoral politics. We know that now because records are available, the conference notes were available.

It would be really surprising if this court, uniquely among courts in American history, was completely apolitical and just, in a disinterested way, following the law.

RANDY BARNETT: So there's nothing to complain about then. Since all courts are political, they're political when they rule for you; they're political when they rule against you. And, therefore, it's OK for them to be political.

LOUIS MICHAEL SEIDMAN: I'm not -- I'm not complaining.

I do think it's inevitable that when the court interprets very broad language in the Constitution, where there's not a clear meaning to it, that political biases are going to affect the interpretation. And that's true of liberal justices. It's true of conservative justices. We ought to grow up and understand that that's what's going on.

JEFFREY BROWN: But part of your other point is that this is now part of the political narrative of -- we're in a campaign season, right?

RANDY BARNETT: Right.

I think what's happening is, is a number of people, primarily on the left, are trying to create a political narrative that they can use if they get an adverse ruling in this case. And I guess they must think that they're going to, or they wouldn't be starting today.

JEFFREY BROWN: And briefly your. . .

LOUIS MICHAEL SEIDMAN: Of course Randy thinks people on the right haven't used this as a political issue at all.

RANDY BARNETT: I totally don't think that, Mike.

LOUIS MICHAEL SEIDMAN: Good.

(LAUGHTER)

LOUIS MICHAEL SEIDMAN: We're in agreement about Washington.

JEFFREY BROWN: All right, on final -- on that agreement, Randy Barnett, Michael Seidman, thank you both very much.

LOUIS MICHAEL SEIDMAN: Thanks for having me.

Supreme Court Upholds Inmate Strip Searches Regardless of Charges

Mon, 02 Apr 2012 18:48:00 EDT

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JUDY WOODRUFF: Finally tonight: The U.S. Supreme Court issued a split decision today in a case that pit jail security needs against personal privacy rights.

Here's Margaret Warner.

MARGARET WARNER: The justices ruled 5-4 that jail officials may strip search all incoming inmates no matter how minor the charges against them. The ruling came in the case of Albert Florence of New Jersey, who was strip-searched twice after being arrested on an out-of-date warrant for an unpaid fine.

For more on the decision, we are joined, as always, by Marcia Coyle of The National Law Journal.

Marcia, welcome back.

MARCIA COYLE, The National Law Journal: Thank you.

MARGARET WARNER: So, remind about the facts of this case. Mr. Florence was driving with his wife and son on the highway. They're stopped. And that's when the trouble began.

MARCIA COYLE: The state trooper who stopped them got identification of the owner of the car, which was Mr. Florence, checked his records, found that there was an outstanding warrant for his arrest. It was actually an erroneous warrant for an unpaid fine related to an incident seven years earlier.

Mr. Florence had paid the fine. He was arrested because of the warrant and transported to the Burlington County Jail, where one of two strip searches ultimately occurred. The first strip search, he had to strip naked, lift his genitals, open his mouth, lift his tongue, turn around, lift his arms. He was held there for six days and then transported to the Essex County Jail. He was strip-searched again. The only difference was they added to this strip search squat and cough.

MARGARET WARNER: So, Justice Kennedy wrote the majority, saying this wasn't an unreasonable or unconstitutional search.

MARCIA COYLE: That was the basis of the claim that Mr. Florence brought. He brought a civil rights claim saying that his Fourth Amendment rights had been violated by the strip search.

Justice Kennedy basically gave four reasons for saying that this wasn't unreasonable. First, he said that the strip search allows prison officials to detect and deter contraband coming into a jail. It also prevents diseases from coming into the jail population, and helps prison officials identify and isolate gang members.

Finally, Justice Kennedy said that sometimes people who are arrested for minor offenses turn out to be very dangerous. And he pointed to Timothy McVeigh, the Oklahoma City bomber, who was stopped for driving without a license plate just hours after the Oklahoma City bombing.

MARGARET WARNER: Now, what about -- Justice Breyer wrote the dissent for four of the justices.

MARCIA COYLE: Yes, he did.

He was joined by Justices Ginsburg, Sotomayor, and Kagan. And Justice Breyer felt that there just wasn't enough evidence here to justify strip-searching people who committed minor offenses. He said that reasonable suspicion should be required if the minor offense was related to drugs -- or unrelated to drugs or violence.

And he pointed to empirical evidence showing that these strip searches really don't end up identifying a lot of contraband.

MARGARET WARNER: Now, two of the justices, Chief Justice Roberts and Justice Alito, joined in the majority opinion, but also wrote their own. What was that about? What was the thrust of theirs?

MARCIA COYLE: They actually see a limit, a narrow opinion here.

At the end of Justice Kennedy's opinion, Justice Kennedy said that the court didn't have to decide that a strip search of someone who is not going to be sent into the general prison population was reasonable or unreasonable. And, also, he said there may be concerns raised if there were touching of someone who was being strip-searched by prison officials.

Justices -- Justice Alito and Chief Justice Roberts said that -- made it clear that the majority was not saying that it is always reasonable to strip-search someone. And they wanted to emphasize that, that there may be exceptions down the road.

MARGARET WARNER: But bottom line here is that the majority rejected the contention that you can draw a line between who might be dangerous enough to be strip-searched and who wouldn't.

MARCIA COYLE: That's true.

And it's always been the case, I think, that the court has generally deferred to prison and jail officials when it comes to matters of security. And they did struggle with how you draw that line during the oral arguments in the case.

MARGARET WARNER: So, what's going to be the practical effect of this? Justice Kennedy said in his opinion that something like 13 million Americans are actually taken into jail a year?

MARCIA COYLE: That's right.

And it's also estimated that 700,000 of those are arrested for minor offenses. There were at least seven federal appellate courts that had required reasonable suspicion for people arrested for minor offenses. That's no longer the case in those states in which the federal appellate courts operate.

There are at least 10 states that had laws as well. Depending on how those laws are written, they may be open to challenge if they require reasonable suspicion. So, yes, it will have quite an impact. And we'll have to wait and see down the road if the court will recognize exceptions.

MARGARET WARNER: Marcia Coyle, as always, thank you so much.

MARCIA COYLE: My pleasure.

Shields, Brooks on Supreme Court 'High Tension,' Health Reform's Future

Fri, 30 Mar 2012 18:28:00 EDT

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JUDY WOODRUFF: And to the analysis of Shields and Brooks. That is syndicated columnist Mark Shields and New York Times columnist David Brooks.

Welcome, gentlemen, on this Friday.

So, this week, three days of hearings before the Supreme Court on the president's health care reform law.

David, what did you make of it all?

DAVID BROOKS: Well, it's -- I'm not a constitutional lawyer, but it certainly sent shockwaves through Washington.

People have been overconfident. I think the views of the conservatives have been under-reported for months and months, and their views slighted. And it turns out there are serious concerns. And I don't pretend to pass judgment, but it strikes me as a perfectly valid constitutional issue.

Basically, what the individual mandate does, it asks -- it compels people to enter into a contract with an insurance company, which is not really in their best interest, in order to subsidize other people who are forced to enter into that contract.

That strikes me as a very -- as a step forward in executive or governmental power. So it strikes me as a perfectly legitimate thing to do. I can see why, morally, we are all responsible for each other's health. We're not going to let somebody die on the street.

But, constitutionally, why the government should be compelling people to do this, that strikes me as a completely valid concern, and the justices honed right in on that one.

JUDY WOODRUFF: So, what did you hear, Mark?

MARK SHIELDS: What I heard, Judy, was a political discussion, a reminder that a judge is a lawyer who is appointed to that office by a politician, and that it struck me as rather remarkable to hear judges -- justices of the United States Supreme Court reciting lines that were -- actually questions that were written by the Tea Party opposition to the law.

David's point is a legitimate one. It's a question -- I don't know it's not to my advantage. I think it is to my advantage to have people, everybody in society covered by health insurance, that it is now. If someone is forced to go to an emergency room, we do cover all the expenses, and at a cost to everybody. And that's the right thing to do, to cover it.

But I think most of all, it hit me that -- the change in two years. I mean, there's no question the political sea change with. . .

JUDY WOODRUFF: You mean since the law went into effect.

MARK SHIELDS: Since the law was passed. There was a confidence on the part of the administration and the White House that once people became aware of this, there would be a change.

And people like Ken Cuccinelli, who is the attorney general of Virginia, and other conservatives saying, no, they're going to challenge this in the Supreme Court, they were dismissed, they were treated with some disdain. And you could see this grow to the point where it's not only possible, it may be plausible that this law will be overturned, if not in entirety, in part.

JUDY WOODRUFF: So, did you hear the justices reciting Tea Party lines. . .

DAVID BROOKS: Sometimes, yes.

I mean, I ran into some judges this week who said, it went on too long. There was no reason for it to go on three full days -- or not full days, but three days. And so within -- on the fringes, it's true there were some political statements made. There were some comments, inaccurate comments, in summary of the bill.

But -- and so that was there, no question. But at the core, there was this core issue, does the government -- we all know that if you enter into a relationship, the government has the power to regulate it. Does the government have the power to compel you to enter into a relationship?

And that strikes me as a purely constitutional matter, a role of government matter. And there are many ways to get people to have universal coverage. And it's worth remembering, when Barack Obama was running for president, he was against the individual mandate because he thought it would be ineffective, you could not enforce it.

You could tax people and pay them. You could give people strong economic incentives to get universal coverage. But compelling that mandate, which was the most politically convenient, is far from the only way to get there.

JUDY WOODRUFF: So you're saying that that was the right argument to have, over the mandate, over the validity of the mandate? Mark, I mean. . .

MARK SHIELDS: Yeah, I think the argument, they went to the point that is the vulnerability, and it was a point that Democrats didn't -- they came to out of a sense of necessity, political necessity.

The mandate had its origins, the individual mandate, some 20 years ago when Bill Clinton and Hillary Rodham Clinton, the president and first lady, a Democratic administration, came up with their health care plan, and this was the Republican rebuttal. It was hatched at the Heritage Foundation, a Republican conservative -- conservative think tank here in town.

It was backed by Republicans. And this -- David's absolutely right in his recitation of history, that candidate Obama opposed it. Most Democrats opposed it. Most Democrats wanted a single-payer, at least the Democrats who were engaged and involved in this. They couldn't pass it. They didn't have the votes to pass it. And this was the compromise plan.

DAVID BROOKS: And I would say, first, I'm for it as a matter of policy. I think the mandate is something you need if you're going to have a good system.

As a matter of constitutional law, that's sort of different. And so we do have to respect the Constitution. One other thing I did want to say, and I have heard this from a lot of people, is we got to see the justices in a more high-tension setting than we normally do.

And I can't tell you how many conservatives have told me this week, we were opposed to Sotomayor, but she's really good. And they were really impressed with her. I thought Roberts was very good. I think Scalia is always flamboyant, but also super-smart. But Sotomayor and Kagan I think really showed on that public, or the newest justices, how smart they are.

JUDY WOODRUFF: What was your take on the justices?

MARK SHIELDS: I think -- I can't make an assessment of the judges. I just -- I didn't listen in its entirety. I dropped in and out and listened to our summaries.

But I do want to say this one thing about the court. And that is, at a time when American institutions are under siege -- Gallup poll last year had the favorable or unfavorable evaluation of these falling institutions -- the court had been up pretty high, had been 61 percent favorable.

And after the Citizens United decision, when they opened up corporate contributions, unlimited corporate contributions, for the first time in 100 years in American politics by a 5-4 vote, the court has dropped, and a decision that 80 percent of Americans when polled opposed.

The court's favorability has dropped to 46 percent. And I think the court is in danger of becoming very much a political institution. The reality has been in the past. . .

JUDY WOODRUFF: Political institution.

MARK SHIELDS: A political institution that's become politicized as part of the political campaign.

Fifty years ago, Judy, it was not uncommon to see cars with bumper stickers on them, "Impeach Earl Warren," who was the chief justice, at a time when the court expanded civil liberties and civil rights and upset established order.

JUDY WOODRUFF: So are you saying you expect a political decision?

MARK SHIELDS: I expect a political reaction to the decision, if in fact -- I think the losing side in this kind of a decision, high-profile, high-intensity decision, is where the political energy lies. I think the initial reaction, if the mandate is overturned, if the law itself is overturned, there'll be a celebratory victory lap by the part of the conservatives who prevailed, and disdain for the president, the constitutional professor who didn't understand the Constitution.

I think after that settles in, I think what you will see is political energy on the Democratic side to -- because once these rights and these -- those changes have been repealed.

JUDY WOODRUFF: But just to make sure I hear you right, Mark. . .

MARK SHIELDS: Sure.

JUDY WOODRUFF: . . . you're not saying the court is making -- is injecting politics into this? You're saying. . .

MARK SHIELDS: Oh, I think that it will be seen very much as a political decision, I mean, based upon the questioning.

JUDY WOODRUFF: Okay.

MARK SHIELDS: You got Charles Fried, who was Ronald Reagan's solicitor, I mean, a very conservative Harvard professor, you know, say he just couldn't believe some of the questions, that they sounded like they'd been written by the Tea Party.

I think it does become part of the political -- you would then have the Citizens United decision, the Bush v. Gore decision, and this decision in the space of, what, 11 years, 12 years, that are serious political decisions that have all come down on one side.

JUDY WOODRUFF: How do see you the politics?

DAVID BROOKS: Well, and then that happened the opposite -- Roe v. Wade, both sides were pretty energized after that one.

I don't see this having that kind of scope, a Roe v. Wade, which has gone on forever. What I frankly think what's going to happen, a lot of people on the left, the champions of the bill, will be furious, no question, if it's struck down. We should emphasize we don't know what is going to happen.

But as for the country at large, it's worth remembering the bill -- the law is unpopular. And the latest study, and I think the best study, suggested that 25 Democrats in the House lost their seats because of this law, aside from the economy in 2010. So I think what is going to happen for most of the country is, they will say, fine.

I'm not saying this majority -- minority. And I think, on the electoral effect, it will actually help the Democrats, because the Republicans are losing the economy as an issue as it improves. They are settling on health care as their number one issue. And if that's taken away from them, it's tougher to run the sort of campaign they want to run.

JUDY WOODRUFF: So you're saying there wouldn't be the backlash or the reaction from. . .

DAVID BROOKS: I think among real champions of the bill -- of the law, it will be there.

MARK SHIELDS: I think -- I disagree with David on Roe v. Wade.

I think the energy on Roe v. Wade was on the losing side. That's been kept alive by -- that led to an entire political movement.

JUDY WOODRUFF: Anti-abortion, pro-life.

MARK SHIELDS: Yes, the pro-life/anti-abortion movement, and in part because it was seen that the court interrupted what had been the legislative and political process, and that this would be a case of the court for the first time in, what, 70 years, overturning a legislative act of this nature.

JUDY WOODRUFF: Just one other thing I want to ask you about. We're on the edge of our seats on this, and that is the budget.

The House, Mark, overwhelmingly rejected the president's budget proposal.

MARK SHIELDS: Yes.

JUDY WOODRUFF: And then they turned around and passed, along party lines, David, the Paul Ryan budget.

What -- what is -- it's not a shock that this happened. But what's the next step here? What happens?

DAVID BROOKS: We have an election.

JUDY WOODRUFF: Does it matter? It's March.

DAVID BROOKS: We have an election. We wait until December, which is the cataclysm month, when all sort of things, bad fiscal things happen all at once.

But I give Ryan credit. I don't agree with all parts of it, but he's taken a step forward. One of the saddest things that has happened this week is Jim Cooper, a Democrat from Tennessee, and others put together a Simpson-Bowles bill, sort of an outline, and had them vote on that. I think it got like 38 votes in the House.

And so we're going to end up there eventually. I don't know when, before or after a fiscal crisis. We'll end up with something like Simpson-Bowles. But you see the two parties not wanting to get there yet.

JUDY WOODRUFF: Including tax increases.

DAVID BROOKS: Right. Exactly.

JUDY WOODRUFF: But the Republicans aren't ready.

DAVID BROOKS: Right. And neither are the Democrats, apparently. Almost nobody voted for this thing.

JUDY WOODRUFF: Mark.

MARK SHIELDS: The rejection of the Simpson-Bowles approach is proof that bipartisanship is no longer on life support. It's dead in this city.

I think the Ryan budget, which I think is indefensible in a social sense, in a social justice sense, with a $394,000 tax cut for the average millionaire, I think -- I think what it is, is the blueprint that House Republicans are laying down right now for the lame-duck session that follows the election.

They have staked out their position, so that this is their negotiating position. Let the White House and the Democrats try and come up with theirs. But I think that's what they're doing. And, plus, what they have done is they have stopped any cuts in the military that were agreed to last summer in the grand budget agreement last year, 2011.

JUDY WOODRUFF: And just quickly, real consequences of this. Do people just say, oh, there goes Washington again?

DAVID BROOKS: Well, we see what they -- the parties believe in. We don't see what they're going to do.

So, if you're looking for the practical consequences, zero.

MARK SHIELDS: I think there could be political consequences in the election.

I think some of the cuts that the Republicans have voted for could become issues in certain House races.

JUDY WOODRUFF: Well, we are always thrilled, our hearts race when you're here.

(LAUGHTER)

MARK SHIELDS: Oh, my goodness, Judy.

(LAUGHTER)

JUDY WOODRUFF: Mark Shields, David Brooks, thank you both.

Health Reform's Fate: How the Supreme Court Will Decide

Fri, 30 Mar 2012 18:03:00 EDT

Listen to the Audio

JUDY WOODRUFF: The nine justices of the Supreme Court took their initial votes today after three days of arguments this week on President Obama's health care law. Their decision is not expected until late June.

The vice president told CBS in an interview that the administration's focus is on implementing the two-year-old law, not on the court's deliberations.

VICE PRESIDENT JOSEPH BIDEN: No one's made any money betting an outcome of cases based on the oral arguments and the questions asked. We think -- we think the mandate and the law is constitutional, and we think the court will rule that way.

I just think we should focus on what is the law doing for people now, and what would happen if, in fact, the Republicans were able to repeal it.

JEFFREY BROWN: Former Massachusetts Gov. Mitt Romney signed into law a bill similar to the one passed on the federal level. But he told an audience in Wisconsin today that, if the court doesn't strike down the Affordable Care Act, he hopes to repeal it.

MITT ROMNEY (R): If Obamacare is allowed to stand, government will directly control almost half of the U.S. economy. Government must have -- it's got to be smaller. It has got to have strict limits placed on its power. Obamacare violates both of those principles, and, if I'm president, I will repeal it.

(CHEERING AND APPLAUSE)

JUDY WOODRUFF: Also today, the Republican National Committee was criticized for releasing a Web video that manipulated audio of U.S. Solicitor General Donald Verrilli. The audio was edited so that it would exaggerate pauses he made while arguing Tuesday for the government in favor of the health care law.

DONALD VERRILLI, solicitor general of the United States: Because the -- the -- the -- excuse me.

JUDY WOODRUFF: Joining us now is Marcia Coyle with The National Law Journal. She covers the Supreme Court for the NewsHour and she was there for the arguments this week.

And welcome back.

MARCIA COYLE, The National Law Journal: Thanks, Judy.

JUDY WOODRUFF: So, of all the cases that come to the Supreme Court, clearly this among the most important, Marcia, not just judging health care reform, but judging the ability of Congress to make law.

MARCIA COYLE: That's right, Judy.

I mean, very fundamentally, the court is examining the scope of Congress' power to make laws under the Constitution. So whatever the court decides in the health care case, it's likely to have an impact on Congress' ability to address problems down the road that are problems with national scope or nature.

The court may announce limits on Congress' power. We don't know. But it certainly goes beyond the health care law that is at issue right now.

JUDY WOODRUFF: So, today, the justices, after the hearings earlier this week, they met. They had a conference. Tell us what goes on. . .

MARCIA COYLE: Sure. There is a room off the chief justice's chambers. It's a stately room with a fireplace, and it also has an oblong table.

The chief justice sits at the head of the table. Justice Scalia is at the other end. He is the senior associate justice. And the chief, by tradition, presents the case to the other justices, says his vote, gives an explanation. And then, by seniority, they go around the table announcing their votes.

If the chief justice is in the majority at the end of that vote tally, he will assign the majority opinion either to himself perhaps or to another justice. And then, if he's not in the majority, the justice who is next in line most senior in the majority will do the assigning of the opinions.

Then we go through a period where the justices are drafting opinions, they're exchanging thoughts, and the ultimate result probably will be in June.

JUDY WOODRUFF: So do they talk about the case between now and the end of June, or do they just exchange written opinions?

MARCIA COYLE: They really do primarily communicate through the draft opinions. There is some discussion in conference when they vote, but, really, this is a body that talks through its writings.

JUDY WOODRUFF: And, Marcia, do they typically hold to the same position that they held today, the day of this conference, or could that change?

MARCIA COYLE: Well, probably more often than not, but there have been examples throughout history, and even in recent times, of justices changing their minds. Even the justice assigned to write the majority opinion may change his or her mind.

There was an example I think in the '90s when Justice Kennedy was writing a majority opinion involving prayers at high school graduations, and he changed his mind, and he ended up writing a majority opinion, but with a different four justices joining him.

JUDY WOODRUFF: But, typically, it's felt that -- it's believed they stick to the opinions. . .

MARCIA COYLE: Generally, they do, I think.

JUDY WOODRUFF: So a political question, Marcia. You've seen this ad that -- the Web ad that the Republican National Committee put out today. . .

MARCIA COYLE: Yes.

JUDY WOODRUFF: . . . essentially doctoring some of the audio of the court argument on Tuesday, making the government attorney's presentation sound worse than it was, more hesitation on his part, sipping water and so forth. What are your thoughts about that?

MARCIA COYLE: Well, first of all, the solicitor general, Donald Verrilli, had something of a frog in his throat. And he did clear it and got through his argument.

As far as the RNC ad goes, my initial thought is, it's dishonest. If it's dishonest, it's inexcusable. My second thought was that it may well have an impact, beyond that, on the public's ability to get the court to be more transparent in its proceedings.

The court has resisted cameras in the courtroom, partially out of fear that it will be misused on TV. Chief Justice Roberts this week bent his rule of putting up audio of the arguments regularly on Fridays of arguments week, so that we could have it on the same day. And now it may be there will be some justices who will say, well, look, even the audio is abused. No way we will let cameras in the courtroom.

So I think really the harm is to the public more than anything.

JUDY WOODRUFF: Well, we will leave it there and we will be watching.

