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tv   Politics Public Policy Today  CSPAN  June 29, 2012 10:30pm-6:00am EDT

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at the end of the day, i turn to the legal side of it and i feel like we are in more of the position to -- when it came to your medicaid challenge, it is all about where is my and coercion? that question is one that the courts will examine for years to come on how high the tax penalty will be. it is too high, maybe it is coercive and it is no longer a tax. the courts made those calls going forth for all of us when it comes to our freedoms in but the government can mandate on us through the tax system. for our members, that is part to curley determine which is particularly disturbing because this thing was sold to all of us as not a tax increase. now we have a court going right along with that argument, doing what the government was laughed at in the court for saying, coming in on monday, saying, this is not a tax.
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the court said the exact same thing. they decided you cannot look too carefully at the statutory language. we have to look at the bigger picture. from that we see that does not apply. they come back on tuesday and say it is within our authority under the taxing power. the chief justice agreed on that with one. he rewrote the statue so he could save it. we should be happy to know that he did not rewrite the constitution, but he did have gaping holes that now congress can run trucks through on what they can do to all of us through taxing power. nfib's two hot-button issues that cause some the most concern that are what they look at before they decide to grow -- taxes and health insurance costs -- are exacerbated.
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i can assure you that nfib has been actively lobbying on the hill to try to get rid of these onerous provisions like the employer mandate and health insurance tax as well as fighting for repeal of the entire law. we will continue on both fronts. i can assure you our members' demands it. we must for their survival to continue their fight. it is said that at the end of the day, i feel like once again small-business owners that the short end of the stick when it came to this decision. [applause] >> thank you very much. we will open in up to questions
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for the audience. i believe someone has a microphone. please wait until the microphone a rise. -- arrives. who has the first question? right down here. please give your name and organization. >> i am from the manhattan institute. i am one of those pundits who is humbled but not silenced. all of you have seen a lot of supreme court decisions. why has the federal society considered to move in general, putting people on the supreme court who judge laws based on the way the constitution was written in the way the laws were written? >> excellent question. one that many of us have been asking in the last 24 hours. >> i cannot speak in detail from the approach of those organizations you mentioned.
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you can look back to some presence in the past. it seemed as though there were less of a focus on ensuring that they get the right justices on the court that you would see from the other perspective. my perception is when you have a democrat president, there are litmus tests in their mind that they will know for a fact that that person will vote the way they want them to vote. you know that barack obama knows exactly how justice taken will vote. -- justice kagen is going to vote. he would not have put her up there if she would not. if you see the presence in the past, you see a similar commitment was not there. my perception to draw some personal connection here is that bush probably more than any republican president was committed to certain principles and ideological purity.
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he appointed me to the supreme court in the state of texas. i have been through his vetting process. his advisers wanted certain people with ideological purity. we saw that to a large extent with chief justice roberts until yesterday. that made yesterday even more surprising. before yesterday, there are probably one or two people in the room that said i knew the swing vote with be justice roberts. almost everyone in the country said it is all of to kennedy. most people thought he was rock- solid.
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we have to a have presidents be more committed to finding people who are more committed to the constitution. >> the only thing i would add to that is in the silver lining category, i do think that as today has raised the profile of this issue with the average american. yesterday was very much a great example of so-called judicial activism. they rewrote a statute to save it. more and more the american people and by members are getting bad. maybe that will be helpful going forward as far as putting pressure on our presidents to find judges that really do act like umpires and not like legislators.
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>> two turned out to be rock solid. two did not. all went through the vetting procedures. everyone had been a judge prior to being appointed to the court. every decision of those candidates went through which they was gone through by a team of people to look to see if there was a possibility they would change and constitutional fidelity. judges are supposed to interpret rather than make up the law. nevertheless, some how at least in two cases, although most of the time they carried out with the president expected, there were lapses. the lapses are in the most important cases from a constitutional standpoint. i do not know what you can do when every possible effort has been made by george w.
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bush. there is no way you can tell how you can be sure in any case. it is one of those things that some people's views you think are rock-solid when they come to the on the ropes of the supreme court, somehow something happens that is almost indecipherable. as i watched the parade of change -- i will not say total change -- there has been partial change in these tough cases. one factor is that when they do change and to what the president who appointed them has not expected, they will all be applauded by "the new york times." >> chair of the public policy group.
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i urge people to read this. i have an associate who was reading the dayton phone book. i am still working my way through it. [laughter] i mentioned reading is because there are some words that release support what karen and the attorney general says. they come from justice roberts. the way i look at this decision is justice roberts wanted the tax power rather than the commerce power because it provides people who might oppose this law with a greater lover to oppose it. if i were advising someone running for office, i would hammer on the roads of justice roberts. he says these decisions are entrusted to our nation's elected leaders who can be thrown out of office, who can be thrown out of office if the people disagree with him.
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it is not our job to protect the people from the consequences of their political choices. those words were repeated again and again. make the political choice. this chief justice is giving you an invitation. it would not have come that way if it were a commerce clause decision. the decision has many pearls for people who want to overturn this thing, an invitation from the chief justice saying, this may be terrible, but i invite you to do it. this is the way to do it. do not foreclose this and uses language to reach the decision you are talking about. i see it as helpful. >> it was an open invitation and strong suggestion to the public to take matters into their own hands and to be active participant in the democratic process.
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if you do not like outcomes like this, the boat people out of office. there have been maybe 40,000 stories written about the obamacare decision. i saw one that said this decision was part of the mad genius of chief justice roberts knowing that this would be used in a way that would affect the outcome of the election in november. he had a broader scheme at play. i will not attribute that much to it. those words that you read you will see repeatedly on advertisements and tv screens for the next four months. [laughter] >> this is all true. the small businesses i represent are more energized than they were before.
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one thing that was -- it is disturbing to me that there was so little transparency. at the end of the day, he is giving congress the green light to pass taxes and not call them taxes. i hate to be the wet blanket here, but our members are not very happy. i am having trouble with the pearls and the silver linings right now. >> next question. >> thank you for your comments. in light of the silver lining with regard to the medicaid ruling, which do you anticipate the states will do now that previously it was not a voluntary entry into additional requirements of the health care bill?
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will states exercise that option? >> first with regards to taxes, i have not talked to governor perry about this. i have seen a statement issued by the health and human services commission. they have lauded this part of this decision. the reality is the most challenging budgetary component states have is their medicaid spending. it has been a piece of the pie that is consistently growing and occupied other areas of spending that we want to devote resources to.
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our ability to address those issues is reduced because of force expansion of medicaid. if you lay it on top of that, the force expansion under obamacare -- we would face tighter budgetary challenges. the bottom line is that they are articulating this will provide them the flexibility to accept or reject this and try their own course as opposed to having their course dictated by a bunch of bureaucrats in washington, d.c. texas can run texas better than those in d.c. this gives us the flexibility to do that. we will decide shortly which path will take. i did see a comment that may not be finalized.
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the governor of wisconsin said he was rejecting the expansion of the medicaid. i would not be surprised if you saw others make comments similar to that. >> the question back there. raise your hand high. there you are. >> i am an intern at the heritage foundation. i have heard it said a lot that the justice office is trying to establish clear limits by of holding this law using the taxing power. it seems to me this is the opposite issue. had justice robert upheld the law under the commerce clause and said that health care is different. there are limits to the commerce clause but not this limit because health care is different. we would have a clear limit on congressional power by using the taxing power, basically, as has power to regulate what ever it once.
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as long as the penalty may be conceived as a tax, the court will give congress power. roberts gave congress more power than he was trying to do. >> not really. i would disagree with that. i will try to weave together the perspective that i perceive from chief justice roberts. going into this decision, there was great concern among people across the country that the commerce clause provided congress authority to regulate what ever they wanted to do. we knew that if we were going to have any limitations on congress, we have to have some restraint on the commerce clause. this is really a tremendous
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victory to the extent we now have clearly established that there is an outer bound to this commerce clause, which is something that most people thought did not exist. that is a good thing. what you are saying is there may be some out of bounds to the commerce clause. there may not be a need to the tax and spending clause. what chief justice roberts is saying is true in this respect -- no one campaigns on the theory of kicking the thumbs of congress because they exceeded their commerce clause powers. people will campaign and you will hear beginning today through the election in november that congress has put an unprecedented expensive tax on you and the small-business men and women across the country. the president promised he would not tax people who may lessen $250,000 per year. he has now imposed a tax on the people he promised he would not tax. you will hear campaign themes
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like that. you would not have been able to hear that at the case been decided on the commerce clause. that goes back to the earlier comment. whatever congress passes a tax, it is incumbent on american citizens to fight against the taxing and spending more. our frustration is that the reason why we thought we were going to win on the tax issue is because in the early draft of this law, congress labeled the penalty as a tax. they change that wording, deleted any reference to taxes. they categorize it as a penalty for one primary reason. they knew that if they categorize it as a tax, they would be kicked out of office.
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it would violate the president's commitment not to raise taxes. now we have a situation where congress can avoid the phrase that raising taxes by calling it fees or assessments. we will see created adjectives. share the responsibility. [laughter] they are supposed to use the word tax so americans can campaign against them for raising taxes. that is the biggest challenge coming out of this case. it will embolden congress to pass more income-generating taxes by not calling them taxes. >> the only thing i would add to that. i agree with what you said. you mentioned about why didn't they just say the health insurance market is unique.
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the argument was made by the government of along. if so glad they did not go that way. there are so many things that affect our health, whether it is what we eat or how much we sleep. that would have opened the floodgates. we would have seen so much following litigation. that would not have been a clear line. in that respect i am happy. we have a much clearer sense of what congress can and cannot do under the commerce clause and we did two days ago. >> in a moment, i will call up our all-star panel. they would discuss what we have had to say in the first hour. i will turn it over to robert alt, who will be the moderator and a participant in the panel with two other of our top people here at heritage. please join me in thanking gregg abbott and karen harned. [applause]
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>> thank you, general. >> panel, come on up.
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>> thank you for joining me. i am the director of rule of law programs here at the heritage foundation. i have a difficult and an easy job today. difficult because i am following such a distinguished panel. easy because i am here to talk about the legal elements and i have one former attorney-general and one current attorney general to describe the legal issues. i also am play moderator. but maybe in before i give my presentation by giving a brief introduction of the other heritage colleagues who will be joining me on this panel. after i speak, but will have a presentation by the director of the center for health policy studies here at the heritage foundation, nina owcharenko. she oversees issues such as health-care reform on the
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federal and state levels, medicare and medicaid, children's health and prescription judge. -- prescription drugs. she spent nearly eight decades on capitol hill and as an aide to rep sue myrick. she began her health career on the staff of the late -- under late senator jesse helms. she will be talking about the health policy implications of obamacare being up help. next on the panel will be jennifer marshall who is heritage's director of domestic policy studies into serves as the head of our richard center for religion and civil society. religion, family and community play -- examining the role of religion, family and committed to play in public policy.
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she will be speaking on the challenges to the rights of conscience with the rise from obamacare and looking at the hhs mandate in the impact of obamacare being up held on that particular policy. turning to my presentation, i would like to begin by saying i agree with attorney general apatite yesterday posted decision has certain silver linings. but i fear this around a dark cloud. let's start with the positive -- the commerce clause. this has to be viewed as a victory that beat the expectations of the academy and the pundits prior to oral arguments when everyone suggested that there was nothing there.
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one week before oral arguments, you had people saying this was frivolous. that was not true. additionally, there is a strong language as to what limits are on congress's authority. there was a famous case of whether or not congress could regulate a farmer who was growing wheat for personal consumption that will stop going to the market. in the 1942 case, the supreme court said yes they could because this would affect the interstate market. the court said that is the high water mark with regard to congressional authority.
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we will let them go that far but no farther. that alone is a substantial victory in terms of providing at least some major limitation on the authority of congress with regard to the commerce clause. the argument that had been put forward in obamacare that we would track individuals whose characteristic is that they have not purchase a product into commerce so that they could be regulated would remove any limitation to congress's authority under the commerce clause. the rejection of that theory is a source of cause for celebration. the second silver lining in the case was the court's ruling on the spending cuts. this was probably the greatest advancement in terms of constitutional law. new law was created where as
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with regard to the commerce clause, they made clear this far and no father. it helped the ground with regard to the spending clause. they develop some new laws. we may see additional challenges arising from it. it is interesting to note that on a question where before the court ruled, the expectation is that he would see as many as one of vote in favor of the position that there are some limitations on congress's authority under the spending clause. you saw seven votes. this is something that transcended the traditional party lines on the court. in this case, the court rewrote the law to prevent the coercion which could occur if the state had to forfeit all of the medicaid funds if they did not agree to all of the new requirements and regulations.
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the next silver lining is one that starts to bleed into the darkness of the cloud. they twisted the statues more than the constitution. it is fair to say they flipped the penalty provision on its head to declare it a tax rather than taxing in support of the general welfare. the majority should have had some sense of since they were on shaky ground as they searched for analogies to include in the opinion.
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the analogies they include were ones that were excise taxes that showed how congress could use its taxing authority to regulate conduct. there is something interesting about excise taxes. they are taxes on purchases. the constitution specifically talked about excise taxes. if you have a tax that is not a tax on the purchase, it is a tax that is made to force you to purchase. it is an odd situation which turns this authority on its head. here is where we get into the darker section of the cloud i described. it is not clear that there is any limiting principle here other than perhaps a political check. the court weakened the political check by saying it did not matter how much the president
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and congress assembled. it reduces the initial political responsibility. but then they will get the constitutional benefits of the authority of it being a tax. we ended up getting a bit of a hint from the chief justice. the hint was one that should give everyone in the room pause. he said, sure, we could have a tax operate in this way. imagine if congress wanted to force you to buy energy- efficient windows. they could do that. if you have a certain income and you feel to make the purchase, they could go ahead and enforce the purchase with a tax.
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this is not how we have done business. normally congress has done things in the reverse away. there are limitations on congress' power. they do things and named an efficient way. they give a financial inducement and order to get you to behave in a certain way. if they want to do to get an energy efficient tax window, they would give you a credit. now you would have a regulation back up with a tax. we have seen this case with regard to limited government. the taxing power may be going into areas traditionally in the area of congress.
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i suggested that in this particular case, the court was to the statute more than the constitution -- twisted the statute more than the constitution. it was a contortion of the statute. that goes to the question of, what sort of tax is this? the court less than people will work on its description of what sort of tax this was. they seem to assume that it fell into the category of income tax. the irs was administrating it. that may be good enough for government work, but that does not good enough for constitutional purposes. in this case, it may be better described as a tax. it is a tax on every individual subjects to a hard pause --
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hodgepodge of exceptions. there would have to be a portion evenly among the states. there are many exceptions in the statute. it would make that tax unconstitutional. you may be asking, why do i know something about this obscure topic? let me suggest to you, as you are looking for analysis of the court's decision, i could recommend one single best publication on it. it is not something that came out yesterday by any of the commentators. it is a publication of the heritage foundation from 2009. it was our original memorandum on the constitutionality and the legal issues. it goes into depth on to whether
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it is a tax. a ihas been widely hailed as road map for the arguments made before the courts. a new question has arisen in the course of interpretation. it is one of the best sources you can use to analyze. what will we say after this case? clearly there will be more litigation. you'll hear about that from jennifer a little bit later on the panel. ultimately, what the decision makes clear is a decision with regard to obamacare. it has been delegated back to the proper source of the power, the american people.
