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tv   Up W Chris Hayes  MSNBC  June 30, 2012 5:00am-7:00am PDT

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we might have had new ways to say it. but the commitment has never wavered. i should know. my name is valeda and i've worked for walmart for 50 years. ♪ ♪ good morning from new york. i'm chris hayes. egypt's new president took his oath of office today becoming the first freely elected officer since hosni mubarak. and violent thunderstorms swept through washington, d.c. overnight leaving millions without power and bringing down a web server that hosts twitter,
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instagram and netflix. my first story, fair and balanced. during one of the fraught moments in the health care debate when it looked like novel forms of gop obstruction would kill the bill matt eglesias posted the following thought experience to showç if you cano something according to the letter of the law doesn't mean it's acceptable. he wrote to the best of my understanding nothing is stopping rahm emanuel from murdering senators, having them replaced by democrats and getting a pardon from barack obama. his point was that norms matter. healthy governance isn't those who matter playing with a larger sense of respect for the norms of the institutions. there are certain things that just aren't done even if they might be permissible. norms are much more powerful
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than written explicit rules. the problem is when norms go, they go fast. we have seen it inside enron and on wall street and during the steroids era in baseball. we have seen it from the united states congress to the federal elections commission where republicans have normalized any means necessary battle for costs. where the senate will serve as printer of the united states or rush the country headlong toward debt. the official rules that guide the supreme court are preciously few in number. a majority of justices can pretty much issue any ruling they want. constrained by the distant threat of i will peachment or a cut in funding from congress, they are the final say on what is or isn't constitutional. that's why the norms for the court are so important and the subject of such intense and constant debate.
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should the court be like the house of representatives, partisan and ideological, a place where narrow majority is expected to vote more or less in lock step for the favored outcomes of the side or should judges be in the confirmation hearing? >> judges are like umpires. umpires don't make the rules. they apply them. it is my job to call balls and strikes and not pitch or bat. >> after joining the majority oh uphold the constitutionality of the affordable care act roberts is getting grief from conservatives who fell in love with the metaphor and now feel betrayed. the definition of an activist judge is a judge who rules differently than you like. it's as disingenuous as the slogan fair and balanced. that doesn't mean the only choices for the court in conducting itself are delusions of neutrality on one hand and partisan trench warfare on the
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other. there is room between the extremes. that's what our model of judging should be. someone with a perspective, outlook on life, but one who engages with the issues in good faith. aside from his closest friends and family, no one can know why john roberts decided the way he d did. given how delicate a needleç h threaded in upholding the law and limits of the commerce clause many came to the decision it was motivated by political to guard the courts and his own legitimacy. roberts did the right thing as a matter of law and politics. this was a political decision. all major controversies before the court can want help but be.
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roberts was nowhere to be seen because he never existed. in the short term roberts is to be credited for upholding the opinion and the opinion of prominent scholars squarely constitutional. he's also to be credited for briefly stopping a slide toward a court that's nothing other than the house of representatives. this is the same man who steered the court toward citizens united who overseas a court that is according to empirical analysis the most conservative court in 75 years. the question in the long run. signals a change in direction or simply a pause. i'm joined by ezra klein, policy analyst, washington columnist and bloomberg contributor ovik roy. health care policy for forbes and the national review. my congresswoman until january.
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there is a parking sign outside my house we have to talk about. >> municipal! >> let's see if we can get a special billç pushed through. great to have you back. professor of law and political science at yale and former law clerk for judge steven briar. great to have you here. let's start with reaction to the ruling. we have been chewing it over for a few days. congresswoman, i want to get your perspective because you watched the legislative battle play out and the prospect of it all crumbling at the court must have been depressing. >> it's so interesting. we were in a caucus meeting talking about ironically enough the contempt vote that was coming up. the democratic caucus was meeting and that's when the decision came down. we were confused, to be honest. >> as was america. >> and certain news networks. >> exactly.