Marcia Coyle, thank you.

MARCIA COYLE: My pleasure, Judy.

JEFFREY BROWN: You can find blogs from Marcia and all of our coverage of the court hearings this week archived on our health page at NewsHour.PBS.org.

Read, Listen and Even Translate The Supreme Court's Health Care Hearings

Fri, 30 Mar 2012 17:15:00 EDT

Opponents and supporters of the health care reform law gather outside the Supreme Court on Monday. Photo by Mark Wilson/Getty Images

In a wood-paneled conference room on the main floor of the Supreme Court, the justices gathered Friday for a secret initial vote on the constitutionality of the Affordable Care Act.

However, the official ruling on the case isn't expected until late June. And given that the justices have the opportunity to change their minds at any point between now and then, Americans still have plenty of time to examine the audio and transcripts from this week's hearings and make their own judgments on the eventual fate of the law.

Navigating these audio recordings and transcripts can be a challenge, so the NewsHour created these four YouTube videos -- one from each of the four health care reform arguments -- to make them a bit easier to follow.

In each video below, click the YouTube icon to access the video's individualized page. You can then browse the dynamic transcripts, read along with the audio, and even translate the proceedings into several languages, including Spanish. Just click the "cc" button on the lower right-hand side of the video and select the "Translate Captions" option.

Below are all four of the audio-videos, each illustrated by the courtroom sketches of William J. Hennessy Jr.

Day 1: Jurisdiction, Tax Questions

Watch Video

Day 2: Individual Mandate

Watch Video

Day 3, Part 1: Severability

Watch Video

Day 3, Part 2: Medicaid Expansion

Watch Video

The NewsHour's Health Page is full of related content about the health care reform law and Supreme Court case, including a timeline, a report card, a cheat sheet, and a public polling update. Read Marcia Coyle's daily primers, watch our broadcast coverage and analysis of the proceedings and browse our photo essays of the ordinary Americans who traveled to Capitol Hill this week to support and protest the law.

Tea Leaf Reading at Its Best: Eavesdropping on the Supreme Court

Fri, 30 Mar 2012 12:53:00 EDT

I was never tempted to go to law school. But I love to parse language and reasoning, so listening to the audio of this week's Supreme Court health care arguments was -- in its nerdy way -- actually quite enjoyable.

Because the courts remain the only branch of the federal government that still stubbornly bans cameras from proceedings, we rely on audiotapes released later in the day to hear history unfold. It's there where those of us who don't get into the room get to listen for cadence, eloquence and even humor.

Perhaps the most revealing thread for me was this: Supreme Court justices may live sequestered lives, but they are well-aware of the political consequences of their decisions.

Justice Antonin Scalia, widely considered to be the court's most erudite as well as conservative member, consistently inserted real-world politics into his questioning.

During the exchange over whether the Affordable Care Act could survive if its requirement to buy insurance was struck down, Scalia signaled his knowledge of the intricacies of congressional sausage-making.

Remember the "Cornhusker kickback?" That's a special Nebraska Medicaid exemption Democrats attached to the bill to win support for the health care bill as it was making its tortuous way through the Senate.

"It's clear that Congress would not have passed it without that," Scalia said. "It was the means of getting the last necessary vote in the Senate. And you are telling us that the whole statute would fall because the Cornhusker kickback is bad. That can't be right."

(Scalia, it should be noted, did not have it quite right. The Cornhusker kickback was stripped from the law pretty quickly. The moniker "kickback" may have had something to do with it.)

Scalia amplified the political reality of the choice later in the arguments. "There is no way that this Court's decision is not going to distort the congressional process," he asserted. "Whether we strike it all down or leave some of it in place, the congressional process will never be the same."

The Court has a fine line to walk in this case, where it is being asked to decide the constitutionality of a massive political and policy document.

At different points throughout the three days of arguments, the justices acknowledged the stickiness of the situation. Justice Elena Kagan was among them.

"We have never suggested that we were going to say, 'Look, this legislation was a brokered compromise and we are going to try to figure out exactly what would have happened in the complex parliamentary shenanigans that go on across the street and figure out whether they would have made a difference,'" she said. "Instead, we look at the text that's actually given us."

"I think that's exactly right," Deputy Solicitor General Edwin Kneedler -- arguing in support of the law for the government -- happily replied since this was the case he was making anyway. "As I said, it is a question of statutory interpretation."

But Chief Justice John Roberts was not so happy. "Well, how is that? What's exactly right?" he interjected. "It's a question of statutory interpretation; that means you have to go through every line of the statute."

Since, as Justice Scalia pointed out, the law runs 2,700 pages, no one wants to have to do that.

The political realities seemed particularly stark for justices who are often identified by the political leanings of the presidents who appointed them, but nonetheless like to consider themselves above politics.

Lawyers arguing for and against the law got this, and in their concluding statements, tried to appeal to those better angels.

"The Congress struggled with the issue of how to deal with this profound problem of 40 million people without health care for many years," Solicitor General Donald Verrilli said soberly Wednesday. "And it made a judgment, and its judgment is one that is, I think, in conformity with lots of experts thought, was the best complex of options to handle this problem."

But Paul Clement, a former solicitor general who was arguing against the law on behalf of 26 states, said it's the solution Congress settled on that's the problem.

"It's a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not," he said. "And it's a very strange conception of federalism that says that we can simply give the states an offer that they can't refuse, and through the spending power which is premised on the notion that Congress can do more because it's voluntary, we can force the states to do whatever we tell them to."

And there's this: No matter what anyone says, no matter how many tea leaves we read, no one really knows in the end how the Court will decide. That will most likely have to wait until June.

Gwen's Take is cross-posted with the website of Washington Week, which airs Friday night on many PBS stations. Check your local listings.

After Hearings, GOP Candidates Redouble Health Reform Critiques

Thu, 29 Mar 2012 18:03:00 EDT

Listen to the Audio

JUDY WOODRUFF: The long wait began today until the nation's highest court decides the future of the 2010 law that reshaped American health care.

In the meantime, the debate continues in the presidential campaign.

Two years ago this month, President Obama signed health care reform into law, his signature domestic policy achievement. Now, after three days of Supreme Court arguments, its fate is in the hands of the nine justices, and their ruling is expected this summer.

White House Press Secretary Jay Carney said today that, until then, nothing will change.

JAY CARNEY, White House press secretary: We're going to keep implementing this law. And the president was pleased with the presentation and remains convinced that the Affordable Care Act is constitutional.

JUDY WOODRUFF: For his part, Mr. Obama made no mention of health care during a morning appearance in the White House Rose Garden.

But it remains a hot-button issue, and the court's decision could have far-reaching consequences for health coverage and the president's reelection hopes. Health care reform has also roiled the Republican race. Rick Santorum was at the Supreme Court on Monday, arguing his case that Mitt Romney is ill-suited to challenge the president on the subject.

RICK SANTORUM (R): There's one candidate who is uniquely disqualified to make the case. It's the reason I'm here and he's not, the reason that I talk about Obamacare and its impact on the economy and fundamental freedoms and Mitt Romney doesn't. It's because he can't, because he supported government-run health care as governor of Massachusetts.

JUDY WOODRUFF: The Massachusetts plan that Romney signed into law has long been considered a political liability among many conservatives. But the former governor has forcefully defended the program, including in Michigan last May, before he officially announced his candidacy.

MITT ROMNEY (R): I also recognize that a lot of pundits around the nation are saying that I should just stand up and say, this whole thing was a mistake, that this just was a bone-headed idea, and I should just admit it, it was a mistake, and walk away from it.

And I presume that a lot of folks which conclude that, if I did that, that would be good for me politically. But there's only one problem with that: It wouldn't be honest.

JUDY WOODRUFF: Even so, Romney has been unsparing in his criticism of the Obama administration's approach.

MITT ROMNEY: Obamacare substitutes government intrusiveness for the dynamics of individual responsibility, for individuals being able to pursue different options and for the dynamics of a free market.

JUDY WOODRUFF: The administration counters that the Massachusetts plan served as the blueprint for its effort.

Here is White House senior adviser David Plouffe last weekend on NBC.

DAVID PLOUFFE, senior White House adviser: Mitt Romney is the godfather of our health care plan, okay? If he's president -- remarkably, he's running away from that past, and he's going to say he's going to try and throw all this away.

We're going to have a big fight about health care again. We know we have to do this for our economy, for our deficits, for the health and safety of the American people.

JUDY WOODRUFF: The Obama team is also using social media sites, trying to claim for its own the Obamacare label given to the law by opponents. It's a strategy the president previewed in Minnesota last August while on a bus tour through the Midwest.

BARACK OBAMA, president of the United States: Part of the Affordable Care Act, health care reform, also known as Obamacare -- by the way, you know what? Let me tell you, I have no problem with folks saying Obama cares. I do care.

(CHEERING AND APPLAUSE)

BARACK OBAMA: If the other side wants to be the folks who don't care, that's fine with me.

JUDY WOODRUFF: For now, the health care fight goes on, with both sides waiting to see how the Supreme Court's decision in June reshapes the debate.

For more on how the health care debate has spilled onto the campaign trail, we turn to Washington Post reporter Amy Gardner, and Brian Mooney. He's a reporter with The Boston Globe who wrote a series about the Romney plan.

Brian -- and thanks to you both for being with us.

Brian, you have written a lot about the Mitt Romney health care plan, which the Obama team and the Rick Santorum team are saying was a basis for Obamacare, for the president's health care plan. Is that accurate?

BRIAN MOONEY, The Boston Globe: It's accurate. It's the template that was used in the national plan. The national plan, obviously, has a lot of elements that the Massachusetts plan did not. It's a lot more complicated and ambitious.

But the key elements, the innovations, are basically the ones that were launched in Massachusetts back in 2006.

JUDY WOODRUFF: So, how would you -- what are the chief comparisons between the two?

BRIAN MOONEY: Well, the individual mandate, for one. Massachusetts is the only state to have done this.

And it's a concept based in conservative Republican circles in the '90s as an alternative to the Hillary Clinton health care plan. Bob Dole, Newt Gingrich, people like that supported it. That's a key component of the federal one as well.

This idea of state-based exchanges that would provide a marketplace for commercially sold real estate -- insurance policies is another key feature. So all the major features are very similar.

JUDY WOODRUFF: And, Brian Mooney, just remind us, where did the idea come from for the Romney health care plan in Massachusetts and how did he get it passed?

BRIAN MOONEY: Well, as you know, Massachusetts is an overwhelmingly Democratic and liberal state. Ted Kennedy was alive, you know the champion of universal health care.

There's a culture in the state that's very favorable towards expanding insurance. And Romney as a Republican took an unusual step and said he was going to make it a major -- an issue in the second half of his term as governor. And he proposed some new ideas that Democrats hadn't used before. It was a long process. It took about two years to get passed.

There were fights in the legislature over it, but in the end, out of 200 state legislators , only two opposed it and there was no real organized opposition to it. And so Romney gets a lot of the credit for it.

JUDY WOODRUFF: So, Amy Gardner, you've been following the other Republican candidates on the trail this year. What are they saying about the Mitt Romney health care plan?

AMY GARDNER, The Washington Post: Well, it's become the issue upon which to sort of wage the case, make the case, argue the case that Mitt Romney is not the person to litigate health care against Barack Obama in the general election.

Both Mitt -- both Newt Gingrich and Rick Santorum, as the clip a moment ago illustrated with Santorum on Capitol Hill this week, has been hammering Governor Romney on the issue day after day after day.

JUDY WOODRUFF: So, meanwhile, move over to the White House, and you have been covering the Obama White House in the last few days. How concerned are they after hearing these Supreme Court arguments? What are they saying?

AMY GARDNER: Well, they're not saying. In fact, it's very clear that they're executing a concerted strategy not to get in the middle of this.

And so their response is, we believe the bill -- the law is constitutional, we are going to continue to move toward implementation. You heard Press Secretary Jay Carney say that today. You hear the same message out of campaign headquarters in Chicago. They're on TV saying the exact same thing. They don't want to get into the middle of the political discussion that the candidates are having and that we're having on TV shows.

JUDY WOODRUFF: Aside from this -- the court arguments, though, and what's going on with the court, how much has the president been talking about health care reform in this campaign?

AMY GARDNER: Well, you know, any good campaign and candidate and, you know, elected official is thinking about what the potential outcomes are of any important issue.

So, of course they're talking about it, and of course they're thinking about what will happen if the Supreme Court overturns it and what will happen if the Supreme Court upholds it. We don't know anymore than vast speculation, which I feel perfectly safe putting out there. We know that he's very interested in the case. He's, of course, a constitutional scholar himself who taught constitutional law in law school.

And we know that he read briefs on his way back from Korea on Tuesday on Air Force One with great interest, I'm sure. And that's about all we know.

JUDY WOODRUFF: What about -- Amy Gardner, what about the president's Democratic allies and Democrats on the Hill? How much are they sweating this out?

AMY GARDNER: It's interesting. You do hear a little bit more candor about the concern that folks have.

I mean there's a fairly universal view that the arguments didn't feel like they went very well for the Democratic side this week, with the very tough questioning from the conservative justices, particularly on the individual mandate on Tuesday.

And so certainly people are starting to think much more about the possibility of the court actually overturning this. And so you hear a couple different things. You hear -- you don't hear any talk about how would we replace this law. The view is, look, we considered plans B, C, D and E back in 2009. And we didn't go in those directions for very concerted reasons. We believed that this was the plan that worked.

The individual mandate is the cornerstone to this bill, they say, because it allows -- it requires 30 million additional people to come into the market and helps pay for some of the popular provisions of the bill, like preexisting conditions and all that stuff.

JUDY WOODRUFF: Brian Mooney, back to you. And, by the way, we learned I guess today that the Supreme Court, the justices are actually going to take a vote among themselves on this, this Friday, but nobody will know what those results are until the opinions are written and they come out some time at the end of June.

But, in the meantime, what do you think we should expect to hear from Mitt Romney about all this on the campaign trail?

BRIAN MOONEY: Well, the great irony is that I think Romney, as he prepared to run for president in 2008, thought this achievement would be a great asset to him. It's turned out to be very much the opposite in his own party.

And I think President Obama thought the national overhaul would do the same for him, and it's proved to be not very popular. But for Romney, he's standing on a narrow ground of federalism, which is about the only place he can stand, saying states should be doing this by themselves, not with a mandate from the federal government.

It's a very narrow political piece of ground. And it will be interesting to see in the general election how he deals with that, if he tries to appeal to a broader audience.

JUDY WOODRUFF: But, just quickly, he does -- it is felt in the Romney campaign that he can talk about it?

BRIAN MOONEY: Well, he's not leading with it. That's for sure. As he goes for the nomination, it's been a liability, frankly. A lot of people thought it would kill his chances, which it hasn't -- which hasn't happened.

But some people think a Republican talking about health reform is a good thing. It's a party that's not been identified with that issue. But it's a very -- it's tricky ground for him.

JUDY WOODRUFF: All right, we're going to leave it there.

Brian Mooney joining us in Boston, Amy Gardner here in Washington, thank you both.

AMY GARDNER: Thank you.

BRIAN MOONEY: Thank you.

Webcast: Health Reform And The Court Wrap-Up

Thu, 29 Mar 2012 11:43:00 EDT

After six hours of historic arguments on the health law, the Supreme Court now begins its deliberations. What were the key moments in the debate, and how might they affect the outcome?

Our partners at Kaiser Health News hosted a webcast Thursday to re-examine the week's proceedings and offer some takeaways. Joining KHN Senior Correspondent Mary Agnes Carey were Stuart Taylor, attorney, author and KHN legal analyst; Tom Goldstein, Goldstein & Russell, P.C., and publisher of SCOTUSblog; and Julie Rovner, health policy correspondent, NPR.

Watch the full video above.

TRANSCRIPT

MARY AGNES CAREY: Good day and welcome to "Health Reform and the Court," I'm Mary Agnes Carey. After six hours of historic arguments on the health care law, the Supreme Court now begins its deliberations. What were the key moments in the debate and how might they affect the outcome? Will the Court decide to strike the law's requirement that most Americans have coverage or pay a fine? And if the individual mandate is declared unconstitutional, what happens next? Will the Medicaid expansion remain? With us today to discuss these issues and answer your questions are Stuart Taylor, a lawyer, author and contributor to many publications including the National Journal and Kaiser Health News; Tom Goldstein, of the law firm Goldstein & Russell, and publisher of SCOTUSblog; and Julie Rovner, health policy correspondent for NPR.

Thanks to all of you for being here. I'd like to pose a question to all of you first, but have Stuart start. What surprised you the most over the last three days? What didn't you anticipate? What played out differently than you thought it would?

STUART TAYLOR: What struck me most was the energy with which the four more conservative members of the court - well, three - Justice Thomas, being a known quantity, was silent - tore into the government's positions in defense of the health care law in their questions and so forth. Scalia, who some thought might be in play, was clearly a vote to strike everything down. Alito sounded like a vote to strike everything down. Roberts, who was thought to be in play, was more ambiguous, but he tore into the government's positions over and over again with energy. He said things like: "All bets are off if we uphold this," meaning the government's power would be unlimited.

And Justice Kennedy, a little more mixed, but he said, for example, in challenging the individual mandate argument. He said, "That changes the relationship of the federal government to the individual in a very fundamental way." Then when he was arguing to the other side, he seemed to qualify that. So, I actually am not betting that they'll strike anything down, but I think it's a whole lot bigger possibility than I did before I went in.

MARY AGNES CAREY: Julie? Tom?

JULIE ROVNER: I sat through the Medicaid arguments yesterday - most people were surprised they even took this argument. This is the argument the states are making that the Medicaid expansion is coercive, even though the federal government is paying the vast majority of this Medicaid expansion, and they're arguing that their having to expand Medicaid somehow puts them at risk for losing the rest of their Medicaid money. Even the judge in Florida that struck down the entire law didn't buy the Medicaid argument. No judge has actually said that expanding Medicaid is somehow coercive to the states. And yet, the conservative justices seemed to accept the possibility that this might be coercive to the states. So that really surprised me.

TOM GOLDSTEIN: I agree with all that. The thing that surprised me, and pleasantly so, was the level of public interest, sincere public interest in the cases. And in the really complicated area where people who aren't trained as lawyers can find it very difficult to understand what's going on - that had been dominated in the past by real bumper-sticker messages that don't have a lot of depth to them - people cared a lot. Fantastic programs like this one, real interest across the entire ideological spectrum and people who aren't ideological at all. I think, even if the law gets struck down, and the Supreme Court, in that respect, has to be an anti-democratic institution, because they're not elected, but it is a great illustration of the process working and the public engaging.

MARY AGNES CAREY: I want to go back to a point that Stuart mentioned. Before the Supreme Court arguments began, conventional wisdom was that the law would be upheld. It seemed to be the debate was all about, "By what margin?" That feels very different now.

STUART TAYLOR: It does. And I think there was an evolution in that. Bear in mind that the vast majority of constitutional law professors and scholars are liberal. So, the conventional wisdom is colored by that. But notwithstanding, a couple of years ago when these lawsuits started, there was a very broad sense that, you know, "This is not a close call, of course the Supreme Court is going to uphold this." Then lower courts started striking it down, and it got a little more ambiguous. But even in the last few days before the arguments, some conservatives who want the court to strike it down, would privately say, "Well, it doesn't look like we're going to get that far, but we're going to give it a good go." Now the conservatives who want it struck down are feeling triumphant. I'm not sure they're right to feel triumphant, but they certainly got a lot of comfort from the way the arguments went.

MARY AGNES CAREY: But, you can't base simply by the oral arguments, right? I mean, this is a much more complicated decision that would be made, so maybe to walk away from simply looking at the oral arguments and saying, "This is the way the court is going to go." That's not a fair assumption, right?

TOM GOLDSTEIN: Well, that's true, and in particular, this is the kind of case that is harder for the government to argue than the plaintiffs to argue, because the plaintiffs basically say, "If you're right, the government can do whatever it wants," which is the illustration that Stuart gave from the chief justice saying, you know, "All bets are off." And so the argument is going to appear a little one-sided. On the other hand, when you're the White House press secretary and your great defense of how it is you think you're going to win is that oral arguments can be misleading, and you don't have anything good to point to, you do know you're in trouble.

MARY AGNES CAREY: All right, let's turn to some questions from our viewers. For Tom, here's a question about politics and the court. In this highly partisan era, facts may not have a lot of bearing on the final decision. To what extent will this case be decided on its merits versus political ideology?

TOM GOLDSTEIN: Well, it just depends on what you mean by political ideology. The justices, I believe, are ideological, but not partisan. What that mean is that there's no right or wrong answer about how to interpret the Constitution. There's real disagreement about that. And the more conservative justices have a different vision for the structure of the Constitution than the more liberal justices do. And this could be the first time in which the court, in its really modern era, puts a significant limit on Congress' power in order to preserve the balance of power between the federal government and the states. I think almost everybody agrees that the framers of the Constitution, when it was first written, couldn't have imagined our government the way it is now, with Congress having so much power. It just evolved over time with the Supreme Court's approval. This could be the first time that they really pull back on that since before the New Deal era.

MARY AGNES CAREY: Do you want to weigh in Stuart?

STUART TAYLOR: Yes, I have an idiosyncratic view on this, but I believe it strongly. I think that on a case like this there is no true constitutional truth. There are good arguments for both sides. [The Constitution] was written a very long time ago. How the framers would have dealt with it is unclear. Why we should care how they would have dealt with it is debatable. So I think it's impossible to separate one's legal instincts, if you're sitting on the Supreme Court in a case like this, from one's political instincts in terms of what's good for the country.

I think that if I were sitting in this case, I would have two ways to resolve the arguments. I could toss a coin, or I could go with what I think is good for the country. And I kind of think that's the way it works, even though that may not be the way they think it works.

MARY AGNES CAREY: I have a legal question for you, Stuart. Would it be considered unprecedented if the Supreme Court did find the health law unconstitutional?

STUART TAYLOR: It would not be unprecedented. The court's struck down a lot of major New Deal regulatory statutes in the early 1930s. But that stopped in 1936. From 1937 until now, the Supreme Court has never struck down a major regulatory law. They've struck down a couple of little things. But they've never struck down a major regulatory law on the grounds that, hey, the federal government's power just doesn't reach that far. And so it would be unprecedented since 1936.