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this is a question we'll hear quite a bit about in the next several months. with that, i will turn it over to nina. thank you. >> my position has been regardless of the constitutionality of this health care law, this law itself is a health care policy. that is the core of moving forward after yesterday. this law is on affordable and unworkable for the country. even the president pass on goals, reducing the number of uninsured, it is accurate continuing to weaken and crumble -- it is actually continued to weaken and crumble. it raises the question -- if the goal is to reduce the number of uninsured, what is its purpose
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if we are not reaching that goal of this two trillion dollars health care spending bill? i will look at the implications of the now individual mandate tax, as well as a voluntary medicaid expansion. i will try to sort out what this means for that goal and with the goal -- and the goal that the president has argued. it has gone from a penalty to a tax. starting in 2014, you will either pay the greater of a flat dollar amount, by to $325 in 2015, reaching $695 in 2016. or it could be a% of your income. 1% starting in 2014, and going up in a 2016. whatever is the greater of those two is what the penalty is. it will be capped at 300% of the
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flat dollar amount for that year. we will learn more and more about how this tax will be implemented once the irs start moving on its regulation relating to this new tax. it is certainly a tax on the middle class for not buying government-approved health insurance. it is not just whatever your team has appeared health insurance. it is what the government will approve as health insurance under this new health care law. this is the challenge the administration will have moving forward. as health insurance premiums continue to rise, which we suspect they will, they have yet to go down, there will be more paying taxes. why is that? as the premiums rise, individual will make a calculation. is it cheaper for me to pay the penalty, the new tax? or do i need to continue to
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carry the weight of this health insurance plan that will be more expensive? the end results will break one of the president's promises on the uninsured. he wants to reduce the number of uninsured. if the tax is less expensive than the premiums they have to fight for health insurance, it will be easier for them to pay the penalty and stay uninsured. this will be a huge shift to more and more people, particularly young adults and people who are healthy, to just a uninsured and payroll tax cut. -- to just stay uninsured and pay the tax. even with subsidies, there'll be people where it will be too expensive for them. there will often pay the tax. that raises the question of if the goal is to reduce the number of uninsured, what is the
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purpose of this law if we are not reaching that goal? the voluntary medicaid expansion, it has been described nicely. but under the law in its current form, it starts to expand coverage to citizens. in essence, the decision makes it an option to the state. they can choose not to expand the medicaid program up to 130% of poverty. they can forgo the lavish, federal bribe that is done in the health care law. it can keep medicaid in the current form and continue to get federal dollars. it is important to note, the medicaid program is already strained in its current form without the expansion. straining state budgets and carted out other state priorities -- education and -- medicaid ison
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taking up more dollars. let's look at our economic situation and decide redid the we want to expand? do we want to stay where we are -- do we want to expand? do you want to stay where we are? let's look at the implications of the health care law. if a state chooses not to expand, there are two things that will happen. individuals who would have been eligible for the medicaid expansion, those above one had to% of poverty would be eligible for federal subsidies that are being run through the exchange program. those subsidies, because they are very low-income populations that would have been other was on medicaid, would be eligible for the most generous of subsidies with the exchanges, as well as additional subsidies to offset any cost sharing they may
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have. the states may make an economic choice to keep costs down, it is going to blow the cost it at the federal level for federal taxpayers in order to support the subsidy scheme that was put in place. ironically, those at the lowest nott end, the subsidies do apply. we have those below that level remaining uninsured. if the president wants to reduce the number of those uninsured, those below 100% of poverty under this new scenario would not remain uninsured. it would be under the health care law. the one legislation like to point out, i did interesting, is the one exception that people would be eligible for the subsidy below 100% of poverty
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are actually illegal immigrants. those populations -- legal immigrants. citizens in those states would not be eligible. this raises more questions about how unworkable this law is. the wheels continue to come off. it is good to remind ourselves, what did the president promised the american people? what is actually happening? he said he would not raise taxes on families making less than $250,000 per year. the individual mandate would indirectly impact middle class families. the next point is if you like your health insurance plan, you can keep it. insurance plans now are looking to change the health care
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benefits in order to comply with future regulations and mandates at the federal level. the also, employers are facing an going -- uncertainty. they would rather pay the penalty and drop health insurance for employees. that too is moving forward. it will not add to the deficit. only if you believe washington. we can have cbo look through a tunnel and forget the forest around it. it would protect medicare. this is not about just the individual mandate. there is 2000 and more pages about health care policy that is changing. the president promised he would protect medicare. ironically, they take over $500 billion in medicare savings to offset the costs for covering the uninsured. again, it seems like a broken
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promise to me. he also said he would cut premiums for every american family. but those provisions going into a effect today seem to be adding to the costs of premiums and not reducing them. one in particular is the idea of free preventive health care services. that sounds great. but there is no free lunch. we have more people and more americans facing higher health care costs. look on the horizon. there is more to come. the american people are learning more about the individual mandate. more people be opposed to this health care law. what do we see between now and the end of next year? there'll be legal cases that jennifer will talk about on the
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mandate. it also believes in to the issue of the benefit package. the mandate uncovering contraception and other benefits actually was the first glimmer of what this administration will do the regulation and explaining to the american people what is considered a government- approved health care plan. we will be watching to see what we will have come out of that. it is going to raise a large issue for this administration. especially coming up to the election. one of two things happens. if they continue to add more special interests benefits to the health care package, is what happens. premiums increase. everything else, the costs increases. the subsidies scheme that is underneath the help her law is also -- health care law is also
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increased. if they turn on the dial on benefits, guess what. you have many people who are anticipating that the administration will provide benefits of every make an caller to all american people. all of those people will come out of the woodwork and put additional pressure on the administration to make the benefits more generous. we are in a constant struggle with that. the last point on the horizon is the 2013 tax hike under the new health care law. this is not just about the individual mandate. there are over $500 billion in penalties and taxes included in this health care law. in addition to the expiring tax cuts that will be happening at the end a year, will have the new obamacare attacks.
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the new medicare payroll tax increase. -- new obamacare tax. it will expand for wages and applied to investment income. on the surface, people will say the tax was exposed in for those making over $250,000 per year. that does not apply to the present's promise. that is not a middle class tax hike. it is calling for the wealthy. but they wrote -- what does that mean? as time goes by, more and more people will be then taxed based on overtime. there is plenty for the american people to be worried about beyond what the court's decision came out to be yesterday.
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we need to continue to educate the american people about that. this law remains on an unsustainable path. it is doomed to collapse. as i said, it is time for the american people to refresh themselves about what is in the 2000 and more pages of the health care law and the regulations that are to come. i would recommend people coming to the heritage foundation and beating our case against obamacare. eading our ed -- rat case against obamacare. i will turn it over to jennifer. >> thank you. we are celebratingur in these w.
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it is fitting the obamacare decision has come in the fourth night of freedom. it represents a challenge to religious liberty. the celebrity is at risk as it was before. we see and the decision coming until the competing brands. one is continuing legal challenges going forward. the second is the implementation of this massive law. first, yesterday's action did nothing to stop the legal challenges, against obamacare. there are 23 federal lawsuits against obamacare's hhs mandate. those have added urgency. the mandate is completely different than the cases that were considered by the supreme court does today. but they will proceed. they will represent 56
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plaintiffs so far. the have now become the next legal battleground for obamacare. second, it yesterday's action gives the green light to implementation. this is great. the mandate orders all americans to what we face down the road toward increasingly centralized health care policy. the supreme court has allowed obamacare to proceed. the weight of a massive law will begin to be felt on our constitutional order. has the mandate shows, one of the first places felt will be on our religious liberty. the hhs mandate takes place on august 1, just a few weeks away. after that, employers start new help care plans. they will have to comply with the mandate to cover abortion drugs, contraception, our debts
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of more objection. other employers are religious objection may be able to get a one-year delay of enforcement on this and it. but that does not apply to businessmen, small family businesses who want to run their businesses according to their beliefs. because of that, some family businesses have filed suits. they have asked for a preliminary injunction by august 1. the family business does not have to begin planning for a health plan that would violate their conscience. these are things to watch in the next few weeks. as i mentioned, there are more than 50 plaintiffs seeking relief from this onerous mandates. they include catholic and protestant colleges, christian schools serving the inner-city children right here in d.c., a charity's providing help to the
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accused and the neglected and the dying. -- abused and the neglected and the dying. you can read some of their stories there. the mandate forces these ministries to either face steep fines or to violate their consciences by providing coverage for services, like abortion drugs, what the obama administration has deemed essential, but which remained very controversial in the american public at large. this is only the first among many rules and regulations. it is expected as this massive 2700 page obamacare law oppresses its full weight onto our society. we expect that we will see many more collisions with conscience in the midst of that implementation. in conclusion, let me mention two things.
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there are many americans who do not yet feel the religious as a tuition and a vigil's our experience under the -- the religious aninstitutions that are experiencing under the hhs mandate. that feeling most and be all of ours when we feel the full implementation of obamacare. we should be uniting and supporting our religious freedom right now. the july 4 provides a wonderful opportunity to do that. what we want to call attention to is a quote from justice ginsburg from yesterday's opinion. "a mandate to purchase a particular product would be unconstitutional if the debt interfered with the freedom of speech, the freedom of religion
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." kyle duncan, i thank him for drawing our attention to that. that is what we should be talking about. this only begins with the mandate, but does not end there. we are looking forward to continued to celebrate the fortnight freedom, particularly ending with the fourth of july and bells are ringing across the country to celebrate our religious freedom. finally, the mandate is being litigated in court. the daughters but for freedom moves to congress. policy makers -- but now the freedoms to congress. need to leave health care
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decisions in the hands of all americans. americans need and want health care reform that matches their needs, respects their liberties, and respects their consciences. thank you. [applause] >> i should note that folks interested in seeing what such a plan would look like, they can come to heritage.org. with that, i will open it up to questions. the microphones are coming around. i'll give my standard admonition -- please state your name and affiliation. please ask a question. >> you are talking about the
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burdens of obamacare. i am trying to find out, why are conservatives eloquent about life in the womb? don't you want to make family planning is here, especially -- easier, especially for poor women? >> jennifer, did you want to take that question? >> thank you. >> we did a pro-black perspective and invest heavily on our work and -- because we are pro-life perspective and we invest heavily on our work. we do not believe the welfare
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state does justice to the poor. we think it has been ill-served them for the last 50 years. human dignity demands better approaches that restore responsibility of the individual and the community around them. restore marriage and family. that is what we want to do with poverty in america. we take policy like this is a. we cannot hide behind welfare. you wanna talk more about health care? >> instead of empowering the government bureaucrats to decide what is right for the poor, the poor should make decisions on their own. the government has a role in helping to support them, but they should not be making the decisions for them. it is very personal in nature. families need to be able to get their children out of billing medicaid programs. the can barely get children to pediatricians because there are
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no pediatricians to care for them. the need to empower them with better health insurance through the private insurance market. >> any other questions that? all right. with that, please join me in thanking the other panelists. [applause] thank you for coming to heritage. we are adjourned. >> next, president obama tours parts of colorado impacted by wildfires. after that, and a bombing campaign in new hampshire with caroline kennedy -- after that, on an obama campaign in new hampshire with caroline kennedy. after touring colorado springs to survey damage from wildfires in the area and thank first
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responders for their efforts, president obama declared that a major disaster existed. according to local officials, more than 32,000 people have been evacuated. an estimated number of homes were destroyed. it was the most destructive fire in colorado. the president's remarks are about five minutes.
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check. one, two.
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>>
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>> alright, everybody. is everyone in? we have had a chance to tour some of the damage that has been done by this devastating fire. i have had a chance to thank members of the fire service, local fire officials. i have gotten a full briefing. what you see here is an example of outstanding corp. and cooperation pushing federal, state, and -- cooperation between federal, stacalte this was one of the worst fires we have seen in colorado.
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it is still early in fire season. we have a lot more work to do. because of the outstanding work that has been done, the coordination, unprecedent and the arrangements that have been made, we're starting to see progress. you saw some in some of these subdivisions, the devastation is enormous. our thoughts and prayers go out to the families who have been affected. i tried to emphasize that whether it is fires in colorado or flooding in the northern parts of florida, when nat ural disasters hit, america comes together. we have to make sure we have each other's backs. that spirit is what you are seeing in terms of volunteers, and firefighters, government
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officials, everyone is pulling together to deal with the situation. we are not completely out of the woods yet. some of these folks have been working 18-hour days. they are trying to make sure that these fires that put out. we will be carefully monitoring the situation. they will need help from mother nature to fully extinguish these fires. in the meantime, lessons are being learned about how to mitigate these fires in the future. the mayor and other officials are having those conversations. it means that hopefully out of this tragedy, some long-term planning occurs. it may be that we can curb some of the damage next time. you cannot fully control fires that are starting up in these mountains. last point i want to make is that we can provide all of the resources. we can make sure that they are
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well-coordinated, but as i told the firefighters, what we cannot do is provide them with the courage and the determination and the professionalism. the heart that they show one day go out there and battle the fires. we had a chance to see three guys save homes in a community that has been devastated. the work and sacrifice means the world to those families. they are genuine heroes. we want to say thank you to all of the folks who have been involved in this. we are proud of you. we appreciate what you do every day. for folks around the country, i hope you are reminded of how important our fire departments are, forest service's. sometimes they do not get any credit until your community is being threatened. you have to understand they are
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putting their lives at risk to help us. we have to make sure that we remember that 365 days a year and not just when tragedy strikes. thank you, everyone. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2012] [applause] >> caroline kennedy campaign in new hampshire are in support of rema's the election --
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election. she also made campaign stops in other places. this is about 30 minutes. [applause] >> hello, everyone. thank you for joining us here tonight. my name is dave. i have the pleasure of introducing the wonderful caroline kennedy to you tonight. before i turn it over to her, i will say if you cook words about why i am here we did quick words about why i am here. besides to admire caroline. [laughter] in 2008, we came together to support barack obama. the reason many of us can together is because we had a shared vision of what is best for our country. we wanted to believe that if you
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work hard and play by the rules, you could make it in america. you could find a job, buy a house, send your kids to college, and save a little bit for retirement. in order to move our country forward, we need to invest in education, energy, innovation, and reform our tax system. we need to create good jobs, grow our economy, and pay down that debt and a balanced way. >> four more years! >> president obama reminds us of another great president, who also captured our hearts and minds over 50 years ago. he inspired hope that better days were ahead. is that president kennedy convinced my grandmother, that her sons would get the shot of the american dream to hard work and education, president obama
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makes me believe that if we continue to invest in our future, that dream will still be alive for my son. [applause] thank you. i am here because i share that belief. it is a great pleasure to introduce someone else wishes that vision. she is an author, attorney, a mother, and above all, someone who inspires us. please give a warm round of applause for caroline kennedy. [applause] >> hi, everybody. how are you? thank you for coming out. i am honored and moved it to be here. my father began his campaign for the presidency here. i have always wanted to come here. i cannot -- [inaudible]
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i cannot think of a more important reason to come here and to join with all of you to make sure that barack obama is reelected as the next president of the united states. [applause] every time i go out, i always meet people. someone says, i cast my first book in 1960. i did not know -- vote in 1960. it is wonderful to see you here still fighting and working. that spirit is something that is precious to me. i saw police that night that same spark four years ago. -- i saw president obama that at spark fourth
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years ago. that generation and transformed america. that is the kind of change that president obama has initiated. it is up to us to make sure that he has four more years to see it through. [applause] there are a lot of similarities in 1960 and this year. most important one is that this election represents the kind of dramatic choice between two visions of america. president obama's vision empresses opportunity and fairness and a better future. the republican vision would turn the clock back and many of the social injustices and economic progress we have made.
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i was inspired by barack obama four years ago. i still am. i am a woman, mother, a lawyer, educator. i believe president obama is fighting for the america that i believe in it. it is the values of justice and opportunity that really makes our country great. at that years ago, we knew we would change history. we did four years ago, we knew that we would change history. president obama has shown leadership and character. courage to keep fighting for all americans the master what special interests are personal attacks are used against him. we know that change is not easy. it takes time. but change is what we have seen. [applause]
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women could fight back when they were not paid the same as men. don't ask, don't tell is history. so is the war in iraq. so is osama bin laden. that is just some of what he has done. he expanded our production. he made record investments in clean energy. he doubled the efficiency standards. it put work it ever gets on the path of tahoe. that is why it does me crazy when people say, what has he done? -- onto the path of hope. that is why did it drives me crazy when people say, what has he done? i really believe that education is the most important long-term issue we face as a country. [applause]
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as he likes to remind us, education is an economic issue. the countries that out-educate us today will out-compete as tomorrow. we are 17th in science. other countries are training the best engineers and scientists. it is a civil rights issue. students of color have received a subpar education. many drop out. fundamentally, it is a moral issue. there is nothing more important than how we raise and educate our children. bubba has initiated groundbreaking reforms to support high kuala -- presidentd groundbreaking reforms. it has given -- he has given a tax break to middle class
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americans. he has made a tremendous difference. he has laid the groundwork for an economy that is built to last. that is not easy. he brought it back from the brink of the great depression. he stayed the auto industry. he put us on to the path of recovery. there is a lot more to do on all of these issues. he has created 4.3 million new private-sector jobs over 27 months. that is why then we voted for him in 2008. [applause] but is why we need to make sure that he has four more years we did that is why -- that is why we need to make sure that he has four more years. we can work together to solve our problems. when i was writing my first book
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on the bill of rights -- thank you -- i met a woman who spent 20 years fighting for justice. she lost her health and life savings in the process. i asked her, was it worth it? she said something i have never forgotten. that is up to us to create a government that is close to our heart's desire. if you do not do it, someone else will. i do not know about you, but i do not want a government that mitt romney will create. i want a government that is close to barack obama's of heart. he fights for fairness for families and our children's future. the president cannot win this election alone. he needs everyone we know to work our hearts out. i grew up hearing that in the
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1960 election, if one person in every precinct had put to the other way, but president without have been president. that is the kind of difference an individual can make. and new hampshire, it is bigger than that. each of us has to make sure that every person in a is excited about reelecting president obama and is registered to vote. way to make it happen. it will not be easy. the best things never are. i know we can do it. we did it before. i look forward to working with all of you every day to make sure that we do it again. thank you very much. [applause]
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>> thank you for coming. >> this is jennifer. >> is she a lawyer not? >> yes. lawyer now? >> yes. >> that's great. thank you.