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that we won't go into at this moment. but once we had a reading of it we felt vindicated. i felt vindicated. i worked hard along with colleagues to make sure all americans could have health care. the fact that -- of the matter is health care is a right, not a privilege, in my eyes. this vindicates us. >> it was interesting to see the messaging. i want to get to the constitutional questions here and some of the policy questions. we're going to get through that. the constitutional questions are fascinating. do you think -- it was interesting to me and anyone at the table could answerç this - to see the democrats' reaction. there were two messages from barack obama. one is the law is better than you think it is. in fact, do we have sound of the president reacting to the decision? let's play that for a second. >> even though i knew it wouldn't be politically popular
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and resisted the idea when i ran for office we included a provision that people who can afford to buy health insurance should take the responsibility to do so. in fact, this idea is enjoying support from members of both parties includinging the current republican nominee for president. >> i want your reaction in a second. there were two reactions. a defense of the law. then there was -- what the president led with and what harry reid led with was basically let's not relitigate the past. i understand the short-term desire and effectiveness of that as a political message. there is fatigue in the country about the extended battle we have had. it strikes me as not the strongest defense of a major piece of social legislation that the party has spent the better part of four years enacting. >> it's so politicized. the commercials running in battleground states now around health care.
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we would hope we can move forward. clearly it would be disingenuous not to raise this as an issue in the way it's been raised by both harry reid and the president. well, the president is up for re-election. harry reid has to do what he has to do at the leadershipç of th senate. the bottom line is we've got to move the needle here. i think folks are gaining the benefit of the health care format. as more and more benefits come online. >> noting the thing everybody talks about is the massachusetts health care plan that mitt romney signed into law included a mandate structured essentially identically. >> in terms of the rulinging, there is a difference in the formulation of judicial activism
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of what conservatives describe. we are talking about are you making up law from the bench or administering the constitution as it was written in 1789? >> let me stop you there. this is the issue. right? if it were plain what the law meant as it was written then we could hire robots. we could code computer programs to sit on the bench. the only point is it's difficult matters of interpretive work. that seems to stack the deck to produce the result you want. >> it's more manifestly plain than you argue. there is a lot of outcome driven results in the last 70 years but if you read the constitution, the constitution is a short document written in english. the federalist papers give us a look at how the constitution was designed. there is aç plain reading of t
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constitution. again, either way, in this case it is a difficult case. if you go by new deal precedent the mandate is including the cla clause. you can say that doesn't make sense. roberts did neither of those things. it was attacks in one case for the purposes of constitutionality and the anti-injunction act. kind of made it up as he was going along. >> the true conservative vision is to go back to a jurisprudence of the new deal. i want to put it on the table as a radical thing to say whether true or not. >> it was within the conservative legal movement. there are two positions. one is thomas oriented. another is the scalia version. you want to look at the stability of the country but air on the side of constitutional
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originality. >> i would like your response to this and we can get into the constitutionality. we'll bring in one of the leading architects of the constitutional arguments against the mandate. i want to talk about that after we take the break. ute to the west, the greatest empires. then, some said, we lost our edge. well today, there's a new new york state. one that's working to attract businesses and create jobs. a place where innovation meets determination... and businesses lead the world. the new new york works for business. find out how it can work for yours at thenewny.com. the charcoal went out already? [ sighs ] forget it. [ male announcer ] there's more barbeque time in every bag of kingsford charcoal. kingsford. slow down and grill.
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let's solve this.
