tv Jansing and Co. MSNBC June 28, 2012 7:00am-8:00am PDT
good morning. i'm chris jansing. and today, history will be made at the supreme court as the nine justices weigh in on the signature achievement of barack obama's presidency, health care reform. signed back on march 23rd, 2010. >> today, after almost a century of triumph, today, after over a year of debate, today, after all the votes have been tallied, health insurance reform becomes law of the united states of america. >> kill the bill. kill the bill. >> what do we want? >> health care. >> when do we want it? >> now. >> i think the slogan will be repeal and replace. >> this is a busy week, by the way, for the supreme court. i think all their work highlights theç leadership failures of our current president. >> i really think that there's a decent chance that you will get
a decision that upholds this law. >> if they uphold the law, which is unpopular, it is going to be a rallying cry for republicans across the country. >> i do think that the court will surprise a lot of people when it probably upholds the affordable care act. >> what you're going to see is what people want us to do, start over with a clean slate. >> controversial, consequential, this is going to be, arguably, the most significant ruling by the supreme court in decades. any moment, we will get that decision on the affordable care act. struck down or upheld, it will impact virtually every american. and this morning, you can see protesters outside the court. they are on both sides of the debate. many democrats are standing by the president's decision to tackle health care. republicans have rallied around that mantra you just heard, repeal and replace. and significantly, the decision comes four and a half months before the presidential election. we are covering this story here in new york, in washington,
d.c., with our political panel and legal experts and before we get to our panel, let's take you through all the possibilities. first, the supreme court could decide the entire law is upheld or they could strike down the entire law. here's where it gets more complicated. the court could strike down just the individual mandate but uphold the rest of the health care law or strike down the individual mandate and pick the health care law apart, including some keyç provisions. for example, covering people with pre-existing conditions and expansion of medicaid. we will know this hour what the justices say and it is worth noting that it could take a little while to dissect what is expected to be a weighty ruling. let me introduce our panel for this hour. chris matthews, host of hard baum. chief foreign affairs correspondent and host of "andrea mitchell reports," andrea mitchell. nbc news political director, chuck todd, host of "the daily rundown." and the "washington post's" eugene robinson. good morning to all of you.
>> morning. >> morning. >> chris, let me start with you, is it possible to even overstate how important this is to millions of americans, of course, who will be affected by it, but of course to barack obama as well, personally, his legacy, the capital he spent to get this passed. give us some perspective on this. well, i mean, getting rid of health care, if they strike it down, phone they strike down the individual mandate it is almost like striking down the reagan tax cuts during the reagan -- the main piece of what he came to office to do was health care in many ways. it was the landmark accomplishment of this administration. the republicans will be able to argue a lot against him if this is struck down. they will be able to say he behaved unconstitutionally, he violated his oath. he's done all the bad things we always accused him of. maybe he was technically born in america but he is not really won of us. it could get really, really strident if they win today politically, a lot riding on it, positively and negatively. >> chris, the white house was
quiet yesterday. "the wall street journal" says the president is preparing three differentç speeches depending,f course, on what happens. but if any part of this is struck down, is there any way for him to spin it as anything but a loss? >> well, that's my question coming here this morning and overnight and thinking about it. i mean, that's the question, will he do that? will he say the supreme court has acted in a partisan fashion the way fdr did back in the '30s? will he go to war with the supreme court? ly accept the moral authority of the supreme court saying i will try to make the best of what i've got left here? this is a war with politics, do you go to wart supreme court or take your spanking here? i'm worried about this i think there may be a real lack of leadership that might become apparent here if he takes the spanking if he gets one and doesn't fight it and saying this supreme court is following a position back to bush v gore and back to citizens united, which is partisan. because i think a lot of honest brothers, will say had the
heritage foundation produced this for a republican majority in the congress and had this come from the republican side, the exact same bill, would the supreme court strike it down, this republican-leaning supreme court? and most people will say the supreme court wouldn't strike down something that came from the heritage foundation, via people like bob dough, and call it unconstitutional t is the political parenthood of this that is being questioned. i believe, and i think the president has got very bad press on this and i think the republicans and the people on the right have done a very good job of creating a mood that this is wrong. i just saw the polls this morning, the individual mandate only gets 30% support in theç country, which opens the question, can the president win a fight against the supreme court when he is only holding 30% of the public behind him? this is real politics after this decision. >> you ask people about some of the very individual parts of this, including you covering students, for example, up the age of 26, people with pre-existing conditions, those numbers for support go way up. chuck, give us a sense of what you know. take us inside that white house.