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thank you so much. >> hi. [laughter]
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>> i am retiring this year from the public school system. >> wow. >> can someone take a picture of us? >> oh, my god. look at that. >> these are delegates from new hampshire. >> oh, really? >> look in here. >> all right. >> thank you very much. >> how are you? this is a friend of mine.
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>> will you take a picture with me? >> of course i will. there you go. >> thank you so much. >> oh, my god. caroline. my mother will be so happy. >> you are beautiful. [laughter]
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>> thank you so much. >> hi. how are you?
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>> you can make your parents vote. >> you are such a mom. [laughter] >> thanks for eveything. appreciate it. >> great. >> can we take a picture? righ tht here.
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>> really? wow. that's fun. >> that was great. that was. >> thank you. >> thank you. >> can i use your pen? >> yes. >> thank you. >> you are welcome. working hard for the president? >> yes, i am. >> here is your pen back.
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>> my name is caroline. >> really? >> thank you. >> thank you very much. >> hi. how are you? >> thank you for coming.
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[laughter] >> nice to meet you. >> can i have a quick picture > my name is marsha. >> thank you. nice to meet you.
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>> could you sign that > happy to meet you. i voted for your father. >> hi, caroline. >> hi. how are you? >> good. >> thank you for coming. nice to see you. how did the team do today? >> they want today. today. >> good.
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>> thank you. >> thank you. >> here we go. >> thank you.
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>> hi. how are you? >> good. >> thank you. >> you are inspiring to me. i am running for state rep. it is inspiring to have you here today. i thank you.
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thank you. >> thank you. thank you for coming. >> you are? thank you. ho >> good luck. >> loved your talk. >> thanks.
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>> are you guys here together? >> yeah. >> are you in school? >> graduated. >> thank you. >> kenny wright, never give up never give you write, up? >> sure.
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good luck. >> thank you. ok. you, my friend. hi. nice to meet you. >> love what you are doing. >> can i get a picture with you? >> shorure. jimmi hendrix. >> thank you so much.
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thank you for coming.
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thank you very much.
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>> i am with her. >> hi. thank you. >> can i tell you a good story? my dad put me on his shoulder. i said, "i love you!" i was able to watch the election. it got really late. i have to go to bed.
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>> thank you for coming to visit. >> thank you.
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>> good luck. >> one more. i think i got 17. [laughter]
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[applause] >> next, and george town university law discussion of the supreme court ruling of the health care law. and some congressional reaction. after that, a heritage foundation discussion on the ramifications of the court's decision. the court said the law is unconstitutional based on congress's power to levy taxes.
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it is a preference to the individual mandate requiring most individuals to buy health insurance. the laws as those who can afford insurance will be subject is special tax. this is about an hour and 40 minutes. >> welcome. i have the privilege of moderating the distinguished panel today. who are we and why are we here? we are here because of their very momentous decision. there is health care delivery over all. the decision amounts to a national test.
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a look deeply into it and you see all kinds of thing, pro and con, no matter what side you're on. there were nine justices. we will hear from our paddles today whether it is remarkable or out of the ordinary to hear a chief justice accused of terrorism on one side and other trees and on the other -- and utter treason on the other. i ask those of you who have been students of the law to asking yourself, when have you read one group of justices accusing one of vast judicial overreaching on
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one hand, taking us too far and deep nto th. affordable health care act survived nearly one experience. it moves on to the november election. meanwhile, given the very strong language of the dissenting justices, we now know that the majority of the court thinks that the government cannot compel us to do something we are not doing already unless it calls a tax. as a consequence, millions of sleep ats were able to pu
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night and know that the government cannot make you eat broccoli. [laughter] we move on to discuss this more in detail what that this decision said and what it means going but whathe. -- going forward. they will each come to the panel and speak for about 5 minute. then everyone will sit down and we will get into some q and a. we will hear from a professor of constitutional law and author of "unconstitutional obedience." ruled here next from -- we will next hear from sarah
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professor at george washington university. if she directed the legislative drafting of president clinton's health care proposal back in the 1990's. after she speaks, we will hear from timothy, a visiting professor from birth and university and former director of the medicare program. finally, organized a up-to- date's conference, will hear from greg. he is author of "they socraa bok will turn it over. >> thank you, suzanne.
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thank you for coming. i want to start with a confession. my prediction about the outcome of this case was completely wrong. if i had any intent at all, i would go out of this business. i thought it was barely possible that the court would uphold the mandate. if you would we did -- i would have given you 1000-one odds on a decision. the interesting question the morning after is, how did this happen? what was john roberts thinking? how could it be in the two most important cases in this term, health care and immigration, john roberts cast the deciding vote on the liberal side in both cases?
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perhaps the justice roberts just looked at the legal materials and the words of the constitution and concluded that this was what he had to do. maybe he woke up and decided that john brennan was right all along. if these are night -- not explanations, what are? let's see how the world looked at john roberts at 10:00 a.m. yesterday morning.
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the supreme court remains more popular than the president and the congress. confidence in the institution is declining sharply. there is less than a majority of americans who have confidence in it. 3/4 of all americans think the justices use political considerations rather than the law to decide cases. question is enforced by the fact that the most important cases have republican appointed justices on one side and democratic appointed justice on the other. they think the supreme court handed the election to president bush in bush v gore. justice scalia openly attacked president obama in a partisan rant.
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and the president attacked the court as the justices sat listening in the well of the house. then we have what is likely to lie ahead. the court invalidated all of affirmative action and in validating the 1965 voting rights act, the centerpiece of the civil rights revolution. faced with this collapse of the met that the court is -- myth that the court is acting according to politics rather than the law, it makes sense that roberts would voted for the act. the commerce clause argument against the mandate has become the central defining tenet that he would not want to be associated with rejecting it. there is the possibility of substantially restricting social legislation going forward. he would not want to reject that either.
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but there were also reasons to uphold the mandate. the mandate is quite on popular, but other positions -- provisions of the law are quite popular. strike down the mandate and you take the repeal of of the table and leave the republicans in the unthe enviable position of repealing the popular -- unenviable position of repealing the popular provisions. how are these positions to be reconciled? as it turns out, brilliantly. chief justice roberts manages to cast the deciding vote establishing the commerce clause and the spending clause arguments.
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he also manages to save the mandate, while effectively accusing obama of breaking his campaign pledge to not raise taxes on the middle class. was justice roberts' opinion political? you bet it was. chief justice roberts is one of the best politicians of our time. >> pleasure to be with you this morning. it is not as good a morning as i thought it would be.
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let me talk to you about the long-term implications of the decision and we can talk about what may be chief justice do what he did. i am basically quite happy with what i consider to be the long- term thrust of this opinion. the self-serving part of that, which we pressed for for a considerable number of years -- forward for a number of years have been pushed fourth perfectly by the 5-4 decision. folks have been defending the individual mandates and a half to see that that should pass up. as far as the tax argument is concerned, it was rejected by congress. it was made feebly by the government and at the district court level and pressed little
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in the appellate briefings. you have to it knowledge that is what happened. it is a good thing. one of the thing i want to emphasize -- this case has never been about health care. it has been about the vitality of our constitutional architecture. to paradigms justice kennedy, lopez is the most robust decision in our constitution. that diffusion ensures accountability and prevent a single set of hands from amassing all of the power. that is, in my view, the right position. the commerce clause argument has been founded in 200 years of jurisprudence.
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i remember numerous debates with people not in academia, but in the moon scored kind that -- context debating if we assume the two-step position necessary. dick comstock change anything in what is the significance of justice -- dick cons -- did comstock take anything and what is the significance of justice scalia's writing. it is not an independent grant of authority. it does not allow you to escape otherwise existing constitutional limitations in article 1. that does not make it any less exciting that five justices embraced it.
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on the spending clause. since the days of stewart and machinery, which was a 1967 case, we know that there is a notion out there that there are some restrictions on the spending power. take the proposition that the federal government has limited powers. all of them working together. why shouldn't there be limitations for the spending power? i am gratified that the court actually spelled it out. the separation of powers is safe. in the long run, it is a good thing. it is a 5-4 decision and a compelling decision. i give roberts considerable credit. what is unfortunate about the case, leaving aside and the motivation, i would say i am a more idealistic person despite being a practicing lawyer rather than a law professor, i would ascribed its two -- it to the legitimacy of the courts and not whether it is going to help
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president obama or romney. leaving that aside, what bothers me most is that the court rewrote the statute. this opinion in the rates and protect the separation of powers, -- this opinion in invigorates and protect the separation of powers. i do not think any serious student of the law would say that is constitutional. the court rewrote the individual mandate.
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congress said it is not a tax. you do not need to call it what it is. he did not need to label it. it is jarrng to transform an -- jarring to transform it into a tax. that is not the way it is supposed to work. the court wrote the medicaid section. the court said you could not have compulsion. the other way you can do it is the greek way. you can popularize states. the court rewrote the section to give states a choice.
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that is not how it is written. at the tactical level, it is jarring. in the long run, the basic contours of this opinion are going to be imported. -- going to be important. justice ginsburg's dissent is quite vitriolic to underscore for you y i am drawing these long-term implications. thank you very much. >> my task up here is to describe in five minutes or fewer what this decision means for health reform and the transformation of the health- care system.
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i think the starting point is the is central green light that the decision gets to the entire act, which is enormous in scope. it goes beyond the issue of coverage itself and deals with system transformation on matters of health care quality, health care access, improvements in the public health, bringing greater transparency and compliance to the expenditure of health care funds. putting aside the legal significance of it, it would have been almost unthinkable to have done what the dissent wants to do in an attempt to pull this log back. so many parts have been set in motion. there have been many articles in the past couple of weeks in the bride's -- barrage of newspaper articles about the decision having to do with what it means
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to stop the law in its tracks, what would continue on and what would not. there is no question that had been locked -- law been repealed in its entirety, certain things already underway would have been proceeding like they did in 1994 even when efforts to reform coverage stopped. the law makes so many investment and transformation that i think it's preservation is an absolute essent
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the area i know the best in the insurance law as medicaid. when the decision came yesterday, people in my office turned to me and said you are toast. it became my job for roughly 12 hours to try and help people understand what the court had done in medicaid. books today -- not that anybody yet. individuals whose coverage is subject to 100% federal financing under the new law is as yesterday. it sits in the same place in the medicaid statute.
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what has changed is not that group and not congress's power to create such a group and not congress's power to spend money on this group. not even congress's power to enforce its expectations regarding coverage of that group in the case of states that participated in coverage. what has changed is the remedies available to congress when it comes to assuring some aspects -- not all aspects but some aspects of compliance. how did we get to this? it is one of the great feats of all time. i said to a friend last night that those of us who think the most about coverage of health care of the poor and underserved should call the children and adults that will benefit from the expansion roberts children.
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those of you who know medicaid know there are children to this day are referred to as ribicoff children. we see how he arrived at what he did. as justin did at -- as justice ginsberg noted, seven justices thought that some aspect of the medicaid expansion was unconstitutional. what chief justice roberts told us is that it was only unconstitutional to pursue certain kinds of enforcement remedies as opposed to creating a group setting expectations for this group assuring the coverage in accordance with those down the line. how did he do this? he did it by imposing what i
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call a two state solution. the superimposed, an astounding but absolutely life-saving distinction between what the medicaid its statute requires and how they get enforced. the expansion is totally lawful and congress has the power to spend money. what congress cannot do is threaten states by withholding money from their existing medicaid program over their failure to implement what he calls a new program. he was able to convince briar and kagen to go along with this.
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justice sotomeyer and ginsberg were scratching their heads. it meant he could then bifurcate the enforcement provisions of medicaid. because the social security act and provisions are subject to their own severed ability clause, it was possible to uphold the expansion while at the same time limiting enforcement of the provision. what we are left with is something that i would say we cannot call a state option today. it is something. it is an element of the program that is the new affordable care act. it is subject to different rules having to deal with enforcement. we await guidance from the secretary regarding how she plans to implement the decision superimposed on the statute. i am convinced 60 million poor children and adults will have their benefits because of what justice roberts did here.
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i think just in closing on this issue of implementation, january 1, 2014 comes around we will have a few states that had either not implemented in whole or in substantial part -- but i think the urgency of the problem is too great. the situation facing 16 million people is too large to ignore. >> i need to begin with a couple of disclaimers. the most obvious one, my views cannot represent past, present, and future employers and funders.
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unlike david i did not focus on constitutional law in the framework of the constitution, i focus on health law. finally, as is usually the case when i follow sarah, i repeat and concur with most of what she had to say. my major points today are that the roberts opinion does no real harm to the medicaid provisions of the affordable care act. it is a mischaracterization of medicaid as a program and as a concept past and present. first, no real harm. what the court struck down is an enforcement -- no federal official ever has or ever would use, cutting off all federal matching payments to a state doing too little and its medicaid payment. nobody would support this
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action. it punishes the wrong people. it is cutting off poor people's noses to spite legislator's faces. it has always been a problem that they have largely ineffective remedies to states that underpay, underspend, or underperform. the federal government can respond to that. they can take this allowances and refused future matching payments to the state or even ask for a refund. i was in the position of signing a letter to a governor saying, please remit $1 billion to the federal government. if the state spends money on the wrong thing the fed can do the same. if the state were to spend money on ineligible people or for
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uncovered services, the fed can respond. how do you take money back for spending too little? what do you accomplish? no administration past or present would have cut off all federal funding. is the threat useful as a bargaining tool? maybe. but it also is possible for states to simply dear the feds to do something about it. i also think following up on something sarah said, it is unlikely the tool will be needed to get states to take part of the new expansion under the affordable care act. the aca will pay 100% of the expansion with federal funds for the first three years and glide down to 90% for all future years. that is the highest match ever in any federal, state health insurance program. i think the historical analogy here is the children's health insurance program or chip. it is voluntary but all states take part in it. the matching rate is higher than medicaid but not nearly as high as what the aca will provide.
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i also will point you to other optional benefits and services, one of the newest ones his eligibility for women who find they have cervical cancer, they pay higher matching rate. then there is also from the other side, not just the carrot but the stick, the counter intuitive nature -- the possibility the state could end up with its poorest citizens being altogether uninsured and nobody else. the people under 100% of poverty are not eligible under the statute to take part in the exchanges of the affordable care act. oddly enough the only people under 100% of poverty are legal aliens who have been here less than five years. it will be a strange
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circumstance for a state legislature or governor to be looking at its population and say, these are the only people we choose not to cover. in addition to that there will be pressures from providers of health-care services in the state's who were not expecting to see a whole lot of uninsured uncompensated care in the future, at least not among citizens. i think the tool we lost is one that would never have been used in one that probably is not necessary. but i would go on to say i think the roberts characterization of past expansions and the present one and the affordable care act betrays a misconception of the medicaid program. his opinion suggests the central feature of medicaid as it exists is the eligibility category. where as i -- i think most observers, republican and democratic to have worked on this program would say the central feature of the medicaid program is people's low in comes.
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the existing program is not -- as opposed to how the roberts characterization runs. it is not to all pregnant women regardless of income. it is not to all people with disabilities regardless of income. it is not to all children regardless of income. the common denominator among the many different eligibility categories in the existing medicaid program is slow in coming. adding the remaining poor people in america to this program fits exactly with the existing program. the program has been altered in many other respects over the years. managed care versus fee-for- service, define benefits versus benchmark plans that were very basic.
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it has always been regarded as the same program for low-income people. i do not know why chief justice roberts and others would want to get to this line of establishing an anti coercion doctrine. i would leave that to my can david to help me understand. i think they have done it, created this doctrine in a way that misunderstands -- may be deliberately the past and the present and future medicaid programs. thank you. >> thank you. thank you to susan for moderating and to our wonderful georgetown law defense programmers for putting this together.
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i have my own admission to make. i thought the man they would survive, because i figured based on oral arguments that justice kennedy could not vote against it. kennedy said this about americans without health insurance, they are in the market in the sense that are creating a risk that the market must account for. a bit later he added, the young rson who is uninsured is uniquely approximately very close to affecting the rights of insurance and the cost of providing medical care in a way that is not true in other industries. that is my concern in this case. there is. he will be the fifth vote in this narrow opinion that oppose the mandate or finds a way to have the mandate left and tact.
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i saw you actually have to register or pay $5 a month for the use of the site and i am to absent minded to unregistered. we bet a quarter on this. my rationale, i think i should now -- [laughter] if the uninsured were in the health-care market for kennedy, using health care when risk became reality, then the man they regulated their market activity. it did not force them -- the mandate regulated their market activity. he somehow said his concern about the creation of risk aside.
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in the eyes of most progressives who backed the mandate -- some single payers supporters oppose the mandate. in the eyes of most progressives who supported the mandate, justice kennedy did not get it. that is, he did not get the argument driven home by liberals. the argument that people who can afford insurance but do not buy it are freeloaders to burden the rest of us by saying no and then get emergency care paid for by the rest of us. you have heard that argument made. it is an appealing argument and is a nice sounding messages about personal responsibility. as an economic, it is deeply flawed. in their oral arguments they drove the message home.
