tv Washington Week PBS June 29, 2012 8:00pm-8:30pm PDT
gwen: the healthcare ruling that rocked all three branches of vernment. what it means for washington and what it means for you. on "washington week." >> if you are one of the more than 250 million americans who already have health insurance, you will keep your health insurance. gwen: a huge day for the supreme court yields a big reprieve for the obama administration. the surprise man in the middle: chief justice john roberts. but is his the last word? >> when we return the week of july 9th, i've scheduled a vote for total repeal of the obamacare bill to occur on wednesday, july 11. >> our mission is clear -- if we want to get rid of obamacare, we're going to have replace president obama. gwen: a week full of hot-button action includes a critical immigration ruling and a vote to find the attorney general in
contempt of congress. >> in fact, what they're doing is covering up their own false statements. >> shame on you! shame on you! gwen: high drama in washington. covering the week, joan biskupic of reuters, pete williams of nbc news, john dickerson of "slate magazine" and cbs news and naftali bendavid of "the wall street journal." >> award winning reporting and analysis covering history as it happens. live from our nation's capitol, this is "washington week" with gwen ifill, produced in association with national journal. corporate funding for washington week is provided by: >> this rock has never stood still. since 1875, we have been there for our clients through good times and bad. when their needs changed, we were there to meet them. through the years from insurance to investment management, from real estate to retirement
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station from viewers like you. thank you. once again, live from washington, moderator gwen ifill. gwen: good evening. a remarkable week in washington, and we'll get right to it. there is almost no underselling the scope of the victory the obama administration scored at the supreme court this week. the man they have to thank? not perennial swing voter anthony kennedy, but chief justice john roberts. consider the contours of the court's two 5-to-4 votes to uphold the affordable health care act. a majority actually rejected the administration's central argument, that the mandate to purchase health insurance is permitted under the constitution's commerce clause. on that point, roberts sided with the conservative majority. but the chief justice swung the other way on a narrower matter, voting to redefine the mandate as a tax, which he and the court's four liberals said is constitutional. right off the bat, the first question -- what's the
difference? >> you have to look at this through two lenses. through the law itself, it's upheld. it's upheld, it stands, it's the of barack obama's domestic agenda. he goes forward with it, it's a very big deal that way. in terms of the liberal rationale, the most important thing is what does it say about john roberts? here's the chief justice who has never been a key fifth vote with the liberals on a major case and it comes in this big matter and it shows him trying to bridge ideological differences. he decided to go with the the obaman administration's secondary argument, on the taxing power. it didn't get a lot of play when we were presenting this in march but it was always in the case, it was always there for him to pluck if he wanted to pluck it. gwen: in the end, how surprised were you about john roberts being the key link pin here? >> i think i was more surprised that it was upheld on the basis
of the taxing power than i was that it was john roberts. the last time joan and i were on here, she predicted the supreme court would uphold it. i predicted it wouldn't. clearly someone changed their vote. but i don't think anyone came out of the arguments thinking they'll uphold this on the taxing authority and this is why the roberts' opinion is so interesting because he gives the liberal this is victory on the law but gives the conservatives this huge vote of support for what had been the central argument all along, that the congress' commerce power does not extend to somebody who isn't doing anything. if you don't have insurance, you're not in commerce, you can't be regulated and roberts has a forceful opinion agreeing with that so he falls back to the government's fall-back and he says but congress can tax almost everything, the founding of the republic, there was a head tax, you could be taxed for standing there so he says congress can't reach you for doing nothing but you can be taxed for not buying insurance. gwen: go ahead. >> reading the opinion of john
roberts, you get the sense he knew what he wanted to decide and figured out how to get there. that's how it reads. like he knew the results, then the reasoning came second. >> we see this all the time to tell you the truth. not so much that but the reality if they can decide something narrowly and if they can find an act of congress constitutional, they need to do that. gwen: he's said as much. >> it's an old tradition. theoretically, all conservatives across the spectrum have said you defer to the legislative branches so here you have congress having passed this thing so you'll already have this natural deferring and the idea if it can be upheld on any constitutional grounds, go for it. so i actually didn't think it was so stunning but when you think of the politics that surrounded this thing, it's easy for people to see it that way. >> i will say i think the decision is a little hard to understand because he says at one point, quoting from his opinion, "the law makes going without insurance just another thing the government taxes like
buying gasoline or earning income," and i think it's hard for people to think that not doing something is something that can be taxed and especially when you consider that in part of the opinion it says, you know, for purposes of another law, which says you can't sue about a tax until it goes into effect, it's not a tax, but it's ok under the taxing authority. that's awfully slicing it awfully thin. gwen: you mention it's debatable, the taxing authority. president obama in 29 2009 gave an interview in which he said adamantly that was not the case. he bristled when abc's george stephanopoulos, said the mandate was, basically, a tax. >> no. that's not true, george. for us to say that you've got to take a responsibility to get health insurance is absolutely not a tax increase. what it's saying is, is that we're not going to have other people carrying your burdens for you anymore than the fact that right now everybody in america, just about, has to get auto insurance. nobody considers that a tax increase.