>> yes. >> are you getting a sense of what the president is thinking and how they are going to approach this? >> well, you know, it will be a shock to me if they decide to go strident at the supreme court. i think their expectation is the -- the one thing they don't expect a full overturn. in their heart of hearts, they think it is going to be somewhere in the middle. they still think they have a good shot at full uphold. they have always believed that, that at the end of the day, that they, you know, when you look at the various different conservative jurists on lower courts that have looked at this and have upheld the law, they believe that ultimately, this whole thing will get upheld. and that if there's parts of it that are struck down, it will be "severable" that the court will find it that way. so, they are not -- a full overturn and perhaps what chris is outlining, you know, perhaps maybe that changes their political dynamics. my understanding, that isn't the thinking they have, as far as
the mechanics of today f it is a full uphold, we will hear from the president sooner rather than later. the more complicated decision is the longer it may take before we hear from him. i have not heard what theç "wa street journal" reported, which is that there are three speeches already done. trust me, there are not. one speech they have ready, which is the full uphold. other than that not. >> and i'm just told, am i right, angie, that we have a decision. so we are waiting. it will take just a few minutes. each news organization was allowed one person in there to bring out that decision. pete williams, our chief justice correspondent is in there. it may take him a couple of minutes actually to get to the camera and report that decision, but again, i think it's worth noting exactly what we are looking at here. this could get very complicated. so, it may take a while for us to parse this decision. but it could be upheld, struck down, parts of it could be
upheld or struck down. the individual mandate, obviously, is the enter piece here. it is the key. let's go to pete williams. not yet? he is not there yet? all right. obviously, there are other parts of this that people are watching very closely. the court could rule and this is something people are watching extremely carefully, separately on whether new medicaid requirements for the states are constitutional and the court could say that the legal battle was frankly waged too early. that is the least likely of what's probably going to happen here, that that's the decision that they will make. we are expecting, again, for it to be voluminous. this is something thatç was a very long argument. the oral arguments were very heated. and you can see from the people who are standing outside the supreme court right now, just how important, how consequential
this is going to be. andrea mitchell, give us your perspective from there in washington this morning about people holding their breath as we are waiting for the results of this to come down. >> well, just imagine, you're looking at the scene live at the supreme court. only blocks away, mitt romney is supposed to respond at noon to his supporters. you have got all of the players, nancy pelosi, john boehner on the hill, this is probably, as pete williams is reporting, court decision, assuming it is decisive and not muddled, in 80 years. we are talking about the whole future of state versus regulation you can of the commerce clues. that is how you important there is. there is reports the stolen valor act was struck down, one of the major decisions of this term, the final day of the term before the supreme court takes off for the summer. just to reinforce something that
chuck todd said. remember that this ruling, the health reform act, affordable care act, which republicans like to call obama care, was upheld by one of the most conservative jurists just below the supreme court, judge larry silverman, who believed that it was constitutional. that was what the white house took as a strong argument, a strong indicate they're it would be upheld if it were given a fair hearing.ç now that we know the decision has been handed down what kind of decision this will be, but as pete and chuck and chris have been saying, you could have nine separate reasons for either upholding, in part or. we have seen major supreme court rulings, chris, they are very, very specific and individual jurists, even among certain blocks, can take certain and very different -- >> let me interrupt you. going to pete now.
>> upheld the health care case. they have said that it can't be upheld under the commerce clause, the individual mandate can't. this is chief justice roberts writing for the court. but he said it can be upheld under the court's taxing authority. so the bottom line here is the supreme court has upheld the health care law. it is a penalty, not a tax. nonetheless, the chief justice says it can be upheld under the court's taxing authority. now, i haven't had any chance to read what the vote breakdown is here but it is chief justice john roberts writing the majority opinion, saying that you can't uphold the mandate under the commerce clause, so this gets at the argument that it's wrong for congress to require everyone to buy health insurance so they have left the penalties, the tax intact, and they say congress can do this under the taxing authority. so let me juspç take a brief moment to look at the vote
breakdown, matt. >> we are going to get took pete williams but this is an extraordinary moment. let me just again tell you what happened here. the supreme court has upheld the individual insurance requirement, what is known as the individual mandate. that is at the heart of president barack obama's health care overhaul. they essentially handed president obama a huge victory. this was the centerpiece of his administration. he put all his political capital at a time when both houses of congress were controlled by the democrats, he put it all out there. a lot of people, including rahm emanuel and others at the time told him you shouldn't go there many presidents tried to do it and failed. chris matthews, let me go to you. again, we are waiting for the vote breakdown, waiting for the details, the huge headline here is the court has upheld. this your reaction? >> well, they are doing high fives at the white house right this moment, i will bet on it.