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only justice roberts -- take your pick, did he just blank out of fear of history's judgment, is he trying to build street credit for judicial activism next year. whatever he was doing, which i guess people will argue it out for the ages, saved the affordable care act. requiring the uninsured to buy coverage acts like a tax. is the same function as actual taxes and health-care systems like canada's and many others that provide universal public coverage. it brings money into the risk pool. the anti mandate side brought this message to court with results that were devastating for the argument that the mandate regulated market activity.
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in justice roberts words, this is the longest ", the individual mandates regulation of the uninsured as a class is divorced from any length to existing commercial activity. the mandate primarily fax healthy, often young adults who are less likely to need health care. it is because these individuals as an actual class incur lower health-care costs that the mandate helps counter the effects of forcing insurance companies to cover others who oppose greater costs than their premiums are allowed to reflect. if the individual mandate is targeted at a class, it is a class whose commercial inactivity rather than activity is defining feature. this i suspect -- end of quote.
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it's hard to argue with that position. this is what killed the creation of risk argument for justice kennedy and almost killed the affordable care act. had discording content with the last 75 years of commerce clause jurisprudence, the free rider argument might have been enough. for an activist court intent of going back three-quarters of a century of jurisprudence to cross out subsidies from the healthy and the sick obscured, they were fatal. the argument of being at risk for illness but not buying
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coverage constitutes action or inaction does not have a purely logical answer. this argument is a mere placeholder or fail to the classic conflict. it will now have added over this issue to our politics. the most immediate consequences of the core's decision is that an election will decide the fate of the affordable care act. meanwhile, implementation will proceed. the pace will vary. tea party dominated states will stage their versions of a sit- down strike over creation of insurance exchanges and many other features. in the coming electoral season, many will complained about the cost of expanding coverage to 30 million. i will conclude by observing this. the cost objection is mirror cover for philosophical objections to public provision for people needs. the increased cost of covering 30 million is a little bit greater than our typical annual national increase in medical spending.
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is a one-shot increase. it is much less significant in america's medical spending. picture over several years or more that are rising medical costs. the real problem is not the cost of covering the people who go to sleep at night anxious about what will happen if they discover a loved one has a tumor and how that will get paid for. the real problem is the long- term trajectory of our health care spending. the long-term rise and all of our medical costs. our equivalent of global warming. a challenge has hardly begun to pick up, i hope they will start paying attention to once the arguments for the affordable care act to die away. thank you very much. >> we have had a terrific range of perspectives provided here this morning.
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let's briefly recap what they were. we heard that they bet wrong initially on the outcome of the law like just about everyone else i suspect. >> i got a quarter out of it. >> wealth transfer. >> mike went on to express the question that most plagues him which is, why did justice roberts do what he did? you heard the theory that this really was an absolutely brilliant political move. justin -- justice roberts being too brilliant that he was able to cast the vote that saved the mandate while still framing the president has the person who lied about not raising taxes on the middle class because the mandate is a tax on the middle class.
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that was his reason for designating chief justice roberts as one of the best politicians of all time. we heard from david that obviously he is not happy with the 5-4 vote, but there was much in debt to like for those who brought the suits and the first place. the commerce clause leeway that would have been granted had a the court said a grant the leeway. that ship has now sunk. that is over. that discussion is now over. he went on to say that from his perspective some of what the court said over all on its interpretation of the spending clause and of the necessary and proper clause to the interpretation, the direction he would have approved of.
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david said this case has never been about health care, which is a proposition i webb like to come back to later and ask the rest of the what you think about that. although it was decided on constitutional grounds, i think there was plenty about health care policy. we can revisit that. in the end as you heard david posey ultimate concern that the problem is --david's ultimate concern, the commerce clause was not going to give birth to the individual mandate, he did think there was an overall problem with the congress having -- court rewriting statutes in particular and having gone through this verbal twisting and turning to decide something was a tax and did not a tax.
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from surat we heard -- from sarah we heard the core represented a green light to the entire aca. moving to the medicaid portion of the decisions. on the one hand, it looks as though the court did give a green light to the medicaid expansion. they monkeyed around with the enforcement standards and enforcement remedies that congress could pursue if courts -- state's elected not to go ahead with medicaid expansion. dead -- designating it as a new program as opposed to a change in the existing program as she put it, this created a two state solution that will be -- that has created something not quite like a state option to expand medicaid, but a state option -- it is not legally a state option.
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it gives states the choice of not expanding the program and therefore not being subject to the penalties of losing medicaid funding. as she concluded you heard, there will be a few states as of january 14 that will have decided not to expand medicaid. the vast majority will go along. you heard similarly a feeling the that the courts went down a troubling direction and what it said about medicaid. essentially the roberts opinion mischaracterized the program from the standpoint of both characterizing the expansion of a new and different program and also fundamentally mischaracterizing it in the sense that the opinion seemed to read medicaid as being a
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question of eligibility standards put together as opposed to an over all standard of low income. you are a low in come pregnant women, low-income elderly disabled individual, the standard is that you are low income. having this different understanding in the fact is you heard from tim, it seems to suggest justice roberts misunderstood in the past, present, and future of the medicaid program. finally as you just heard, we heard from greg. he made a prediction that having believed it was going to be justice kennedy who would come around and make it a majority to withhold the affordable care act.
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going on to conclude that essentially the court upheld the understanding that the penalty was not -- you literally put it, it was not there to regulate market activity, it was intending to do something broader than that. gray was closing by making the observation that the real problem here the long-term rate of growth -- long-term growth spending. notwithstanding the fact the federal government will pick up the bulk of the cost of the expansion, the states will be left with some of the tab. greg indicating that is cover
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for not wanting to cover that population in the first place. we have a diversity of perspectives here to talk about. fundamentalk to the point that david made it. this court case was never a about health care all along. i would like to hear how the rest of you feel about that. >> you know, on one level i completely agree that there might have been certain presenting issues that would have brought to a head the same kinds of profound constitutional questions that arose in this case. on the other hand, i am not sure anything other than health care would have led it quite to such a blockbuster law. the complexities of markets. when are you in a market, when
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are you not in a market. when do we not want to call something a tax when it really is a tax? healthcare has always had a unique ability to galvanize law making and to raise passions in ways that i think are quite unique. we certainly saw a version of that with the financial regulation law. that law was really much more about regulating and industry. here you can see how in health care any solution to the vast problems we face in the united states requires pulling a bunch of letters at the same time. state federal relationships, individual relationships to the government and to individuals, and so while the case technically might be perceived as health care being a by product, on the other hand i am not sure any other social issue facing the united states would have brought us to this point.
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>> let me say briefly that at one level, every case is about the facts. and circumstances. as lawyers, we know that every case is about more than that. yes, it was about health care. i was trying to say to people like myself -- it was about the constitutional principles. sarah is right. as a matter politics and policy health care, it provided a suggestible target for these types of unconstitutional strictures being enacted. on the other hand, let's consider the fact that for two and a half years, the government has not been able to answer a single simple question.
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where is the limiting principle? if you can apply the commerce clause by itself, what can you do -- is the year to answer this question, not because there are silly or stupid, but there is no principle that made this so compelling as being about the constitution. we're not supposed to lose sight of the social policy equities but if we take the law seriously, it cannot primarily be about that. it has to be about the law. >> i would>> i would say i cannr the question. it is like trying to predict hurricanes in a storm. i would say health care is probably the biggest of the hurricanes since the new deal, and on achieved ambition for 80 years. also, in the way it makes us as a nation stand out different from all of the other industrial
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nations. this is something we have always been exceptionally bad at. i think it becomes the biggest of perfect storms in a perfect storm. >> mike? >> i cannot answer your question because it is really too early to tell. certainly, the hope is that this would be the opening wedge in a redefinition of our commerce clause jurisprudence and our willingness to set the modern welfare state. there are some reasons to doubt that it would be right, for one thing, despite its claim to the contrary, the entire discussion was not necessary for the holding. the test he articulates with regards to the commerce clause and with regard to the spending clause are just completely empty and could be utilized to achieve any result in any case.
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>> you made that comment in your opening remarks. >> with regard to the spending clause, we have to distinguish whether this is an expansion of the existing program or a new program. this is what the great law maker called transcendental nonsense. there is no such thing is that difference. somehow, this is extending the program to pregnant women is an expansion of the program but extended to people at 103% of the poverty line is an existing program. you can do anything you want. also, it is worth noting that this was a 5-4 decision. whether in the end, i think,
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whether or not david is right will depend on the next election and on who the next justices are and even if obama wins the next election, if he can possibly get anyone confirmed. i view all of those things as open questions. >> i want to make one observation about the relationship between this case and health care. health-care played a unique role in terms of constitutional law. the unique complexity of the subsidy patterns and the institutional arrangements in health care. the complexity which persistently alluded the media for the most part. -- eluded the media, for the most part. and made it possible for the various sides, and i think that there is equal opportunity defenders here across the
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political spectrum, to tell partial stories both in the courts and in the media about how these subsidies were. i think the leading constitutional lawyers had a real problem grappling with this. this was most dramatically apparent when the general's class a clinton and he had troubles with the ice-- generals glass clinked and he had troubles with the ice. the system was not able to swallow and process health care because it is so complicated. >> perhaps an anticipation of the observation, the chief justice was careful enough on page 44 of his opinion to state
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as follows -- this is a command to buy insurance as a tax that would uphold the constitutional out. it is only because it does not authorize such a command that is necessary to have the power, it is because of a duty to say it was fairly possible and this can be interpreted as a tax. i would find no basis to adopt such an instruction under this rule or opinion. the view of a decisive vote, which is roberts, is the holding. that is not an interesting question. that is ridiculous. >> ridiculous but not transcendental. to me, an interesting question is on the medicaid stuff. it is not the nature of going from pregnant women to non pregnant women.
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if you take state sovereignty seriously, it is a simple matter of dollars and cents. if you look at the the program like medicaid that is affordable for the states in the long run but taking them down the path of greece, that is one thing. if you in march the program. however you structure it as bringing in a new class of the fisheries or you in march the size of benefits, if you do this anyway that bankruptcy estate, it is that part that is not permissible. how does it do that? we heard about the 100% contribution. that is utterly non-binding. second, even if that is true,
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for the first time this requires states to provide medical care versus just paid forward. after having talked to many state officials about these programs, i was told what would happen is to ensure the sufficient density of the network that can be done, the states would have to spend lots and lots of the money because giving be continued cutbacks, the physicians will flee from the business of providing medicaid services. the state's are going to be popularized. i have been looking at projections which would squeeze out the spending and everything.
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>> when needed to turn to a couple of our medicaid experts. >> let me start. a couple of issues are on the table. one is the impact of the expansion. the second is the multiplier effect potentially of what is known as the prompt access standard. the third is what significance do we draw over all from the decision. putting aside the strange and wonderful solution that the chief justice imposed on medicaid in order to give litigants the breathing room they wanted without sacrificing the money, the expansion, off the power of congress to enact an expansion. what you see is that there is one program and this is what we
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would have called a new eligibility group consisting of people described in that part of the statute. of course, that is what made the whole issue so stunning. if you look at the statute, this is one piece and as justice ginsberg pointed out, it would have been important to enact this amendment. there are whole new eligibility groupings. they are all a matter of degree or certain dimensions of poverty and in the beginning, we only recognize a few dimensions of poverty. this is one piece and i view the implications of the coercion doctrine. i look at it as a practical lawyer who deals in health-care law.
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this thing has no legs beyond the remedy that the chief justice concocted in order to save these families with children and individuals from losing their money. there is a part of the statute that says that you must be given prompt access to medical assistance. there was a split about how to understand that provision, whether it is just the coverage or actually the services, congress clarified that all along it had meant the services and not just the coverage. access to care is the thing that we care about about law. financing is the means of access to care. the medicaid portion of this
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decision is the most shaky portion of the decision to attach significance to. >> i would say that the argument about the stage is fundamentally wrong. mikeirst one is what alluded to. there is no defining principle here of what it becomes worse and when it is not. when we added a childhood immunization, did that become too big of a burden? i don't know when to say it is coercion, when it is not. i don't understand how the expansion at one under% of federal spending, i don't see how this constitutes the course
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of burden when earlier expansions did not. the prompt ted -- the action that he alluded to it is not in front of the court. that is not what i understood to be the deciding quality of whether this is coercive or not. this misconstrued what the statue said about contact. finally, if there is anything that will bankrupt states for the feds or at all, it is not the medicaid expansion. health-care costs are growing in all sectors. it will not grow at stake levels because of the expansion. >> ok, with that, we have gone to the transcendental
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perspectives yet agains we have looked deeply into this national roszak test. let's take some questions. please go to the microphone, if you would. please introduce yourself. >> hello. the following up on the cost argument, basically, the way that the structure was, the reason that they use medicaid as a way to expand coverage is because it was cheaper to put more people on medicaid and to pay for the subsidies. now, if the states decide not to spend, you will now have the federal government spending more on the subsidies and i think that was a possibility
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that was not a scenario. i don't think anyone expected that this would be the outcome. >> they that believe the states would have the authorities. >> the way the statute is written,, it is possible if you earned income at the property level or higher to get subsidies if your net medicaid eligible. if you are below 100% of poverty, there is no subsidy for you. you have this very paradoxical situation without any means of health care subsidization. >> it would be dead narrow group between 100% and 133%. >> all of the people of -- all of the poor people would find themselves out in the cold.
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>> that is another transformer to future. has anyone heard about transformation of quality into quantity? is a question of what is the cumulative effect. this final step of expansion will bankrupt them. that is the fact. >> the urban institute shows enormous savings over 10 years. like in all of these issues, there was building processes on both sides. >> those of us within have gray hair know that what this came after was between the 1965 loss
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estimates on how much the medicare program would cost versus the reality of how that program exploded. this was one of the great moral accomplishments of the country. all of us, we invest our money, we would take risk averse and are usually anxious about this. actually, the portion that involves care for the elderly rather than care for the poor, which is really a blow and of the state budgets. the governor cutting back on care. lots of other examples of that. there is huge anxiety. i differ with their that should be constitutional lies the should be constitutional-- i defer whether that should be constitutionalized. >> this argument seemed so
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bizarre. let's go back to basics. the federal government does not have to have the medicaid program and the states don't have to accept medicaid. here is the argument, congress comes along and out of its beneficence offers the states a huge pot of money, that is to say, medicaid. david is saying, the states are saying, help, help. we might accept this, save us from accepting it because if we except it, we will go bankrupt. this is crazy. if they are worried about the impact broke, don't accept the money. they don't have to accept medicaid. the reason why they're tempted
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is because they think they will not go bankrupt and their citizens would benefit from it. very odd for a disservice to say that the states have to be saved from their own bad decisions. >> money flows and lots of bizarre ways around states, health care, medicaid. we know that a lot of these people who are not covered now under medicaid are also getting health care and they are ending up in the hospital and someone is paying the bill. we know that indirectly, one way that hospitals and states have financed that is by pushing medicaid dollars around as well as raising premiums. we know a lot of this was already getting paid for. correct? >> yes. >> now, we will have something much more logical.
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theoretically, we will have clear coverage for people, their care will clearly be paid for through the medicaid program, but somehow that is worse than pay for it through all of these machinations that we are paying for it now, correct? >> well, i don't think it is worse, that is the argument. direct subsidies are worse than cross subsidies and it just seems odd to me. we have jerry rig an entire insurance system so that we can take care of people up to the level of our moral demand. we are requiring emergency room care. we have these terrible laws. yes, we have created a system where we have moral demands and then we don't finance them directly. >> what michael delivered is a mischaracterization of the argument. the argument has been very simple. we have a situation where states
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have been presented a choice. the states have been given over voluntarily to the front end and a program based upon certain fiscal projections. now, every state, the entirety of the health-care delivery network depends on that. it was withdrawn, it would be a public health crisis and a disaster. that is one wrong choice. now, if you don't give them a choice, the state's police that except the new medicaid would bankrupt them, too. that is the classical essence of coercion. often they cannot reject. that is called coercion. i am not interested in what is more economically efficient, let the federal government to medicate directly like they do
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medicare and then have a philosophical discussion. you cannot give the states a choice between a collapse of the health care system or popularization like greece. this is the surest way of destroying sovereignty. it is that simple. >> ok, we're going to try to move through these other questions. >> i worked at the national academy for state health policy and i run this state reform. we have to focus on this day. if you were still imagine you were there, what would you think the first questions you would get. what has happened to the medicaid option? how would you respond? >> most of the expansion does not occur until 2014.