TOM GOLDSTEIN: What the challengers would say, and I should say I filed a brief defending the statute on behalf of the AARP, but what the challengers would say is, 'yeah, in that sense, maybe it's unprecedented, but the statute is unprecedented.' Their view is, 'Look, Congress has never done something like this before where they have a mandate that you have to purchase a product.' And so this decision would be a reaction to Congress overreaching. Everybody agrees there's got to be a limit. The Constitution gives a certain amount of power to the federal government, but not all the power. And the question is does this cross the line? Something's going to cross the line and the Supreme Court eventually is going to draw that line. And the question is, is this it?

MARY AGNES CAREY: Julie, I have a question for you about single payer. Our questioner calls the health law the "anything but single payer" plan. If the mandate is ruled constitutional, is this the end for single payer? And if it's ruled unconstitutional, will single payer be the obvious next solution?

JULIE ROVNER: One of the things that actually struck me is how the conservative justices were so glibly saying, 'Gee, you could do single payer if you wanted to. That would clearly be constitutional.' And of course Medicare as we know is kind of single payer for the elderly population because it is funded by a tax, and that's was one of the big parts of the argument - that Congress certainly has a taxing power. In fact, in the 30s, that's finally how they got Social Security through. And Medicare is structured very much like Social Security. So obviously, if this is struck down, then Congress could come back and do a Medicare-for-all, which would be single payer.

On the other hand, Congress is certainly not anywhere near wanting to do single payer. Certainly not this Congress, probably not any Congress in the future. One of the things I was also struck by were the crowds in front of the Supreme Court who were extraordinarily civil. And I mean that in every definition of the word, and very well behaved. But what the opponents of the law really feel very strongly, and I know there's a lot of misunderstanding of this individual mandate and who will be affected, but a lot of people who would not be affected still think this is an overreach of power by the federal government. Well, you can imagine what single payer would do to those people. If they think that being required to have private insurance is an overreach by the federal government, you can imagine what they would think of having a government-run system.

It would certainly be constitutional to have single payer. But it would be hard to imagine a Congress that would be ready to vote to have single payer.

MARY AGNES CAREY: To what factor, if any, does this figure in on the judges' deliberations: 'Let's look at Capitol Hill. Nothing is going to happen if this goes down. There isn't going to be a compromise. It's doubtful it would even start until after the election.' Knowing that, do judges take that into their consideration? There was a line or two in the argument about, well, Congress could just get together and do something quickly. How much does that figure in, if at all?

STUART TAYLOR: Actually, it figured in more than I have ever heard it figure in to what they said. Justice Scalia said, 'Look, there's Congressional inertia. You need 60 votes to get anything through the Senate, so if we strike part of it down and leave the rest of it standing, that's the way it's going to be. Because you'll never get 60 votes to change it.'

One inference of that would be: Well, let well enough alone. Because, his inference is: 'So we need to sweep the whole thing aside and let them make a fresh start.' So it's very much on their minds, and they're more open about it than they usually are, as to how this plays out in the political system. Frankly, it would be irresponsible of them not to be thinking of that.

TOM GOLDSTEIN: The other time that I thought it was really striking, their consciousness of this - I've been at a lot of Supreme Court arguments, I've never seen anything like this. At one point, Paul Clement - who's just a brilliant advocate, did an incredible job for the states - with respect to the periphery of the statute, (there are a bunch of things that just don't have anything to do with insurance: black lung disease, Indian health care, things like that) Paul Clement said, 'Well, just strike the whole thing down. Congress can come along and just enact everything that it wants back in a couple of days.' The entire court room burst into laughter.

MARY AGNES CAREY: It was hysterics.

TOM GOLDSTEIN: It was unbelievable, where the justices knew the argument was bad one based on the reaction of the crowd. Just completely unheard of.

STUART TAYLOR: By the way, Clement said another thing very briefly. Justice Kagan - whose questions are always fun - on Medicaid, said: 'If you're right Mr. Clement, doesn't that mean that Medicaid is unconstitutional now? Meaning, has been for a long time?'

Now you expect the answer to that to be: 'no.' But Clement is a very smart man. He didn't say no. He said, 'not necessarily.' I think that shows, wow! Wow! We've come a long way, baby, in terms of what gets considered as a constitutional possibility.

JULIE ROVNER: Of course, Mr. Clement also said, when Justice Kagan asked, 'If I wanted to hire you and offered you $10 million,' he said, 'I'd need to know where the money was coming from.' ...

MARY AGNES CAREY: That was interesting. I have a question [sent in by a reader], I thought was very interesting on the individual mandate. I want to open it up to the panel: "Even though we have an all-volunteer army and no draft, young men ages 18-25 are required to register with the Selective Service, and there are penalties for not doing so. Why would the mandate to obtain health coverage or pay a fine differ from this? Was this argument made?"

TOM GOLDSTEIN: The reason is that Article I of the Constitution gives Congress a variety of powers. It has the power to regulate interstate commerce. It has the power to tax. It has the power to raise an army.

The thing is that Congress in enacting the Affordable Care Act, clearly invoked its interstate commerce power, and maybe invoked its tax power. It blew hot and cold about it. The president blew a little hot and cold - mostly cold - about it. And so Congress' authority to do things depends on what's in the Constitution. So, the Selective Service, the ability to create an army, the ability to do lots and lots of other things rests on - and so, for, example, Social Security, Medicaid, other taxes that give rise to health care or other social services come under the tax power.

But Congress, for really political reasons - the inability to get conservative Democrats, much less Republicans, to vote for this bill when they needed every possible vote - did not say: 'By the way, this is a tax.' Even though you pay for it if you don't comply with the mandate on your 1040 based in part on your income. It looks, walks, quacks a lot like a tax in many respects.

So nobody made the selective service argument, because it's clear that power exists. The fight that was in the Supreme Court, in part, was: Is this interstate commerce, in which case the fight is, is there any real commerce here? If you're deciding not to buy health care, how is that commerce? That's the lack of commerce. Can you create commerce in order to regulate it, Congress? Or is this a tax? Because if it's a tax, basically the law is: Congress can do whatever it wants. And so, I do think it's true that if the Supreme Court strikes down the mandate, they're going to say: 'Well, Congress could have admitted it was a tax and taken the political hit for it. But it didn't, and it tried to use this narrower power over interstate commerce.'

MARY AGNES CAREY: Julie, do you remember a little bit about the deliberations over tax vs. penalty. Them kind of dancing around this. Remember - we lived through the coverage together thinking that we knew what they were doing, but I'm just wondering if they really regret that now--the drafters.

JULIE ROVNER: No I don't think they do regret it because I think if they'd called it a tax they wouldn't have gotten all those Blue Dog Democrats. That's one that they don't regret. Do they regret not having a severability clause? They may come to. I don't think they regret for a minute not calling it a tax, because it wouldn't have passed. They needed all 60 Democrats in the Senate. Remember the difficulty getting Ben Nelson?

MARY AGNES CAREY: Yes!

JULIE ROVNER: And Mary Landrieu?

MARY AGNES CAREY: I was out in the hallway waiting for that one. Absolutely.

JULIE ROVNER: And the difficulty getting those last few Blue Dogs in the House, those conservative Democrats in the House? They could not call this a tax, even though it in every way, shape and form resembles a tax, they could not call it a tax.

STUART TAYLOR: By the way, Chief Justice Roberts picked up on that. He asked Don Verrilli, the solicitor general, 'Why didn't they call it a tax?' And Verrilli said, 'Well, you know they called it a penalty because maybe they thought that would be more clear or something.' And Roberts basically said, 'Right.' (laughter). He didn't say it that way, but that was the gist.

MARY AGNES CAREY: Here's a question about what would function if the entire law were struck down. What happened to provisions that have already been implemented? For example, Medicare Part D enrollees--would they have to return those rebates they got in the doughnut hole? Would manufactures be entitled to recoup coverage gap discounts? What happens to all those adult children up to age 26 who are on their parents' health insurance plan?

TOM GOLDSTEIN: Well, the only phrase that comes to mind, and it's not exactly a legal one, is: 'God only knows.' (laughter) The justices struggled tremendously in an hour and a half argument about severability with 'What in the world do we do here?' And there was just an array of views about the simpler questions of what parts of the statute survive, about 'is it all of the statute that goes, just the mandate, also guaranteed issue, community rating, something more, the exchanges?' But then the kind of retroactive piece of this wasn't discussed at all. In the main, the law would generally support the idea that we would just stop on the day the decision came down, and nobody would have to give money back, because they got money under the laws that existed at the time. But it could generate a lot of litigation.

STUART TAYLOR: I have a daughter who's under one of those provisions, and I'm wondering, gee, do I need to go out and buy provisional insurance in case she's naked the day they strike everything down? I think not.

TOM GOLDSTEIN: There is one really good upside about this and that's the prospect that a lot of lawyers will have a lot of work.

JULIE ROVNER: Which is very important because I worry about them, as we all do.

TOM GOLDSTEIN: That's tremendous. That's another provision of the Constitution that gets overlooked a lot - full employment for lawyers.

MARY AGNES CAREY: But what is the legal basis for throwing out components of the bill that there's no legal challenge to? That was some of the argument yesterday and previous days--what about these particular elements that no one's objecting to? What's the legal basis to toss them when they're not being challenged?

STUART TAYLOR: The court agrees on what the reason is, but it's very hard to apply it. The reason is: 'What would Congress want [to do with] all these other provisions, if it knew that the one we just struck down was going to be struck down? Are they so interrelated and interdependent and would some of them operate perversely if you didn't have the others?' And that's why they would say 'We don't want to create a monster, cut off half of it and leave the other half to wreak havoc.' That's the theory.

In all previous cases I'm aware of, when they strike something down, they're usually snipping off an appendage of statute, and the rest of it can be left standing without much harm. I can't think of a previous case where if they strike down the individual mandate, you're carving out the heart of this thing in a way, especially if you take down the guaranteed issue and so forth with it. And then you've got black lung benefits, Indian welfare, this and that, you've got thousands of other things that most of them haven't read. And it's very hard to figure out, well what do you do about all that?

MARY AGNES CAREY: Absolutely. Let's all talk a little bit about--there's been a lot of looking at the mandate that people have to have auto insurance in the states and then the federal-- the mandate in the health law, the individual mandate. Both are products that taxpayers are required to purchase if they participate in the auto marketplace or, if the law is upheld, in the health care marketplace. Explore those similarities, differences. That seems to be an argument that's made a lot.

TOM GOLDSTEIN: Sure, the simplest version of that argument is hey, Massachusetts has this, why can't the federal government? And the reason is the one we've been talking about what's a federal power and a congressional power, and what's a state power? So Congress is only allowed to do things the Constitution says that Congress can do, and all the other powers are reserved to the states and the individuals. So states have a general police power. They can help the public in a gazillion different ways that the federal government can't.

The question is, is there a federal authority to do something here that parallels what we know a state can do? Lots of times there is. So we know that the states can enact, under their general police power, a health care law. The question is, with respect to this interstate commerce power: Is the individual mandate a form of regulation of interstate commerce? Same thing--buy auto insurance, right? The states don't need an intrastate commerce power. They have their general powers over their citizens in their state. They can require you to go get a driver's license, they can require you to get insurance to drive a car. There are some federal parallels. So, for example, if you drive a truck in interstate commerce, then the federal government can require you to get a special trucking license, and that's the question: Is this the kind of interstate thing that qualifies for federal regulation or is it more of an intrastate thing that qualifies only for state regulation?

JULIE ROVNER: If I could just say a word about Massachusetts.

MARY AGNES CAREY: Sure.

JULIE ROVNER: There is actually some lingering legal question about whether Massachusetts is doing what it's doing legally under the ERISA law, under the federal ERISA law. But the fact is that nobody's challenged Massachusetts because it seems to be working pretty well.

STUART TAYLOR: I think one thing that makes it hard to sort it out for a lot of people is the fundamental impulse. 'Hey they can't make me buy insurance that I don't want' is a libertarian impulse. 'What business does the government have telling me I can do that?' To which the answer is well everybody agrees that Massachusetts can do it so we're really just talking about the Commerce Clause. So take your libertarian concerns, they're not relevant. But they are relevant, I think, because at the base, the limitations, the notion that the federal government is one of limited powers was thought of by the framers, and we tend to lose sight of it as a fundamental protection of liberty.

MARY AGNES CAREY: Julie, I want to talk to you a little about does the White House have a Plan B here? If the law is struck down, if the mandate is struck down, what's their next move?

JULIE ROVNER: Well the White House insists that it doesn't have a Plan B because it doesn't need a Plan B because it's going to prevail. That is the party line, we've asked many times, and that is what they say. Now we're starting to hear a couple of little inklings from Capitol Hill that they're thinking about Plan Bs. We know that there actually are Plan Bs if they just strike down the mandate and presumably the community rating and guaranteed issue. These would be the least popular aspect of the law and the most popular aspect of the law, being the provision that you can't discriminate against people because they have preexisting conditions.

And there are other ways to work this. You could have people if they don't sign up when they're first eligible, you could say that it would be more expensive if you did it later or you would have to forgo any coverage of your preexisting conditions for a certain number of years. There are other ways to do this without a mandate. We know that they exist and in fact, President Obama, I think everybody now knows that when he was candidate Obama in 2008 he didn't support the mandate for just that reason--he was worried about this libertarian backlash. They're not as efficient, they wouldn't work as well, but they would indeed work plausibly. But again, then we run into this problem of Congress is not in a mood to fix this. It all depends what happens in the election.

MARY AGNES CAREY: These are things that HHS can't do administratively, right? You've got to go back into that law and open it up?

JULIE ROVNER: Yes, you would definitely have to go back into the law.

TOM GOLDSTEIN: It is going to create a real dilemma when on June 28th or so the Supreme Court comes down with this decision and we are going to be really in the throes of the election. And getting Congress to adapt what it is the Supreme Court is going to do, is going to be a real problem if things are invalidated.

JULIE ROVNER: I think you can assume that it won't happen this Congress.

MARY AGNES CAREY: No.

JULIE ROVNER: The other thing that you need to keep in mind is that we are looking at a legislative train wreck at the end of this year.

MARY AGNES CAREY: The lame duck (session)?

JULIE ROVNER: Yes, the lame duck.

MARY AGNES CAREY: The mammoth lame duck.

JULIE ROVNER: We are looking at the expiration of the Bush tax cuts, we're looking at a Medicare doctor fee problem, we're looking at the debt ceiling again. We're just going to have this enormous pulling together of all of these things at once that Congress is going to have to deal with, aside from anything it might have to deal with on a health care law.

MARY AGNES CAREY: Christmas will be ruined once again.

JULIE ROVNER: Christmas will be ruined once again for a lot of reporters and Congress.

MARY AGNES CAREY: For Stuart and Tom, if the court does strike down the mandate, did they signal if the law, the rest of the law, would go down with it? I know this was a pivotal point of the argument. Can you read the tea leaves?

STUART TAYLOR: Tom's got this down so I'll listen to his answer and then I'll add something.

TOM GOLDSTEIN: The oral argument was not clear. They had a separate argument on this question. This is the severability question that Stuart was explaining the framework for: What would Congress want? What would Congress do if the individual mandate were struck down?

The government's proposal is that the two closest related provisions - guaranteed issue and community ratings - would go down with it, because they are inextricably intertwined and we need that insurance pool in order to finance those sorts of things. The states seem to be getting somewhere with Justice Kennedy, Justice Alito, Justice Scalia, certainly, who would take the whole statute down, on it being broader than that, that it would include the exchanges and some other provisions. There didn't seem to be much appetite for taking down the entire act including the peripheral things we've talked about, except as a question of kind of administrative convenience. And we just have to look at the fact that: It's the end of March now so they have through April, through May, through June. They have three months to come up with all their opinions, get everything done, and issue a decision, because by tradition they are done by the end of June. That is not a lot of time.

And so I do think they are going to do something in the end relatively simple -- that they are going to go in one direction or another. They just - there was pretty much a frank admission by the court that as much as it hates to say it -- they just don't have the time and the resources to break this down, kind of subtitle by subtitle. It just would be impracticable.

If you were to ask me, I think the most likely outcome is that community rating and guaranteed issue are for sure - and then probably the exchanges and one or two other things - if the individual mandate is struck down. This is all on the assumption that the individual mandate goes down - which I think government is still kind of 60-40 to win on. But, I do think that there had better be a plan B and there had better be a plan C, and people had better be serious about doing something. In this political environment, I don't know that that is possible.

MARY AGNES CAREY: What do you think, Stuart?

STUART TAYLOR: I think that there is a case to be made that unelected justices should defer to the political branches on things like this. I'm not sure that will win on the individual mandate, but when they get to deciding what do we do with the other 2,700 pages, I think the path of least resistance might be to do what the administration suggests they could do - which is pretty much what Tom just described - take down the guaranteed issue and community rating, because it won't work without them. If the government is telling you it won't work without them it's kind of hard to say: Oh no, we think it will work.

And then the more restrained path, at least in terms of appearances, would be to let everything else stand, because the government says that all the other things will work okay. Now, of course, the Wall Street Journal editorial page says that the judicially-restrained thing to do would be just to strike the whole thing down, which takes some explaining.

MARY AGNES CAREY: I'd like to close - just to build upon the thought that Tom mentioned - if this law does go down, when do you think a health overhaul measure of this scope and size would be debated again. Julie, I'll start with you.

JULIE ROVNER: Well, I can tell you that when the Clinton plan went down it was 1993. And it took until 2008, so do the math. Things move a little bit faster, but I think it would be a long time. And, you know, bearing in mind that you've got 78 million baby boomers who are getting ready to go on Medicare, and health costs are eating up the rest of the federal budget, I'm not sure that would necessarily be a good thing for the country.

MARY AGNES CAREY: Any closing thoughts on that Stuart?

STUART TAYLOR: I'd just like to ask Julie what percent of the GDP will be going to health care by the time they get back to this if it's struck down?

JULIE ROVNER: Were at about, what 17, now? I'm sure it will be probably 20-25.

MARY AGNES CAREY: On that happy note, I'd like to thank all of you for a fantastic discussion. Thanks again Stuart Taylor, legal analyst for Kaiser Health News, Julie Rovner of National Public Radio, and Tom Goldstein of SCOTUSblog. And thank you. I'm Mary Agnes Carey with Kaiser Health News.

Minus A Mandate, Health Law Would Still Affect Millions

Wed, 28 Mar 2012 20:12:00 EDT

Photo By Tom Williams/CQ Roll Call

If the Supreme Court strikes down the requirement that most Americans carry health insurance - along with related provisions that insurers must sell to people with pre-existing conditions and not charge the sick more -- what's left in the law?

Quite a bit, say policy experts -- although the changes could make what's left harder to do.

Unless the court tosses other parts of the law as well, employers with more than 50 workers would still be responsible for offering affordable coverage or paying a fine, starting in 2014.

Parents could keep their children on their plans until age 26. Insurers would be required to spend at least 80 percent of their revenue on medical expenses and quality improvements, while states or the federal government would review premium hikes of 10 percent or more to see if they are reasonable.

Efforts to slow the rising cost of Medicare by encouraging doctors, hospitals and others to act more like team players would continue, as would a program to evaluate medical treatments to see which are most effective.

New online marketplaces called exchanges set to open in 2014 would still be possible, but the individuals attempting to buy coverage there - with or without federal subsidies provided by the law -- could be rejected by insurers if they have medical conditions.

Consultant Robert Laszewski, a former insurance industry executive, notes that the most unpopular part of the law is the requirement that most Americans carry coverage, but, conversely, that the public really likes the parts that bar insurers from rejecting the sick or charging them more than the healthy, according to polls. Unless they are struck, those provisions would be in effect in 2014.

"Ironically, the most popular and most unpopular parts of the law could go," says Laszewski.

From an insurers' perspective, he sees the logic: Without requiring most people to buy, insurers would likely raise premiums because consumers would wait until they fell ill to purchase coverage. Both the industry and the Obama administration have made that case in their legal briefs, arguing that if the justices decide the individual mandate is unconstitutional, they should also toss out the other two requirements.

The justices have options, including tossing all three of the requirements, striking the entire law or deferring action to Congress. They also might decide to simply sever the individual mandate and still require insurers to cover all applicants, no matter their medical history.

Most policy experts agree that could raise premiums because many of the newly covered would have medical problems. They also predict fewer healthy people would sign up. There is debate, however, over how much that scenario might raise premiums. RAND Corp., for example, issued a study saying that scenario would lead to premium increases of 2.4 percent for those who buy individual coverage, meaning individuals who don't get insurance through their jobs.

But a different study by the Lewin Group estimated that the loss of the individual mandate could increase premiums by 12.6 percent for those individuals.

No matter what, there would be strong pressure on Congress from the insurance industry to restore its ability to reject applicants with medical conditions -- or otherwise soften the blow -- if the mandate was struck but the other provisions were not.

If all three provisions were struck, subsidies might be affected as well, says David Merritt, a senior advisor at the consulting firm Leavitt Partners. That's because the law offers federal subsidies to help low- and moderate-income people purchase coverage, with the amounts tied to the cost of a benchmark-level plan. But, without a requirement that insurers generally charge the sick and the well the same amounts, insurers would vary premium costs by individual, making the subsidy calculation far more difficult.

"It would be an absolute nightmare," says Merritt. "They'd have to at the very least go back and figure out some new formula, which at the very least could impact the time frame for when the subsidies would be offered."

Still, whether and what Congress could agree to in response to a Supreme Court ruling is uncertain.

Congress could, for example, try to expand special high-risk pools for people who are uninsurable because they are ill. But money would be needed to pay for such pools, which might mean a new tax or assessments on insurers or employers -- unlikely in the current political environment, given that Republicans want to repeal the whole law.

Another approach might be to create financial incentives to encourage people to enroll in coverage. Insurers could be exempted from paying for pre-existing conditions for several years through a re-insurance program backed by the government. Again, funding would be required.

"Congress isn't going to do anything between now and the election," says Timothy Jost, a professor at Washington and Lee University School of Law.

Kaiser Health News is an editorially independent program of the Henry J. Kaiser Family Foundation, a nonprofit, nonpartisan health policy research and communication organization not affiliated with Kaiser Permanente.

The NewsHour's Health Page is full of related content about the health care reform law and Supreme Court case, including a timeline, a report card, a cheat sheet, and a public polling update. Watch our broadcast coverage and analysis of the proceedings and browse our photo essays of the ordinary Americans who traveled to Capitol Hill this week to support and protest the law.

Supreme Court Wraps Up Health Reform Law Hearings: What's Next?