this is a big victory for the president. it was his place in history, as i said a few minutes ago, his landmark achievement of the first term, what he put all his capital on. had this gone down mainly this is an avoidance of disaster, but had this gone down, in the short run, it would have been much bigger. being upheld, help him avoid a disaster. in the campaign he still has to carry the weight of a proposal that is still not very popular. he still has too carry it, but won'tç have to carry ate tack was unconstitutional. a big victory for him, an owe motion, i should say. >> chris jansing, what we were just saying before the decision was announced by pete williams that what larry silverman and the lower court said was that the individual mandate is constitutional, not under the commerce clause, by the solicitor general, but the taxing authority. what justice roberts is doing here and we have to wait for what pete says and how it breaks down in the vote, is -- it's --
it really does reinforce that there is a rule of law that goes beyond partisan politics. i think this will be very -- >> by the way -- roberts is a better solicitor general. >> by the way, there was and chris jansing this is important, people need to understand and i remember there was a law professor i believe the university of texas that first threw out this idea that there was a "bay weigh to split the baby" here on the mandate versus the tax. two separate provisions in the law, one pro-vifgs the mandate, but the taxing part, the penalty, the fine, was under a separate provision. so you gave the opportunity for kennedy and roberts to "split the baby." saying this is too much for the commerce clause but you can't penalize people for not having health insurance. >> let's talk a little bit about this. the president, who frankly, as we said, put so much political
capital into this, huge win. i mean, what do you think -- i mwan obviously the first thing, chuck, we are going to hear from the president, as you suggested, sooner rather than later. >> this is number one. yes, the mandate, sort of a pyrrhic victory here for the right about the mandate. they can say that they were right and i told you so. what's interesting here, i remember one of the lead attorney generals on the right admitted, if the obama administration would simply a own at tax part of it then it would be constitutional so, there were some even conservative legal thinkers, who didn't like the mandate you fighting the mandate, acknowledged the penalty portion of this, did make it constitutional. public relations-wise, they didn't want to say it was a tax, if you recall. they kept wanting to call it a penalty. this goes into the wholez argument. >> grover norquist. >> exactly. at the time, they were trying to win over republican vote he is.
legally, they are happy, but pr-wise, they blew at the beginning because they were worry about the politics of taxing. >> but this certainly will go to the whole argument, the republicans were prepared to argue today that barack obama's entire three years, four years of his presidency were wasted on this major initiative this ruling, as yes weunder stand it to be, completely undercut thus argument. politically this has to be a big win for the white house. >> again, 16 minutes past the hour, this came down very quickly. we want to just let people know who are joining us. the supreme court has upheld the individual insurance requirement.ç that is the heart of president barack obama's health care reform law. i want to also bring in jonathan turley, law professor at george washington university law school and ken jie yo sheen know, constitutional law professor at nyu law school. dissenting justices including had scalia, kennedy, thomas, aleet toe, your reaction, ken jie?
>> the one thing we haven't hit yet this is a huge victory for the legitimacy of the court. the thing most reminiscent of, chris, the 1992 casey decision in which a court that had been stacked with republicans supposed to get rid of the abortion right nonetheless upheld it you know, breaking down sort of partisan barriers. i think this is a really great day for the united states supreme court, so far as we have roberts writing the majority opinion. >> jonathan turly, let's talk a little bit about that one of the things we learned, first of all, the approval ratings among the american people for the supreme court have dipped significantly over the last decade. i think they were around 44%, the last poll that was taken. and there was a lot of concern that much like the rest of the country, this was a court that was deeply divided, not just divided constitutionally but politically and that the american people had always held the supreme court in a much higher regard, believing they were, indeed, above that
political fray. do you think that helps to repair some of that damage? >> it is very interesting because when roberts went through his confirmation hearing, he was very clear around passionate about trying to get away from 5-4 decisions. that would not be the case here. but he was trying to say that hç wanted to bridge that gap on the court itself and he just did that in immigration, just the other major case handed down this week. it was roberts that joined in splitting that baby, so to speak, and saying that the federal government has sweeping authority, preserving one provision. now again, he has appeared to bridge again this point on health care. i think conservatives are likely to be highly disappointed in him, supporting the more liberal justices, more importantly, as the report indicates, the majority feels that the commerce clause was not sufficient to support this mandate, what happened here is they have
created this ability to get around it the for the tress of the commerce clause. if you take the tax road, you can go around it and achieve the same ends. that is not going to be what a lot of federalism wanted. they view this case as sort of the alamo for states rights, the court has been bleeding federalism for many decades and they wanted a very strong opinion. they play is gotten it on the commerce clause but the court may have also affirmed that you can avoid the commerce clause entirely by basing something on the tax power. >> so, let's also talk, chris matthews, about what this means for the republicans and the suggestion has been that if this happened and i certainly didn't talk to any republicans in congress over the last month or so who thought that this would be the way the ruling would come down, but there certainly was a lot of thought that if this was upheld, as it has been, thatç e republicans would use it as a rallying cry, that this would
be, for them, an opportunity to really energize their base. does this help or hurt the republicans? >> had the supreme court ruled that the president's landmark accomplishment was unconstitutional, the american right, perhaps not officially through the romney campaign you can the american right you the super pac money, the koch brothers, people like that, would have said we now have a ruling on this president's legit mass i is he -- legitimacy. it can be more severe than you can imagine. they don't have that sword right now. what they will do is rally against the politics or the policy of the health care bill they still believe is u.n. popular but nowhere have the weapon they would have had to wield. and i'm focusing now you watching this amazing decision where judge robert, the thief justice, held with the liberals. this is, i believe, trying to get into the heart of judge