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there is a condition that says that states have to maintain their efforts until 2014. they cannot back off of the current programs, the so-called made its of effort provision. i have heard a bunch of states asking, does the roberts opinion nullify the menace of effort. i think the answer to that is clearly no. the roberts discussed the notification of the penalty which is exclusively about in the expansion population. this is quintessentially about the existing medicaid program. the first question that most states might ask is do i still have to maintain the effort in the answer is clearly yes. >> another question that i think will come out right away is to the extent that the
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decision gives states more flexibility around the implementation of this eligibility group, does the decision in some way change the characteristics of the eligibility group? for example, because they have more flexibility, can the state cover if you were then all people falling within the new eligibility grouping? can the state cover what the loss might call for what regulations might call resembles of classifications. -- reasonable sub- classifications? if so, what with the federal contribution of will be? does it stay at 100%? at what point can the state stop the coverage and instead have otherwise medicaid-eligible people rely on exchange
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subsidies? fleshing out whether the decision in some way chase's -- changes the basic characteristic of a new eligible a grouping will be right after megan's of effort, which i have always tended to think is sort of a canard. -- the basic characteristic of a new eligible grouping will be right after the maintenance effort. never understood that br uhaha. states do not want to cut people off the program. they do many other things, not that. so, i think all we can do, there's nothing about the decision -- that is why i started my remarks saying nothing about the decision changes the text of the statute. if you open it up, is the same there today as it was yesterday in terms of the federal financial participation.
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the question for the secretary is in determining the effect of the gloss on the statute, well, do i give states more leeway as a reasonable interpretation of their newfound flexibility? i think it will be months before we know the answer. >> ok. let's go to a question. >> hello, i have a more technical question and then a broader philosophical. will states be allowed at any point in the duration to move forward to add a better point of to in to this medicaid expansion and receive the funds or will there be an open enrollment? the question in the reverse, if they opt in and now, will they be able to add a letter point to withdraw if they realize there is a fear of bankruptcy?
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that is the practical question. i have read some spinning about the impact of this ruling on the congressional power with the commerce clause. what other people's opinions are in terms of whether this will in some way hamper or limit the capacity of congress to use the commerce clause to implement social or economic policies? >> let's go to the first part. i guess we could paraphrase this. can -- are we making this states eat broccoli or do they have the option now to eat broccoli when they want to or if they want to? >> well, i think that that is a very good question. here is what the statute says, beginning in january, 2014, this new group becomes -- this is not really a required the group.
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this is a group with limited for smud powers. and federal financial participation is available to the schedule that was laid out. that is at 100% and it drops down to 90%. i would assume that the secretary of thinking through- 20 in sheriff this complex of flexibility will make it clear that the state has flexibility at least as to the year it comes in. the funds that will be available would be those that would have been available in that fiscal year. if you do not come in until 2020, you would get a 90% match, not 100%. there are so many unknowns about taking what was a relatively- viewed provision in one way and
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thinking about what the full meaning that the court did to that provision by essentially putting inflexibility where there had not been flexibility. some of those questions would come up with mandatory coverage groups. my guess is that we would find that there have been so many issues that hhs wrestled with that it is not exactly starting from scratch. we will see some pretty comprehensive guidance in the coming weeks. this is about how the secretary is inclined to interpret the law. >> we have one sentence that the court to not do a good job of rewriting the medicaid division . which is why we are having this
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question. >> briefly, in answer to that, there is more ambiguity in the court opinion to allow the secretary to have plenty of room in this area, in the interpretation. the second question i would ask back, the devil's advocate point of view, is where else? according to the roberts rule, the only enforcement is the new money. what is the enforcement? >> there was also the commerce clause question. >> i would say what i said before. it is too early to tell. the way the architects of this loss seemed to read the question, but they went out of their way to say this law could be struck upon without implicating anything else, but this was unique because it was regulating somebody who was not in congress. if that is what it continues to
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be, it will be relatively unimportant. but this could be an opening wedge in a systematic effort to unravel what we have. whether that happens or not depends on the next justice. >> connect those stocks. -- those dots. how would it be an opening salvo? >> one way to read the opinion -- i do not think it is the only way, but one way to read the opinion is a narrow interpretation of the necessary and proper clause. if that clause were to be significantly narrowed, and we will have to wait to see, then many other programs might also fall. as i read not roberts, but the dissenters, this is quite bizarre, but i think their opinion can be read as saying if
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the government spending program gets too big, by definition, it becomes coercive. that means that any large program is, therefore, unconstitutional. one can imagine, you know -- if mitt romney gets elected, and gets his people in the court, who knows? >> in my opinion, no existing statute violates the commerce clause. point number two, to be fair, the concern has always been, at least in on my part, that in the efforts to redistribute the administrative state, as we are seeing in europe, that folks would start to enact other mandate crossed the subsidies in an effort to avoid the pesky problem of not being able to raise taxes now.
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the yeutter problem. the tunnel. -- the final problem is talking about the spending clause in the effort of holding in states. nothing prevents the federal government, as a separation of powers matter, from bankrupting everybody. let them run in directly. constitutionally, and they can raise taxes and have everybody lead wonderful lives. europe shows us what happens. but there is not a constitutional problem. what they are saying here, and i will spare you from reading -- the federal government cannot do it itself, because of institutional capacity. they have to pull in the states. once you pull in the states, the coercion comes in. it is only that part that is a problem. >> i am from the u.s. government accountability office, and i
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have a question about the medicaid part of what we have been talking about. specifically, congress chose to make a mandatory medicaid category, and these things would pick up over and beyond that. the question becomes, as we talk about the opt out -- does congress have to look back at some of these provisions to account for a different amount of uninsured in different states that do not accommodate the way this was envisioned for universal coverage? if that makes sense. >> you go. >> on a policy basis, does it call into question how some of those disproportionate share hospital payments were calculated, or what kinds of assumptions were made about uninsured people? worse it calls into question the policy there. does the congress have to go back and change that?
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i do not think so. there are strong political reasons to think that both sides in the congress might want to leave the confusion imports place. people who want the medicaid expansion might want the providers have been a strong motivation to try to get a medicaid expansion. those that do not might want to extend the chaos. >> i agree. one of the incentives for a state to move forward on the expansion will be precisely that other revenues coming in may begin to drop. if you think of medicaid as a way to finance health care for indigent people, the points have been made all morning. you either do it directly or indirectly. this is an indirect way of doing it. if your funds are dropping, you have a good reason to adopt the expansion.
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>> question. >> i am just a dumb health-care lawyer. first, a comment, and then a question. i think this was entirely about health care. i think it was about the 22,000 people who die every year without insurance and. and, i think it was about the 133 million folks on the individual market who get turned down. i think it was about the fact that we are in most expensive how austin and in the world. we are 37 in quality and equity. i think the court took a look and tried to find a way, especially justice roberts, in not to interfere with congress. however they to do it by dealing with one little component. also, by the way, there's a great article piece, which found a distinction, which set out here is the only commodity you must have and cannot, no.
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people, upon -- and a number of people cannot get the cause of pre-existing conditions. when i was in government, we found a way to beat the epsdt, which said congress could not finance states if there was a single kid who was not served by epsdt, we had to take some money back from a state which was improving. we found a way to read into that that congress meant 5%, not 0%, and i am wondering if we're not going to be able to find a way which political discussions and setting up ways for the states who do not want to participate to get political cover to drive folks -- poor folks through the change in those states and find a mechanism to read into law by which to subsidize them.
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>> i think the question of what inducements the secretary can use -- assuming the states have flexibility, so we're not worried about coercion, the question then becomes, what inducements exist by the inherent nature of the structure the law versus other inducements the secretary still has in her armamentarium encouraging states to come in the fully? i think the point is exactly right. we were talking about it before, that the fact that the funding is going down, becomes a significant issue. other issues have to do with the fact that if you are below a certain income level, a lot does not provide for you to get subsidies to the exchange, at said that real big question is, should a woman working as a waitress for the minimum wage, making 70% of the federal poverty level, really told she does not have insurance unless
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she works enough overtime hours over a year to once in a while, sometime during the year, after in come up for somebody who has a seasonal job. the issue is switching among markets has been a significant one for this law from the beginning, but you will have -- you will be able to make a picture for state legislators showing this a woman, depending the christmas season and she gets 20 extra hours a week a precious work done, she will have insurance, and then she'll have zero. a difference between saying you are currently on medicaid sometime and the poor others. >> >> will try to get through very short questions and very short answers because we're almost out of time.
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>> my question is not a policy question. it is a personal legal question. in reading the opinion, the chief justice went to great lengths to avoid making policy judgments and much has been made about and try to be an umpire. i saw that and much of the penny, but it did not seem to come through in the communicate section. the definition of a new program seemed entirely activist, and particularly interesting to me was that he said that 132% of the federal poverty limit was not the least among us, that was
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not the original congressional intent, which was to cover the least among us. have others felt discrepancy in judicial discrepancyversus street? i have not heard much comments. >> let me point out a simple proposition, the original medicaid program began as a cooperative program that states could opt in. at certain parameters, and those parameters would change. the question is, is this a step too far? what they were trying to do here, which i think all you should love, at least on this panel, is he had 7-2 to take the whole thing down. he did it to save the statute. you engaged in activities, you start making policy judgments, which is why it is and a corporate function. what choice do you have? >> i have to say i think it is appalling and in sensitive for the chief justice to have said
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that people at 133% of the poverty level are not the least among us. this is an indication of how out of touch some members of the supreme court are with the way many americans have to live their lives. and the question of activism, the truth of the matter is there is no justice on the supreme court now who is not a judicial activist. when the court strikes down affirmative action programs, as they will next year, that is an activist decision. no justice on the court has ever appointed to anything in the language or the original understanding of the constitution that says affirmative action and constitutional. sinking about campaign finance. what we have is not activists and believers in judicial restraint. we have conservative activists and liberal activists, and the
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sooner we get that straight, the sooner we will come to some mature understanding of what constitutional law is all about. >> thank you. >> i will try to make it is responsible. i am a recent graduate of this school, at my question is directed toward gregg, perhaps others, because he is also a physician. this is a derivative of the discussion that you had had picked access to health care is one thing. availability of health care is something entirely different. what do you think the impact of this lot is gone to have on availability, particularly on positions who see the requirements of law as so onerous, whether it is in reporting, diminished income, whether it is a requirement to set up a whole new style of practice in larger groups, which some positions did not want.
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they prefer to be individual practitioners. the impact is going to be significant we on physicians who are in need kirk and further on because they are the largest percentage of physicians in the country. how many of them do you think will leave the profession because -- and do something because of the impact? >> the point is often made that after the clinton health care reform effort collapsed, change happened quickly and medical care of the sort we would expect happen only if the clinton plan had succeeded. there are powerful economic forces operating in both public sides and the private side in health care today. they are going to set limits on the discretion that physicians have. they are also operating to nudge positions to larger group practice situations, whether
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they be kind of multi- practitioner group practices. there is going to be more incentive from the private and public side, and if president ron make got a ryan plan for medicare and acted in 2014, the same thing would play out for medicare, just beat private plans doing appeared powerful incentives for positions to spend less, to follow evidence- based practice critical to a great extent, less discretion. there are a lot of changes that are coming. it is less a matter of who does it than just the reality that they are coming along. i think some of the medical specialty groups are fighting rear-guard actions that will ultimately not prevail.
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i had a piece in month ago cost control, making the point that it does not matter who wins politically. both sides, whether you are talking about the pact under the affordable care plaque, or the ryan plan's approach to medicare. both sides are doing similar things straight, i will close by asking each of you very quick questions. give me the name of the seminar you would teach next year to third-year law students about this case. what would you call it, and just the title. he did not have to give me the curriculum. only the title. >> chaos theor? >> now what?
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>> accountability, not doing it right. >> politics and law. >> the struggle for the soul of health insurance. >> ok, there you have it. those of you who want to come back and take those courses texture, we will see if we can do that. thanks very much. >> we also talked with members of the house about their reaction to the supreme court upheld a ruling on today's washington journal. here is a look at two. there are a little over 10 minutes each. >> congressman, the congressional caucus support to
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a single payer. now that it has been a defied by the supreme court and is based on private insurance, what do you think? >> i am extraordinarily pleased with the ruling. i supported the affordable care of. there are those of us who wanted to go further. there were those who did not want to go at all. nonetheless, i think we have the first after almost 100 years, in terms of really moving our country to providing universal health care. for tens of millions of americans, they will be able to access health care whether they are in west philadelphia or fairfax,laska. kids with pre-existing conditions cannot be denied health care. adult will not be denied health care. i thought the court's reasoning was fascinating. the court said just like any other fine you might have to pay to the government like if you drive too fast on the highway,
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if you do not provide for you and your family to have health care insurance, if you can afford it, he will have to pay this fine. -- you will have to pay this fine. we do not get a free lunch. we have to pay our way through life. for those who can afford it, they should provide health care insurance. if they do not, they will have to pay this fine. host: who will not be covered? guest: interestingly enough, 98% of the people in the state of massachusetts have coverage. 100% of the kids have coverage.
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the reality is that there will be an outlier just like someone who will speed on the highway or not put their items in the recycling bin. there will be some people who will try to avoid the law. the law now requires you to have health care insurance. most americans have health care insurance. we have provisions for those who cannot afford it. we had groups of people who would just wait until they had to go to the emergency room and have you and me pay for it to our health care premiums. host: jeff asks on twitter -- guest: if you are not a citizen of the country with proper
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authority to be here, you are not covered by this law at all. the reality is that is unfortunate because we really want to have coverage for anyone who is in our country. if someone has a contagious disease and it is not diagnosed and they are sitting next to your loved one on a transit vehicle, a train or something, it is a real problem. i know there are a lot of people who want to pretend as though other people are not worthy, but the reality is for this law because of the political circumstances there is no coverage for them. they will have to go somewhere else for the moment. host: i looked up news coverage of you on the internet and i found these two articles.
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where is this money coming from? guest: these are federal grants that are competitively awarded through the national institutes of health, the national science foundation. i am one of the members on the science-related appropriations and authored a major proposal that the president signed into law that creates a neuroscience collaboration across the federal government, working on brain diseases like alzheimer's and parkinson's. it is a major initiative of the federal government. we have tens of millions of americans who are afflicted and affected by brain diseases and disorders. many soldiers who have been
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injured. i have been leading an effort in the congress that has led to a major legislative success. we have a collaboration of all of the federal agencies from the national institutes of health, the food and drug administration, the department of defense. we are rushing forward and focusing on how we make real progress on brain illness and how we understand the brain and how we can do more in terms of cognitive teaching and learning activities. i was visiting harvard and one of their laboratories where they are doing experiments about how to teach the youngest of children and how they learn because we know at the earliest ages, young people can learn anything. we for so long have neglected this. they were doing great work
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there. i am very excited about those grants that you mentioned. host: this money is over and above any research money in the health care law? guest: they are both outside the health care law. some of the grants you mentioned are part of the health care law funding. you mentioned two different grant announcements. it is kind of like the decision yesterday. host: let me get a caller from indianapolis. you are on the air. caller: i would like to pose this question to mr. fattah. the previous representative was saying that it is no longer -- if we go to the affordable health care act, we signed up with the government, the patient no longer can talk with the doctor to determine their course
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of care, that it is up to the government. can you respond to that? it is so frustrating. guest: it is unfortunate that those people who opposed this have distorted the facts. the truth is this is a private insurance-based system, and the only thing we are doing is creating a platform for people to access private insurance. their interactions with their doctors are going to be exactly how they are now. there is going to be no government bureaucrats between you and your doctor. this law will be the law of the
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land and we will get a chance for it to play out. they have purposely distorted a lot of information and have tried to scare people that this is somehow socialized medicine. it is really not. it is based on ideas that came out of the most -- john mccain proposed some of these ideas. the heritage foundation proposed some of these ideas. this is identical to what governor romney put in place in the state of massachusetts which is working very, very well. host: chaka fattah spent 12 years in the pennsylvania legislature. in addition to being a member of the congressional caucus, he is chair of the urban caucus. louisville, kentucky.
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caller: have you read the law yet? guest: yes, i have. good morning. caller: i am disabled and i have been on medicare for 20 years with supplemental insurance. it is getting more and more hard to see a doctor. my supplemental insurance is with a large manufacturing company. they cannot find doctors to take. three of my doctors have retired because they do not want to go through the amount of money and paperwork it is going to take to go with this. so, i am concerned about -- because i have watched a lot of the --
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host: thank you. congressman? guest: i think what she said it is she was on a government insurance health care program for many, many years and she has some challenges. may be in this instance, she had to rely on medicare because she is disabled. that is what we need to have a safety net for. i am proud to live in a country that would make sure she has the coverage she needed. one of the things we really need to do is ramp up the educational opportunities so that we can have more physicians. this is embodied in the affordable health care act. $65 billion in additional aid to get more young people --
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host: i heard her say that she is concerned that some of her physicians are retiring. guest: 10,000 baby boomers are retiring every day. people are going to retire. doctors are going to retire. the issue around paperwork is one of the things you just saw in the news because the affordable care act, 100,000 medical providers now are on electronic systems. this is one of the things that was funded out of the affordable care act so we can get out of the paperwork business. using technology so you do not have to burden positions with filling out all these forms. insurance companies will be able to keep track of records electronically.