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we are thinking and talking through our big event of the week which is the supreme court upholding the constitutionality of the affordable care act. you talked about expressing or channellingç some of the conservative frustration with both the court's direction and the court's jurisprudence on the commerce clause. people probably know this but the ruling was that john roberts joined a majority of justices saying the individual mandate is not within the constitutionally
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prescribed powers of congress to regulate interstate congress. it exceeds the power but it falls within the taxing power granted a constitution. i'm curious to get your reaction to the ruling. >> so the constitution is a pro tax document. we fought an anti-tax revolution which was no taxation without representation because parliament is posing taxes. the constitution is a push-back saying but taxation with representation. because we vote for these folks and we can vote them out. you have term limits called elections every two years. the longest section of the longest article of the constitution tells you four ways congress -- taxes, duties,
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imposts and excises. you don't have to call it a tax. >> revenue enhancements to provide for the general welfare of the united states. that's because without taxes you can't have national defense. >> right. >> you can't have an army. you can't do the things we weren't able to çdo. one more thing. 1789 and the founders, this constitution is an intergenerational document. we made amends to it, got rid of slavery after the civil war. this didn't get rid of slavery. we the people of the united states at the beginning of the 20th century, people proudly called themselves progressive into that provision. a pro tax provision in the 16th amendment. we the people rose up, the 99%,
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and said, yes, we can. the 16th amendment is another. this is a pro tax instrument. if you don't like the taxes and spending, vote the bums out. >> right. but there is broad constitutionality authority. i made the point yesterday. we'll bring in randy barnett in a second. the ruling is interesting. the ruling starts off with justice roberts saying for the narrow purposes of the anti-injunction act, let's say one thing on the table was could the court rule on the matter at hand. the statutory legislation says you cannot strike down a tax in advance of it being collected. you have to wait for it to be collected and then you can sue to recoup. he said for the purposes of statutory this is not a tax.ç for constitutional interpretation it is. people thought, that's crazy. this is an example just to give folks something that's similar.
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for a long time i was a freelance writer. you have to file quarterly estimates. if you don't you have to pay a penalty. that's not a tax. there is no way the penalty is a tax. it's a penalty. but it is clearly under the taxing authority of the united states congress. there are things we have that have a strange hybrid nature. i want to bring in randy barnett. author of restoring the rost constitution, the presumption f of -- randy, you basically said you were satisfied -- not satisfied with the outcome and you think this is a bad law and you object to it. but you were heartened by the fact that chief justice roberts joined the majority saying that this was not permissible under the commerce clause. >> yeah. what we had was a decision in
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which eight justices voted their principles. one justice gave us a political ruling. i'm happy with the part of the political deal we got and unhappy with the deal he gave the other side. >> i should say this is a broad reading of roberts's behavior. none of us are seeing into the man's mind. it's possible he was persuaded by the tax argument on one side and persuaded by the commerce clause on the other çside. >> i don't think anyone who reads this opinion can reach the decision that he was persuaded by it. i think most of the people who were so outspoken after the oral argument looked like it was going the other way were insisting and demanding he make a political ruling in order to effect the legitimacy of the court. that's what e h did. i think everybody knows that's what he did. people who like the outcome like that he did it. i don't know how much they respect that. i like the part he gave me.
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gave our side which was the constitution. so we had two things on the table. >> randy, this is the point. >> we had obamacare and the constitution -- >> this is precisely the point. every time we have these arguments and i genuinely respect the massive intellectual effort you put into the challenge, i do. it's a remarkable thing to watch. for this thing you don't get the way of setting the table to say the ruling for your side is political and our side is the constitution. >> no, no. >> it is the constitution that's at issue. that's what we are debating. >> isn't that the opposite? >> chris, i said eight justices voted their principles. >> right. >> the four in the majority who concurred with the result voted their principles and the other four voted theirs. i said only one justice decided the case politically. >> i see. one of the big questions after
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this, there was confusion about what the commerce clause ruling meansç going forward. i think liberals were divided on this. it was interesting to read your reaction. there is one group that says, look, this is pretty generous. it's specific to the way health care works. it's hard to envision another legislative challenge in the future that will require this as a solution. so if this is the thing that's blocked by the constitution, not a huge deal. then there was a school of people that said, no, no. this is as significant as lopez, morrison or other cases in the line of new jurisprudence on the commerce clause that restricts what the clause can do. i want your reaction after we take a break. why not make lunch more than just lunch?
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with two times the points on dining in restaurants, you may find yourself asking why not, a lot. chase sapphire preferred.
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randy barnett, i cued up a question about the court's ruling on the commerce clause and what it means going forward.