roberts right now, a moral decision. he found that route, the tax route that justified this because he wanted to justify this act. did he not want to be the chief justice that struck down health care, because it's the only health care plan in this country available right now. there is no alternative republican plan, nothing waiting out there the next 10, 20 years. this was t this was it for health careç 230r9 0 milli30-s million. he and his wife, i think they said this is a case that matters morally. you are the chief justice. it is going to have your name on it one way or the other, not anthony kennedy's, your name is going to go in the history books on this better off morally being where the country wanted to go in terms of the senate, a super majority of 60 senators, a majority in the house, the president's signature, the mandate of the public behind it. for you to strike it down would put you in the same position of say a roger tanny back in the civil war, upholding the
fugitive slave law. this is not the right way you want to play your role in history, by being the one who strikes -- so i think it is a big moral decision by judge roberts, i think he found the tax opportunity to say the penalty was a tax and there for example it was constitutional, rear than focusing on interstate commerce clause, yes could have said this was unconstitutional. i think it was a moral call by him. of course, i think is the right one. >> i want to go outside the court. kelly o'donnell is standing by and i know you have the ruling there in your hand. i don't know how much time you have had to look through it. i do >> one of the questions i have is we knew the court could rule separately on whether the new medicaid requirements for the states are constitutional. have you had a chance to look at that yet? >> i have looked that the part. and what's interesting here is the premise was that if states receive medicaid funding to insure those of low income it is an all or nothing fuchbld to get funds under the affordable care
act, they have to expand. the court says that cannot be. states should be given the opportunity to withdrawç but n lose everything else. that it is a significant change. so how would this practically roll out? that is a big question, because some states would be able to opt oufrmt having states participate, expanding the pool of people who qualify for medicaid, one of the central ways you would insure so many who are currently uninsured. this becomes again a state issue. what the states had argued to the court back in march was if you force them to take more responsibility too get funding that is coercion and basically violate the sovereignty of the
states. the court is saying they agree with the idea that states should be able to make their own decisions without the penalty of the whole law falling. a lot of this will have practical implications that we will see unfold over the days ahead. but that's where there is sort of a split decision in what the court is finding and that was written by justice roberts, the chief justice. just to give you a sense of the atmosphere here, there are probably now in excess of maybe a couple thousand people lining the area around us. lots of cheers. lots of reaction. went first words were out that the court had upheld the individual mandate and the law would stand.ç any attract pro-toefrs sides and those who want to see it unfold, quite a sight in front of the court this morning. >> if you would have had a chance to take a look at what
the court had to say about medicaid. >> no i haven't, i have been getting bits and pieces in my ear. that would be a significant win if the supreme court said this was an unconstitutional burned on states this is an issue around for decades, these types of man dates from the federal government. the court has pretty much only given lip service in the past them keep on saying it is possible that you are going to cross the line at some pointelle and put a burden on states that would be unconstitutional. what we just heard is correct, the court seems to have buttressed that principle, actually come down and said that the states have to be able to opt-out. that does create a rim affect if that is the case a majority of stays in the court opposing this law. if they had the ability to opt-out, most of them probably would. i don't see how the health care law can survive if the pool is reduced by that amount.
the whole premise of the health care system in this bill is you needed to force young people to buy health insurance because frankly, they are not going to get as sick as often. so, they will make it affo affordable. if you -- you can require people to get health care butç states can opt-out. that is going to have the counter affect, reduce the pool again and make this very precarious in terms of its staying in an efficient system and being affordable. >> we should say the political reaction has started to come in. there is a camera and a microphone set up outside of the supreme court. we are expecting a number of members of congress dom to it. some of them in the room, had a ticket to be inside there nancy pelosi, the majority leader of the house has already tweeted, "victory for the american people. millions of american families and children will have certainty
of health care benefits and affordable care." now, to the point about the medicaid provision, here is what i'm reading and hope to get pete williams outside the supreme court shortly. "the court found problems with the law's expansion of medicaid but even there, said the expansion could proceed as long as the federal government does not threaten to withhold states' entire medicaid allotment if they don't take part in the law's extension." outside the supreme court to pete williams. what can you tell us? >> i think let's step back here and sort of look overall at what this -- haven't add up the pages yet but it is a very big decision. what you have here is the court leaving the health care law in place but not intact and what they have said as far as individuals go, the mandate is ç unconstitutional. you cannot require people to buy health insurance, congress
doesn't have that power. the court basically send the argument of the critics here who said that those three words in the constitution that congress has the power to, quote, regulate commerce, means that congress can regulate people already involved in commerce but if you don't have insurance, not in commerce, therefore, they can't drag you into the stream of commerce to regulate all the court by a very narrow margin upheld that or at least is there a controlling number of justices who would hold that. that is not a unanimous decision, i would say of the majority. this is a plurality opinion with a splinter here but that's what the chief justice writes in his opinion for the justices who agree with him. but the court left intact the tax, the penalties, under the law as wrirngs you bought insurance or you paid the penalty what the court has left in place is the "or you pay the penalty part." the admin station views that as a win.ç
the question how many people will nonetheless choose to buy health insurance in 2014? will that be enough to give insurance companies the additional money they need in order to meet their new obligations, for example, not turning down people because of pre-existing conditions and those new obligations they have? the admin station believe it is will be enough. we will see. the court used a very similar approach on the other big question in this case, which is the new obligations that the law