Wed, 28 Mar 2012 18:03:00 EDT

Listen to the Audio

JEFFREY BROWN: What, if anything, of President Obama's health care overhaul will survive? That was the question after the U.S. Supreme Court wrapped up three days of hearings this afternoon.

Today, the justices considered what happens to the broader law if they strike down the requirement to buy insurance. They also looked at the expansion of Medicaid.

Once again tonight, NewsHour health correspondent Betty Ann Bowser begins our coverage.

BETTY ANN BOWSER: The morning arguments focused on whether parts of the law could survive without the mandate, the so-called severability issue.

Justice Ruth Bader Ginsburg questioned attorney Paul Clement about the logic of revoking the entire law. Clement represents 26 states opposed to it.

RUTH BADER GINSBURG, associate justice, U.S. Supreme Court: It's a question of whether we say everything you did is no good, now start from scratch, or to say yeah, there are many things that have nothing to do, frankly, with the Affordable Health Care Act, and there are some that we think it's better to let Congress to decide whether it wants them in or out.

So why should we say that it's a choice between a wrecking operation, which is what you are requesting, or a salvage job, and the more conservative approach would be salvage rather than throwing out everything?

PAUL CLEMENT, former U.S. solicitor general: What makes this different is that the provisions that have constitutional difficulties, or are tied at the hip to those provisions that have the constitutional difficulty, are at the very heart of this act.

And then, if you look at how they are textually interconnected with the exchanges, which are then connected to the tax credits, which are also connected to the employer mandates, which is also connected to some of the revenue offsets, which is also connected to Medicaid, if the you follow that through, what you end up with at the end of that process is just sort of a hollow shell.

BETTY ANN BOWSER: This afternoon, the justices took up the final issue before them this week, and that's the expansion of Medicaid under the Affordable Care Act. Medicaid is a shared federal-state program to provide health care for people with low incomes. Participation is voluntary, but currently all 50 states are in the program.

Though little public attention has focused on the expansion of Medicaid, it's a vital component of the law. Half of the 32 million people who would get new coverage would receive it through Medicaid. Here's how that would work. Starting in 2014, the federal government would pick up 100 percent of the cost of newly eligible parents and childless adults.

That starts to ramp down in 2017, when the government pays 95 percent. By 2020 and moving forward, the federal government would pay 90 percent of the tab. States have the right to opt out of the Medicaid program, but if they do, they lose huge amounts of federal money to pay for care for people with low incomes.

DR. ALIETA ECK, opposes health care reform law: Obamacare is going to expand Medicaid, and the taxpayers absolutely can't afford it.

BETTY ANN BOWSER: Several dozen people demonstrated in front of the court again today against what they say is an overreach of federal power.

Thomas Miller is a resident fellow at the American Enterprise Institute, a conservative think tank in Washington.

THOMAS MILLER, American Enterprise Institute: The states say, we can't even afford the current Medicaid program, and this would in effect give them no flexibility to make any adjustments that are reasonable adjustments, and say maybe can cover some more people in a certain way, but not under the rigid federal rules.

BETTY ANN BOWSER: People who say they have been helped by Medicaid came to the mike today outside of the court to tell their stories.

DR. L. TONI LEWIS, supports health care reform law: As a doctor, I tell you that Medicaid works for seniors, it works for kids, it works for people with disabilities, and it works for families.

BETTY ANN BOWSER: Ron Pollack, executive director of Families USA, also says that ultimately states will save money under the law, even with higher costs for Medicaid.

RON POLLACK, executive director, Families USA: If you take the Affordable Care Act in its entirety, the states actually are going to save in the aggregate about $100 billion in the next six years, because they're no longer going to have to pay for the care of people who are uninsured.

BETTY ANN BOWSER: The justices will now have to weigh the merits of all four major arguments made this week. Decisions are expected some time in late June.

GWEN IFILL: As Betty Ann mentioned, there were two separate arguments on the health care docket today.

Here to explain is the rest of the team that's been covering the case for us: Marcia Coyle of The National Law Journal and NewsHour health analyst Susan Dentzer, editor in chief of the journal Health Affairs.

So, Marcia, justices seemed skeptical that this bill could -- that this law can remain intact even if this individual mandate goes away, the severability clause. Explain how that played out.

MARCIA COYLE, The National Law Journal: Okay

Well, here's sort of the bottom line for the court. All of the justices seem not to want to have to go through a 2,700-page law to find out which provisions are interrelated or so connected to the individual mandate that they should be severed.

So what do they do? Justice Sotomayor, for example, expressed one approach. States that have experimented with health care insurance like the federal plan, when they have had problems, their state legislatures have adapted to those, have made changes. So she said, why not let Congress do this? If we have to eliminate the mandate, let Congress deal with the problem. That is their function. It's an exercise of judicial restraint to let Congress deal with it.

On the other hand, Justices Scalia and Kennedy said, but if the mandate is really the heart of this law, as Mr. Clement argues, what is left for Congress is this shell. It does not operate the way Congress intended to operate. So it's been distorted so much, maybe we -- it's more an exercise of judicial restraint to strike it down and let Congress start over.

GWEN IFILL: Let's listen to part of this exchange between Justice Anthony Kennedy and the Deputy Solicitor General Edwin Kneedler, who is making the government's case about just that point.

ANTHONY KENNEDY, associate justice, U.S. Supreme Court: If the $350 million from the individual mandate were to be lost, what would happen to the insurance industry, which would now be in the hole for $350 billion over 10 years?

EDWIN KNEEDLER, deputy U.S. solicitor general: We don't think it's in the court's place to look at the budgetary implications, and we also. . .

ANTHONY KENNEDY: But isn't that the point, then, why we should just assume that it is not severable?

EDWIN KNEEDLER: No.

ANTHONY KENNEDY: If we lack the competence to even assess whether there's a risk, then isn't this an awesome exercise of judicial power. . .

EDWIN KNEEDLER: No, I don't. . .

ANTHONY KENNEDY: . . . to say we're doing something and we're not telling you what the consequences might be?

EDWIN KNEEDLER: No, I don't think so, because when you're talking about monetary consequences, you're looking through the act, you're looking behind the act, rather than -- the court's function is to look at the text and structure of the and what the substantive provisions of the act themselves mean.

GWEN IFILL: So what role are the justices supposed to play in this? That's what they were arguing about.

MARCIA COYLE: Absolutely.

And really, for years, the court has had something of a presumption that when it strikes down one provision in a law, it will not dismantle the entire law if there are -- if that law can continue to operate independently of the provision that was struck down and consistent with Congress' intent.

And that's why Mr. Kneedler is saying, look at the text, look at the structure, but don't try to be economists figuring out how it is going to affect the insurance industry.

GWEN IFILL: Let's talk about that, Susan, what the Congress' intent, but, also, we don't whether the court would strike down this separate -- this statute, but -- this part of the statute.

SUSAN DENTZER, Health Affairs: Right.

GWEN IFILL: But, if they were to, what remains? Is it a hollow shell, as some of the justices are saying?

SUSAN DENTZER: I think a close reading of those 2,700 pages would find plenty in there that doesn't meet the standard of a hollow shell, Gwen.

For example, some provisions, very small, completely unrelated to insurance expansion, a requirement that national chain restaurants, as of this year, have to post on their menus the calorie content of their foods. Why that would have to fall in conjunction with the minimum coverage requirement, it doesn't make sense.

Other provisions to make the health care system cost less and be more efficient, so lots of innovations around payment and delivery system reform that are already going on. In addition to that, many, many other provisions around prevention, to get Americans to be healthier, a large prevention and public health fund that is channeling grants from the federal government to the states and communities to put in place diabetes prevention programs and other things.

So, if you walk through the whole law, there is a whole lot, as I said, that has nothing to do with the minimum coverage requirement.

GWEN IFILL: And how big a part of the law is the part that they were arguing about later this afternoon, which is the expansion of Medicaid that Betty Ann was describing?

SUSAN DENTZER: A very major part.

If we think about health insurance as being a series of security blankets, and we have security blankets of different types -- we have private coverage, some of us. Some of us have Medicare. Some of us have Medicaid. What this whole law was about was stretching all the blankets, right?

So the private health insurance blanket was going to be stretched to incorporate more people into that. The Medicaid blanket got stretched. A very large group of people who have historically been left out of Medicaid, as Betty Ann said in her piece, are adults who don't have dependent children.

Congress made a point of covering pregnant women. Congress made a point of covering women with children. Congress left out these adults who didn't have dependent children. So, on the basis of this law, Congress said, you know what, we forgot about these people. We're going to come back and expand coverage and include them.

And although the Congressional Budget Office has said there will probably be 16 million of them, the truth is, we don't know. There could be 22 or 25 million of those adults who could be covered under Medicaid.

GWEN IFILL: And yet -- and yet at least 26 state represented by the former Solicitor General Paul Clement said today that they feel that they would be coerced to join this program.

Let's listen to part of the exchange between Justice Sandra -- Sonia Sotomayor and Paul Clement about this very issue.

SONIA SOTOMAYOR, associate justice, U.S. Supreme Court: The uninsured are a problem for states only because they, too, politically, just like the federal government, can't let the poor die.

And so, to the extent they don't want to do that, it's because they feel accountable to the citizenry. And so if they want to do it their way, they have to spend money to do it their way, if they don't want to do it the federal way.

So I just don't understand the logic of saying, states, you can't -- you don't -- you're not entitled to our money, but once you start taking it, the more you take, the more power you have.

PAUL CLEMENT: We're not here to tell you that this is going to be an area where it's going to be very easy to draw the line.

We're just telling you that it's exceptionally important to draw that line, and this is a case where it ought to be easy to establish a beachhead, say that coercion matters, say there's three factors of this particular statute that make it as obviously coercive as any piece of legislation that you've ever seen, and then you will have effectively instructed Congress that there are limits and you have laid down some administrable rules.

GWEN IFILL: Why does coercion matter, Marcia? Why is that an important part of this argument?

MARCIA COYLE: Well, first of all, the court has said in the past, in a couple decisions, that there may come a point under Congress' spending power where inducements to have the states do something in exchange for federal funds crosses the line from inducement or pressure to coercion, and then Congress is acting outside of the limits of its spending power.

And its spending power is broad and huge. So -- but the court has never said where that line is, where that point is reached. And it's also never struck down a voluntary federal-state spending program because it's coercive.

And there was a lot of skepticism today. I think this was one of Mr. Clement's more difficult arguments to make. The justices are struggling with finding where that line of coercion is. Justice Sotomayor, Justice Kagan, they don't see that - you know, they look -- I think Justice Kagan said, this is a boatload of money and very few strings are attached to it.

States still have the option of pulling out. Mr. Verrilli, deputy -- Solicitor General Verrilli said, sure, it's not an easy decision to opt out of this. It's a lot of money. But, still, the states have the choice.

GWEN IFILL: Solicitor General Verrilli and Paul Clement both gave summations at the end. One made the argument that represented the administration that this was -- that this health care law was about the blessings of liberty. And Paul Clement said it's a funny conception of liberty.

MARCIA COYLE: Right.

Mr. Verrilli, I think, tried to bring back today from three days of arguments what's really at stake here in terms of Congress' authority under the Constitution. He said Congress struggled with this problem of 43 million uninsured Americans, and it came up with this solution, which it thought was the best solution.

With Medicaid expansion, he said there are going to be millions of Americans who have chronic conditions, such as diabetes, who now, if they get health care, will be unshackled from that disease and will be able to enjoy the blessings of liberty.

Mr. Clement, though, did say it was a very funny concept of liberty to force people to buy insurance plans they don't want.

GWEN IFILL: Decision in June.

Thank you both for helping us through this, this week.

MARCIA COYLE: My pleasure.

SUSAN DENTZER: Thanks, Gwen.

Health Reform in the Supreme Court: Day 3 Audio, Transcript

Wed, 28 Mar 2012 13:54:00 EDT

Photo by Mark Wilson/Getty Images

Updated at 5:15 p.m. with Medicaid expansion analysis.

In this third and final day of Supreme Court arguments on the constitutionality of the health care reform law, two major questions remain before the Court:

If the requirement that most Americans purchase health insurance or pay a fine is dismantled by the Court, must the rest of the law fall with it?

And is the federal government's major expansion of the state-based Medicaid program -- which is expected to bring 16 million low-income Americans into the health insurance marketplace -- allowed under the Constitution?

'Severability' of the Individual Mandate

(Full transcript below)

Marcia Coyle on the 'Severability' Arguments:

"This morning's arguments focused on a hypothetical question. The justices have not yet decided whether the minimum essential coverage provision -- the so-called individual mandate to purchase health care insurance -- is held to be unconstitutional. But if they decide that it is, the question before them is whether the mandate can be severed from the rest of law or if the entire law must fall.

"The justices heard three very different arguments this morning. Paul Clement, who is representing 26 state attorneys general, the National Federation of Independent Business and four private individuals, argued that the minimum coverage provision is the heart of law -- and that along with the guaranteed-issue and community-rating provisions, it is essential to Congress' goal for the law of providing affordable health care [for more on those provisions, read Marcia's preview of the day's arguments here]. Justices Kagan, Ginsburg, and Sotomayor aggressively questioned that idea, with Justice Ginsburg saying that what the Court is really facing is the choice between "a wrecking operation and a salvage job -- a more conservative approach would be a salvage job." She and Justice Sotomayor indicated that if the mandate were severed, it would really be up to Congress and not the Court to deal with the fallout -- that Congress has the proper role of fixing the law and the Court does not.

"That contrasted quite sharply with the views of Justice Scalia, who believes that once the heart of law is taken out, the whole law should probably fall. He expressed considerable cynicism that Congress would be able to deal with the fallout if the rest of the law is left standing. Justice Kennedy expressed concerns that if the heart of the law is taken out, insurers would be left with huge, uncertain risks. His concern seemed to be that that exercise of judicial power would be worse than Justice Ginsburg and Sotomayor's concern about judicial overreach.

"The justices also heard from Deputy Solicitor General Edwin Kneedler, who was representing the government. He contends that many other provisions in the law are already in effect and have no connection to the mandate. If the justices decide that the mandate must be severed, he said that just two other provisions cannot function as Congress intended -- the guaranteed-issue and community-rating provisions. Justice Breyer seemed to agree with that. He read a list of things that seem to have no relation to the minimum coverage requirement.

"And one additional lawyer, Bartow Farr, argued that only the mandate should be severed from the law if the mandate is found unconstitutional. He told them that Congress put many tools in this law in order to further its goal of protecting patients and providing affordable care, that the mandate is just one tool and that -- if found unconstitutional -- it could be severed while leaving in place the many independent reforms of the insurance market that operate independent of the mandate. Now, the justices really must consider whether Congress would want the law without the mandate.

"At this point, the justices seem to be divided. Those on the more liberal side of bench feel that it's more an exercise of judicial restraint and it should be left to Congress to fix the law if the mandate is taken out -- that it would be judicial activism to do more. The justices on the conservative side wonder if, without the heart of law, there would be consequences to leaving the law in place that Congress cannot fix. It appears many of them are still thinking through the issue and considering how to handle this if they do strike down the mandate."

Health Care Reform in Supreme Court Day 3 Arguments

Medicaid Expansion

(Full transcript below)

Marcia Coyle on the Medicaid Expansion Arguments:

"This afternoon, the Court heard an hour of arguments on the last of four issues that it decided to review involving the Patient Protection and Affordable Care Act. This particular challenge was brought by 26 state attorneys general who claim that the new health care law's expansion of Medicaid -- which basically expands coverage to single adults under the age of 65 with incomes up to 133 percent of the federal poverty level -- is unconstitutionally coercive.

"The justices explored a central question: When does the federal government's inducement or pressure on a state to participate in a federally funded program cross the line into coercion? And it seemed to me that many of the justices were not fully persuaded that this qualifies. At the beginning of the arguments, Justice Kagan immediately confronted former Solicitor General Paul Clement, asking how this 'big gift' -- this boatload of federal money that's being given to the states to spend on health care for their impoverished populations -- could be considered coercion. Clement said that the sheer amount of money offered to states becomes coercive and that if a state doesn't participate in the expansion, it will not only lose federal funding tied to the expansion but all federal funds for Medicaid services that it offers the poor.

"The justices were really pressing both Clement and Solicitor General Verrilli, who was arguing for the government, to define 'What is coercion?' and 'Where is the line?' Neither Clement nor Verrilli seemed able to give them a satisfactory definition. Justice Sotomayor worried that if the Court came down in favor of the states in this particular instance, the precedent would be: The bigger the problem confronting Congress, the less power Congress would have to deal with it because it could be deemed coercive.

"Verrilli pointed out that the secretary of Health and Human Services has never cut off all Medicaid funds when a state has balked at the conditions of funding -- that disputes are generally worked out between the secretary and the state. He also pointed out that 60 percent of all Medicaid expenditures are optional for the states, and that, while it may be a difficult decision to opt out of the expansion, it still is a choice they can make, and that means that it's not coercion.

"Some justices, including Chief Justice Roberts, wondered: If this is such a good deal, why does the federal government need a club -- the threat to withhold Medicaid funding? On that question, Verrilli argued that that the decision was Congress' to make. It's a policy decision, and the Court should respect that.

"In general today, Clement had a tougher argument, versus yesterday, when Verrilli had a bigger challenge arguing on the individual mandate. With the Medicaid argument over, that ends the three days of hearings before the Supreme Court. We now need to wait until June to see what the justices will decide on all four issues."

Health Care Reform in Supreme Court Day 3 Arguments - Part 2

The NewsHour's Health Page is full of related content about the health care reform law and Supreme Court case, including a timeline, a report card, a cheat sheet, and a public polling update. Watch our broadcast coverage and analysis of the proceedings and browse our photo essays of the ordinary Americans who traveled to Capitol Hill this week to support and protest the law.

Supreme Court Considers Health Care Reform: A Guide to Day 3

Wed, 28 Mar 2012 08:00:00 EDT

Photo by Mark Wilson/Getty Images

As Day 3 of the health reform hearings get under way, some things are already starting to seem routine. Outside the Supreme Court, the protesters arrive, the cameras roll, the health care reform debate is often tossed around in soundbites.

But inside the Court on the final day of arguments about the health care reform law, there are still two important questions to be debated, the resolution of which is hardly certain:

If the requirement that most Americans purchase health insurance or pay a fine is dismantled by the Court, must the rest of the law fall with it? And is the federal government's major expansion of the state-based Medicaid program -- which is expected to bring 16 million low-income Americans into the health insurance marketplace -- allowed under the Constitution?

For a preview of both of those arguments and a look at what to expect in the months ahead, we're joined once again by Marcia Coyle of the National Law Journal.

Marcia, what will we hear today in the court?

For 90 minutes in the morning, they will ask for answers to a hypothetical: if the minimum essential coverage provision -- the so-called individual mandate to purchase insurance -- is held to be unconstitutional, can it be severed from the rest of the law, or must the entire law be struck down? In the afternoon, around 1 p.m., they will take up whether the new law's expansion of Medicaid coverage for the poor and disabled is unconstitutional. They will hear arguments on that issue for one hour.

Let's take one issue at a time. What does the first one, the 'severability' question, involve?

When the Supreme Court finds a provision in a statute unconstitutional, it generally presumes the invalid provision can be severed from valid provisions unless severing it would prevent the remaining provisions from operating as Congress intended.

The justices will hear basically three arguments on this issue this morning.

Former Bush administration Solicitor General Paul Clement of the Washington law firm Bancroft will have 30 minutes to argue for the challengers to the law: 26 state attorneys general, the National Federation of Independent Business and four private individuals. Clement contends that Congress considered the individual mandate essential to the law's passage, its functioning and its ability to achieve Congress' goal of near universal health insurance. Removing the mandate, he argues, would undermine the goals of the entire act and thus the whole law should fall if the mandate is unconstitutional.

The United States is represented by Senior Career Deputy Solicitor General Edwin Kneedler. The government argues that the mandate does not take effect until 2014, but a number of other provisions in the law are already in effect and have no connection to the mandate, which suggests that Congress intended the provisions to operate independently.

If the justices decide that the mandate must be severed, the government says that just two other provisions cannot function as Congress intended. Those provisions bar insurance companies from rejecting individuals with pre-existing health conditions and from raising premiums because individuals have medical conditions. Those provisions are known as the guaranteed-issue and community-rating provisions.

In an effort to hear all arguments on the issue, the Court appointed a well-respected Supreme Court advocate, H. Bartow Farr III of the Washington law firm Farr & Taranto to make the argument that only the mandate should be severed from the law if found unconstitutional. Although the mandate and guaranteed-issue and community-rating provisions were designed to work in tandem, Farr contends it is "improbable" that Congress would prefer to put many consumers back in the disadvantaged position they were in before the law's passage. The law contains many independent reforms of the insurance market that operate independent of the mandate, he argues.

What is the Medicaid question before the Supreme Court?

The new health care law extends Medicaid benefits to an estimated 16 million non-elderly, non-disabled persons whose incomes are less than 133 percent of the federal poverty line. The federal government will pay 100 percent of the cost through 2016, at which point its subsidy gradually will decrease each year until 2020 when it remains at 90 percent. Medicaid is a voluntary federal-state program which was created in 1965.

The challengers contend that the Medicaid expansion unconstitutionally coerces states into accepting the new program requirements. Although the states could opt out of the law's expansion, they argue that is financially unfeasible because they would lose all federal Medicaid funding. The Medicaid expansion is an abuse of Congress' spending power and violates state sovereignty, argues Paul Clement for the states.

The Solicitor General of the United States, Donald Verrilli Jr., will tell the justices that this expansion of Medicaid differs little from the many expansions and changes to the program that Congress has enacted since 1965. Just because the funding condition is generous does not mean it is coercive, he argues, and states retain the option to opt out.

Has the Court dealt with coercion claims by the states before?

The Court has never found a condition on federal funding to be coercive of the states. The justices examined such claims only twice before, in 1937 and in 1987. The Court did say in those cases that there could be a point at which federal pressure could cross the line into unconstitutional coercion, but it has never defined that point.

It should be noted that not all states are challenging the Medicaid expansion. A brief was filed by 13 states supporting the expansion and arguing that states refusing to participate do not lose their federal funding automatically because the secretary of the Department of Health and Human Services has discretion to withhold some or all of a state's federal Medicaid money.

The Supreme Court's decision to consider this issue came as a surprise to many legal experts. None of the lower courts that considered the health care lawsuits agreed with the challengers on the Medicaid coercion question.