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i would like to see you answer that. >> the two choices you gave me was it would only apply to the law so it's a narrow ruling and the other one is that it's really important. i agreed with both of the pictures you articulated. we argued that the court had invalidated the individual mandate it would only apply to this one and would be limited in that sense. but the other time side has argued there is virtually unnecessary and proper claus authority. this decision repudiates the view. it accepts every single legal argument we made about it. >> there is a period in jurisprudence from 1995 a in the lopez case in which nothingç w struck down exceeding commerce claus authority.
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there is a case in which the court finds and scalia writes in the majority it is an exercise of commerce claus powers to regulate marijuana grown inside your own house. how do you square that ruling where he says that's within the commerce clause's powers but this is not. >> it's easy to do. you're smiling but the audience doesn't know. i brought that case, argued in the court and lost 6-3. in the commerce clause i got five votes this time. it's simply that the case didn't involve the idea of compelling anyone to grow marijuana. the justice said if it was necessary to enforce an interstate ban on marijuana that you actually cannot segment out a certain subset of the market.
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that was different than requiring that they grow marijuana. >> so that law requiring us all to grow marijuana will never see the light of day. the precedent means no mandatory marijuana growth. >> you could be tax fd you don't grow it. >> i think the point he made about you can be taxing, what will be interesting going forward this will change how congress legislates for a long ç time. there's been a long shift in the way particularly democrats legislate. there is a move from trying to go through to get republican votes or seem like you are more in the center trying to compel the private sector to do things. that was what the health care bill was. it wasn't single payer. you would keep them in the game and you would fix the insurance markets to get everybody in there. it would be university server shall insurers in the way the government could have done clearly will you taxing power. here you need the individual mandate, originally come up with
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by republicans that has been clearly not knocked out of the box. it's allowed. what people are going to take from this is don't get too creative. use the taxing power. use the things you have already done. have the government set up programs. this may in terms of the long arc of liberal law making prove to be not different in the way it's said to go back to things that are tried, tested and true. >> the irony came up in oral arguments and briefs on both sides. straight straightforward exercise where we pay for the service. squarely constitutional. it was a hybrid nature. do you think that's true? >> i do. >> you will see the approach of liberal lawmakers change? >> this is really a game changer. we have done a lot to try to accommodate, you know, the diversity of thought around how
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now at the end of the day that becomes challenging politically. >> single payer was not pursued.
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>> exactly. it's an issue of the fact that, you know, you're labeled, right? the tax and spend liberals. >> right. >> we can't get out from under it so we tried to be progressive. that didn't work out for our adversa adversary. >> are there things you want to say in terms of the meaning of the commerce clause going forward? >> i believe there are limits. but i don't think it's action, inaction or mandates versus prohibition. if government can tax me, they can tax me 100%. but we can vote the bums outç office. you know, if government can prohibit grocery stores from selling anything except broccoli. you know? but they're not going to do that. >> there is a question for -- >> hang on. the limit in the constitution because his are made up and no founder said any of this for
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three years ago. they didn't. here's what they said. here is the limit. this is a document designed so solve genuinely interstate commerce across state lines. if someone is uninsured, most of the students are out of state. if they go to an e.r., that's ab interstate problem. if i get a job offer out of state and they're going to pay more in taxes. >> can i ask a question? >> hang on a second, randy. if i can want get the job because i have a pre-existing condition that locks me into it and there is not labor markets. the real limit is, is it an interstate problem. that's what justice ginsberg said. we think it is easy because it is an intrastate problem. >> we'll come back after this. i went to a small high school.
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the teacher that comes to mind for me is my high school math teacher, dr. gilmore. i mean he could teach. he was there for us, even if we needed him in college. you could call him, you had his phone number. he was just focused on making sure we were gonna be successful. he would never give up on any of us.
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all right, randy barnett, i cut you off. you wanted to ask a question.