puts on the states to cover more people with more generous benefits under medicaid, basically, anybody who is making up to 133% of the poverty line. anyone making below that amount would be covered by medicaid, more people than now. the states argue the government can't make them do that because the health care law gave them a choice them either do it or they have to get out of the medicaid system entirely. what the supreme court has said is it is okay to require the states to meet these new medicaid obligations but if the states don't, you can't throw them out of the medicaid system entirely. you have a similar approach in both sides here. you urge people and the states to do this. you appeal to their better name chur, i guess you could say. but there's no -- they have taken a lot of the punishment parts out of the law so we are going to have to see how it works in practice without the incentives or the punishments that were in the law in the first place. ç
>> andrea i know you have a question for pete. >> i was going to follow up, pete, exactly to your point just now. without the economic incentives for the states to expand and we have seen in several cases where people are really underinsured, places like texas, for instance, without those incentives on medicaid and without incentives on the other part of the law, can health care survive intact? i know the admin station will argue that it can, but out in the real world of insurers and consumers, will this become a reality? >> well, here's -- consider that there were 26 states that challenged the medicade provision. that is at least half the states are saying, you know, you can't make us do this. now, that was their legal claim. their legal claim was by saying
you broaden your medicaid coverage or you're out of the program all together. will all those 26 states say we are not going to do it or some nonetheless do it? who knows how that is going to work out? >> congress pays for at the federal level. >> this appears to be a split decision with 3-2 on the majority side, three of the justices finding the mandate unconstitutional, but two of them not agreeing with txa,1ñ breyer and kagan t is a divided opinion on the majority side. >> i was going to say, can you walk us through the numbers? our viewers haven't heard the basic numbers here on how this split. including the one every
conventional tea reader missed, roberts likely to be with the four, rather than kennedy first. but anyway, gives the different splits if you will, pete. >> can't do that yet. i can't do that yet either. i haven't had a chance to sit down with my pro-it tractor and my magic 8 ball to figure that out, because tough go section by section. that is going to be a while before we figure that out. >> how many different opinions were concurring opinions and how many dissents were there? we have the plur a.m.ity by the chief justice. ginsberg writing separately to concur. socie sotomayor separately. >> pete, we want to give you
time and he will come back us to. we mentioned reaction is pouring n in. senator ben car and from maryland. this is is a complicated ruling. let me get your reaction? >> so far what we know, goodç news for the american people, able to move forward to get affordable health care. that is the big news of the day the supreme court recognized the responsibility of the legislative branch and allowed us to meet the needs. i think it is good news for the american people that we will be able to move forward with the types of reforms, with the insurance reforms, with protecting people against abusive practices of insurance companies, able to move forward with allowing families to get their children covered under their policies, medicare expansion was clearly allowed to move forward. >> this is what we have been talk about some question, 26
states part of this lawsuit that first challenged the affordable care act. in a congress that's split the way this is split, do you see a way forward to perhaps offer those states some incentive so they would opt-in? >> the medicade expansion is a part of the universal coverage of all americans and clearly that will be more challenging under the -- we believe the opinion of the supreme court. >> however it is doable. yes. we can still move forward. we will find ways. states are encouraged to a rich federal imagine. their citizens want to have could have rams have to have coverage under the lawmaker the individual mandate was upheld. we think a way to move forward on that the key point was the supreme court recognized what congress was doing was constitutional that we had a responsibility to provide ("ti opportunities for all americans and principle was upheld by the supreme court. >> given how complicated this
ruling is and obviously, going to take some time to be read through, what's going to happen in the halls of congress? what is going to happen among senate democrats? how are you guys gonna -- will you meet, will you go over this law? at what point do you think you're going to decide how you might have to move forward congressionally? >> i think the american people are going to want congress to move forward beyond the supreme court decision and beyond what we have done with the affordable care act. they want us to continue to make progress on a more affordable health care system. i hope democrats and republicans will work together to continue to improve our health care system. bring in senator jim talent. your reaction to this ruling. >> on behalf of governor romney, we think the slaw a bad law, a federal overthrow really of the
health care system and we know that it's going to raise costs for the average american, up to $2,000 a year, throw millions of people off their private center insurance. we didn't like the law. obviously, the supreme court needed to do what it thought was right from a constitutional point of view, but governor romney continues to be for empowering people to get health insurance who don't have it and for getting the economy going so people have jobs and can buy health insurance. >> does this basically affirm, we have heard a number of times and there's some new sound that was uncovered from theç govern after the massachusetts health care law came to be, he in the past support an individual mandate. now, based on what the supreme court has said, are you willing to move on? >> the governor had his own health care plan, was a mandate august state mandate. we want to move on in the sense we want to move on to a program that will really help people witho
without. why do we need to throw millions of people off their insurance if they are happy? we don't. 'we need an economy moving so the government can help people unsponsored. >> starting to hear again already and stay with us, please, senator talent, from others, including the republican governors association chairman, bob mcdonnell. this is what we would have expected to hear from him. today's ruling crystallizes all that this in stake in november's leeks. the only way to stop barack obama's budget-busting health care takeover by electing a new president. the talking point basically, chris matthews, that we have been hearing? >> the last redoubt is the election, fall back to that i and say that is a chance to do what the supreme court didn't do. but they don't, i will say this again, they don't have the weaponry they would have had just a few moments ago had the court gone the other way.