After all of the arguments are over, what happens next at the Supreme Court?

The justices will gather in a private conference to cast their votes on the questions raised during the three days of arguments. If he is in the majority in those votes, Chief Justice John Roberts Jr. will assign the majority opinion to a particular justice. If he is in the minority, the assignment power goes to the most senior justice in the majority. They then begin the drafting and circulation of opinions with possible revisions until decisions are ready for release to all of us.

When do you think we will see a decision or decisions?

I would be surprised if we saw anything before the end of June, which is usually when decisions in the term's most difficult and complicated cases are issued.

How big a role do you think politics will play in the justices' decisions?

We are in a period of considerable cynicism about our government and not without good reason. I may be criticized as naïve, but I don't believe that when the justices sit and cast their votes on the health care law, they will do it with an eye to what may be the best result for the Democrats and Republicans in the November elections. I do believe that each justice is the sum total of his or her experiences in life and in the law. They bring those experiences to bear on the cases before them. They are not blank slates. Their personal biases are restrained by certain doctrines such as stare decisis -- respect for prior decisions -- and deference to legislators because they are closer and accountable to the people. Some justices are more faithful to those doctrines than others. We should try to judge the outcome here on the strength and honesty of their analysis. If we don't like the results, our recourse is to remember that this is an election year.

For more analysis from Marcia Coyle on this week's health care reform hearings, browse The National Law Journal's Health Care at the Supreme Court page. And don't forget to tune in tonight's NewsHour for coverage of the final day of arguments.

Watch Tuesday's broadcast segment and discussion:

Watch Video

Our Health Page is full of additional information about the Supreme Court case and the health care reform law, including a timeline, a report card, a cheat sheet, and a public polling update. And be sure to browse our photo essays of the ordinary Americans who traveled to Capitol Hill this week to support and protest the Affordable Care Act.

Is Health Law's Individual Mandate Constitutional? Legal Scholars Debate

Tue, 27 Mar 2012 18:20:00 EDT

Listen to the Audio

JEFFREY BROWN: And we return to today's Supreme Court argument and its central debate: Is a mandate constitutional?

For that, we're joined by two legal scholars who were in the court today. Walter Dellinger served as solicitor general in the Clinton administration. He filed a brief before the court on behalf of Democrats in Congress. Randy Barnett has helped shape the argument against the mandate and serves as counsel for the National Federation of Independent Business, one of the principal plaintiffs before the court. He's a professor at the Georgetown University Law Center.

Welcome to both of you.

WALTER DELLINGER, former U.S. Solicitor General: Thank you.

JEFFREY BROWN: Since you were both there -- Randy Barnett, I will start with you -- what jumped out at you about today's argument?

RANDY BARNETT, professor, Georgetown University Law Center: Well, unlike yesterday, where it really looked like the court was pretty unanimous on the question of whether the Anti-Injunction Act was going to bar them from hearing the merits of the case, today, it looked like the court was very equally divided.

I think you had four justices who were training most of their fire, for example, on the government's side, and not as much fire on our side. And we had four justices training most of their fire on our side, and not all that much on the government's side. And that just looked like a divided court, rather than the court like -- that yesterday seemed pretty much on the same page.

JEFFREY BROWN: Walter Dellinger?

WALTER DELLINGER: Well, I was struck by the fact I think that both the chief justice and Justice Kennedy seemed to have some concerns about each side's arguments.

I think probably most significant was the fact that the solicitor general said there are limits, that you can uphold a law which helps extend insurance coverage to 30 million Americans without giving Congress the authority to require purchases of people who are not in commerce, because -- and I thought both the chief and Justice Kennedy understood this -- because people will inevitably be in the market for health care.

The other side had conceded that you could require insurance at the time you access your health care. The government's just giving an incentive to have that insurance earlier. And I think the fact that that commerce is inevitable is a distinction that got some traction with the court.

JEFFREY BROWN: Well, so take us to the key element here. You -- as I said, you helped shape some of these arguments. What is the key argument, the nub of the argument against the constitutionality?

RANDY BARNETT: Well, first of all, there's like -- it's unprecedented, it's unlimited and it's unnecessary. And it was -- and the fact that it was unprecedented I think was sort of borne out today.

No justice, no matter what side they were on, and no counsel cited an example of the exercise of this kind of power in our history, that's making people buy a product or service that -- from a private company. So the unprecedented nature is something that Justice Kennedy started off with and then basically said, given that this is a new important power, aren't you, Solicitor General, under some burden to justify that power?

So it's that. It's uncabined, in so far as I think that the. . .

JEFFREY BROWN: Uncabined being a legal term.

RANDY BARNETT: Unlimited. Sorry, unlimited. I have to remember that.

JEFFREY BROWN: Yeah.

RANDY BARNETT: So it's unlimited in so far as all the justice were pressing the solicitor general to explain what the limits are.

And you have heard Walter's description of that to some degree. And so they're concerned about whether there is any limit on the power to impose mandates. And then Justice Kennedy also made the argument that it in some respects is unnecessary because Congress does have a tax power that it could have used to solve many of these problems, but it chose not to.

So why should this power then be exercised in this case, this new power, be discovered?

JEFFREY BROWN: All right, so from the other side.

WALTER DELLINGER: I think it's not that attractive a proposition to tell Chief Justice Roberts that the only way you can deal with a national problem of 30 million uninsured people is by having a monolithic national tax and agency solution like The New Deal.

And one reason it's novel is that we're using a more conservative approach that was recommended by conservatives of using the existing private market and giving people an incentive to engage in commerce. I think in some ways, the most significant moment came yesterday when the solicitor general was asked, suppose you decide you don't want to comply with the mandate and buy insurance, you're just going pay the $95 penalty the first year, it never goes higher than 2.5 percent of your income. Are you a law-breaker? What if you're asked, have you ever violated the law?

And the solicitor general said unequivocally you can say no. In other words, this is just a relatively modest financial incentive to have insurance coverage. And what struck me was everybody in the courtroom, every justice, every advocate, every journalist, they all have health insurance, and they wouldn't dream of doing without it.

So the idea that pushing people through this tax incentive to have coverage is an incursion on liberty seems odd.

JEFFREY BROWN: Well, what about that? But also you mentioned Justice Kennedy. We have had -- there was of course a lot of focus on him.

And we quote -- we heard him say this reference to the heavy burden of justification. But later on, he also suggested that people who don't carry health insurance are still engaged in the health care market, which would support your side of things.

RANDY BARNETT: No, I agree with Walter. I think Justice Kennedy asked questions of both sides, including that question.

JEFFREY BROWN: Right.

RANDY BARNETT: And if that's really -- if that's the predictor of where he's going to go in this case, then Walter ought to be happy.

But I do think one of the things I just want to say in response to what Walter said about the modest financial penalty that is in this case, if this is recognized, if this new power to mandate economic activity is recognized as a Commerce Clause power, there's no reason why in the future it's going to be limited to small monetary fines.

It could be including imprisonment for failing to perform the mandates that Congress wants to impose upon us. And that's what differentiates this is from the tax power, where the only consequence of giving up a tax subsidy is financial.

JEFFREY BROWN: Well, that's what it goes to, all these analogies we heard Gwen referring to, and every justice is trying to give an example, right, of where the limits are.

WALTER DELLINGER: Right.

To me, the most critical question was the chief justice's. He -- he believes -- he understands the government's argument that people are going to inevitably need health care, but, he said, they're not going to need some of these preventative services. They are not going to need -- necessarily need mammograms or cancer tests. And you're forcing them in that case to use a commerce they may not obtain.

And I think the answer to that is that that's a decision made by Congress, because if you funded catastrophic care without funding preventative care, you create a perverse incentive that people avoid getting mammograms, and then you wind up having the insurance company or the government pay for breast cancer surgery or -- and metastasized breast cancer. So it's part of a package that makes sense to Congress. And, here, I think that is why the deference is called for.

JEFFREY BROWN: Yeah. I mean this is probably an unanswerable, provocative question, but how settled is the law? What are the justices looking at, without going back through all of the judicial history? But you said the case is unprecedented -- or the law is unprecedented.

RANDY BARNETT: This is one of those very unusual cases -- in fact, the Heller case is another one of these unusual cases -- that Walter argued -- where we really here are in more or less a case of first impression, because an economic mandate of this sort has never been used before.

In fact, I can prove that, because, if it had been, you'd know, the contracts the government makes you enter into or pay a penalty to the IRS, and since you don't know of any such contracts, I can assure they don't exist. Your parents didn't know of any such contracts.

So, because it's a case of first impression, there is no direct precedent that says Congress may do this or Congress may not do this. And that's the reason why the argument takes on the coloration that it does.

JEFFREY BROWN: Do you agree with that, that the court does not have precedents to look at?

WALTER DELLINGER: I think precedents are not going to govern the case in that sense.

But in this case, the question is simply whether this is a regulation of commerce among the states. And the government can say it's not a regulation of local matters, it's not a regulation of local violence, it's not a regulation of guns in your schools. It's a regulation of one-seventh of the national economy.

So the burden ought to be on those who would argue that it's somehow not a regulation of commerce for Congress to deal with something which is so integral and central a part of the national economy. Both sides are making arguments I think that haven't been made before.

JEFFREY BROWN: Just real briefly, because you have both been before the justices, you have had this experience, it's worth saying that these questions don't help predict what the final votes are going to be, for the most part?

RANDY BARNETT: I don't know. You do walk out the door with a certain feeling. I think we all walked out the door yesterday thinking the court wasn't going to fail to reach the merits because of the Anti-Injunction Act.

I think most people walked out the door thinking, wow, this is a close case.

WALTER DELLINGER: Sometimes, you can tell. Sometimes, you can't.

This is one where you can't tell because the chief justice and Justice Kennedy certainly asked hard questions of both sides. So I think, at the end of the day, you don't know what the outcome is going to be. We'll find out in June.

RANDY BARNETT: Well, I agree with that.

JEFFREY BROWN: Okay, some agreement.

Walter Dellinger, Randy Barnett, thanks, both.

WALTER DELLINGER: Thank you.

JEFFREY BROWN: Online, we have extensive coverage of the health care reform law, and you can listen to the audio of today's arguments or read the transcript. We also have interviews with people who traveled to Washington to voice their opinions, pro and con, on the law.

Plus, you'll find a post from Susan Dentzer on what happens if the individual mandate is struck down or takes effect. And Marcia Coyle's primer for tomorrow's session will be posted in the morning.

That's all at NewsHour.PBS.org.

Supreme Court Considers Health Reform Day 2 Recap: Individual Mandate on Trial

Tue, 27 Mar 2012 18:03:00 EDT

Listen to the Audio

JEFFREY BROWN: The president's health care overhaul was back before the U.S. Supreme Court for a second day, and the justices zeroed in on the central issue.

NewsHour health correspondent Betty Ann Bowser begins our coverage.

BETTY ANN BOWSER: The arguments today inside the court went to the heart of the Affordable Care Act, whether it's constitutional for the government to require its citizens to purchase health insurance.

It's by far the most unpopular and contentious part of the new law, although the term individual mandate doesn't appear in it. The mandate requires that practically all Americans have health insurance. That can be through Medicare, Medicaid or employer-sponsored coverage. If you don't any of those, you'll have to buy it.

And if you have trouble paying for it, the federal government may give you a subsidy. But the bottom line is, everybody has to have health insurance, and if you don't, you'll have to pay a penalty on your tax return starting in 2015.

The justices heard two hours of arguments on the mandate alone in the second of three days of hearings. The toughest questions for the government came from conservative justices, including Antonin Scalia.

Solicitor General Donald Verrilli told the court a mandate was essential for a health insurance market to work for Americans whenever they get any kind of medical care.

ANTONIN SCALIA, associate justice, U.S. Supreme Court: Why do you define the market that broadly, health care? It may well be that everybody needs health care sooner or later, but not everybody needs a heart transplant. Not everybody needs a liver transplant. I mean. . .

DONALD VERRILLI, solicitor general of the United States: That's correct, Justice Scalia, but you never know whether you're going to be that person.

ANTONIN SCALIA: . . . could you define the market -- everybody has to buy food sooner or later, so you define the market as food. Therefore, everybody's in the market. Therefore, you can make people buy broccoli.

DONALD VERRILLI: No. That's quite different. It's quite different. The food market, while it shares that trait, that everybody's in it, it is not a market in which your participation is often unpredictable and often involuntarily.

BETTY ANN BOWSER: Some supporters of the law say the mandate is pivotal to financing the Affordable Care Act.

Ethan Rome is the executive director of Health Care for America Now.

ETHAN ROME, executive director, Health Care for America Now: If everybody carries insurance, it becomes more affordable for all of us and we can eliminate the insurance company abuses, like denials of care and dropping people when we're sick.

A very small number of people in the United States will be impacted by the so-called mandate. And that's the beauty of this law. We all benefit when we carry insurance. Insurance gets more affordable.

BETTY ANN BOWSER: The law's challengers, including 26 states and the National Federation of Independent Businesses, view the mandate as a federal overreach of power that's unconstitutional.

Tim Phillips is president of Americans for Prosperity.

TIM PHILLIPS, president, Americans for Prosperity: We think that's a dramatic escalation of government power and say in the lives of individual Americans. We want people to get insurance, absolutely. But to require by law with penalties both civil and in some cases criminal penalties for a product, that's too much power for the federal government. We believe there's also a constitutional issue as well.

BETTY ANN BOWSER: Some 24 million people, including undocumented immigrants, people in prison, and Native Americans, would be exempt. Those with incomes too low to file a tax return wouldn't face a penalty either.

After the oral arguments ended, opponents of the law showed up in large numbers near the court to rally against the health care law.

TRACY WALSH, Washington, D.C.: I'm urging the Supreme Court to strike down Obamacare as a unconstitutional violation of the federal government's limited and enumerated powers.

BETTY ANN BOWSER: Supporters of the law chose today to focus on the benefits of the law for women.

COURTNEY EVERETTE, Washington, D.C.: Women pay over a billion dollars more a year for health insurance than men. The new law stops discrimination based on gender and requires all plans in that market to provide maternity care.

BETTY ANN BOWSER: The mandate has never had broad public support. And tomorrow the court will hear arguments on whether the rest of the law can be upheld if the mandate is struck down.

GWEN IFILL: For more on today's arguments, we're joined by the team covering the case for us this week, Marcia Coyle of The National Law Journal and NewsHour health analyst Susan Dentzer, editor-in-chief of the journal Health Affairs.

Marcia, you're in the courtroom, in the chambers all the time trying to get the sense of how the Supreme Court operates. Today, we just heard arguments pro and con. Was there any clarity?

MARCIA COYLE, The National Law Journal: I think there was some clarity, but I can't tell you how I think the court is going to rule on this.

GWEN IFILL: Obviously.

MARCIA COYLE: I would say there was a full airing of the issues. It was again a packed courtroom. The arguments were much more interesting and faster-paced than yesterday's arguments on the Anti-Injunction Act.

And there was really very good lawyering. And I really urge any of our viewers or listeners who are interested in this case to listen to the audio that is now available or read the transcript.

GWEN IFILL: I spent the bulk of my day listening to the audio.

MARCIA COYLE: I know you did.

(LAUGHTER)

GWEN IFILL: It was amazing. I was struck by all the hypotheticals that were used.

MARCIA COYLE: Yes.

GWEN IFILL: They were talking about cars. They were talking about broccoli. They talked about -- you name it. Let's listen to some of it, in this case, an exchange between Justice Anthony Kennedy, who everyone is watching, and the solicitor general, Donald Verrilli.

ANTHONY KENNEDY, associate justice, U.S. Supreme Court: In the law of torts, our tradition, our law has been that you don't have the duty to rescue someone if that person's in danger. The blind man's walking in front of a car, and you do not have a duty to stop him, absent some relation between you.

And there's severe moral criticism of that rule, but that's generally the rule.

And, here, the government is saying that the federal government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous stages.

DONALD VERRILLI: Well. . .

ANTHONY KENNEDY: And that changes the relationship of the federal government to the individual in a very fundamental way.

DONALD VERRILLI: I don't think so, Justice Kennedy, because it is predicated on the participation of these individuals in the market for health care services.

Now, it happens to be that this is a market in which, aside from the groups that the statute excludes, virtually everybody participates, but it is a regulation of their participation in that market.

GWEN IFILL: So this was basically about the scope of federal power, Marcia.

MARCIA COYLE: Oh, very fundamentally the scope of Congress' power under the Commerce Clause.

But what Mr. Verrilli is trying to argue to the justices is that this is a unique market. It's not like the food market. One, people are already in the market. There are those who are going to enter at some point. We don't know when. They don't know what kind of service they're going to need. And, unlike other markets, when they do enter and need the service, they may get that service, and perhaps not pay for it, but others will who are insured.

GWEN IFILL: Susan, we spent a lot of time at this table talking about this bill as it became a law, and there wasn't a lot of attention paid to this mandate issue.

Was that a big part? Was that on which -- at the time that this law became -- this bill became a law, was that what this was all hanging on, the way it is now?

SUSAN DENTZER: It's not all hanging on it, in the sense that some people have asserted this is a linchpin.

But it is an important ingredient that will make the insurance reform portions work. If people are all supposed to get into the market, healthy and sick alike, then the advantage of that is, you can spread the costs of insuring everybody across a bigger population.

And so the relatively small part of -- number of people who are sick can -- instead of having to pay very high prices because they're sick, can pay a much more level price. And the reverse is true for healthier people. They're going to pay more than if only healthy people were in the market, but if only healthy people got health insurance, we wouldn't need health insurance, right?

So to make all of this work, that's what the point is of the mandate.

GWEN IFILL: But the government has to be the one to force this to happen. That's the nub of this debate right now.

SUSAN DENTZER: Well, and, again, under the Commerce Clause, the government is here arguing that we have the responsibility to regulate this market. As Marcia said, everybody is eventually in this market. It's not realistic to just sell people insurance when they get sick.

No insurer would stay in business if they said, OK, now you're sick, let's sell you a policy. Right? It has to be much more predictable than that. So the government is saying, we need to be able to regulate this and we can regulate the timing of this to make it work better for everybody.

GWEN IFILL: I noticed inside the courtroom today that so much of the defense of the law came -- fell to the justices on the court, including Justice Ruth Bader Ginsburg. And we can listen to this exchange between her and Paul Clement, who is a former solicitor general, who was arguing against the law today.

PAUL CLEMENT, former U.S. solicitor general: When I'm sitting in my house deciding I'm not going to buy a car, I am causing the labor market in Detroit to go south, I am causing maybe somebody to lose their job, and for everybody to have to pay for it under welfare.

So the cost-shifting that the government tries to uniquely associate with this market, it's everywhere.

And even more to the point, the rationale that they think ultimately supports this legislation, that, look, it's an economic decision, once you make the economic decision, we aggregate the decision, there's your substantial effect on commerce, that argument works here. It works in every single industry.

STEPHEN BREYER, associate justice, U.S. Supreme Court: Of course, we do know that there are a few people, more in New York City than there are in Wyoming, who never will buy a car, but we also know here -- and we don't like to admit it -- that because we are human beings, we all suffer from the risk of getting sick. And we also all know that we'll get seriously sick.

And we also know that we can't predict when. And we also know that when we do, there will be our fellow taxpayers, through the federal government, who will pay for this.

GWEN IFILL: That was, of course, Justice Stephen Breyer, not Justice Ruth Bader Ginsburg.

Does that kind of argument seem -- when you're sitting in the courtroom, did that resonate in any way?

MARCIA COYLE: Well, I think it does with those who support the law, obviously, but not with Mr. Clement and not with Michael Carvin, who also argued today against the law.

They are pointing out to the justices that they don't buy the government's argument that this is a unique market, that the cost-shifting that occurs in the health care market, they say, occurs in every market. And so Justice Breyer, Justice Ginsburg, Justice Kagan, they seemed to pick up on the government's arguments and tried to press Mr. Clement and Mr. Carvin to respond to those arguments.

GWEN IFILL: But the chief justice and Justice Kennedy and Justice Scalia and the silent Justice Thomas seemed to be. . .

MARCIA COYLE: They were much more aggressive with the government. But that's almost understandable, because the government is appealing a lower court decision that struck down the mandate.

The government has in a sense the tougher argument to make. This is an unusual exercise of Congress' power. And so the government has to lay out the reasons for that power. And, also, the court was very interested in, if this is OK under Commerce Clause, what are the limits? What stops Congress from ordering or commanding that consumers or citizens purchase or do other things?

GWEN IFILL: There's also an argument in the court today about whether this is really just not the job of the federal government, it should be the job of the states. Is there any record to show that states have been willing to step into this void that the government says exists in the health care availability?

SUSAN DENTZER: Yes, indeed.

Many states have implemented insurance market reforms. And one state in particular, Massachusetts, also put in place an individual mandate, which, since it was enacted, has edged up the numbers -- the percentage of people ensured in Massachusetts has gone from 87 percent to close to 95 percent over the course of the last several years.

So states have gone down this road. And, indeed, Mr. Clement said today in the argument that states could do this. If this federal mandate is invalidated, states could come back and impose that kind of mandate, just the way Massachusetts did.

So a lot of people now are starting to say -- to ask the question, could this law be made to work in other ways? And so people are pointing to the examples of various states that either took the action that Massachusetts did or that also put in place insurance market reforms in the absence of a mandate, and see what happened then.

And there also, we have a couple of examples of states that put in place so-called guaranteed issue. We're going to get everybody -- everybody has to be offered insurance, didn't put in place a mandate, and in those states, premiums often went through the roof or insurers pulled out because they thought they would be driven out of business. So we see both positive and negative examples of this kind of overall regulation.

MARCIA COYLE: Which is why the government argues this is a national problem, this is something Congress has to address.

GWEN IFILL: But the government also is now -- tomorrow has to argue whether -- if this mandate part were to go away, whether the law still stands.

MARCIA COYLE: Yes. Absolutely. That's going to be the severability argument.

And the challengers to the law want to see the entire law fall. The government has a more nuanced argument, because -- because if the mandate is unconstitutional and it has to be severed, there are two key provisions that will have to go with it, two very popular provisions as well.

GWEN IFILL: And that's where the big argument goes tomorrow.

Marcia Coyle. . .

MARCIA COYLE: As well as Medicaid, that's also on tap.

GWEN IFILL: Okay, that's right in the afternoon.

Susan Dentzer.

Thank you both very much.

MARCIA COYLE: My pleasure.

SUSAN DENTZER: Thank you, Gwen.