>> what did the other justices, particularly john roberts, conservative allies, think about his tax argument? >> i will say this about what the president said. the supreme court basically says it doesn't matter what congress called it, you look at how it functionally acts and it's a tax. the i.r.s. collects it, you report it on your tax form, it's stuck in the part of the federal law with the tax laws in it. what the conservatives say is that basically that congress deliberately rejected it as a tax. that's their claim. there's a contrary argument that congress debated whether it was a tax and said it was but the conservatives say it's clearly a penalty and this is the court becoming a tax writer and only taxes can arise in the house. they were just appalled by the majority decision. >> and the dissenters said you have this fly-by-night argument, criticizing the fact that the administration hadn't highlighted. to your other question about does it become a tax because
chief justice john roberts has declared it one? he didn't declare it a tax for outside the marble building, but declared it a tax for the purposes of the law. >> republicans are jumping all over that. >> saying it's not a tax. >> they say you were misled by the obama administration, they said it wasn't a tax but john roberts is upholding it solely because it is a tax so he may not have intended it to go outside the law but it's being used. >> let me say one other thing about how the law works and how it's always worked. if you don't buy insurance, the law says you have to pay this penalty but guess what, if you don't pay the penalty, zip, there's no punishment in the law. now, the i.r.s. can try to get your money. they can withhold it from your paycheck and take it from your refund but they can't prosecute you. there's this amusing thing in the government's brief, if you don't pay this penalty, the i.r.s. can come to your house.
gwen: justice kennedy in his disint, he said it was a vast overreaching of government. >> he invoked a phrase that means something to us over there, the idea of jrge modest, you're immodest. and he said, you're casting this as judicial modesty but it's really immodesty and you're saying it's restraint but it's an overreach. gwen: that's almost a smackdown. >> in our world it's an exciting word. but the truth is, what anthony kennedy who we see as this centrist conservative, he would have thrown out this entire law so if he had prevailed as the usual man in the middle, we would have a much different nation right now but what he said, he said it in this muted tone in the courtroom, but the chief prevailed. what are you going to do? gwen: i want to get back to healthcare for a moment but don't want to skip over another big decision that came out this week, involving immigration.
the arizona immigration law. >> they upheld one of the four sections being challenged. they said it's all right for the police in arizona to check on their immigration status before they release them and struck down three others but in doing so, the opinion, written by anthony kennedy, said, look, the states have a limited role. immigration is a federal responsibility. there are foreign policy considerations, so go ahead, arizona, we don't know how you're going to enforce this because it's not in effect yet, do your best but we'll be watching. it's a pro-federal responsibility. gwen: aren't there other states with this law in the pipeline? >> five other states followed the lead of arizona and others were waiting to see what was happening but the signal from the supreme court and this is again favoring the obama administration was, don't go away there. the federal government has broad powers in this area and kennedy
saying, for good reason. so i think it was a warning to the states to cool it for now. want to go back to the political fallout from the healthcare debate. it turned out to be an interesting week. >> let's make clear that we understand what the court did and did not do. what the court did today was say that obamacare does not violate the constitution. what they did not do was say that obamacare was good law or that it's good policy. >> it should be pretty clear by now that i didn't do this because it was good politics, i did this because i believed it was good for the country. i did it because i believed it was good for the american people. gwen: both campaigns say they have raised millions of dollars since the court ruled, and congressional republicans have already scheduled a vote to repeal the law next week. who was more shocked at the way it turned out? the democrats or republicans? john? >> the republican -- all the people i talked to in republican camps before kind of felt it was not going to be upheld. they thought this was going to be a big loss for the president
and they were leaning a little forward into that answer but all sides had multiple answers prepared for all eventualities. the met had several statements he had written. his aides said he only edited the one saying if it had been upheld but he got early reports from news organizations that it had not been upheld and in chicago -- gwen: he turned on the television. >> in chicago, where his campaign headquarters was, his top aides were watching tv and they said it was a gut punch because they thought it had not been upheld and as they were trying to figure out what to do, a huge roar went up in chicago because everybody had received the subsequent information that it had been held. now it's finally happened and in the republican camp, there was a coordinated response, so what does it mean? we saw the president come out