this was a tremendous opportunity to crush president obama. i think a big story in the political side, not the health care side or the constitutional very interesting here, two things, the most important point is the president has been backed by. chief justice of the supreme court in saying what he did was constitutional. that is a big win for the president. >> more from pete williams inside the supreme court and you have tom goldstein from the
scotus blog with you? >> one of the leading experts on the supreme court and publisher of the very popular scotus blog website, very quick with this decision. tom, let me ask you first of all to break down the vote for us. we know the overall question, 5-4, but among the five in the majority, how do they break down on the mandate versus the tax? >> well, the mandate is the provision of the statute. five justice of the supreme court agreed it is constitutional because it's a tax. four of them would also say that it was constitutional under the commerce clause, but that doesn't really matter it is all legal here tory. the bottom line is that the individual mandate, which is at the heart of the statute, five justice of the supreme court agree it is constitutional and the affordable care act was saved by chief justice john roberts, who unlike our swing vote, justice kennedy, voted to uphold it and say that it was constitutional. >> so on whether the mandate was constitutional under the commerce clause you can the states the big issue, what is the vote break down on that? >> there were five justices who
said that it did violate the commerce clause. the five more conservative justice of the supreme court. but that has no practical effect at all. >> right. right. >> because the question is did congress have the power and chief justice roberts found a different power. >> now, on the medicaid question, how does the vote break down? >> the vote there is that the medicade provision is constitutional if it's read narrowly and that, too is i think going to be 5-4 in the end. what the xoort said today is that the big expansion of medicaid, congress can give the money to the states but what it can't do is the big things the states were worried about, if the state didn't comply with the conditions on getting the money, congress or hhs would pull out the rug on all the medicaid money. the supreme court said that was unconstitutional, not a big deal, i think, to the administration because it has never exercised that threat. what it really wanted was to be able to put the money thought with some conditions and the
states are going to have to comply with the new conditions in order to get new money. they certainly will. >> ask you one other question about the part of it where the supreme court says the mandate as such is unconstitutional but not the penalty what is the teeth then? someone says i'm not going to buy insurance and not going to pay the penalty? >> pay the penalty. theç thing is this. as a practical matter, down the have to buy health insurance if you pay the tax. the admin station believes and insurance companies believe that people will get insurance rather than paying the tax it is the case the government is not going to throw you in jail. >> that is the thing f there is no penalty for not -- >> there is the penalty of the tax, which was always true. the admin station said the upshot here of not buying health insurance, would you have to pay the tax and the supreme court agrees. >> if you don't pay it you can't
be prosecuted, you can be sued. >> you can. you can. i think that's not right. the stacks a tax and you have could on ply with the tax it is not an optional tax. >> my understanding was during the debate, the congress said they didn't want to put any penalties in there for not paying the penalty. >> penalty on the penalty, i suppose. >> yes. >> as we understand it, what's happened is the supreme court has said that the tax not just a situation where the man date was thrown out, the mandate itself is upheld under the taxing power. i'll if consequence not complying with the mandate, that is you have to pay this significant material tax. as the law stands now, people can be comfort and of a dent, agree or disagree are the court didn't throw out the mandate piece of this they uphelds the mandate under the taxing power. they didn't just uphold the penalty. >> okay. very good. very subtle. thank you. tom goldstein of scotus blog.