Health Care Reform in the Supreme Court: Day 2 Audio and Transcript

Tue, 27 Mar 2012 13:42:16 EDT

Court sketch by William J. Hennessy Jr.

On day two of arguments before the Supreme Court about the health care reform law, the justices tackled the central question of whether it's constitutional to require most Americans to either buy health insurance or pay a fine.

Questions were tough -- as expected -- from the Court's four conservative justices, but many took note when swing vote Justice Anthony Kennedy said that the mandate "changes the relationship of the government to the individual in a fundamental way." (See the full transcript and listen to the audio below.)

NewsHour Supreme Court analyst Marcia Coyle watched the action in a packed courtroom that included a few U.S. senators, Health and Human Services Secretary Kathleen Sebelius and several other members of the Obama administration.

Find Coyle's initial thoughts on Tuesday's arguments below. And of course, tune in to the PBS NewsHour's Tuesday broadcast for her full recap and analysis.

Coyle: "The arguments were extremely fast-paced, with the justices posing lots of hypothetical questions. The initial reaction is that the ultimate decision about the constitutionality of this requirement may be a lot closer than the supporters of the law originally thought. Justices on the conservative side -- Chief Justice Roberts and justices Alito and Scalia, questioned Solicitor General Verrilli, who is representing the government, extremely aggressively. If they uphold this mandate, they asked him, will there be any limits on Congress' power to compel individuals to do certain activities?

"On the more liberal side of the bench, justices Kagan, Sotomayor, Ginsburg and Breyer questioned Paul Clement and Michael Carvin, who represented the challengers. They questioned why this health insurance mandate is any different than other government regulations. Justice Ginsburg noted that she thought the mandate was similar to the Social Security Act in the '30s, right after Congress enacted that program. She said Social Security operates similarly to this law, to have young people in particular subsidizing others -- retirees, in that case -- with the ultimate goal that they will be able to retire themselves someday and enjoy those benefits.

"I think Justice Kennedy did not really tip his hand. He voiced concern on both sides of the law. He did initially ask aggressive questions about the government's limits on Congress' power. But he also indicated that the health insurance market may be something unique and within Congress' power to deal with in a comprehensive fashion.

"Chief Justice Roberts may also be working through his position on the law, although he did not seem all that sympathetic to the government's arguments. These justices are very good at playing devil's advocate with lawyers on both sides. And that makes it very difficult to predict what they'll decide when they sit down to think through the arguments and reach a decision."

Health Care Reform in Supreme Court Day 2 Arguments

Our Health Page is full of related content, including a look at what two attorneys general -- Massachusetts' Martha Coakley and Virginia's Ken Cuccinelli -- would say if they were making arguments before the high court about the individual mandate. We also have much more about the law itself, including a timeline, a report card, a cheat sheet, and a public polling update. Finally, browse our photo essays of the ordinary Americans who traveled to Capitol Hill this week to support and protest the Affordable Care Act.

What Is the Individual Mandate and What If It's Declared Unconstitutional?

Tue, 27 Mar 2012 12:56:06 EDT

Photo by Chris Maddaloni/CQ Roll Call

Today the Supreme Court waded into the legal arguments about whether Congress acted within its constitutional authority when it adopted the Affordable Care Act's "minimum coverage requirement" -- the so-called individual mandate. Health policy analysts, however, have been looking at very different questions, ranging from who will actually be affected by the individual mandate when the law goes fully into effect, to what the implications would be if the Court does, in fact, rule that the mandate is unconstitutional.

Here's a quick guide to the key questions that the experts in health policy are asking.

Who will be affected by the mandate when it goes into effect in 2014?

There are two ways to answer this question. One is to look at who the law says will have to have "minimum essential coverage," as defined in the statute. According to the language of the Affordable Care Act, all U.S. residents will have to have such coverage unless they fall into one of eight categories. These include individuals who will be exempt for religious reasons -- for example, Christian Scientists; incarcerated individuals; undocumented aliens; individuals who can't afford coverage (i.e., their required contribution would exceed 8 percent of their household income); individuals who will be without coverage for less than three months; other individuals deemed to be in a "hardship situation," as will be defined eventually by the Secretary of Health and Human Services; individuals with incomes below the federal tax-filing threshold; and members of Indian tribes.

Another way to answer the question, though, is to look at who would be affected by the mandate and potentially subject to the penalty because he or she won't be likely to have "minimum essential coverage" for some reason. After all, everybody on Medicare will have "minimum essential coverage" and won't be affected; everyone on Medicaid, or covered under the Veterans Health Administration, will be deemed to have the requisite coverage. In fact, of the roughly 320 million people now resident in the U.S., the vast majority -- some 256 million -- have health insurance coverage, and would undoubtedly not be subject to paying the penalty for lack of it.

Researchers from the Urban Institute took the calculations a step further, and asked how many Americans would probably be exempted from the mandate because they fell into one of the eight categories described above. They estimated that 87.4 million Americans below age 65 would be exempt -- that is, 1 in 3 Americans below the age of 65. Of the remaining 181 million Americans who would be subject to the mandate, 86 percent would have health insurance anyway.

In the final analysis, the Urban Institute researchers concluded, 18.2 million Americans -- 6 percent of the total population -- will be required to newly purchase coverage or face a penalty. Of that number, 10.9 million will be eligible to receive federal subsidies to help pay for coverage. Just 7.3 million people -- 2 percent of the total population -- will have to newly buy coverage under the ACA and won't receive any federal assistance to pay for it.

What effect will the individual mandate have on the reformed insurance market -- and, by contrast, what would the effect be of declaring it unconstitutional?

Here again, health policy analysts are approaching this question in two ways -- first, by focusing on the theory behind the mandate and the likely effects; then by focusing on implementation of all other aspects of the Affordable Care Act absent the mandate if it is ruled unconstitutional.

The rationale for the mandate is based on a key principle of health insurance: the risks of illness are fairly predictable across large numbers of people, so that if large groups of people are insured, actuaries can fairly well predict who will get sick and how often. Therefore the cost of insurance, or premiums, can be fairly level across the broad population because the costs of the relatively few sick people are spread across a bigger population of healthy people. If insurers aren't allowed to exclude people because of pre-existing conditions, which will be the case under the Affordable Care Act as of 2014, it becomes very important to get all the healthy people into the pool, and not just the sick ones, so that the costs can be spread across that large population of primarily healthy people.

Along those lines, a mandate and a penalty would encourage younger, healthier people to get coverage. If they don't get in, the insurance market will be subject to "adverse selection" -- only the sick people will sign up. Insurance premiums will rise steeply, and eventually not even sick people will be able to afford the coverage. Insurance will go into a "death spiral" -- companies will pay out more and more in claims because people are sick; more and more people will drop the coverage because it is unaffordable, and eventually the insurers will go bust.

So that's the theory.

Now, what happens if the mandate is declared unconstitutional and other aspects of the health reforms go into effect?

In general, most policy analysts think the system would be under great strain, but would not collapse. Clearly, without a mandate, some portion of the population -- maybe that 6 percent that the Urban Institute referenced -- would not sign up for coverage. How many, of course, is uncertain. Also, since sicker people would be inclined to sign up and healthy people would stay out, premiums would generally be higher. That, in turn, would make insurance somewhat less affordable for people who would prefer to be covered but no longer could afford to pay for it.

Adding up all the possibilities, researchers have come up with a range of estimates of how many fewer people would be insured. At the high end, some researchers think about 23 million fewer people would be insured if the mandate were declared unconstitutional; at the low end, some researchers think the number is closer to 8 million. As for premiums, some researchers think they would be as much as 27 percent higher; others think the difference would be much lower -- perhaps 9 percent.

So all in all, is the individual mandate really the "linchpin" to the Affordable Care Act? Probably not, in the sense that the insurance market reforms and coverage expansion completely fall apart if it's declared unconstitutional. Clearly, the market -- and many millions of people -- would be worse off, but the degree of the effect is subject to disagreement.

There's another factor that many health policy researchers are now considering, which is whether it would be possible to get the same effect of the mandate through other means. Other insurance schemes use different mechanisms to get people to sign up and, in effect, get into the insurance pool. For example, if people become newly eligible for Medicare and don't sign up right away for Part B of the program at that time, they have to pay more for the program later. That's the way Medicare gets relatively younger, healthier 65-year-olds into the program right away -- again, to spread the costs of the fewer, sicker, older beneficiaries across the broadest possible pool of enrollees.

Lots of other alternatives to the individual mandate and penalty are now under consideration. Of course, it's not at all clear that the Affordable Care Act could be amended; we'll have to see what happens when the Court makes its ruling, how the public reacts, and what the results are of the national elections in November 2012. But with two-thirds of Americans saying they're opposed to the mandate, a number of analysts think it's a good time to start talking about alternatives.

Susan Dentzer is the current editor-in-chief of the journal Health Affairs and a regular analyst for the PBS NewsHour. She previously served as the program's health correspondent. Watch her nightly analysis of this week's hearings and read more about the mandate, the broader law and the Supreme Court case on our Health Page.

Why I Support Health Care Reform: Voices of the Defense

Tue, 27 Mar 2012 11:23:00 EDT

They came marching, chanting, stomping to the beat of drums and the blare of a brass band -- doctors, nurses, the elderly and the chronically ill.

After two years of watching people protest a piece of legislation they had struggled for decades to pass, hundreds of pro-health reform demonstrators decided it was time to do a little protesting of their own. So they arrived at the steps of the Supreme Court Monday morning just in time for the media circus that would accompany the first day of oral arguments in the health care reform lawsuit.

"We love Obamacare," they screamed. "We love Obamacare, yes we do!"

On Monday, the NewsHour brought you some of the voices from a weekend Tea Party Patriot rally on Capitol Hill. Today: the defense.

Dr. Luella Toni Lewis, Brooklyn, N.Y.

Lewis: "I came out today because this is historic. I'm a board-certified physician in family medicine and geriatrics, and what this law has been able to do in two short years is amazing in terms of bringing about health equity. As a geriatrician, I hear all of the stuff about death panels and rationing, and it's really concerning. Because this law is really about providing the best care that we can. It's not about a panel of bureaucrats in Washington deciding whether or not granny will die. That's never been set up -- it's not a part of the law. That's a myth and it's a lie. And we need to stop scaring our seniors.

"But what I hear even more than the rumors is that people are really scared that they won't be able to afford health care in the future. I hear a lot of personal stories that really just break my heart -- that people have to choose between rent or food or health care. And this law really helps to break down some of those barriers."

Marlys Cox, St. Petersburg, Fla.

Cox: "Let me tell you first of all, I know Ed McMahon's never going to knock on my door with a big check because I've already had my share of million-in-one chances. When I was a young teenager, I was bitten by a barracuda on an international trip and needed a blood transfusion. I wasn't diagnosed with Hepatitis C until I was in my mid-40s, but I believe I contracted the disease from that transfusion. After the diagnosis is when all the trouble started. My husband left me and l was forced to go on a Cobra plan because my health insurance had been through his job. My payments eventually jumped from $300 a month to $1,100, and I finally couldn't afford it anymore, so I dropped insurance altogether. Just as soon as I dropped the insurance, that's when I found out I had cancer.

"So this law has already saved my life because I was able to register for a pre-existing condition insurance plan for $376 per month as opposed to the $1,100 I was paying before. I would not have been able to see a doctor or never would have been able to pay for cancer treatment without giving up everything I owned and living in my car. And I think a lot of people don't realize how helpful this law is. Even $376 is a lot to pay, but in a couple of years, that will become lower for everybody, whether you're sick or not. I know I'm going to be fine now."

Glenn McGarvey, Stratford, Conn.

McGarvey: "As a nurse, I feel like everyone needs health care coverage. I've worked for about 20 years in psychiatry, and I feel like a lot of the psychiatric patients are falling through the cracks in terms of getting medical treatment that they need. I worked with a patient who had severe psychiatric disabilities as well as medical disabilities connected to her psychiatric illness. And because she was so difficult psychiatrically and had difficulty following her medical treatment, her physician essentially fired her and decided he was not going to accept Medicaid patients any longer. There are provisions in the new health care bill that are going to make sure that's maintained -- the correlation between helping people with mental illness and physical illnesses. What we have is not working."

Ellena and William Young and their son, Live, Albany, N.Y.

Ellena Young: "I'm a three-time cancer survivor, so I've always hit the pre-existing conditions clause. I wanted to come today in support of this legislation that's taken 40 years to get on the table. The hurdles that health insurance companies do with their premiums and their annual caps have restricted me from the proper access to care throughout my life. Because of my pre-existing condition, I've been cut from coverage, denied prescription coverage, hit every hurdle imaginable. My son was born with medical conditions, as well -- he has a seizure disorder, a genetic disorder and he's immune-compromised -- so this piece of legislation will affect him forever if it's overturned.

"When I was pregnant with him, it was a very complicated pregnancy to the point where I almost lost him. And I developed life-threatening blood clots and couldn't afford the $1,000 a month for blood thinners. I don't want him to go through those same kinds of hurdles. The Affordable Care Act means he gets treated. This is not socialism -- it's humanism. For those who criticize the law, look at your own family and think about if they had a catastrophic illness and hit their annual cap and you weren't able to receive that care. Would you be screaming socialism? You would want health care, and you shouldn't be denied this very basic right."

Doris Braley, Twin Cities, Minn.

Braley: "I believe in Obamacare. I like that youth can be on it longer. I remember when our daughters graduated from college, way, way back. We had to get individual insurance until they went and got their own. So this, I think, is so great because there is a time between their graduation and when they can get on it. I am also an advocate for Medicaid. I think sometimes it gets abused -- people get on it and they don't get off. But there are times even in my volunteer job when we have to put people on it to save a life. And to me, that's important, especially a child."

The Rev. Jonas Georges, Miami, Fla.

Georges: "I like that this law provides for the people who are uninsured. Many of them will be able to be covered if it remains how it is. I am originally from Haiti and a lot of people in my church are immigrants who are not able to really pay for their own health care because they can't afford it. With this plan now, there is hope that many of them will be able to get covered. Medically, Haiti and the United States are two different worlds. In Haiti, there is the possibility that one can always find some sort of health care where it is available. It is not the best there is, but there is nothing that says you can't get it if it is there. But, as it is here in the United States, you may have money in your pocket and you can't get the proper care because you don't have the proper insurances and you don't have any facilities that will provide it for you. And that is a tragedy, as far as I am concerned."

Theresa BrownGold, Doylestown, Pa.

BrownGold: "I started looking at how we access health care three years ago when I launched an art project called Art as Social Inquiry. I was getting back into art at the time and my husband and I wanted to sell our business, so we did. And I said, 'I'm going to look at this. I'm going to interview pro, con, uninsured, under-insured -- all trying to find out how we access health care in this country.' It's pretty devastating what I found out. I just didn't understand the connection between denied claims and shareholder profits. I have been in business and owned businesses, so I don't vilify business.

"But the people I painted affected me. I painted a woman who was telling me this story where she had a stroke at 27 and they would pay to have an MRI taken but not to have it read. I painted bankruptcies. I painted a guy who was insured -- he was insured for goodness sake -- and he had twins and his insurance didn't cover all the bills. So he went bankrupt. I think it's fair to say that if we're going to have a conversation, we need to start with the question, 'All Americans cannot access health care because ...'

"One of the things I hear a lot when I talk to people out here is, 'We want reform, but we just don't like the way it's been done.' Well, my answer to that is it had to get done however it could get done. We just couldn't wait any longer. We just couldn't wait. I think this law is a good first step."

Dr. Alice Chen, Los Angeles, Calif.

Chen: "Health reform is already helping millions of people, children, women, seniors, everybody. And not enough people know about it because it's complicated and there's a lot of pieces that have not been implemented yet. People are afraid they're going to lose their medical freedom, but it's not true. I definitely do believe that the more people see their families and people in their communities being helped by it, they will realize this is not what they thought it was. Health reform is actually going to improve people's freedoms. It means that people can be more secure in the health coverage that they have. It means that people who don't have coverage can get coverage, so that people can have their doctor, they can see a doctor when they're sick or injured and they can get the care that they need."

Tom Connelly, Niles, Ohio

Connelly: "I've been advocating for health care reform for several years now as a nurse, and finally it's about to happen. I think something like 65 million people are going to come into Medicaid throughout the nation. I always think back to this auto mechanic that came into the hospital a couple years ago. He was self-employed -- had no health care insurance. A car fell on his leg and broke it. He actually deferred his surgery because he didn't think he could afford it. He went home and the bone didn't heal correctly, so he actually ended up coming in and being in worse shape than he was before. I don't think a lot of people realize that it's working people that have really been hit the hardest by this crisis. By 2014, this man will have health insurance."

Kelsey Van Nice, Washington, D.C.

Van Nice: "The Affordable Care Act has already helped a lot of women and families in this country and I'd like to see it stay the way that it is. I work for an organization that advocates for reproductive health care services and with the new preventative health care packages -- meaning birth control is available with no copay -- it helps a lot of low-income women, women of color, and those in under-served populations access these preventative medicines that they need. It's also a good thing for women in college who don't have a lot of money. With this new (birth control) rule in place, it allows them to take control of their lives and live the lives that they want."

All photos by Victoria Fleischer.

Our Health Page is full of related content, including a look at what two attorneys general -- Massachusetts' Martha Coakley and Virginia's Ken Cuccinelli -- would say if they were making arguments before the high court about the individual mandate. We also have much more about the law itself, including a timeline, a report card, a cheat sheet, and a public polling update. If you still have questions about the law or the Supreme Court case, ask them here and on Twitter using hashtag #HCRchat. We'll answer them in an online chat on Tuesday at 1 p.m. ET.

Court of Public Opinion Weighs In on Health Care Reform Law

Tue, 27 Mar 2012 09:20:11 EDT

People gather outside the Supreme Court Tuesday as justices hear arguments on the health care reform law. Photo by Mark Wilson/Getty Images.

The nation's high court will be the center of the political universe Tuesday, with the key provision of the health care reform law under scrutiny. The Supreme Court justices will hear arguments about whether a national insurance mandate is constitutional.

At the same time, the health care law is getting a fresh look in the court of public opinion.

A CBS News/New York Times poll found that two-thirds of Americans want the Supreme Court to overturn some or all of the law, but the survey also showed strong support for individual pieces included in the measure.

Nearly 40 percent said they wished to see the court turn back the entire law, with 29 percent expressing support for overturning the requirement that all Americans obtain health insurance or pay a fine.

Other mandates were far more popular, with 85 percent of respondents saying they favored the law's requirement that insurance companies cover people with pre-existing conditions. Sixty-eight percent, meanwhile, backed the provision allowing individuals up to age 26 to remain on their parents' health plans.

A CNN survey released Monday revealed similar findings, with 23 percent of respondents saying to leave the law as is, 43 percent wanting to overturn some of its provisions and 30 percent hoping the court would reject the overhaul in its entirety.

A survey by Pew Research Center indicated little has changed since President Obama signed the law two years ago, with 47 percent of Americans approving of it and 45 percent disapproving. The individual mandate is more unpopular. The poll showed 56 percent of the public disapproves of that foundation of the law.

(To the question of which political party can do a better job dealing with health care, 49 percent said Democratic, while 35 percent said Republican.)

The NewsHour is your destination this week for thorough coverage and detailed analysis of the Supreme Court hearings. Our team is posting audio of the proceedings and courtroom sketches, and we'll answer your questions about the election-year battle.

National Law Journal's Marcia Coyle and Health Affairs' Susan Dentzer, our dynamic duo on air each evening, kicked off the coverage Monday night explaining concisely what was at stake.

And health correspondent Betty Ann Bowser delivered a piece on the political implications of the courtroom drama. Watch the segments here or below.

Watch Video

You can read Marcia's primer on Day 2 here.

And don't miss Jason Kane and Victoria Fleischer's post showing the faces of the opposition.

On a lighter note, Roll Call's Neda Semnani tracked down the SCOTUS cat seen among the protesters and supporters chanting outside the courtroom, prompting NPR's awesome lede:

No circus would be complete without a few animals.

So wouldn't you know the big crowd outside the U.S. Supreme Court today included a cat on a leash and an adorable chihuahua mix with health insurance.

(Semnani has more on "Pud" the cat here.)

Everyone is getting in on the political action, from Rep. Michele Bachmann, R-Minn., taking a seat in the courtroom to advocates on both sides getting vocal on 1st Street between the Capitol and the Supreme Court buildings.

American Crossroads reminds voters in a new web video that Mr. Obama opposed the individual mandate when he was locked in a primary fight with Hillary Clinton.

Watch it here or below.

(The New Yorker's Ryan Lizza has the back story on how the president changed his mind on the issue.)

With Team Obama frequently and pointedly noting that Mitt Romney's plan in Massachusetts was the model for the Affordable Care Act, will this actually be a campaign issue once the GOP primary concludes?

Rick Santorum held a press conference Monday on the steps of the Supreme Court and made sure reporters saw a story at Buzzfeed that summarized a 2009 Romney op-ed in USA Today. In that piece, Romney argued that an individual mandate was actually a conservative way to go about the health care problem and held up Massachusetts as an example that could work at a national level.

The Washington Post's Philip Rucker and Dan Balz have more on Massachusetts' health care law, which was supposed to be Romney's Achilles heel but has not damaged him as much as initially expected.

Roll Call's David Drucker expands on that theory, getting prominent Hill Republicans to say "Romneycare" isn't a weakness for the front-runner at all.

Have questions about the health care law hearings? Details for participating in @newshour's Tuesday 1 p.m. #HCRChat are here.

RACE TO 1,144

Santorum railed on Romney supporter and former New Hampshire Gov. John Sununu for saying "significant" people have suggested he should bow out of the race.

"Of course Gov. Romney's supporters are going to want everybody out of the way. It'd be nice if Gov. Romney and everybody else got out of my way. But that's not how primaries work," Santorum said on the steps of the Supreme Court.

He added, "Well, I guess we'll have to leave it to the insignificant voters of America in the remaining primaries to step forward and challenge the significant people who are speaking here in Washington, D.C."

Newt Gingrich told CNN he thinks Romney is the "weakest front-runner" the party has seen. "The morning that he gets 1,144 that are locked down he can claim to be the nominee. This is not over until it's over. If he does become the nominee I will support him. If he doesn't win the nomination, then it's going to be wide open," Gingrich said.

QUICK REFLEXES

In a preview of their likely general election battle, Mr. Obama and Romney traded blows Monday over a comment picked up by a live microphone during the president's bilateral meeting with Russian President Dmitri Medvedev at a nuclear security summit in South Korea.