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this is one of the great advantages of the affordable care at. for everyone in our country, the supreme court has the last say on this. they have spoken. we can now move forward to make sure people who have had no coverage, no doctors to see, no opportunity to have coverage, now are going to be able to make sure they can have a quality health care. i think all of us should applaud that. that is what it means to be our brother's keeper.
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host: your press release yesterday says this -- what is a major example of an inherent problem that you see? guest: the biggest problem with this law is how it is a big government solution to one of the most personal aspects of our lives and that means health care. the health care decisions that we may for ourselves as well as the people that we care about. although the court ruled the law is constitutional, it does not mean that it is a good law. as republicans, we are committed to repealing this law and replacing it with reforms that will ensure that we will have quality, affordable health care, that we address what is driving up the cost of health care. the affordable care act is not addressing the costs. we need reforms that will do that. the affordable care act is a big government solution. it is redefining the role of
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the individual within the government. it is estimated 20 million americans will lose their employer health-insurance. average premiums continue to increase. businesses are finding it harder to hire because of this law. it was past two years ago over the will of the american people. host: i want to get to calls because we only have you for about 10 minutes. what was the experience like in the courtroom yesterday? guest: i was pinching myself being in the courtroom yesterday. as chief justice roberts was reading the decision, most of us were focused on the commerce clause and answering the question as to whether or not coress appropriatelyse commerce clause.
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he went through a detailed explanation of how this was not a proper use of the commerce clause. it cannot compel people to do certain things. i thought, wow, he is ruling at the individual mandate is unconstitutional. then he proceeded into the tax provisions. although president obama said this was not a tax and the proponents said it was not a tax, chief justice roberts said it had the characteristics of a tax, so therefore it is a tax. you went back and forth. i was quite stunned by the decision. host: we are going to get to calls. first up is chicago. carl, you're on.
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caller: good morning. i want to say this. i don't mean this in a personal manner. your party has become one of children. i watch you guys. basically, everything is no. this health care went about through a democratic process. the president wanted to have the republicans input. parts of this health care bill republican ideas. the president signed it. we're going to go through the courts.
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that has been held up by the court. now you are saying we are going to repeal it again. yesterday, you did not offer anything concerning the people who do not have health care coverage now. host: thank you. guest: not one republican supported this health care bill. not one republican in the house, not one republican in the senate. it is unprecedented that a law of this magnitude would pass without any republicans. the president had overwhelming majorities in both the house and the senate so he did not have to work with the republicans. most americans also believe this is a bad bill. the polling showed the majority of americans opposed this bill. as they see what is in this
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bill, as it is being implemented, more americans today oppose this bill than they did two years ago. yes, we thought it was unconstitutional. the court did not agree. however, the court did speak yesterday but they are not going to have the final say. the american people are going to have the final say in november. the people who are elected to represent the people across this country who come here and vote on the laws of this land -- the elections do have consequences. host: next up is fort lauderdale, florida. caller: good morning. i am a responsible republican voter, and you are lying to the american public. they have shown many polls on msnbc that there are more republicans now who like this bill because it is working for them.
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people who have pre-existing conditions, kids who can get on their parents' insurance. stop lying to the american people. my party is going to go down in november and you are all going to be voted out. people are sick and tired of your lies. host: thank you. we will stop it there. guest: i can show you some polls that show otherwise. the president could approach has been a big government approach to health care. the control of health care decisions and america should be with individuals and their families. i have a son with special needs. i understand the importance of addressing the concerns with pre-existing conditions.
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the republicans have solutions related to pre-existing conditions. that is one of those areas where there was some agreement moving forward. the republicans -- that is part of the solution that we would like to move forward. host: the caller mentions the popularity of some of the earlier provisions, including the extension of age 26. guest: i would argue that the polling overall shows that when people are asked about this health care bill, they oppose this bill. a large majority up until the court ruled yesterday, 60%, 65% believe the bill is unconstitutional and would like to see the congress repealed this bill and have the opportunity to restart on health care.
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millions of americans are without health insurance. we need to improve access, to address what is driving up the cost of health care. obamacare does not do that. it is a false promise that has been given to the american people. that is why republicans are more committed today than ever that we are going to repeal this bill and press the restart button. working with the american people, republicans, democrats, independents. host: there is a vote in the house coming up mid july. walk us through how is successful repeal would work. guest: the house will be taking action in mid july to repeal this bill and get it off the books. largely the future of this legislation is going to come down to november and who is elected.
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many portions of the president's health care bill do not take effect until 2014. the prolonged most of the impact. so we do have more time to work to repeal this bill. under the tax provisions that re g whetr n we could repeal those provisions in the senate through a budget reconciliation that only requires 51 votes and is not subject to filibuster. there may be some opportunities as we move forward to pursue repealing this bill or at least the taxes in this bill through budget reconciliation. the president said this was not a tax. we are finding out now it is the largest tax in america's history. as americans continue to see what is in this bill, they will not be pleased.
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host: lewis is an independent. caller: i have been battling for health care since 1970. i have workman's comp. i know what it is to fight for health care. i am more concerned about the fact that the federal government iscut way back o medicaid support. we are not going to have 65%. we are probably going have the reverse which will have every state in the united states in a vulnerable situation. there is no way you can have this kind of a change in coverage. i am all f everybody getting coverage. hostthank you so much.
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guest: that should be our goal, for everyone to have coverage. in many the programs, and the governnt has promised certain coverage. but even today when you look at the government health care programs that we have an america -- look at medicare, medai when you try to find a provider, a hospital, a doctor that will take a patient who brings an in medicare or medicaid card, it is harder and harder. in my home in washington, it is next to impossible to find a provider that will take a patient on medicare because the government is not reimbursing for the actual cost of delivering that service. they say it sounds good that we will cover these people but they are not paying the cost of it. providers are saying more andt o do it. it is a false promise that the
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government is giving to the pele sinthat w going to cover everyon you do not have access or you have to wait to get to seea doctor. i am hearing more stories today that for those who are on medicaid or medicare are having to wait weeks or months to see certain providers. i want to empower the individual and give them and their families the ability to go out there and choose what plans are best for themselves. not everyone needs the same kind of health insurance. as much as we can empower individuals and families to make those decisions, they are going to make better decisionsn the govent
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guest: i was hoping that chief justice roberts would look the cast that would be created if they overturned the bill. looking at his legacy, the opportunity to make sure that millions and millions of americans were able to get health insurance -- i thought he might resist overturning it. host: what work need to be done? many people calling in today seem to be confused about the scope of this legislation. can you talk about what will happen for americans next? guest: i am grateful for the opportunity now to talk about what is really in this bill and what it means is women will no longer faced discrimination. being a woman right now is like having a pre-existing condition because we pay about 48% more for our healthcare. we are helping seniors be able to afford their prescription drugs. millions of seniors right now are paying an average of $600 less for their prescription drugs.
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young people able to stay on their parents policies until they are 26 years old. when the bill kicks in, no pre- existing conditions will disqualify someone from getting the health care they need. this is absolutely huge. we are going to find all the people who have been excluded from the health care system are now going to be able to get coverage at an affordable rate. i think that will get the worry off of american shoulders. host: we will take a call for you. our viewers have been in deep conversation. let's hear from kathy, a democrat from chicago. caller: good morning. my question is i read 600 pages of the house bill.
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there are death panels. for the very old and the very young, they are not going to be able to get care. the government has no business in our health care. the senate version is even more complex. did you know that people from u.s. territories who do not pay federal taxes will be covered by this health care bill on the backs of american taxpayers? guest: right now if you are injured, you are paying up to $4,800 a year in additional health insurance costs. the average is about $1,000 a year for people who are not insured. we do not leave them on the side of the road if they are in an accident. we take care of them. all of those people who are uninsured are a cost to you right now.
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those people will be a part of the program. actually, we are going to see the cost of health care for you and others who are injured time -- insured should actually go down over time. host: many comments discussing the unionization of doctors in this country. guest: it was an odd question that a reporter asked me yesterday. this has nothing to do with obamacare and now what is the law of the land. doctors in many places including the cook county hospital in chicago do have -- one of the best health care systems in the world. i did not really understand this connection because it has
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nothing to do with the legislation. host: from georgia, you are on. good morning. caller: i am concerned about employment. these large corporations and even small businesses are going to stop hiring because they do not know or understand this new health care law. if i was an employer, i would be concerned. hold off on employing people because we need to see how much this is going to cost us. guest: actually, the employer benefits, especially small businesses, are going to be some of the greatest beneficiaries. right now if you are a small
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employer and one of your employees gets very ill, your insurance premiums skyrocket. now that person could go into a health care exchange and continue their employment. the employer is no longer going to be burdened. those employers who provide health insurance for their employees -- there is not going to be any change whatsoever. this is going to be the period of time when people are going to be able to fully understand exactly what is in the bill. i fully believe most are going to say this is going to benefit my business, benefit my family. the chief cause of bankruptcy, personal bankruptcy, is health care costs. that will no longer be a burden or a worry for americans after this fully goes into effect.
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host: how is illinois organizing its exchange? guest: the governor announced yesterday that illinois is going to implement the medicaid expansion program. we are going to have hundreds of thousands of people who will be eligible for medicaid. that expansion for the next two years will be paid for by the federal government so the state will not be burdened. host: was this decision affected by the ruling on the medicaid expansion? guest: yes, because now it is up to the governors about whether or not they will participate. no state can be penalized if they do not do it the medicaid expansion. i cannot imagine why any state
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would not since the federal government foots the bill. our governor announced right away that we would do it in illinois. caller: how are you guys doing? i would like to support the bill. i am a small business person and employ eight people. i provide insurance currently but it is not that good. it is what i can afford. two and a half years ago, my son who was a sophomore in college came down with a chronic illness. it could have happened to anybody. we had to pull him out of school to get the treatment. he had to go through 21 days of recycling your blood. at the same time this happened, i was paying $1,200 a month for
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insurance premiums. the insurance company because he was not a student was going to drop him from the insurance right when i needed the insurance to cover him. basically, he would have gotten the treatment but he would have bankrupted himself. no way a college student could afford that and no way i could afford that. host: what is your bottom line? caller: if you start talking about the benefit of this program, democrats will be a lot better off because people like the fact about the coverage you are getting. guest: i certainly agree this will be the moment where we can tell the american people just how many benefits there will be. right now, i think all americans walk around with a worry about how my going to pay for it.
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i think that burden lifting off american shoulders will be a tremendous freedom that we will be able to offer people. they know they will be able to get health insurance no matter where they go. caller: good morning. i am glad i got through to you. i think it is a wonderful program. i think everybody will be covered with insurance. when my daughter was growing up, i was always worried how long she would have insurance. everything is great about the bill. anybody that would fight against it -- if i could come close to a billionaire, i would vote for them. anyone who is a regular working
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person, why would you vote for them? host: thank you for your call. he worries the law does not contain enough in the area of cost containment. what would your response be? guest: we are doing a good job of cost containment. there are going to be millions of people who will get a rebate this summer because we require insurance companies spend 80% of the immune dollars on health care. not on ceo salaries and marketing, etc. people are going to get rebates because of that.
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i think there are many, many provisions in the legislation to reduce the cost. and also to get fraud out of medicare and medicaid. we are going to make the system more efficient and cost effective. host: what about the cost of procedures, the actual cost of delivery? guest: i think there is going to have to be more justification in the legislation for the kinds of procedures and x-rays and cat scans that have been ordered. i think that we are going to see the costs have the potential of going down. there will be more competition in the health care field that will drive costs down.
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host: a member of the budget, ways and means committee, thank you for being with us this morning. i understand you were in the courtroom yesterday. what was your reaction? guest: it was an emotional roller coaster with the initial 10 minutes or so when chief justice roberts went through the commerce clause explanation and why the individual mandate was constitutional. we were pinching ourselves hoping that would be the outcome. then he went through this convoluted explanation of how the penalties are taxes so therefore the congress has the power to tax. very strange decision i think. then the air came out of the room. host: you probably have some
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reaction to the reaffirmation of the power of congress to tax. guest: i think it is important to appreciate that what the court said congress can not only tax what you do as an individual but what you do not do. if you do not do something, we have the power to tax you. i think it is a dangerous precedent. consequently, i think the american people will speak loudly in november and will elect people who can turn this around. that is why it is absolutely important to repeal this now because of the policy challenges and the taxing power that is in this bill. host: before we get to calls, would you explain the legislative process to a successful appeal? you have been struggling with getting legislation through the senate.
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guest: it will require a new leadership in the united states senate. it will require individuals who believe that this is not a proper role for congress and a majority vote in the united states senate. as long as the republicans are able to hold the house and the american people are energized and we turn the senate to the republican leadership and a lack governor romney to the president of the united states, -- and elect governor romney to the president of the united states, we can get back on track. host: one article i read this morning is that mitt romney has been an imperfect critic since parts of the legislation were drawn from his own experience. guest: we are a federal system and states have the right and authority to do what they believe is most appropriate for
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the population. that does not mean everything that can be done at the state level should be transferred to the federal level. governor romney has stated why this is an unwise decision. it does not work for employers or job creators and it clearly does not work for the states. host: let's go to cathy from new jersey. you are on with congressman tom price. caller: good morning. i have a situation where i am a five-year cancer survivor. i need to have a procedure. i am unemployed, my husband is unemployed, and my unemployment is running out. my cobra is increasing in october 18%. what do i do?
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i am in a tough situation. i have household bills and rent. host: thank you. let me get a response from the congressman. guest: a real challenging health situation. my mom passed a little over a year ago. i wish you all the best. i would contact your position immediately to make sure you can get the highest quality care. i think the take-home discussion is pre-existing conditions can be solved for a wonderful way in the market. by allowing individuals to pull together with millions of other americans. that is the way to do it.
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the president wants to say we believe that your health situation deserves treatment or not. it puts washington in charge of your health care. that is the distinction between the challenges in health care that we have right now. host: donald writes on twitter -- you have a piece of legislation. guest: h.r. 3000 is our bill. it has a lot of different tenets. one is you have to get everybody covered. the way to do that is make it so it is financially feasible for every single american to select the insurance they want for themselves and their family. we do that through tax deductions and credits. so that every american can
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purchase the insurance they want. insurance challenges of affordability and pre-existing. everybody ought to be able to own their health coverage regardless of who pays for it. we talked about pre-existing illnesses and injuries. there are hundreds of billions of dollars of waste in our health care system right now primarily through the practice of defense of madison. -- defensive medicine. everything is not necessary to treat the patient or diagnosed the illness. we addressed that with robust reform which is vital to the economic vitality of our health care system. it was ignored in the bill. host: from alabama, a republican.
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caller: how can we not call this a new tax? period. we just funded 600 new agents. it is going to be regulated and imposed as a tax. it is absolutely a tax. to not call it a tax, you are just lying, obama. there are several good things that i agree with but the inability to come up with a resolution or bi-partisan agreement -- of course kids need insurance as they are going to college. of course premiums are getting too high. a lot of states have tort problems. instead, we would like to argue. of course it is a tax. it is absolutely the most over- worded piece of crap legislation i have ever seen.
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it is horrible. guest: i think the gentleman is right. this is a tax. how do we come together? it takes leadership. the house republicans have passed multiple pieces of legislation on this and other kinds of things to correct the economy and create jobs, but the senate refuses to act. harry reid refuses to take up these pieces of legislation. they may disagree but they need to pass some legislation so we can get together and come to a compromise. host: one of the opinion pieces i read this morning suggested that an employer health care system -- there is high unemployment and people are much more local.
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let me ask you this question off of twitter from a viewer who said -- what about that employer connection? why does it work today? guest: the connection is a hold over from a bygone era. which is why our legislation equalizes the tax treatment. right now there is preferential treatment from employers to purchase your health care coverage. we believe we ought to equalize those and allow individuals and small groups the opportunity to purchase it with pre-tax dollars so the purchase of that health coverage goes the way that the individual ones. patients and families and doctors ought to be in charge of this. host: let me understand how the bill works. employers are required to offer health insurance and if not do they pay a penalty?
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guest: there is an employer mandate as well, so employers will pay a penalty if they do not cover employees. the penalty for not providing health coverage for an employee is a whole lot cheaper, probably four or five times cheaper, then covering the individual with health insurance which means the whole incentive for employers will be to take their employees off of coverage and push them on to state or federal coverage which is where it will be less efficient and of lower quality. that is why we are so opposed because we believe it violates those principles of health care which are so important. host: washington, d.c., sean is an independent. caller: thank you for taking my call. i am pretty neutral about this bill because i have no idea what it contains.
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it is all biased. we deserve an independent committee to go through the bill, highlight features. that is what we deserve as taxpayers who are footing this bill. guest: there are all sorts of opportunities online to be able to find the interpretation of the law. heritage.org. there are individuals outside the political process that have evaluated this law and determined it is destructive to the quality of health care in this country. i would urge folks to go online and seek out those interpretations. people are not going to like it. host: they do have a point of
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view on the spectrum. they come from a political point of view. guest: absolutely. there are folks who believe that government ought to be making these decisions. you can find those folks online as well. remember, 60% of american people continue to oppose this law because they have a gut sense that government ought not to be in charge of health care. host: as a physician, what is your assessment of the most significant thing that could bend the cost curve in delivery? guest: i do not think it is going to bend it down because it does not address the cost. i have had many of my former physician colleagues contact me.