you canç see that this is a subtle decision, would you say tom? >> it's subtle in its legal reasoning but i think it's pretty firm in its consequence. obviously a huge number of words in the opinion that are still being digested. but our pretty confident impression, the admin station got what it wanted, had a backup theory for upholding the individual mandate. first, it was under congress's power, they lost that 5-4 the backup theory and got the one vote they really needed in chief justice john roberts to uphold the man day, the statute that congress enacted under the tax power. >> you are no more suited than anyone else to answer but i will ask you anyway, why do you think the chief justice did this? >> i think he believe happened i don't think this is power politics in any way, although people will want to read it that way. i think john roberts decided -- what he says in his opinion is my job as a justice of the supreme court is to make -- read
statutes as constitutionally as i can. the dissent is cord nal, not jumping up and down screaming about lawlessness. they don't think this is the most obvious case, so it was a close case but the administration got what it wanted. >> ask the obvious question. some will wonder whether the chief made this a -- or joined the majority so that it wouldn't look like the usual partisan split. >>ç i don't think so. certainly an upshot that the conservative chief justice of the united states has written the majority opinion that raised the accomplishment of president obama. but if he believed it was unconstitution a.m., he would have pulled the trigger. >> pete this is a question for you, maybe tom, well, tom is
going away, i don't think he has the ability to hear me but yes, people are sitting bang and listening and you are thinking about the millions of college students who are under their parents insurance already who are under the able of 26. you have those people you mentioned covered under medicaid as a result of this the question is what's vet realism. pact of this? we can talk about, you know, the subtle teties of it but is this fully going to move forward now? >> yes. that is the simple answer. the health care law stands. so, all the things that were going to happen in 2014 still will happen in 2014. everything that you anticipated was going to happen under this law will happen. with a big asterisk. as of today. based on this supreme court decision. what i can tell you is what is going to happen exactly across the street from me where republicans have vowed, no matter what the supreme court does, to try to modify or strike
this down. but as far as the -- as far as the supreme court's action, none of -- none of what it has done today ends any of those things that would have happened. you can look at those -- at the timeline, those things will all kick in. >> pete williams, thank you very much. we will hear from you again ç throughout the day. let me go to eugene robinson at the "washington post." i'm starting to get stacks of reaction from both side bus interesting, gene, mostly from the republican side saying pretty much what you would expect them to say, what they have been saying about how this is going to be too expensive. but what is going to be the headline in your paper around papers across the country tomorrow morn? >> i tell you what i think the headline should be. the headline should focus on insurance and on our health care system. we have a health care system recently ranked something like 37th in the world. it has been a dream of the democratic party, at least since
harry truman, for 60 year, to have universal health care, which every other industrialized democracy has. gets better outcome from their systems at lower cost than we do and what president obama tried to do with this big 2600-page bill and difficult to read and difficult to understand, was to take the first big step toward making that better. and the fact that that survived, i think, is what's really important today and it's important to the 31 million people who are uninsured, now have prospects of getting insurance. it is important to those who want to begin talking about controlling the costs, the out-of-control costs of health care in this country. that's what's really significant here. we have taken the first step on a path i think we mustç travel down. >> bring in senator dan coats, a republican from indiana. i should tell you we also have a picture of the floor of the senate and senator harry reid is
praising this decision. obviously, as you know, the costin -- the supreme court has upheld the individual mandate. in addition, when you look at the polls, the specifics of the details of what's in this plan, from covering college students up to age 26, the medicade provision, these are things that are favored by the american people. are the republicans now going to say we fought the good fight, it's over, are you gonna continue to try to fight this through congress? >> well, a couple thoughts here. number one, i have been telling people, based on my experience and i have had some with the supreme court, if you bet the farm on what conventional wisdom says they are going to adjudicate, you could lose the farm. and i think a lot of people were surprised today that the court ruled the way it did and that justice roberts went with the four left-leaning justices. to get directly to your question, what this does is it puts it back in the hands of the
american people and it is going to be decided by the people here in november. and so it does move it to the political side of the equation. republicans are going to go forward and continue to attempt to repeal t we don't have the votes here now. it will be decided in november. but reaction in 2010 to what the congress did without any bipartisan support jamming it through the congress, it's unaffordable act has not come forward withç yes some positiv things but overall, it is now what the president said was not a tax. it is a tax on the american people. the american people are going to have to decide whether or not their health care provisions for the future are better decided by the government through a bureaucracy here in washington or better left that private sector around to the states to dial with this, a lot of innovation going on here. nobody saying going to throw out the kids under the parents or necessarily i do this or do that. this is back to what is the best
affordable health care we can provide right now. we have something with a big tax and the american people who rejected that in 2010 will have a chance to break the tie in 2012. >> senator dan coats, republican from indiana, thank you h i want to bring in david gregory from nbc's "meet the press." let's talk about the real-life political implication. there was a lot of talk at the beginning of the week, almost forgot is there is a huge decision on immigration. some people felt that would be even more consequential in terms of how people go to the voting booth but i'm wondering what you're hearing from the white house and what this consensus is, if there is one, about what this will mean for november. >> well, let me first talk about i think some of the intrigue on the supreme court and the politics there i talked to the white house this morning as they are digesting this decision. they are arguing that this is in some ways vindication for their -- for the solicitor general of the united states, who argued before the supreme court, who made the argument