Mr. Obama told Medvedev that the issue of European missile defense would have to wait until his presidential campaign was finished later this year. "This is my last election," the president said. "After my election, I have more flexibility."

That comment drew a stern rebuke from Romney, who was campaigning in San Diego on Monday.

"Now when the president of the United States is speaking with the leader of Russia saying he can be more flexible after the election, that is an alarming and troubling development," Romney said. "This is no time for our president to be pulling his punches with the American people and not telling us what he's intending to do with regards to our missile defense system."

The Romney campaign also sought to raise some coin off the comment, emailing supporters Monday evening asking for a $10 donation "to help defeat President Obama and limit his flexibility to his tee time."

"It speaks volumes that this President is more open and forthcoming with the Russian government than he is with the American people," Romney policy director Lanhee Chen wrote in the fundraising missive. "We have a right to know what other areas and issues the President plans to be "flexible" on during a second term."

The president defended his comments Tuesday before departing for Washington.

"I don't think it's any surprise that you can't start that a few months before a presidential and congressional elections in the United States, and at a time when they just completed elections in Russia and they're in the process of a presidential transition where a new president is going to be coming in in a little less than two months," Mr. Obama said.

He also remarked that the uproar over his statement essentially proved his point and pointed the finger at Republicans in Congress for not being more receptive to talks on missile defense.

"The only way I get this stuff done is if I'm consulting with the Pentagon, if I'm consulting with Congress, if I've got bipartisan support. And frankly, the current environment is not conducive to those kinds of thoughtful consultations," he added. "I think the stories you guys have been writing over the last 24 hours is probably pretty good evidence of that. I think we'll do better in 2013."

2012 LINE ITEMS

At a breakfast with reporters in Washington, Santorum gave conflicting messages about whether he could win Wisconsin's April 3 primary.

Politico's Ken Vogel on Karl Rove's behind-the-scenes role this election year.

The Washington Post's Sandhya Somashekhar writes that Santorum's "nice guy" image has taken a hit of late.

Politico's Alex Burns reports that "Romney's campaign and the super PAC Restore Our Future are spending a combined $1,917,764 over the next seven days," and "Santorum's campaign is not on the air at all at the moment, so the TV campaign is being carried by the Red White and Blue Fund super PAC. That group is in the process of putting $513,000 into the state for the home stretch." In all, Burns notes, "Over the course of the contest in Wisconsin, pro-Romney forces have spent about $3.2 million to the Santorum camp's $568,000, for a roughly 6 to 1 Romney advantage."

Romney picked up support on Monday from House Majority Whip Kevin McCarthy, R-Calif., Sen. Mike Lee, R-Utah, and Al Cardenas, chairman of the American Conservative Union. Lee, a staunch conservative who unseated Sen. Bob Bennett at the GOP convention in 2010, can give Romney some cover with Tea Party supporters, a part of the base he has struggled to win over so far.

Gingrich has lost his last embedded print reporters, Politico reports.

Texas Rep. Ron Paul insisted the race "is not over" in an interview with Bloomberg TV.

Gloria Steinem recorded a video for the Obama campaign.

Romney took a couple of his grandkids to see "The Hunger Games" this weekend.

If you wanted to see a series of photos of Vice President Joe Biden wearing aviator sunglasses, well, here you go.

TOP TWEETS

Sketch artist Bill Hennessy holds up his #scotus #hcr sketches for our camera on a very blustery day. twitter.com/lornabaldwin/s...

— Lorna Baldwin (@lornabaldwin) March 26, 2012

Patient spectators seeking seats at tomorrow's oral arguments #SupremeCourt t.co/Q5bYJDIJ

— Laura Litvan (@LauraLitvan) March 26, 2012

This woman's health care woes started after being bitten by a barracuda. Says ACA is light at end of tunnel twitter.com/JasoKane/statu...

— Jason Kane (@JasoKane) March 26, 2012

Cat allowed on SCOTUS steps. People, not so much.instagr.am/p/IpGYafJKOf/

— Amanda Becker (@RollCallAmanda) March 26, 2012

Sunburst as people pray in front of the Supreme Court twitter.com/StevenTDennis/...

— Steven Dennis (@StevenTDennis) March 26, 2012

t.co/eTAVShHf view from accross street of hundreds marching for obamacare.Singing "let it shine"

— evale72 (@evale72) March 26, 2012

When is a food truck not just a food truck? When it's operated by Chick-fil-A: bit.ly/GU5OOX

— Mike Madden (@mikemadden) March 26, 2012

NYT: Rep. Charlie Rangel paying $23k fine for using rent-controlled apartment as campaign office #HotlineSort

— Reid Wilson (@HotlineReid) March 27, 2012

OUTSIDE THE LINES

Time's Jay Newton Small on the president's trip to Korea.

The Hill's Josh Lederman writes that former Maine Gov. Angus King, an independent running to replace GOP Sen. Olympia Snowe, has hired two new campaign staffers -- "one a Democrat, the other a Republican."

An appeals court upheld 10 of the 11 corruption charges against former Rep. Bill Jefferson, D-La.

Former Sen. Byron Dorgan, D-N.D., has co-authored what is being called an "eco-thriller" about "a fictional attempt to sabotage alternative energy development," the Associated Press reports.

Martin Sheen stars in a Democratic Congressional Campaign Committee video attacking GOP Rep. Paul Ryan's budget blueprint.

Happening now, NewsHour's Judy Woodruff interviews Education Secretary Arne Duncan and Sen. Lamar Alexander, R-Tenn., at an education forum hosted by the Atlantic. Watch it here.

ON THE TRAIL

All events are listed in Eastern Time.

President Obama returns from his trip to South Korea late Tuesday evening.

Newt Gingrich campaigns in Maryland, holding a media availability in Annapolis at 10:30 a.m. and attending an event in Salisbury at 3 p.m.

Rick Santorum holds a pair of Wisconsin rallies in Beaver Dam at 12:30 p.m. and Janesville at 7 p.m.

Mitt Romney appears on "The Tonight Show with Jay Leno" at 11:30 p.m.

Ron Paul has no public campaign events scheduled.

All future events can be found on our Political Calendar:

For more political coverage, visit our politics page.

Questions or comments? Email Christina Bellantoni at cbellantoni-at-newshour-dot-org.

Follow the politics team on Twitter: @cbellantoni, @burlij, @elizsummers and @suddinengel.

Supreme Court Reviews Health Care Reform Law: a Guide to Day 2

Tue, 27 Mar 2012 08:00:00 EDT

Andrew Harrer/Bloomberg via Getty Images

For more than two years now, it's been the nation's multibillion-dollar question: Can the federal government force Americans to buy health insurance or pay a fine if they don't?

Banking that the answer is yes, the Obama administration constructed its landmark health care reform law around that central pillar. On Tuesday, the Supreme Court will hear arguments on whether the individual mandate should be ruled unconstitutional and toppled before it goes into effect in 2014.

Republican leaders -- along with 51 percent of the rest of the nation, according to the latest Kaiser Family Foundation tracking poll -- have their fingers crossed for a demolition. A mere 28 percent think it should stand.

On this second day of health care reform arguments before the Supreme Court, we turn once again to Marcia Coyle of the National Law Journal for a preview of the day's action:

Marcia, what can you tell us about Tuesday's arguments?

[Tuesday] is really the "main event" from the perspective of many organizations, politicians, businesses and individuals who have been involved with or just have followed the debate over the constitutionality of the new health care law.

The justices will examine the constitutionality of the law's minimum coverage requirement, or what has become better known as the 'individual mandate' to purchase health insurance. The provision would require eligible Americans to obtain insurance by Jan. 1, 2014, or pay a penalty with their income tax return. The court has scheduled two hours of argument.

Two federal appellate courts upheld the constitutionality of the mandate. One struck it down, and a fourth ruled that it was premature to consider challenges to the mandate. The Supreme Court now has the opportunity to resolve those conflicting decisions.

What parts of the Constitution will be in play during the arguments?

We expect to hear much discussion about the scope of Congress' powers to legislate under the commerce clause, the necessary and proper clause, and the general welfare clause.

The commerce clause is a major source of Congress' lawmaking power, and it will loom large in [Tuesday's] arguments because Congress relied primarily on that clause as the basis for its authority to enact the new law. In interpreting the scope of Congress' power under that clause, the Supreme Court has said that Congress may regulate the channels of interstate commerce, the instrumentalities and persons or things in interstate commerce, and activities that substantially affect or relate to interstate commerce. That last category will be particularly important in today's arguments.

Who will appear before the justices?

During the two hours of argument, the justices will hear from three lawyers. Returning to the podium after [Monday's] arguments is the solicitor general of the United States, Donald Verrilli Jr., who will defend the mandate for one hour. The challengers have divided the second hour between former Bush administration Solicitor General Paul Clement, now a partner in the Washington law firm Bancroft, and Michael Carvin, a partner in the Washington office of Jones Day. Clement is representing 26 state attorneys general in their challenge to the law, and Carvin represents the National Federation of Independent Business and four private individuals.

What are their main arguments?

The government argues that the health care law is classic regulation of economic conduct. It expands access to health care services and controls health care costs by reforming the terms on which health insurance is offered and the means of payment for health care services. The mandate is part of that comprehensive interstate scheme by regulating how health care use is financed. Within that scheme, the mandate regulates economic conduct with a substantial effect on interstate commerce.

The United States also argues that the mandate is necessary and proper to carry out the law's insurance reforms. And it contends Congress' taxing power is an independent ground for upholding the mandate. The mandate operates as a tax law, and the only consequences for failing to have minimum coverage are tax consequences.

The challengers argue that the Constitution gives Congress the power to regulate commerce and not the power to compel individuals to enter commerce, which is what the mandate does. The power to regulate commerce allows Congress to reach individuals only if they decide to engage in conduct that constitutes -- or substantially affects -- interstate commerce.

The government cannot rely on the necessary and proper clause because that clause gives Congress the authority only to use "means by which other objects are accomplished." The power to compel individuals into commerce is exercised not to accomplish regulation of existing commerce, but rather to create commerce so that Congress may regulate it.

And the government also cannot rely on Congress' taxing power to save the mandate because regardless of the enforcement method (the penalty for failing to have minimum coverage), the mandate itself is not a tax.

Back to the commerce clause for a moment: The Obama administration will also argue that it applies because the uninsured often cost taxpayers money, correct?

Yes, the government argues that the uninsured participate in the health care market and shift substantial risks and costs to other participants in the market. For example, it tells the justices that state and federal laws require emergency rooms to treat patients with emergency conditions. The uninsured thus participate actively in the market for health care services even when they do not pay in full. As a class, the uninsured consumed $116 billion of health care services in 2008, according to the government, and those costs were shifted to private insurers who then shifted them to insured consumers. This cost-shifting, Congress found, raises the average premium of an insured family by more than $1,000 per year.

Is the Supreme Court writing on a blank slate here as it tries to answer the constitutional question?

Not at all. Both sides in this battle look to one very old and four more recent Supreme Court decisions to bolster their arguments. I'll give you a quick rundown on them. They all are likely to figure in the oral arguments and probably in the justices' ultimate decision.

Wickard v. Filburn (1942): The court held that the government had the power under the commerce clause to order farmer Roscoe Filburn to destroy wheat crops that exceeded the legal limit under a Depression-era law designed to drive up wheat prices. He had to comply even though he grew the wheat for personal use because wheat was traded nationally.

U.S. v. Lopez (2005): This decision was the first in 60 years to limit Congress' commerce clause power. The justices struck down a federal law regulating guns near school zones because the law had no connection to interstate commerce.

U.S. v. Morrison (2000): The court also found unconstitutional a civil damages provision in the federal Violence Against Women Act after finding it did not substantially affect or relate to interstate commerce.

Gonzales v. Raich (2005): The court held that Congress had the authority under the commerce clause to criminalize marijuana production and use despite California's law allowing the use of medical marijuana because production has a substantial effect on supply and demand in the national market for marijuana.

U.S. v. Comstock (2010): Congress has the authority under the necessary and proper clause to enact a law requiring the commitment of sexually dangerous prisoners after they have completed their prison terms.

As you can see, only one case -- U.S. v. Comstock -- was decided by the court now headed by Chief Justice John Roberts Jr. He joined the 6-3 majority upholding Congress' authority.

Any predictions on what the justices might do on the mandate question?

As you know, I never like to predict what the justices may do on the basis of oral arguments because they are just too good at playing devil's advocate. But if everyone tunes in [on Tuesday] to the NewsHour, I'll try to give you a sense of how the arguments went and what the justices were asking and saying. You can also read what I write and what some legal experts have to say about the arguments at my newspaper's special Web page this week.

Watch Monday's broadcast segment and discussion here:

Watch Video

Our Health Page is full of related content -- including a look at what two attorneys general -- Massachusetts' Martha Coakley and Virginia's Ken Cuccinelli -- would say if they were making arguments before the high court about the individual mandate. We also have much more about the law itself, including a timeline, a report card, a cheat sheet, and a public polling update (spoiler alert: confusion abounds). If you still have questions about the law or the Supreme Court case, ask them here and on Twitter using hashtag #HCRchat. We'll answer them in an online chat on Tuesday at 1 p.m. ET.

Supreme Court Considers Health Reform Day 1 Recap: Jurisdiction, Tax Questions

Mon, 26 Mar 2012 18:03:00 EDT

Listen to the Audio

JUDY WOODRUFF: The U.S. Supreme Court opened three days of arguments today on the nation's health care reform law.

NewsHour health correspondent Betty Ann Bowser begins our coverage.

BETTY ANN BOWSER: Supporters and opponents of the Affordable Care Act took to the streets early this morning to make their case to the cameras outside of the court. It was a far cry from the subdued atmosphere that would unfold later in the day inside.

WOMAN: Why do you want to argue?

MAN: Why do you want to argue?

BETTY ANN BOWSER: Emotions have run high since Congress passed the law two years ago backed almost by entirely by Democrats and President Obama.

PROTESTER: When do we want it?

PROTESTERS: Now!

PROTESTER: What do we want?

PROTESTERS: Health care!

BETTY ANN BOWSER: One of its primary goals, provide health insurance to more than 30 million uninsured Americans. The law includes an individual mandate requiring most people to buy insurance or pay a penalty, a question at the heart of the case.

Today, the justices were trying to decide whether they could rule on the mandate before it takes effect in 2014 and whether it should be considered a tax.

The tone of questioning from several justices, including Stephen Breyer, suggested they believed so. Since the two sides both oppose the tax designation, the court appointed a Washington private attorney, Robert Long, to argue in favor.

STEPHEN BREYER, associate justice, U.S. Supreme Court: Why is this a tax?

And I know you point to certain sentences that talk about taxes within the code. And this is not attached to a tax. It is attached to a health care requirement.

ROBERT LONG, attorney: Right.

STEPHEN BREYER: So -- so, why does it fall within that word?

ROBERT LONG: Well, I mean, the first point is our initial submission is, you don't have to determine that this is a tax in order to find that the Anti-Injunction Act applies because Congress very specifically said that it shall be assessed and collected in the same manner as a tax, even if it's a tax penalty and not a tax. So that's one argument.

STEPHEN BREYER: But that doesn't mean the AIA applies.

BETTY ANN BOWSER: The hearings have set the stage for a new round of debate in the court of public opinion.

RON POLLACK, executive director, Families USA: This is a teaching moment.

BETTY ANN BOWSER: Supporters like Ron Pollack of Families USA kicked off a three-day blitz by bringing doctors and nurses to the steps of the court.

RON POLLACK: Two-and-a-half million young adults are receiving coverage through their parents as a result of the legislation. Children with preexisting conditions can no longer be denied health coverage by an insurance company due to their preexisting conditions.

BETTY ANN BOWSER: A coalition of health reform groups has taken over this building across the street from the Supreme Court. The groups have brought in nearly 30 radio talk show hosts to broadcast during the three days of arguments.

When the Affordable Care Act was passed in 2010, Americans were sharply divided over whether it was a good or a bad idea. Today, that is still the case. And the individual mandate has never been more unpopular. A recent ABC News/Washington Post poll found that 67 percent of those surveyed want the Supreme Court to strike the mandate down.

PROTESTERS: Repeal the law! Repeal the law!

BETTY ANN BOWSER: No group is more opposed to the individual mandate than the coalition of conservative organizations holding rallies and news conferences this week.

Over the weekend, about 400 demonstrators stood for over two hours in the pouring rain near the Supreme Court to demand the justices find the mandate unconstitutional.

LAURA VANOVERSCHELDE, opposes Affordable Care Act: If the justices do not listen to -- they are not really upholding their oath of office to the Constitution and the people that expect the Constitution to be upheld.

WOMAN: Obamacare is like cancer.

BETTY ANN BOWSER: Jenny Beth Martin, who leads the Tea Party Patriots, says the week's events aren't just about the Supreme Court.

JENNY BETH MARTIN, co-founder, Tea Party Patriots: We at Tea Party Patriots have promised that we will fight this law and we will get it repealed. And that is what we intend to do. And we're not putting all of our eggs in any one basket.

BETTY ANN BOWSER: Virginia Attorney General Ken Cuccinelli filed one of the earliest lawsuits challenging the mandate. That case is not part of the one being heard this week. And while he is taking part in some of the media events, he agrees that opponents of the law have a broader message.

Do you expect any of this activity, whether it's supporters of the law or opponents to the law, have any influence on what's going on inside the court?

KENNETH CUCCINELLI (R), Virginia attorney general: No. And that isn't why I'm here today.

But I do expect it to have an influence on this year's elections, and both the election for president, the elections for the U.S. Senate. So this has a lot of implications well beyond just the case, because ultimately we got here because of choices people made in elections.

BETTY ANN BOWSER: But Republicans and Democrats are using this moment to mobilize their bases. Republican presidential candidate Rick Santorum showed up outside the court today.

RICK SANTORUM (R): There's no more important issue on the most fundamental issues of the day, which is our economic security and stability, job growth, the size and scale of government.

BETTY ANN BOWSER: And both parties are mounting major campaigns on the airwaves and online. The Republican National Committee is airing this ad in six battleground states. And the passage of the law was a major focus of a video produced by the Obama campaign earlier this month.

PRESIDENT BARACK OBAMA: When my mom got cancer, she wasn't a wealthy woman and it pretty much drained all her resources.

MICHELLE OBAMA, first lady: She developed ovarian cancer, never really had good, consistent insurance.

BETTY ANN BOWSER: While the court hears the case this week, President Obama is attending a nuclear security conference in South Korea. So selling the law has been left to surrogates.

NEERA TANDEN, president, Center for American Progress: It's important for us to remember what those benefits are.

BETTY ANN BOWSER: Neera Tanden was a health policy adviser for the Obama administration. Now, as president of the Center for American Progress, she's trying to persuade people the Affordable Care Act will benefit many Americans. But she says it's a hard sell because the White House had to make significant compromises to get the law passed and still managed to get only one Republican vote.

NEERA TANDEN: It has become a very polarizing issue, in part because of the way the legislation was passed and the procedural challenges. Sausage-making in Congress is never pretty. And that was particularly unpretty, particularly unattractive sausage-making, the process of the Affordable Care Act.

BETTY ANN BOWSER: More than 150 from the general public had an opportunity to hear the arguments today. The lines are already forming again for tomorrow.

GWEN IFILL: For a closer look at what's going on with the impact of the law and at what happened inside the courtroom today, we're joined by the team covering the arguments for us this week, Marcia Coyle of The National Law Journal and NewsHour health analyst Susan Dentzer, editor-in-chief of the journal Health Affairs.

As Betty Ann was just explaining, this is a big, big issue, but today there were fairly narrow arguments, Marcia, pretty much about jurisdiction. Why wouldn't the court have jurisdiction?

MARCIA COYLE, The National Law Journal: First of all, you're absolutely right.

This was really more of a meat-and-potatoes argument for the Supreme Court. When is a statute a jurisdictional statute that would deprive them of the power to consider the merits of the arguments here and also, when is a penalty a tax or not? This issue came up in the lower courts.

One federal court of appeals actually held that the Anti-Injunction Act of 1867 did bar federal courts from considering the merits of this litigation. And a judge on another federal appellate court also ruled that way. So the court felt it had to answer this very threshold question.

GWEN IFILL: The difference between a penalty and a tax is what, according to the arguments today?

MARCIA COYLE: Well, there were three lawyers arguing today.

The first lawyer, it's the court-appointed lawyer, and he was asked by the court to make the argument that this law does bar the federal courts from considering the litigation. And he said that the penalty for not having minimum essential health insurance coverage really is, in all intents and effect, a tax. It operates that way.

Even though it's called a penalty in the law, that doesn't matter because the tax code doesn't define tax. And there are other penalties within the tax code that operate as taxes.

GWEN IFILL: We got to actually hear some audio from inside the court. Their arguments, usually, only you get to hear.

So let's listen to an exchange about just that topic right now. . .

MARCIA COYLE: All right.

GWEN IFILL: . . . between Justice Kagan -- Elena Kagan and attorney Robert Long.

ELENA KAGAN, associate justice, U.S. Supreme Court: It's your choice. Either buy insurance or pay a -- or -- or pay a fee. But that's not the way the statute reads.

And Congress, it must be supposed, you know, made a decision that that shouldn't be the way the statute reads. That is should instead by a regulatory command and a penalty attached to that command.

ROBERT LONG: Well, I -- I would not argue that this statute is a perfect model of clarity, but I do think the most reasonable way to read the entire statute is that it -- it does impose a single obligation to pay a penalty if you are an applicable individual and you're not subject to an exemption.

GWEN IFILL: Not a perfect model of clarity, even Justice Scalia was making that same point today in this argument. So how much does that affect what we're actually arguing about, the fact that everybody seemed to be kind of muddling through the definitions?

MARCIA COYLE: Well, as Justice Scalia pointed out, the court interprets very narrowly jurisdictional statutes, statutes that take away their power to review. And he said it has to be clear in the statute, and it is not clear at all here.

And so the general sense of the justices was that this act will not apply to this penalty, even if it is a jurisdictional statute. As the government argued today, this penalty is different. It doesn't operate like a tax.

GWEN IFILL: There's a practical side to this argument, Susan, which -- and it played out in one interesting exchange today between Solicitor General Verrilli and Justice. . .

SUSAN DENTZER: That was Justice Alito.