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>> yeah. before this thing got going akeel wrote an interesting op ed piece and said even law students could give the answer he gave if they were taking a final exam they would give the answer he gave prior to the break. of course they would. they were his students. i wonder if now that the decision has been rendered and his students read the decision their exam answers be the same as they were before the decision was reached? >> as i made clear in a series of op-eds and a piece i wrote a year ago, i have always believed this was easily sustainable as a regulation of interstas commerce and five justices had a different view. easily and obviously as a tax. randy, he's very good. he says, we won. well, please have more victories like that. your position was this was
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unconstitutional. we said on the other side it's easily constitutional. we had different theories about why it is constitutional. it's clearly a tax. that makes it okay. it's also a national security issue, a human rights law. we can talk about those things. >> can i ask my question again? >> so i'm -- >> the commerce clause part of the exam, will they answer the same way? >> i'm going to teach my students that they should ask themselves the following question. did anyone for the previous 200 years of the constitution say there was action, inaction distinction that was the basis of the distinction between federal and state power? did anyone equate it to the commerce clause were did it have to be a genuine interstate problem. the question going forward is -- is this new made up principle going to have çlegs. it won't wash.
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>> let me bring this up and i will go to ezra. part of this in the political context obviously. i want to say this. i'm not questioning your good faith. you've been dealing with an overly broad reading for a while. there is a sense of having this lucy and the football situation with the mandate in which it came out. it was proposed by republicans. somehow it came out of conservative think tanks. there isn't a huge bunch of people saying this is unconstitutional. the constitutional arguments seem to have only been discovered on the right side of the aisle to being a major democratic law. >> i want to respond. i'm not at all happy about the victory. i lost the case. in the deal we were given in
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which the president gets his signature legislation and we get the doctrine we asked for i'm not happy with the outcome. i'm not trying to sugar coat this thing. as for your question, i don't look to republicans as the font of all constitutional wisdom and the fact that republicans may not have given this much constitutional thought is consistent with the fact that congress simply hardly ever gives what they do constitutional thought, republican or democrat. we're supposed to have an independent supreme court to do it and we have eight justices that gave it sustained constitutional thought and one justice who decided to split the baby and make a political deal. >> since we are asking questions, i have a question for akeel and randy here. one of the odd things in this debate was it seemed to turn on policy questions. what sort of problem did you think health care policy presented was the problem
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interstate. is it a national problem? a special market that requires a special set of -- i remember the oral arguments. these were arguments i read constantly in health affairs being done by a set of lawyers, none of whom were experts. i remember thinking economists would be better set to decide what sort of problem health care is and we could have the lawyers say what are the rules around this kind of problem. it did seem from the outside that people were making a set of policy judgments and deciding how they wanted to decide that constitutionally. really, what was being decided here were actual things you think of congress being the ones to judge more than abstract legal principles. it came down not just to what you think of the constitution but what you think of health care and how that falls and how people are participating and whether they can get out. >> one of the things the
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congressman said earlier is about how this was novel. i2ájjz that's right. if you try to do something new and cleverly to avoid taxes which we didn't have the votes for. when it was defended in court it had implications for federal power. >> i want to make two points. >> go back and do the tax power. say you are doing a tax and take the political heat. you might do policy damage. not constitutional damage. one last thing about the nature of this opinion by the chief justice akeel would have never written this opinion. he would have been with the four justices that joined justice roberts. he never would have split the baby. that's what i'm saying about the nature of the opinion. >> it's been great to have you.
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thank you for engaging. >> my pleasure. >> i will ask you if you would have split the baby or not after this. with the spark cash card from capital one,
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or double miles on every purchase, every day! what's in your wallet? here's your invoice. >> really, this or that? >> our constitution. >> exactly. we were going back and forth but there were a few points you wanted to make. >> it's true. the constitution gives congress broad taxing power. the individual mandate wasn't passed as a taxing power. it was president obama in an interview with george stephanopoulos said it is not a tax. >> he didn't say that actually. >> it remains uncertain if it was billedç as a tax when it w going through congress would it have passed? i don't know.