and say, he was clearly happy, hugging his aides. he talked about all the people by the law and would continue to be helped and he turned the corner and said we're not going back and you talk to his aides and they say, a, he doesn't want to have a fight about something he's been losing. the supreme court upheld it but it's an unpopular law. the president doesn't want an old fight that's unpopular and he feels people have moved on. when you look at a recent poll, healthcare comes in third. the jobs and deficits are first when it comes to what people think is the most important issue. gwen: i saw a lot of theory, especially in the tea party caucus, in the house especially, anger at john roberts in particular. >> there is a lot of anger at john roberts because they felt he was one of them and he was one of their proudest accomplishments and they feel he betrayed him but the republicans are saying we're going to talk
about this every day until the election. the debate has just started. the democrats are saying case closed, the supreme court has decided, it's time to move on. so you see very different approaches and it reflects different calculations about the voters want to hear. the republicans think this thing is unpopular and it will benefit us to talk about it and the democrats are saying the voters want to talk about the economy and jobs. gwen: i don't hear mitt romney saying it would benefit them to talk about it because he has that massachusetts problem. >> both sides have a problem. the president narrow casts it. more broadly, down ballot candidates, house democrats in some of these states, they don't want to talk about healthcare. mitt romney has a similar problem which is as naftali says, congressional republicans want to talk about it, mitt romney raised almost $5 million on this. the tea party loved it. gwen: that's in the last 24 hours. >> any conservative who was not already in line behind mitt romney, they're rushing to the front of the line because they
know only by electing him will they overturn this law but if mitt romney wants to get people who are already not on his side, he has to make the case about this law in detail but he put forward a law in massachusetts that was not only an individual mandate but a tax penalty if you didn't sign up for health insurance and that's now what john roberts has said. gwen: one at a time, people! joan? >> i was going to say, the idea of getting into the details, though, i realize it's so hard but hasn't that been the problem for the administration, that it hasn't been able to sell all the benefits of this healthcare law so you have these polls showing people don't like it but when you ask about specific provisions, they like that. but it sounds like you're saying they don't want to make that effort, they'd rather turn away from that? >> they do see it as an opportunity to relaunch a messaging battle they concede they've lost and you heard that on the day the opinion came out but first and foremost, they want to turn the page. you heard it in the
conversations of almost all the democrats. the week they come back from the fourth of july recess, the republicans have a repeal measure they'll bring up. it's the 31st time that the house will vote to repeal all or part of the bill so it's hardly the first time. >> and the senate doesn't follow through. the senate will ignore it. it won't accomplish anything but it will make a point. that same week, senate democrats will bring up a jobs bill and that shows you exactly where both parties want to go. >> joan asked my question so i'll ask another one. does the fact that the chief justice wrote this decision in any way defang the politics of it or do people just not care about the makeup of the supreme court? >> i actually think -- i think that's actually a very important but somewhat subtle result of this whole thing which is one of the big arguments against obama by the tea party folks and others is either that he's incompetent, he's in over his head, that whole argument, or that he's a radical left winger and i think to have the chief
justice, a man who is part of the conservative movement, who walked in the reagan white house, it was a big deal when he was named chief justice, to have him sign on to an opinion that says this is within the bounds of american law, i think is going to -- obama looked like a winner this week and i think that is -- gwen: it's been a while since that what happened. >> absolutely. >> 76% of americans thought the court would make a political decision not based on the law but politics and if that's your frame of mind, you think john roberts will rule against the president. he's conservative, president's democrat, quasi liberal, of course he's going to rule against him so the fact that he helped the president affixes the betty crocker seal of approval a little more on the bill. gwen: doesn't this debate about taxation hurt? that's the third rail of politics, you don't want to be called a tax raiser so you have the same guy that was helpful on one hand say on the other hand this was a tax. can't the republicans use that? >> people haven't been confused about the tax on the law part
where it works only for the purposes of being in the building but expires once it gets out. the white house couldn't have been happier for john roberts upholding it on the basis of it's a tax but they don't want to get stuck with the fact that it's a tax so you get into the word games but the word games get more exciting because mitt romney, now, if he's to sign on to the republican view, which is -- and mitch mcconnell was very smart today. he said what john roberts has shown us is that the president slipped in a tax we didn't know about and that's this enormous healthcare plan is a tax and that sounds like a good argument for people who don't like taxes but we have the mitt romney massachusetts problem. in massachusetts, they did call it a tax and it's of a similar model to what is in this bill so mitt romney if he wants to jump on to that anti-tax argument, he has, in his past, a big problem. gwen: you talk about word games. i was listening to mitt romney when he talked about this and he said he would act to repeal this law his first day as president.