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they are very frustrated with the status quo. they are fearful of what is about to come. that is washington telling them what they can and cannot do for their patients. this is very fundamental. these are the principles of health care. this is as personal as it gets. the american people have never seen washington making these personal decisions for you. host: thank you so much for taking calls. >> tomorrow, a new jersey congressman discusses the congressional measure that prevent student loan interest rates from rising, and has reaction to the thursday supreme court ruling on the affordable care act. the freedom works president and ceo also talks about the court decision, and what his group plans to do.
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and david pollack, from the washington institute for near east policy, previews the u.n. security council emergency meeting in geneva this weekend on the crisis in syria. next, a heritage foundation discussion on the ramifications of the supreme court decision. then, the european summit closing news conference. after that, president obama tours parts of colorado affected by wildfires. texas was one of the 26 states that challenged the health care law. the texas attorney general talk about the court decision at the heritage foundation in washington, d.c. he is joined by a representative from the national federation of independent business, another plaintiff. then, a panel talks about what the decision means, moving forward, and other challenges in
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the courts to the health care law. this is an hour and 35 minutes. >> good morning, ladies and gentleman. yesterday, we had a momentous decision of the supreme court. perhaps the most unusual aspect of it was the result was one that, to the best of my knowledge, nobody had predicted. today, we are going to talk about that, what its implications are, the next steps in dealing with the issue, and a little bit of a critique of the decision itself. to do that, we have two of the people who were intimately involved with the whole process of dealing with the issue. greg everett is with us. as the chief law-enforcement
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officer of the state of texas, he has made the protection of liberty, protections of the people of that state, his primary objective. he is a leader in the republican attorney general association. he has been named the trial judge of the year in the past due to his service on the bench. he has been made a principal honoree from the federalist society, the texas journal of law and justice. and he has been active in many of these very important issues that we have faced as a conservative movement. joining him is karen barnett. she is the founder and executive director of the foundation of independent businesses, small business legal center. she has been active in the fight for liberty, and particularly the freedom of small businesses to do the job they do so well for their country.
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that is to provide products and services that people want. she has been active in a number of important issues. she received her bachelor's degree from the university of oklahoma, and her j.d. from toward washington university law school. we are happy to have both of them. we will open up with greg abbott. >> it is interesting, as you are making the introductions. i was unaware until right now about the texas--->> thank you, general. it's interesting as you're making the introductions, i was unaware, karen, until right now, about the texas-o.u. conflict that we may have. it is great to see barack obama, once again, has been the great unifier in this country, because he's been able to bring texas and o.u. together at the same table, fighting for the same cause as opposed to fighting again each other. it is interesting, general. i would say that yesterday was a day full of surprises. yesterday was a day full of surprises. one of the things we were surprised about was not only the outcome of the case but the way the case was decided. we were surprised about the new role of the chief justice of the united states supreme court.
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i was there when the decision was handed down. it was interesting -- the roller-coaster ride we were all taken on. as the chief justice came in and read the opinion, and went through in detail his analysis of the individual mandate and whether or not congress had the authority under the commerce clause to impose individual mandates on all americans and to conclude they do not. congress acted in violation of the constitution. i thought this would be a dramatic victory. then when he began to explain in more detail about the necessary and proper clause, this would be a tidal wave movement that would change constitutional history. my forethought became right.
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the chief justice talked about the tax components of obamacare. it would become a spin provision. you could tell as he began discussing the tax component of the decision there was a palpable movement in the courtroom where people were in a state of confusion, shock, uncertainty, and disbelief about what exactly they were hearing. you could tell some were dismayed and disappointed about the decision, whereas others were overjoyed. there are a lot of takeaways we can come up with.
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i want to run through some of those. i want to talk about some broader context. then i will run through the detailed aspects, and then about some issues going forward. one thing that is important to do is to put in context what happened in the last 24 hours is something that had been developing for the last 2.5 years. remember this -- we may have lost this case at the u.s. supreme court yesterday, but in reality, almost all of america, whether you are lawyers or the average person, they thought we would lose the case long before it ever got to the u.s. supreme court.
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few people gave us very much chance at all that the case would make it to the high court. the outcome we got yesterday was not the outcome that we wanted. it exceeds what anyone gave us any chance of achieving two years ago. to trace back in time what happened, two years ago, myself and some other attorneys general, going back to the fall and winter of 2009, were deeply disturbed about how the country and health care law seem to be hijacked by would seem to be accepted public bribery to things like the cornhuskers kickback, tools used to extort money for a state to get a vote on the floor of the united states senate. we knew this was not the
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pathway we wanted to see america go down. several state attorneys general joined together to inform congress that they can expect litigation for the health care reform law if the moves forward with things like the cornhuskers kickback included. about the same time, a lot of state attorneys general benefit from research that was prepared by the heritage foundation. for me personally, it was the defining pivotal moment when in reading the research i began to be convinced that the individual mandate component of the health care bill was something that not only was contrary to the constitution, but something that must be vigorously contested if we are
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going to hold out any hope for the future of the constitution in this country. i called randy barnett. i visited him about the paper he had written. i got better educated and gain insight from their perspective. as we learned more and eat more, drawing from the insights and expertise and research from the heritage foundation, we decided referred proceed for with litigation. we could not have done it without nfib. we questioned whether we would have standing to bring a claim. nfib did, and some people involved, and small businesses in this country were able to get involved. it began on shaky grounds. even when we filed a lawsuit,
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we were ridiculed, criticized, condemned, mocked. we were told that the lawsuit would be quickly dismissed. there were no grounds whatsoever. congress could do whatever they wanted to do. all of that changed when we finally got that federal district court ruling in florida agreeing with us that obamacare was unconstitutional. those attitudes change when the federal court of appeals upheld that. but they changed even more when the pundits saw the figure that was used by the justices on the u.s. supreme court when we went through the three days of oral arguments.
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to go through some of the issues decided by the case road quick and put them into context, one is the individual mandates. the individual mandates for us were the focal point of this lawsuit. we thought we would win or lose based on individual mandate. we knew we had a mountain to climb because of past precedents. we were told by legal scholars that the individual mandate would be upheld because the necessary and proper clause of the united states constitution. the more we analyzed this and saw this, we knew that our fight was for a just cause because of that one very simple notion, and that is if congress can force you to buy a product against a will, there will be no limits whatsoever to
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congressional power, and it will fundamentally change the relationship between individuals in the federal government for evermore. we were very pleased to see that the united states supreme court articulated the very position that we had maintained all along. it arrived at a conclusion that congress had violated the constitution, trebled our individual rights by trying to impose the individual mandates. that victory turned out to be a hollow victory because of what the remainder of the decision looked like. however, we would be ignoring the shift in constitutional history that took place just a day if we do not recognize some silver linings concerning the rulings on the individual mandate.
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it was a meaningful reigning in of congress's authority under the commerce clause. it was unanticipated by scholars and pundits for the past two years. it was a way that is going to give life to future potential legal challenges for acts of congress and hamstring congress in the future with a consensus exercise of authority based on the commerce clause. the ruling yesterday was the first time there had been a ruling that congress exceeded the commerce clause on a social safety net issue since the time of fdr. we won on the individual mandate, but we lost as it concerned congress's taxing authority. for me personally, this came as
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a total surprise for several reasons. congress did not consider it to be a tax so much so they deleted any reference to the word tax on the legislation. the president insisted it was not a tax. no lawyer or party i talk to in the case seemed to think it was a tax. the obama lawyers had to make the arguments. it seemed like it was a claim that they would throw in, hoping it would stick. as far as i know, of all of the different obamacare decisions
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that have been made across the country, the two that were made at lower courts, no court or judge anywhere at any time agreed that the obamacare law was a tax. that made the decision that came out of the more surprising. we will have to do with the aftermath of the decision. this will be the biggest concern and challenge going forward because now congress can tax inactivity. if you do something, congress can tax it. if you do not do something, congress can tax it. i cannot remember -- you may remember from the time ronald reagan -- was the phrase he used? his complained about -- in washington, if it moves, you must tax it.
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now reagan would be even more stunned to learn that whether you move or not, you will be taxed. the federal government is telling citizens and now that you have an obligation to act to engage in an activity with you want to or not, and if you refuse to engage in that activity, you will be subject to a tax imposed by the irs. that fundamentally changes constitutional power in this country and it expands control of the federal government into our lives and into our wallets
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to a new and dangerous level. maybe more troubling is that the decision seems to distort and abandon conservative legal principles of deciding cases based on what the law says as opposed to what policy decision a justice of the court may believe in. the decision amounts to in the words of justice kennedy to judicial overreach. condemning obamacare, we talked about it being an unprecedented government overreach by congress trying to grab more power and assert themselves more into our lives, completely unaware that the way that this would end is by the judiciary exercising an unprecedented judicial overreach.
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amazingly, the president is claiming victory over this new tax mandate. the president is going to wind up having raised taxes dramatically over the middle class in america. the very constituency he promised he would not raise taxes on. the third issue was the medicaid expansion issue. here again, we were completely surprised by this. this is an issue in which the states, who filed the lawsuit, had an unmitigated win. in hindsight, not that the case is over, we thought we did not have a chance to win this case. we inserted it in part to ensure we had standing. we thought multiple times about
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abandoning the claim altogether because of the magnitude of the legal challenge. policy wise, we knew we had to challenge the medicaid expansion mandate. legally, we thought it was a loser all along. we were stunned to learn that the u.s. supreme court agreed with it, and congress violates the constitution by coercing the states into expanding their medicaid programs against their will. as chief justice robert put it, it was congress putting a gun to the heads of the state's, forcing them to engage in conduct and recognizing that in doing so, it violates the sovereign rights of states. as we go through the process of learning more about this case,
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and applying this case in years to come, this will be one of the silver linings of an otherwise dark day in american judicial history. this is a silver lining because it gives more power to state and gives a stamp of approval to that state sovereignty. it is a meaningful turn with regard to social safety net decision making coming out of the supreme court because it is the first time that the supreme court put a limitation on the expansion of the medicaid system. let me quickly touch on a few other topics that i know i need to pass the floor. one is its impractical affects. karen harned will talk more about. let me limit that to the state of texas.
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my comments are based on personal conversations that i have had with businessmen and women in positions across the state. this decision that came out yesterday is going to hamper hiring by employers in the state of texas. before the decision came out, businesses large and small repeatedly tell me that they were afraid to hire because they were afraid of the effects of obamacare and the penalty they may have to pay, the regulations they may have to deal with, etc.
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[captions copyright national cable satellite corp. 2012]
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[captioning performed by national captioning institute] >> oh, my god. look at that. >> a delegate from new hampshire. >> all right. >> this is so great for me. >> thank you very much. >> hi, ms. kennedy. how are you, ma'am? >> you so beautiful. >> this is a friend of mine took this picture sometime back. >> not that long. >> would you be kind and let me
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take a picture? >> of course i would. of course i would. thank you so much. >> there you go. >> thank you so much. it has been very nice meeting you. >> she is beautiful. >> yes, she is. >> thank you so much. yes, i am. >> oh, my god, caroline. my mother is going to be so happy. >> she is? that's why i'm here. >> oh, my god, you're beautiful! i'm also a teacher. >> ok. >> all right. >> nice. >> can i please have your autograph? please?
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>> thank you so much. >> i'm going to be next. i'm pushy. >> you're going to see people this summer, right? >> yeah. >> ok. you can start --
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>> they do? that's good. we need them to tell their parents -- >> i thought kids can't vote? >> well, they can't but they can make their parents vote. >> you such a mom. our parents are responsible for some aislists. i dealists. >> great. a great pleasure to meet you. i wonder if i could just get an autograph and picture? >> jim, jim? where is jim? i'm so sorry.
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can you take a picture? >> it was so exciting. that was great. that was. >> thank you. >> caroline? would you please sign this for me? >> ok. >> thank you very much. >> can i use your pen there? >> yeah. >> ok. terrific. >> thank you very much. >> you're very welcome. >> good to see you. >> nice to see you too. are you working hard for the president? >> yes, i am. >> here is your pen. you want it back? >> it is really exciting to meet you. i love your family. you so beautiful. >> i'm coming back to new hampshire. everybody is so nice to me.
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>> my name is caroline. >> really? >> thank you for everything you do. >> thank you. >> thank you very much. >> ready? >> thank you.
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>> my name is marissa . thank you, good luck.
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>> what did he make her do? >> hi, caroline. >> hi, how are you? >> thanks for coming. nice to see you. what about the red sox? >> yeah, go red sox. >> they won today. >> good.
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>> must be a multitasker.
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>> i'm running for state representative. when i announced i was running -- it is so inspiring. ki get your signature, please? >> ok, sure. >> when your uncle passed, it brought me to tears. he worked on the legislation for the americans with disabilities act and i had benefited from having that service. so your family is just awesome. >> it helped so many people.
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>> are you here together? >> yeah. >> are you still in college? >> just graduates. >> i just sign it? >> just write -- >> good luck. >> thank you.
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>> so nice to meet you. i want to be a teacher. could you take a picture withio? thank you so much. >> i have the same birthday. i always celebrated -- along with jimi hendrix.
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>> that was great. >> i am married to -- so nice to meet you. thank you for coming to -- >> i have this book. >> ok. oh, my god. >> i'm wondering if you'd be willing to sign this for me? >> sure. >> i just came from -- somebody
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should take these -- >> great. thank you. >> thank you very much. >> you stood for everything that she stood for. she is so excited . oh, my god, she was so excited. because she lived by -- cbs news
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and they did such great coverage on the radio. just watching her, i would get so enthused about politics. thank you for keeping it going. i'm with her. >> these are some of the best volunteers. >> thank you so much. >> thank you for coming. >> so many visitors. >> can i tell you a quick story? i was 9 years old. 1960. manchester, new hampshire. veteran's park. my dad put me on his shoulders and i was eye level with your dad and went i love you. i was i was allowed to stay up to watch the election returns. but it was so late i had to go to bed. in the morn, i was so excited.
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>> what do you mean there is no -- you said it better. >> i know. i know. >> there is a lot going on. here is the change. >> thank you. such an honor. >> thank you so much.
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>> good luck tonight. >> thank you so much. >> that's his christmas card. >> ok. sure. >> one more. one more. i think i got 17. [laughter]
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>> next, a georgetown university law center discussion on the supreme court ruling on the health care law. then live at 7:00 a.m., your calls and comments on "washington journal." >> author david petrusa writes about the presidents. >> harry truman goes to the white house and says to ellenor roosevelt, can i pray for you? and she says no, we need to pray for you.
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>> their campaigns. >> there were a lot of promises made. they said they would need to rent a large hall, much larger than this one. >> and their ideals. >> calvin coolidge may indeed have been the lest jeffersonian. he believes in the limits of governmental power to resist the temptation to extend it. >> this sunday on book tv. your questions and comments from david live at noon eastern on "in depth." also this sunday, middle east expert fawaz gerges. that's sunday night at 9:00, part of book tv this weekend on c-span 2. >> now a discussion on the court's 5-4 ruling on the 2010 health care law. the court said the law is constitutional based on the congress' power to levy taxes.
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that is in reference to the individual mandate requiring most americans to buy insurance. the law says those who can afford to buy insurance but don't will be subject to a special tax. from the georgetown university law center, this is about an hour and 40 minutes. >> good morning and welcome. i am the editor and chief of health affairs. i have the privilege of moderating this distinguished panel today. in the words of admiral stockdale, that famous vice-presidential account, who are we and why are we here? we are here because a momentous decision came down yesterday from the supreme court with stunning implications for the little -- legal community and for the health-care system and health care delivery overall. like the affordable care act itself, the decision amounts for
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amount to a rorschach test. among the nine justices and three opinions -- if you account for justice thomas' 2.5 paragraphs, there was something to make each side happy what apoplectic depending on which open and you were reading. we will hear from our panel whether it is remarkable or out of the ordinary to hear a chief justice accused of heroism on one side and treason on the other, not to mention sophistry, which he was accused of in one of the opinions. i would ask you all, those of
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you who have been students of the law, to ask yourselves when you have read one group of justices accusing the other of judicial overreaching, not to mention burble -- verbal wizardry. that is obviously not the language we typically read in these opinions. the affordable care act, having survived one near-death experience, moves on to what may be the next one, the november election. meanwhile, given the language that was voiced by the dissenting justices and the chief justice himself, we know that the majority of the court thinks the government cannot compel us to do something we are not doing already, unless we are attacked in which case it can. as it was put on our health affairs blog yesterday, millions of americans were able to go to sleep secure in the knowledge that the federal government cannot make you eat broccoli.