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the other point is ezra talks a lot about this about the lesson they should learn is don't compromise with republicans. democrats had 60 votes in the senate. the public option didn't get through the senate because of republicans. it was because lieberman and nelson didn't like it. >> the way it was constructed without doubt because they thought it would help them get support. the genesis of the bill is max baukus and a white paper of the bill that looks similar to this one in 2008. expecting the whole time he'll get the republican from iowa to be part of this with him. it will be 20, 10 -- >> there was a fllot of flim flaming during that debate. a lot. the individual mandate is such a small provision when you look at the entirety of the bill. you are talking two to five% of people who can afford health care who decided that they are
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not going to get insurance. >> right. if you're going to free load when you're at your most critical and most expensive there a fee attached to your health care. >> obviously that's the rationale for what happened thomas mass signed by governor romney. for a while his position was, yes, that was appropriate in the states but not appropriate for the united states congress to dç it. this is something that should be done at the states. then the line he used in the press conference after the decision was this was bad policy. if you are making an argument on policy grounds it's not clear why the policy is bad policy at the federal level and good in massachusetts. >> that's why the constitutional arguments came through. there is a difference between state and federal reforms. when you're a state governor you have limited tools to reform the health care system.
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so much of it is driven by medicare, medicaid, the employer sponsored system. you have to use certain instruments you don't necessarily want to use at the federal level. in response to the issue of free loading if you go to the emergency room because you don't have insurance and we pay $50 billion a year. of the 3 trillion america spends on health care it's $50 billion a year of which a tiny fraction is spent by the uninsured. you can solve it by making sure everyone has emergency insurance. the affordable care act requires everyone to buy comprehensive insurance. far more -- we had a debate about the contraception mandate. you don't have contraception in emergency rooms. >> an odd debate is sometimes it feels like health care history began in late 2009. i remember having a lot of discussions with folks in health care on the conservative side. they would say to me, you know the systems we like are singapore and switzerland. you like switzerland. >> i do.
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that basically has both. singaporeç forces you in ordero pay for health care costs. regulating inactivity in that way. switzerland demands you buy health care insurance. then the individual mandate became toxic and people said, those are good systems except for the individual mandate. this wasn't a huge issue with people saying you would never want to use that on the federal level a couple years ago and some nice people say, well, i bring up a lot, the fact that republicans came up with the individual mandate and say, that was in the 90s. white and bennett which had seven or eight republicans on it in 2009 had an individual mandate. there was bipartisan consensus and newt gingrich had an individual mandate. this really did have significant bipartisan support. i'm not saying 100%. to say it was clearly out of bounds to me is why it feels
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like there can't be a compromise. >> the ground shifted. >> i have written about this. the history of the individual on the right is more nuanced than what you have described. conservative ideas rallied behind it. >> hold that thought for a second. we need to take a quick break. schools flourish and students blossom. that's why programs like... ...the mickelson exxonmobil teachers academy... ...and astronaut sally ride's science academy are helping our educators improve student success in math and science. let's shoot for the stars. let's invest in our teachers and inspire our students. let's solve this.
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with regards to the mandate, the individual responsibility program which i proposed i was very pleased to see that the compromise from the two houses includes the personal responsibility principle. that is essential for bringing health care costs down for everyone. and getting everybody the health insurance they deserve and need. >> governor romney in 2006 talking about massachusetts ç care. i'm sorry to interrupt you mid thought. >> not at all. >> continue. >> we were talking about the history among conservatives of the individual mandate. >> and the suspicion that this
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was a disingenuous turn. >> i think there were some conservative institution that is supported the foundation. the vast majority of institutions involved in health care were very much opposed to a federal individual mandate. a lot of the policy debate happened in the early 90s. a number of republican senators did endorse the federal mandate. they weren't as aware of the constitutional issues with it because it was never a piece of legislation where the randy barnetts of the world would have to examine it. once people like hatch were confronted with the argument they had to think this is more complicated. >> just the one thing i would say is it's frustrating. i asked the heritage foundation. they are very against it now. tell me the first time you came out against the individual
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mandate. tell me the first written or spoken word from anyone on your team this is not constitutional. it was spring of 2008. this was mitt romney in 2006. mitt romney was endorsed by senator jim demint, one of the most conservative tea party champions in the senate. he said mitt romney was able to do great things in massachusetts. we need that thinkingç nationally. you're right to say there was dissent. that's not the argument. it was mixed and it became a complete unified opposition. i think if 15 republicans were on the individual mandate no one would say it was disingenuous. >> channelling lloyd benson, i know orin hatch is a friend of mine. i testified before and on his invitation. he cosponsored the mandate and
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then in january 2010, the one-year anniversary of barack obama's inauguration we had duelling op-eds where i said it was constitutional and randy barnett said it was constitutional as a tax. he said it's unconstitutionalle which was news to me. and so randy said do you believe your constitutional argument? would you have written it like john roberts? not only would i have. i did. i wrote a piece a full year ago. the first 15 pages said it's up on ssrn, freely downloadable. it's a tax and what was said before is it wasn't passed. none of those things is true. i go through great detail showing you john roberts channelled that. here's the point that randy --
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randy barnett came upç with th brilliant idea. and the conservative constitutional scholars actually don't buy it. they won't go on the record. i promise you, i talked to a lot of them. >> this is the disingenuousness question. we're going to have don berks rwick after the break.