GWEN IFILL: Justice Alito, right. And they were arguing about what happens if you go to an emergency room and you qualify for Medicaid, you're not on Medicaid? Does someone force you to do it?

SUSAN DENTZER: That was another kind of confusing moment, because, indeed, Justice Alito said if you're eligible for Medicaid and you're not enrolled in Medicaid, but you go to an emergency room when this law is in effect, would you -- would the hospital have to enroll you in Medicaid? That's literally what he asked.

Solicitor General Verrilli said no. It seemed as if he thought he was being asked about the penalty. The actual facts are, under the law, if you are -- you are obligated -- if you are eligible for Medicaid, you are obligated to enroll in Medicaid as of 2014. You would not have the pay the penalty, however, for not being enrolled.

Those people who are not paying taxes, are not taxpayers, technically do not have to pay the penalty.

GWEN IFILL: Employers are watching this awfully closely, aren't they, because they were already -- this is already law? This is something they're already supposed to be on the way to implementing. So they're not waiting for the Supreme Court telling them what to do.

SUSAN DENTZER: Everybody is watching this very closely, mainly because of course, as we know, on day three people are going to be talking about whether the issue of severability applies.

That is to say, if the individual mandate for some reason is found unconstitutional, does the whole law go down along with it? It doesn't look as if the justices will rule that way. It's a big, big law. There are many, many sections that have nothing to do with either insurance reform or with the individual mandate or even employer mandates.

So -- but people are still nervous about this. And until the court issues the final ruling and says this, that or on the other on these issues of the individual mandate or severability, people are watching.

GWEN IFILL: Well, it's interesting, because even though the justices spent a lot of time talking about the details of this tax and penalty and definition, none of them seemed to think like they weren't -- or seemed to be behaving like they weren't going to take this case.

So, they were looking forward a little bit to this mandate argument we're expecting tomorrow. I want to ask you about that, but I also want to play a little bit of the audio from an exchange between Chief Justice Roberts and Gregory Katsas, who was one of the attorneys who was representing the small business folks.

MARCIA COYLE: Right.

JOHN ROBERTS, chief justice of the U.S. Supreme Court: The whole point of the suit is to prevent the collection of penalties.

GREGORY KATSAS, attorney: Of taxes, Mr. Chief Justice.

JOHN ROBERTS: Well, prevent the collection of taxes, but the idea that the mandate is something separate from whether you want to call it a penalty or a tax just doesn't seem to make much sense.

GREGORY KATSAS: It's -- it's entirely separate. And let -- let me explain to you. . .

JOHN ROBERTS: It's a command. A mandate is a command. Now, if there's nothing behind the command, it's sort of, well, what happens if you don't follow the mandate, and the answer is nothing, it seems very artificial to separate the punishment from the crime.

GWEN IFILL: So, talking about the punishment and the penalty was leading naturally to the discussion about whether this is a mandate or not.

MARCIA COYLE: Well, a little bit.

The challengers here argue that, at least in terms of the Anti-Injunction Act, that they are not challenging the penalty in their lawsuit. They are challenging the mandate.

GWEN IFILL: Right.

MARCIA COYLE: And Chief Justice Roberts doesn't see how you can separate the two.

And he did announce at the end that, tomorrow, we would be back in the courtroom to hear the next arguments. And they are about the mandate. Justice Alito at one point did sort of pointedly tease the solicitor general, saying, well, today, you're arguing that the penalty is not a tax. And, tomorrow, you're going to argue that the mandate is a tax.

And the government has a very clear argument here, that it involves -- these involve two very different analyses. In the case of the Anti-Injunction Act, the court is interpreting a statute and looking at the language of a statute and how it applies to penalties and/or taxes. But, tomorrow, the court is going to be looking at a constitutional argument, Congress' taxing power. And it's a very different kind of analysis.

GWEN IFILL: And, as a result, you had two attorneys vs. one today. It was kind of unusual to have three attorneys arguing before the court.

MARCIA COYLE: Well, this is because the government as well as the challengers both agreed that the Anti-Injunction Act doesn't apply here. So the court wanted to hear the other side of the argument. And that's why they appointed Mr. Long to make that argument.

GWEN IFILL: Susan, what is already law? What is already in effect? We know that the law is enacted. And we know that it's rolling out slowly. But as this challenge goes before the court, some things are already real.

SUSAN DENTZER: Yes, indeed.

Dozens of provisions have already gone into effect because, of course, there is much that has nothing to do with the individual mandate or with insurance reform. For example, under Medicare, some changes were made in the law that are already in effect, so that last year alone, a number of Medicare beneficiaries who had hit the infamous donut hole in the Medicare drug coverage were eligible for 50 percent discounts on their brand name drugs once they got the donut hole.

In fact, about 3.4 million beneficiaries, according to the government, got about $2 billion of assistance that way. There is some insurance market reforms that are already in effect. For example, we know that individuals can stay on their parents' policies now up to age 26, and also that preexisting condition restrictions cannot be held against children on policies.

There's a whole other set of provisions in the law that are all about what's called the triple lane, getting us to better health, better health care at lower costs. And those are innovations in the way we pay health care providers and the way those services are delivered.

And a number of experiments under that part of the law have -- are playing out. So, for example, accountable care organizations, 32 major organizations have moved forward as pioneer ACOs, as it's called, to innovate around ways of delivering care and actually drive the costs down.

And throughout the law, there are other innovations that are already rolling out.

GWEN IFILL: Is this already hurting -- or are states arguing, these states arguing that this has already created a hardship for them financially?

SUSAN DENTZER: Not at all, because, of course, the big dollars for the states are going to come in really down the road, and not even -- if we just step back on the argument of the Medicaid expansion, the federal government picks up 100 percent of the cost of the Medicaid expansion for a couple of years.

So it will be quite some time before the states are experiencing even serious expenditures on the Medicaid portion. . .

GWEN IFILL: But aren't some states also saying that they still are being forced to pick up some of the extra -- the things that the government doesn't cover?

MARCIA COYLE: I think some states are seeing some costs in terms of setup, getting ready for the act.

But I haven't heard any major complaints yet about states experiencing heavy costs. And even with the Medicaid, as Susan pointed out, the government pays 100 percent until 2016. And then its share decreases gradually until 2020, when it stabilizes at 90 percent of the cost.

GWEN IFILL: So people are already in line for the big mandate argument tomorrow?

MARCIA COYLE: They are. Some are staying from today, just spending the night, hoping to get into the courtroom.

GWEN IFILL: Well, we will be back to talking about it all right here, same time, same place.

Thank both very much.

SUSAN DENTZER: Thanks, Gwen.

MARCIA COYLE: My pleasure, Gwen.

GWEN IFILL: We will have much more about this week's arguments online, where you can listen to audio of all today's proceedings or read the transcript.

Tomorrow and Wednesday, Marcia's morning blog will preview the day's arguments. And, tomorrow afternoon, you can join top policy experts from both sides of the issue for a Twitter chat. Click on the links on our home page, NewsHour.PBS.org.

Health Care Reform in the Supreme Court: Day 1 Audio and Transcript

Mon, 26 Mar 2012 13:16:59 EDT

Court sketch by William J. Hennessy Jr.

Even the overflow section at the Supreme Court was overflowing Monday as the justices began hearing the first day of oral arguments in the health care reform law suit.

Up first for their consideration: the technical question of whether the Court has the right to hear the case at this juncture or whether a law from 1867 demands that they wait.

That piece of legislation, known as the Anti-Injunction Act, prohibits federal courts from hearing challenges to taxes before they have been enforced. If the health reform law's penalty for not purchasing health insurance is considered a tax -- and if the Anti-Injunction Act applies to the health care law -- the Supreme Court could not entertain challenges to the law before 2015. For a full explanation of why, read NewsHour Supreme Court analyst Marcia Coyle's primer here.

According to Coyle, who was present in the courtroom for the full proceedings, "the justices saved their most skeptical questions for the lawyer who was arguing that the Anti-Injunction Act bars the Court from reviewing the constitutionality of the so-called individual mandate. They seemed more sympathetic to the argument made by the United States that while this 1867 law does preclude courts from reviewing taxes before they take effect, the penalty in the health care law does not operate as a traditional tax."

According to the Court transcript (found in its entirety below), one of the chief skeptics, Justice Stephen Breyer, noted that "Congress has nowhere used the word 'tax.' What it says is 'penalty.' Moreover, this is not in the Internal Revenue Code 'but for purposes of collection.' And so why is this a tax?"

The justices, Coyle said, had virtually no sympathy "for the argument made by the challengers to the health care law that only the individual mandate is at stake here and it can be considered separately from the penalty. So the 1867 law does not come into play."

Tune in to the PBS NewsHour this evening for Coyle's full analysis of the day's proceedings.

The full audio and transcript provided by the Court can be found below.

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Our Health Page is full of additional information on the health reform law -- including a timeline, a report card, a cheat sheet, and a public polling update. If you have more questions about the law or the Supreme Court case, ask them here and on Twitter using the hashtag #HCRchat. We'll answer them in an online chat at 1 p.m. ET Tuesday.

Why I'm Protesting Health Care Reform: Voices of the Opposition

Mon, 26 Mar 2012 11:49:00 EDT

They came early. They came angry. They came from Georgia, Texas, Ohio, New Jersey and nearly every state in between.

Hundreds of Tea Party Patriots gathered Saturday on Capitol Hill to officially voice -- once again -- their revulsion for nearly every part of the health care reform law. As rain pounded around them, the crowd steamed over the same concerns that inspired this movement three years ago: the federal government has gone too far; Americans can't be forced to buy anything; personal freedom in health care will soon be extinct.

With the Supreme Court hearing arguments this week over whether the entire law -- or pieces of it -- should be ruled unconstitutional, their familiar "Repeal the Law" chants took on new weight.

Over the past two years, the NewsHour has analyzed the impact of health care reform with analysts, pollsters, politicians and statisticians. We now turn our lens back to ordinary Americans who both fear and applaud the law.

First up: the opposition, featuring voices from Saturday's rally. Check back Tuesday for stories of Americans who say the law has changed their lives for the better.

Alicia Allen and Ashley Adkerson, Adairsville, Ga.

Adkerson: "We came out to show our support against Obamacare. I think buying health insurance should be up to the individual. And although we're under the illusion you can keep your health care insurance, our insurance has already been raised. Ours have gone up $40 a week. We see that continuing to happen as long as we're forced to make sure every American is insured. It's going to get worse as people decide to get on the national plan instead of keeping their own health care insurance."

Allen: "I'm only 17 and I'm going to have to deal with this for the rest of my life if this law gets put in place. And I don't like anything in it. You should be able to choose your doctors. The government shouldn't be doing that for you. It's too socialist. I have great insurance, but when Obamacare goes into place, the price is going to skyrocket, I'm not going to be able to see the doctors I want. Everything's going to be decided for me."

Dan Lantz, Meigs County, Ohio

Lantz: "This mandate is not freedom. When you gotta jump through so many hoops just to earn an honest living, that ain't America no more, in my book. When I growed up, if you put your sweat and toil into it, you could be anything you wanted to be. And I tell you what, when I became half owner of a sawmill at 18 years old, you better believe I felt the dream was true. Today, it's just stifling. I've got three daughters. I want them to know they can do whatever they want to do. I don't want them to feel that in order to get there, they've got to talk to a half dozen bureaucrats and beg on bended knee to live their dreams."

Nelda Pennington, Amarillo, Texas

Pennington: "One of the things that caught my attention is how the elderly are going to be treated -- as if we can no longer contribute to society. There are a lot of rumors going around about a euthanasia type of thing -- death panels, in other words. If you cannot do something for society, they're going to do something about you being a drain on the system, so to speak. We want to keep our freedoms and our liberties because we feel like they are slowly melting away. There are a lot of things that have happened in the past where some of us wish that we had stood up -- like taking prayer out of school. That's where all of this started. Some of us did not stand and now we have a chance to. So here we are."

Dan Schluter, Southern Maryland; William Temple, Brunswick, Ga.; Paul Wheeler, Indianapolis

Temple: "We are here to protest the Supreme Court. There's been a lack of wisdom since Roe vs. Wade. They are taking away our freedoms and our liberties, guaranteed to us by the founders. And we are aghast that we have $16 trillion in debt and they're adding to it. George Washington spoke against debt as a sin, both for a person and for the government. The health mandate is an act of tyranny. It's the first act of tyranny since we kicked the British butts out of this country. It was signed into law one year ago by President Obama.

Schluter: Two years ago.

Temple: Has it been that long?

Wheeler: Yes, dreadfully long.

Temple: Well we're hoping that some wise men in that building over there (pointing toward Supreme Court) will make the right decision. Because they're pushing the American people to the point, as Jefferson said, where people might shed a little blood every so often. Now I hope that never happens because I'm a pastor at a church in Brunswick. But as you'll remember, the first revolution was led by pastors. We kicked the British out for usurping their power and not treating us like good British citizens, but now we might as well bring the British back. Sixteen trillion dollars in debt? Let's bring back good King George. He didn't give us that."

Wheeler: (laughing) William, you do go on and on.

Michael Nichhaski, Loudoun County, Va.

Nichhaski: "Basically I think Obamacare is a big overstep of government policy, and there's a lot of better ways to do it than having a federal, one-size-fits-all approach to health care. For example, allowing insurance companies to sell policies across all state lines. When there are only six health care companies, obviously they can drive up costs of health care. I also think the government already controls over 50 percent of health care with Medicare and Medicaid. And that's not a free-market approach. They're driving up the costs. And that's an artificial cost, that's not a real cost. I definitely think there are some better approaches. People could opt out of their Medicare, opt out of their Social Security, if they could afford to do that. Some of the things Paul Ryan's come up with lately have also been good ideas."

Ariana Roveda and her mother, Monica Murray, New Jersey

Murray: "If we don't manage to stop the takeover of our health care system, then the Republic will be dead, we will be more socialized than Germany and France, and it will be the nail in the coffin to our freedoms. The government does nothing well, the estimates are already twice what they said it would be -- the CBO says it's going to be over $1.7 trillion. The only way is to ration health care and the seniors will be the ones that suffer the most and the children. Tell your mother to get her knee replaced or any valve replacements she might need. Anybody over 73 will soon be denied. A lot of things will have to be rationed in order to do what they want to accomplish. My daughter is only six and she understands freedom. She knows that liberals are bad people. She understands Obama's bad."

Ariana: We want to take over Barack Obama.

Murray: That's right. And we believe in what document?

Ariana: Glenn Beck?

Murray: (laughing) No, the Constitution.

Harrison Martin, Fauquier County, Va.

Martin: "What upsets me most is we're taking away control from those who are trained in medicine. Bureaucrats don't know medicine. I'm on the outskirts of the medical field as a massage therapist and I know the training I had to go through in order to learn every muscle, ligament and tendon in the body. I can't imagine how much more a doctor would have to learn. And someone who has never taken pre-med is going to assume that they know what's better as far as treatment goes? Most of us here, whether you're a libertarian, conservative, Republican or what, most of us believe in small government. That's why we have local and state governments in the first place."

Don Wert, Central Pennsylvania

Wert: "A lot of the different government regulations that are coming in are taking control. I just heard a report this week that they want to change women's Pap smears from a yearly thing to every five years or so. That's just an example. Even the doctors now are very sensitive to how soon you come back to the doctor, the kinds of tests and treatments you get, and that's certainly not free enterprise. I understand there is a problem, of course, but I don't think this is the solution."

Patrick Welsh, Lincoln University, Pa.

Welsh: "I'm an avid patriot, and I believe that our country is on a terrible path, where socialism is encroaching. And I believe socialism is the red herring of communism. Nikita Khrushchev said in 1971, 'We'll never get the American people to embrace communism, but we can make their leaders give them small doses of socialism till one day they awake with communism.' That's not what we're about here. We're about freedom and liberty. We believe that, yes, we must take care of our fellow man. But that's from the wellspring inside us -- whatever God, or not, that you choose. It is not something our government forces upon you. We believe that it's life, liberty and the pursuit of happiness. Not life, liberty and the handout of happiness. It's like George Bailey said (to Mr. Potter in 'It's a Wonderful Life'), 'You're nothing but a spider.' They want to control everything and force people to do things. We won't have it."

Arlene Smith and Allen Dunn, Arlington, Va.

Smith: "I hope that the justices notice the large crowd here and realize that each of us represents hundreds of other people who are against this government, which is really doing a takeover. It actually started before the Obama administration, but it's come to a peak at this point."

Dunn: "The socialist-progressive agenda, which will lead to socialism, has been taking over the power in the government, so we've got to reverse it. Having the power to force me to purchase an insurance policy -- it inevitably will lead to me being dictated as to which physician that I go to, the hospital, the type of drugs that I can and cannot take. The very idea that I should be forced to switch plans is obnoxious. It's worse than that. It's intolerable."

Smith: "And that's just one component. This particular administration has reached into so many areas. This is not the Soviet Socialist Republic, but it's starting to feel that way. We have to stop it now. But I'm not sure which way the Supreme Court is going to go. People far more knowledgeable than me about the law don't know either. We'll just have to wait and see. Hope and pray."

All photos by Victoria Fleischer.

Health Care Reform Heads to the Supreme Court: A Guide to Day 1

Mon, 26 Mar 2012 08:00:12 EDT

Photo by Andrew Harrer/Bloomberg via Getty Images

It's all come down to this day. All the passion, politics and propaganda. Starting today, the frenzied national debate that's divided the nation since the passage of the health care reform law -- the Patient Protection and Affordable Care Act -- will culminate in three days of oral arguments before the Supreme Court.

Some are calling it the trial of the century.

Whether that turns out to be true or not, the eventual ruling, expected early this summer, will undoubtedly shape the U.S. health care landscape for decades to come. It may also define the legacies of President Barack Obama and Chief Justice John Roberts.

Between Monday and Wednesday, the justices will consider several issues, including whether it's constitutional for the federal government to force Americans either to buy health insurance or pay a fine.

Each of those mornings, Marcia Coyle -- the NewsHour's Supreme Court analyst and a reporter with the National Law Journal -- will offer a preview of the day's proceedings on The Rundown blog. Each evening, she'll return from the Court to share her complete analysis on the NewsHour broadcast.

Without further ado, here's her take on day 1:

What can we expect on the first day of arguments in this historic case?

Coyle: The morning will be exciting in the courtroom and also outside of the justices' beautiful building -- across the street from the Capitol itself. A number of organizations -- supporters and opponents of the law -- have planned events and speakers before, during and after the arguments near the Court's building. And I expect there will be a long line of spectators out on the plaza and steps each day hoping to get into the courtroom, if only for a few minutes. Many groups, politicians and others have been waiting for this day. I also expect a packed courtroom. There will be an overflow press section and every seat in the sections for the public and members of the Supreme Court bar will be filled.

How will the arguments unfold?

Coyle: The justices have agreed to answer four key questions about the new law and have divided arguments on those questions over the three days. This morning's argument is not the "main event" that many people have been awaiting -- arguments on the constitutionality of the so-called individual mandate -- the law's requirement that eligible persons have minimum health insurance coverage by 2014 (that will come Tuesday). Instead, the justices will hear three lawyers argue on whether the Court should even be deciding the legal questions before it at this time.

An 1867 law, known as the Anti-Injunction Act, bars federal courts from hearing challenges to federal taxes before they have been enforced. The law's purpose is quite simple: it ensures that the government can assess and collect the revenue it needs to operate as quickly as possible without the interference of the courts. Taxpayers who think a tax is unconstitutional or invalid will still get their day in court, but it will come after they have paid the tax. They can then go to court and seek a refund.

The act's interplay with the new health care law comes because of the penalty assessed on taxpayers who do not have minimum insurance coverage. The individual mandate takes effect in 2014. The Internal Revenue Service will assess the penalties, but they will not show up on a taxpayer's federal tax return until 2015. If the Anti-Injunction Act applies to the health care law, our federal courts, including the Supreme Court, could not entertain challenges to the law before 2015.

How serious is this particular legal issue?

Coyle: The Supreme Court always takes very seriously questions concerning whether it has jurisdiction to review a particular case. In the health care challenge, one federal appellate court -- the U.S. Court of Appeals for the 4th Circuit -- ruled that the Anti-Injunction Act did prohibit the court from reviewing one of the lawsuits filed against the law. Judges in other circuits have disagreed. That conflict is why the Supreme Court will examine the question.

Will the Court decide Monday whether it should hear the case? If not, why are the justices choosing to hear Tuesday and Wednesday's arguments before it makes that crucial decision?

Coyle: The Court is unlikely to decide that quickly whether the Anti-Injunction Act applies. Remember, the justices will have to discuss in a private conference after the arguments what they will do and then write a decision, possibly with dissenting and concurring opinions, explaining whatever they decide on that question. In past cases when they saw a potential problem that might prevent them from reaching the merits of a case, they went forward with hearing the merits in the event their later discussion enabled them to overcome the problem. I don't expect a quick decision on the Anti-Injunction Act.

Who will be arguing on Monday and what will they say?

Coyle: There will be three lawyers at the podium. Solicitor General Donald Verrilli Jr. will be representing the United States. He contends that the Anti-Injunction Act does not apply because the penalty imposed by the health care law does not operate as a tax. Gregory Katsas, a partner in the law firm of Jones Day, will argue on behalf of 26 state attorneys general, the National Federation of Independent Business and four private individuals. He also argues that the act does not apply. He says that the challenge is to the individual mandate, which operates independently of the penalty. And the justices have appointed Robert Long of the law firm of Covington & Burling to make the argument that the Anti-Injunction Act does bar the challenge because the penalty for not buying insurance is a tax in every relevant way. With the appointment of Mr. Long, the Court will have a full picture of the arguments for and against application of the Anti-Injunction Act.

How long will the arguments be this morning and can the public tune in in any way?

Coyle: The Court will hear arguments for 90 minutes -- 30 minutes longer than the usual argument before the justices. The United States will have 30 minutes, Mr. Katsas, 20 minutes, and Mr. Long, 40 minutes. The Court will make audiotape recordings of the arguments available on its website by 2 p.m. Transcripts of the arguments also will be found on the website. At the website, click on "Oral Arguments" on the left-hand side of the home page and then follow the links to the audio or transcripts. There will be no live television coverage.

And, of course, everyone can tune into the NewsHour tonight for our discussion of "opening day" of the battle over the health care law.

For more analysis from Marcia Coyle on this week's health care reform hearings, browse The National Law Journal's Health Care at the Supreme Court page. And be sure to watch the NewsHour's primer on the proceedings here:

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