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[laughter] we move on now to discuss a little bit more in detail and in depth what the decision said and what it means going forward. not just for the field of constitutional law, but in all of these fields i just mentioned. we have a panel that will be to speak for about five minutes. then lemb sit down and we'll get into some q & a and lively conversation. we will hear first from lewis, a professor of constitutional law at georgetown university and author of "on constitutional disobedience." he is co-author of with the constitutional law." we will hear next from david, a partner and lead counsel for the 26 states that challenged the constitutionality of the affordable care at.
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we will hear from sarah, a professor at the school of public health and help services. she directed the legislative drafting of president clinton's health reform proposal in the 1990's. we will hear from timothy westmorland, counsel to the u.s. house of representatives subcommittee on health and the environment. finally, to the organizer of today's conference, we will hear from greg, the all-star -- -- author of the "hyppocratic myth." advisor to president obama's 2008 campaign and transition team. i will turn things over to mike. >> thank you, susan.
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thank you for coming. i want to start with a confession. my prediction about the outcome of this case was completely wrong. if i had any sense at all, i would go out of the prediction business. [laughter] i thought it was barely possible that the court would uphold the mandate. if you had wanted to bet that they would do so with the chief justice casting the deciding vote. i would have given you 1000 to 1 odds and be much richer than i am today. -- a lot poorer today than i was yesterday. how did this happen? what was john roberts thinking? how could it be that in the two most important cases of the term, health care and immigration, john roberts cast the deciding vote on the liberal side of both cases. i will start by raising two possibilities so we can quickly dismissed them.
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perhaps chief justice roberts just looked at the legal materials, the words in the constitution and concluded that this was what he had to do. that position is just not plausible. david and i agree about almost nothing. but i think we would agree that roberts could easily have decided that the mandate was enforced by a penalty rather than a tax. some of the arguments he makes about the commerce clause and the spending clause do not pass the great face test. here is the other possibility. john roberts has had a midlife conversion. [laughter] maybe he woke up and decided that brennan and marshall were right all along. i don't think so.
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if these are not explanations, what are? let's see how the world looked at john roberts at 10:00 a.m. yesterday morning. the supreme court remains more popular than the president and the congress. confidence in the institution is declining sharply. there is less than a majority of americans who have confidence in it. 3/4 of all americans think the justices use political considerations rather than the law to decide cases. that imsuppression reinforced by the fact that the most important cases, republican-pinted justices are almost always on one side and democratic appointed justice on the other. they think the supreme court handed the election to president bush in bush v gore. may well have handed it to mitt romney in the case upholding voter i.d. laws.
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justice scalia openly attacked president obama in a partisan rant. delivered from the bench. and the president attacked the court as the justices sat listening in the well of the house. then we have what is likely to lie ahead. the court invalidated all of affirmative action and in validating the 1965 voting rights act, the centerpiece of the civil rights revolution. by probably 5-4 votes down republican and democratic lines. faced with this collapse of the myth that the court is acting according to politics rather than the law, it makes sense that roberts would voted for the act. the commerce clause argument against the mandate has become the central defining tenet that
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he would not want to be associated with rejecting it. the spending clause argument holds the possibility of substantially restricting social legislation going forward. he would not want to reject that either. but there were also reasons to uphold the mandate. the mandate is quite on popular, -- unpopular, but other provisions of the law are quite popular. strike down the mandate and you take the repeal of of the table and leave the republicans in the unthe enviable position of defendings the repeal of the popular provisions. uphold it and romney can run on its unpopularity. how are these positions to be reconciled? as it turns out, brilliantly.
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chief justice roberts manages to cast the deciding vote establishing the commerce clause and the spending clause arguments. he also manages to save the mandate, while effectively accusing obama of breaking his campaign pledge to not raise taxes on the middle class. a pretty good day's work. was justice roberts' opinion political? you bet it was. but the best politicians are the one who is manage to act politically while appearing to act on principle. chief justice roberts is one of the best politicians of our time.
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>> pleasure to be with you this morning. it is not as good a morning as i thought it would be. let me talk to you about the long-term implications of the decision and we can talk about what may be chief justice do what he did. i am basically quite happy with what i consider to be the long-term thrust of this opinion. the self-serving part of that, which we pressed for for a considerable number of years -- forward for a number of years have been pushed fourth perfectly by the 5-4 decision. folks have been defending the individual mandates and a half to see that that should pass up. as far as the tax argument is concerned, it was rejected by congress. it was made feebly by the government and at the district court level and pressed little in the appellate briefings. you have to it knowledge that is
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what happened. it is a good thing. one of the thing i want to emphasize -- this case has never been about health care. it has been about the vitality of our constitutional architecture. to paradigms justice kennedy, lopez is the most robust decision in our constitution. that diffusion ensures accountability and prevent a single set of hands from amassing all of the power. that is, in my view, the right position.
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the commerce clause argument has been founded in 200 years of jurisprudence. i remember numerous debates with people not in academia, but in the moon scored kind that -- context debating if we assume the two-step position necessary. did comstock take anything and what is the significance of justice scalia's writing. it is not an independent grant of authority. it does not allow you to escape otherwise existing constitutional limitations in article 1.
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that does not make it any less exciting that five justices embraced it. on the spending clause. since the days of stewart and machinery, which was a 1967 case, we know that there is a notion out there that there are some restrictions on the spending power. take the proposition that the federal government has limited powers. all of them working together. why shouldn't there be limitations for the spending power? i am gratified that the court actually spelled it out. the separation of powers is safe. in the long run, it is a good thing. it is a 5-4 decision and a compelling decision. i give roberts considerable credit. what is unfortunate about the case, leaving aside and the motivation, i would say i am a
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more idealistic person despite being a practicing lawyer rather than a law professor, i would ascribed its two -- it to the legitimacy of the courts and not whether it is going to help president obama or romney. leaving that aside, what bothers me most is that the court rewrote the statute. this opinion in the rates and protect the separation of powers, -- this opinion in invigorates and protect the separation of powers. i do not think any serious student of the law would say that is constitutional. the court rewrote the individual mandate. congress said it is not a tax. you do not need to call it what it is.
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he did not need to label it. it is jarrng to transform an -- jarring to transform it into a tax. that is not the way it is supposed to work. the court wrote the medicaid section. the court said you could not have compulsion. the other way you can do it is the greek way. you can popularize states. the court rewrote the section to give states a choice. that is not how it is written. at the tactical level, it is jarring.
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in the long run, the basic contours of this opinion are going to be imported. -- important. justice ginsburg's dissent is quite vitriolic to underscore for you why i'm right in drawing those long-term implications. thank you very much. >> my task up here is to describe in five minutes or fewer what this decision means for health reform and the transformation of the health-care system.
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i think the starting point is the is central green light that the decision gets to the entire act, which is enormous in scope. it goes beyond the issue of coverage itself and deals with system transformation on matters of health care quality, health care access, improvements in the public health, bringing greater transparency and compliance to the expenditure of health care funds. putting aside the legal significance of it, it would have been almost unthinkable to have done what the dissent wants to do in an attempt to pull this log back. because so much has already been set in motion.
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there have been many articles of course in the past couple of weeks in the barrage of newspaper articles and other reports about the decisionhaving to do with what it means to stop the law in its tracks, what would continue on and what would not. there is no question that had the law been repealed in its entirety in a decision, certain things already underway would have been proceeding like they did in 1994 even when efforts to reform coverage stopped. the law makes so many investment and transformation that i think it's preservation is an absolute an essential underpinning to progress in health care as well as of course a new era in what it mean os to be an american where health insurance coverage is concerned.
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it happens that the areas i know best in insurance law is medicaid. when the decision came down yesterday, people said, you are toast. [laughter] it became my job for roughly 12 hours to try to help people understand what the court had done in medicaid. i actually disagree with david on his characteristic of what they did. if you opened up the statute books today -- not that anybody has had time to reopen things yet. you would see that the medicaid expansion group, all of the individuals whose coverage is subject to 100% federal financing under the new law is exactly the same expansion group as yesterday.
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it sits in the same place in the medicaid statute. what has changed is not that group and not congress's power to create such a group and not congress's power to spend money on this group. not even congress's power to enforce its expectations regarding coverage of that group in the case of states that participated in coverage. what has changed is the remedies available to congress when it comes to assuring some aspects -- not all aspects but some aspects of compliance. how did we get to this? it is one of the great feats of all time. i said to a friend last night that those of us who think the most about coverage of health care of the poor and underserved should call the children and adults that will benefit from the expansion roberts children.
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those of you who know medicaid know there are children to this day are referred to as ribicoff children. because their sponsor created them. >> or waxman children. >> or waxman children. absolutely. we see how he arrived at what he did. there were of course, as justice ginsberg noted, seven justices thought that some aspect of the medicaid expansion was unconstitutional. what chief justice roberts told us is that it was only unconstitutional to pursue certain kinds of enforcement remedies as opposed to creating a group setting expectations for this group assuring the coverage in accordance with those down the line. how did he do this?
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he did it by imposing what i call a two state solution. the superimposed, an astounding but absolutely life-saving distinction between what the medicaid its statute requires and how they get enforced. the expansion is totally lawful and congress has the power to spend money. what congress cannot do is threaten states by withholding money from their existing medicaid program over their failure to implement what he calls a new program. he was able to convince briar and kagen to go along with this. justice sotomeyer and ginsberg were scratching their heads.
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it meant he could then bifurcate the enforcement provisions of medicaid. because the social security act and provisions are subject to their own severed ability clause, it was possible to uphold the expansion while at the same time limiting enforcement of the provision. what we are left with is something that i would say we cannot call a state option today. it is something. it is an element of the program that is the new affordable care act. it is subject to different rules having to deal with enforcement. we await guidance from the secretary regarding how she plans to implement the decision superimposed on the statute. i am convinced 60 million poor
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children and adults will have their benefits because of what justice roberts did here. i think just in closing on this issue of implementation, january 1, 2014 comes around we will have a few states that had either not implemented in whole or in substantial part -- but i think the urgency of the problem is too great. the situation facing 16 million people is too large to ignore. >> i need to begin with a couple of disclaimers. the most obvious one, my views cannot represent past, present, and future employers and funders.
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unlike david i did not focus on constitutional law in the framework of the constitution, i focus on health law. i'll limit myself to those comments. finally, as is usually the case when i follow sarah, i repeat and concur with most of what she had to say. my major points today are that the roberts opinion does no real harm to the medicaid provisions of the affordable care act. it is a mischaracterization of medicaid as a program and as a concept past and present. first, no real harm. what the court struck down is an enforcement tool that no federal official ever has or ever would use, cutting off all federal matching payments to a state doing too little and its medicaid payment. nobody would support this action. it punishes the wrong
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people. it is cutting off poor people's noses to spite legislator's faces. it has always been a problem that they have largely ineffective remedies to states that underpay, underspend, or underperform. the federal government can respond to that. if a state overspends, then federal government can respond. they can take this allowances and refused future matching payments to the state or even ask for a refund. i was in the position of signing a letter to a governor saying, please remit $1 billion to the federal government. [laughter] if the state spends money on the wrong thing the fed can do the same. if the state were to spend money on ineligible people or for uncovered services, the fed can respond. how do you take money back for spending too little? what do you accomplish? no administration past or present would have cut off all federal funding.
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is the threat useful as a bargaining tool? while talking with state legislatures and governors? maybe. but it also is possible for states to simply dear the feds to do something about it. i also think following up on something sarah said, it is unlikely the tool will be needed to get states to take part of the new expansion under the affordable care act. the aca will pay 100% of the expansion with federal funds for the first three years and glide down to 90% for all future years. that is the highest match ever in any federal, state health insurance program. i think the historical analogy here is the children's health insurance program or chip. it is voluntary but all states take part in it. the matching rate is higher than
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medicaid but not nearly as high as what the aca will provide. i also will point you to other optional benefits and services, one of the newest ones his eligibility for women who find they have cervical cancer, they pay higher matching rate. i believe all 50 states are in compliance with it. then there is also from the other side, not just the carrot but the stick, the counter intuitive nature -- the possibility the state could end up with its poorest citizens being altogether uninsured and nobody else. the people under 100% of poverty are not eligible under the statute to take part in the exchanges of the affordable care act. oddly enough the only people under 100% of poverty are legal aliens who have been here less than five years.
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it will be a strange circumstance for a state legislature or governor to be looking at its population and say, these are the only people we choose not to cover. in addition to that there will be pressures from providers of health-care services in the states who were not expecting to see a whole lot of uninsured uncompensated care in the future, at least not among citizens. i think the tool we lost is one that would never have been used and one that probably isn't necessary. but i would go on to say i think the roberts characterization of past expansions and the present one and the affordable care act betrays a misconception of the medicaid program. his opinion suggests the central feature of medicaid as it exists is the eligibility category. where as i -- i think most observers, republican and democratic to have worked on
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this program would say the central feature of the medicaid program is people's low incomes. the existing program is not -- as opposed to how the roberts characterization runs. it is not to all pregnant women regardless of income. it is not to all people with disabilities regardless of income. it is not to all children regardless of income. the common denominator among the many different eligibility categories in the existing medicaid and program is low income. adding the remaining poor people in america to this program fits exactly with the existing program. the program has been altered in many other respects over the years. managed care versus fee-for-service, define benefits versus benchmark plans that were very basic. it has always been regarded as
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the same program for low-income people. i do not know why chief justice roberts and others would want to get to this line of establishing an anti coercion doctrine. i would leave that to mike and david to help me understand. i think they have done it, created this doctrine in a way that misunderstands -- may be deliberately the past and the present and future medicaid programs. thank you. >> thanks a lot.
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thank you to susan for moderating and to our wonderful georgetown law defense programmers for putting this together. i have my own admission to make. i thought the man they would -- the mandate would survive, because i figured based on oral arguments that justice kennedy could not vote against it. kennedy said this about americans without health insurance, they are in the market in the sense that are creating a risk that the market must account for. a bit later he added, the young person who is uninsured is uniquely approximately very close to affecting the rights of insurance and the cost of providing medical care in a way that is not true in other industries. that is my concern in this case. aha. there it is. he will be the fifth vote in this narrow opinion that oppose the mandate or finds a way to
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punt so that the mandate is left intact. i thought it was game, set, match. until i saw you actually have to register or pay $5 a month for the use of the site and i am to absent minded to unregistered. we bet a quarter on this. based on my rationale, i think i should now -- [laughter] if the uninsured were in the health-care market for kennedy, using health care when risk became reality, then the man -- mandate regulated their market activity.
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it didn't force them to engage in commerce. but the temptations for broccoli proved too great for justice kennedy. he somehow said his concern about the creation of risk aside. in the eyes of most progressives who backed the mandate -- some single payers supporters oppose the mandate. in the eyes of most progressives who supported the mandate, justice kennedy did not get it. that is, he did not get the argument driven home by liberals. the argument that people who can afford insurance but do not buy it are freeloaders to burden the rest of us by saying no and then get emergency care paid for by the rest of us. you have heard that argument made. it is an appealing argument and it is a nice sounding message about personal responsibility.
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as an economic, it is deeply flawed. in their oral arguments they drove the message home. only justice roberts -- take your pick, did he just blank out of fear of history's judgment, is he trying to build street credit for judicial activism next year. whatever he was doing, which i guess people will argue it out for the ages, saved the affordable care act. requiring the uninsured to buy coverage acts like a tax. is the same function as actual taxes and health-care systems like canada's and many others that provide universal public coverage. it brings money into the risk pool. the uninsured as a whole are healthier than most americans.
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the anti mandate side brought this message to court with results that were devastating for the argument that the mandate regulated market activity. in justice roberts words, this is the longest ", the individual mandates regulation of the uninsured as a class is divorced from any length to existing commercial activity. the mandate primarily fax -- affects healthy, often young adults who are less likely to need health care. it is because these individuals as an actual class incur lower health-care costs that the mandate helps counter the effects of forcing insurance companies to cover others who impose greater costs than their premiums are allowed to reflect. if the individual mandate is targeted at a class, it is a class whose commercial inactivity rather than activity is defining feature.
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this i suspect -- end of justice roberts' words. it's hard to argue with that position. this is what killed the creation of risk argument for justice kennedy and almost killed the affordable care act. had this court been content with its last 75 years of commerce clause jurisprudence, the free rider argument might have been enough. for an activist court intent of going back three-quarters of a century of jurisprudence to cross out subsidies from the healthy and the sick obscured, by the free writ argument argument were fatal. the argument of being at risk for illness but not buying coverage constitutes action or inaction does not have a purely logical answer. this argument is a mere place holder or veil to the
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classic conflict. it will now have added over this issue to our politics. the most immediate consequences of the court's decision, is that an election will decide the fate of the affordable care act. meanwhile, implementation will proceed. the pace will vary. tea party dominated states will stage their versions of a sit-down strike over creation of insurance exchanges and many other features. including sarah's and tim's subject. in the coming electoral season, many will complained about the cost of expanding coverage to 30 million. i will conclude by observing i will conclude by observing this
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