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what's in your wallet? good morning from new york. i'm chris hayes here with yvette clark, democrat from new york representing brooklyn where i live. akeel amar from yale university. ezra clain and ovik roy member of mitt romney's policy group and writer for forbes and the national review. we are talking about health care in the wake of the supreme court decision. we had a fascinating argument with one of the architects of the arguments against the bill. we have moved into policy.
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we have been talking about the individual mandate. i just -- we have been talking about this. there are two questions about the mandate. there is the policy question about is it good policy, does it work? but then there is a political argument about disingenuousness, the sense of lucy and the football. you wanted a mandate. we say mandate and then you want a mandate. let's talk about the policy. is a mandate at any level, state, federal, is mandate good policy? >> yeah. i think if the mandate is used to justify buying generous comprehensive insurance it doesn't make sense. the free rider problem is really for only a limited amount of emergency care. you really want to create incentive for people to buy insurance. make insurance cheaper. you deregulate insurance in the sense of what insurance must contain. let people buy high deductible policies, have healthç savings accounts. >> that's not entirely true. what we did within the
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provisions of the law is to provide various levels of coverage. not everyone is getting the cadillac plan. if you can afford it, you purchase the cadillac plan. there is a specific preventive care-based model that we are asking individuals to cover themselves with. >> right. >> so it's not completely true. >> i disagree. i think -- and jonathan gruber reports to the state government about this. >> a health economist at m.i.t. who is crucial in the brain trust behind mitt romney's health care in massachusetts and worked on the federal program. >> he's estimating a number of states like colorado, insurance premiums in the individual market will go up by 30% because the law requires the plans to be more financially generous than people normally buy. a lot of the progressive health economists say it's a good thing. we want people to buy comprehensive insurance. >> one addendum here. they have to buy more
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comprehensive plans than they can currently afford. one reason the premiums can go up is what the plan does is gives somebody who doesn't have much money and has trouble buying comprehensive health care insurance, i don't think the insurance is as generous at the lower levels as you make it sound here. there is a difference between people can't buy insurance that covers what they need and cheap insurance. >> i want to bring in dr. don berwick from the centers for anh care improvement. what are your thoughts about the level of care the law requires and whether that's a good or bad thing? >> if you are uninsured this law requires you to have a level of care you need and want. the fine structure of what's covered and what is not is more important than the fact we'll have with this law. 30 million people will have coverage who otherwise won't have it. and the care system will get
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better. this constitutional debate, although it's fascinating and important in policy terms, frankly is not what's important to me. if you look at what's good about the law, 30 million people get coverage. that's crucial. the other part of the law that's important to me is care gets better. people know health care isn't working well for them. under this law it will work better. that thrills me about where we are headed as a country now. >> the people who are going bankrupt paying all of these bills. that's the other side to it. the diversity of concerns embedded in the affordable care act. something i think we all need to examine. people were losing their homes because of the bills they were getting and not being a adequately covered. and the pre-existing condition.