about the tax authority here,ç which was ultimately cited by the chief justice as the means by which the individual mandate could be upheld. so the view within the white house and the legal circles is that this is really vindication for him after his performance had been criticized. that is very much an inside baseball when it comes to the nature of the argument. but the question surrounds chief justice robert as a legal but political figured. how concerned he is about the polarization of american government and how on con strollers decisions, it is bad for the court ultimately to have narrowly decided opinions. you have to believe and i know tom was saying to pete williams, perhaps this is exactly what he believed. the sense of practicality, the political reaction something he had to be thinking about as well. "time" magazine had justice ken
don't cover a few weeks ago, saying he was the desired. this wasn't the fact. the fact was the chief justice of the supreme court was the decider. and he ultimately was that swing vote with the liberal to uphold the mandate and the law. i will be curious to see what the reaction is on the right, whether they view it as some kind of sellout you abdication of authority or sufficiently nuanced as a decision to be acceptable. we will see what that reaction s but what is sort of happening within the white house and legal circlesç as well. one other point, chris you can the politics of this. let's not forget that the health care slaw still on balance, unpopular with the american people. the president will talk in a matter of hours no doubt herald this decision but a huge political opportunity four him to readdress, relitigate what he thinks are the major selling points of this law to what is
still a skeptical american public. and that's the task he has before him right now. >> let me bring back chris matthews, chuck and andrea as well. and chris, i think david makes an outstanding point here. now the president isn't just arguing alone. he is arguing with the ability to say say the supreme court has upheld this idea, how important is what he has to say in the next few minutes, next few hours, in terms of winning over the members of the american voting public or the american public sceptical and concern about the cost of it? >> i like what david gregory said, it is about -- two men really now two people in this country who have their names on this decision you can the president of the united states, whose landmark piece of legislation, landmark achievement of his life really has now been declared constitutional. and judge roberts himself.
his international airport name of this court, it is the roberts' court, a different role, in a sense, historically, than anthony kennedy does, the usual swing vote he is not a swing vote he is the court. this will go down in history as the roberts court that upheld the landmarkç achievement of t obama presidency. so, these two men have a very important and distantive role here. roberts put theis ism prompr.oi it. the roberts court upheld the obama law and these men were have plan particular responsibilities here. i do find it fascinating all of us are trying to wrestle with, why did roberts seize upon this historic role so powerfully here, to leap frog anthony kennedy and to find himself or to place himself with the liberal majority here? he doesn't want this court to be three strikes and you're out.
they did the gore versus bush or bush versus gore in 2000. they did do citizens united. in the eyes of progressives and a lot of independents in this country, it was becoming a clearly partisan right-wing court. with this decision, led by roberts, it can't be called that roberts freed himself of that i also want to go back to something important. these are deep middle of the night decisions. the chief justice and his wife, they wrestled with this stuff, their place in history. the moral consequence of striking down the only health care law we got in this country. i think deeply important to the, the right thing to do not just the constitutional thing to do. >> we have a minute left, let chuck and andrea have an opportunity for closing thoughts. chuck? andrea, go ahead. i think that justice roberts now becomes the mostç important historical figure in washington, more important than the president, the man running against the president, because this is a defining moment and i
think adored cording to tom goldstein, who watch it is closer than i do, this is the law. >> talk about political consequence a second, number one, the republicans have to make a decision, a lot of statements saying november will be about health care s it? are you really going to go down this road? really going to relitigate this? i don't think that's what the romney campaign thinksism wouldn't be surprised if you see the romney -- public span more fungible on this. a hard-core base that is louder and a few more don't like this law than like t -- it. republican attorneys general all
over the country, this was the last obstacle and now out of the way, clear sense of the popularity of this law. >> david gregory, i'm sure you saw the ament this morning in politico which is that, i don't know whether or not you buy this, but that this would actually -- this outcome would be a good thing for the romney campaign in that nothing could energize the base more than a win for the president.ç >> i'm sorry. >> there was an argument in politico, looking at the pros and cons for each of the players and argument for mitt romney was if this decision comes down that the individual mandate is upheld, that the health care law is upheld, it gives romney a way to energize his base. nothing is going to infuriate the right more than this outcome. in fact, it could actually be good for the romney campaign in that sense. >> look, there's still a reason for them to be on the offensive. that is republicans, the romney
campaign,et, to say it is constitutional, perhaps but still a bad idea and seize on public opinion there one of the things i'm watching for today is how the roberts' decision is welcomed. is there a furious reaction on the right, you know, among court watchers and other conservatives who think that that was real sellout on his part and they got it absolutely wrong, and that he was too concern about the leg gas soift court, et cetera. if that happens it could create political brushfire there that builds and builds this again as an issue. one of the thingsity be watching for as the day plays out. >> andrea, it also occurs to me, i wonder if this does become, on some level, an argument, four members of the court now, correct me if i am wrong, that are 70 or older, and very likely at least possible the next president will have an opportunity to place members on the supreme court and that this becomes