act to repeal and repealing it -- like i will act to close guantanamo. know what happened there. >> that's one of the big questions. republicans are saying, ok, now that the court has decided this, only opportunity to get rid of this law we hate is the november election but there's a question even if they win the november election, that is to say they win the presidency and retake the senate, what can they do? it takes 60 votes in the senate to do almost anything and a reconciliation process that takes 51 votes that only applies to budget and revenue measures. it's not clear that even if the republicans win the next election, they can actually take this back. >> if the congress were to repeal this, if the republicans got enough votes to do it, is there any interest at all in coming up with a replacement? or would that be years down the road? >> they would have to do a replacement bill right after the know thecause they issues are still -- the president didn't give people something they didn't want. people want a healthcare bill. he just gave them a version they
don't like but the support is much there for people to want something to fix the healthcare bill. gwen: i think we can all agree this was one of those rare and genuine surprises in washington not only at the supreme court but also on capitol hill and as we discovered because the president had the television on mute, the white house. this week, house republicans joined by a number of democrats voting to hold attorney general eric holder in contempt of congress for refusing to hand over documents related to a failed justice department gun walking operation along the mexican border. was this for show or was there more at work here, pete? >> i think both sides have problems here. the justice department initially told congress some information that wasn't true. they said none of these guns walked. in a letter they sent up there and had to walk that back. the house investigation has genuinely come up with interesting questions. now, after that, things go off the rails a little bit and youu. mattle have this showdown not
theally what happened and reason it's such a big deal is because some of these walked guns ended up at the scene where a border patrol agent was fatally shot. they have the documents about that. what they want is documents from last year about how the justice department responded to congressional inquiry. one step removed from the thing itself. gwen: but even at its height of this debate, i never hear anyone saying that eric holder knew about this operation and the border agent. >> and the chairman of the committee behind this, darrell icy, said last weekend he's satisfied eric holder initially wasn't covering anything up. gwen: considering the fact that today the justice department will not be investigating this, they will not be pursuing this -- >> prosecuting. gwen: prosecuting the contempt of congress citation. was this just politics? >> it was politics, of course, but as pete said, there was smoke here in the initial part of it and so --
gwen: just the contempt citation, taking it this far. >> yes, that is a very popular item among serves so taking it that far but what republicans say is that the danger, of course, when you go too far in pleasing your base is that people in the middle say this is just politics and it's over the line. but they feel, republicans, in talking to them, feel that basically what pete outlined, which is the underlying nutiness of this case and the fact that there's legitimate things to look into here, give them a bit of cover and it doesn't look like as much of a witch hunt. >> but the latest development was inevitable because and democrats both running the justice department have taken the same position, if congress finds contempt and sends it to the justice department, the justice department, under a memo written by ted olson when he was in the reagan administration, said, look, we're not going to prosecute anyone protected by executive privilege and secondly, separation of power.
since when does congress get to tell us who to prosecute. you knew nothing would happen. >> and it happened in the middle of the supreme court thing. gwen: i wonder if that was part of the plan, naftali, to bring it up when the most attention was on the supreme court. >> the scheduling happened before we knew when the supreme court's decision was going to come out. this back-and-forth happens in every administration. there's a point at which whoever's in opposition asks for documents of some kind from the administration and the administration at some point says no and we have a back-and-forth that usually involves executive privilege and/or contempt and the sense of a blowup and this was the obama administration's turn at that. gwen: this was this week's blowup. i wish we had another hour and a half to talk about this. it was a fascinating week. about the more immigration decision online tonight in a special town hall. our partners in tucson and san diego are part of the fronterra staging america desk
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