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>> don said something important. you said this is goingç to mak care better. part of the problem in selling the affordable care act is you can say that and people think it's like you are promising to extend summer by four months or something. it's implausible. convince me, a skeptical individual that this will make care better. what does that look like? >> it will make it tons better. it's the care providers who make it better. under the current situation they don't have the opportunity to do it. the care is fragfragmented. there isn't a way to focus on payment for quality of care. so more and more is done. i often give speeches and say how many people have a relative or a friend or maybe themselves
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who have been injured by lack of safety in health care. everybody raises their hand. people forget your name. nobody knows your medications. this law has tons of things that focus on paying providers so they can make care continuous. attaching payment to quality. it's changing the tectonics and the health care system. in almost every town and city i visit i see more focus on quality. people trying to make care safer and more continuous. as a result of the law, people in health care will be safer. the care will be continuous over time. they can see what's going çon. that's very important. it's terrific. not only that 30 million people get coverage. constitutional -- you know, fine structure. it's important. i don't want to dismiss that.
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what's important is this is better care for our country. >> i agree with everything that was just said. i want to connect it to the court in this one way. four justices on the court because they had a problem with one provision, one paragraph or page were willing to strike down the entire law. all these things with no constitutional problems and good sound policy that will improve the lives of millions of americans. we came within one vote of all the good stuff unrelated to the mandate. that was radical. >> the dissent says without the mandate the whole thing falls. major provisions reading from the dissent by justice scalia signed by kennedy, thomas and alito. major provisions can't remain wunz the individual mandate and
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medicaid expansion are invalid. that would pose a threat to the nation that congress did not intend. i don't know why nation is capitalized there like in german where the nouns are capitalized. my control room is saying, don't call us out. that was in the original opinion. i wasç calling out justice scalia. you talked about the 30 million coverage. this is a montage. the idea from republicans is repeal the affordable care act. that's the platform of mitt romney. here is a montage of republicans saying that to give you a flavor. >> i will act to repeal obamacare. >> there is only one way to truly fix obamacare. one way. that's a full repeal. >> today's ruling underscores the urgency of repeal iing this
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harmf harmful law in its entirety. >> i hope congress will start talking about repeal of the health care bill. >> i have scheduled a vote for total repeal of the obamacare bill to occur on wednesday, july 11. >> it was repeal and replace, now it's just repeal. >> it still is repeal and replace. >> it seems to me you have two coalitions. one has a policy to cover the uninsured and one does not. eight years under george bush and nothing was done aside from the prescription benefit for seniors to cover the uninsured. it's not just a priority for republicans. i mean, that's fine. that's their prerogative. isn't that the case? >> no. i would say republicans do want to cover the uninsured but they want to do it inhe right way. health insurance is not health care. if we equate those things simply. medicaid in plar provides
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inadequate care for what you get particularly for the acute care population. health outcomes in medicaid are worse than those in private insurance. >> there is disagreement there. >> that's significant disagreement. >> i should say there is very little disagreement about medicaid versus private insurance. >> i want you to tell me -- we'll take a quick break. tell me what the vision to cover people looks like. don, we're going to talk about the medicaid ruling part of the supreme court decision which got less attention but is really important. probably more than half are cut under medicaid. it's very important to understand how math and science kind of makes the world work. in high school, i had a physics teacher by the name of mr. davies. he made physics more than theoretical, he made it real for me. we built a guitar, we did things with electronics and mother boards. that's where the interest in engineering came from. so now, as an engineer,
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♪ a little ted leo this morning. so i remain skeptical the republicans care about covering the uninsured and that's grounded in the fact that they had a chance during george w. bush. if it was a major initiative they could have done something. they could have done it the right way when they had the majorities and they didn't. what does covering the uninsured look like and what are the odds of that being a piece of legislation that goes anywhere? >> think you are right when republicans had power in the 2000s it was a strategic mistake not to do something about health care. historically for reasons about when the mmdi9 american conservative movement came to be in the 50s when it was about communism and things that didn't involve health care because medicare, medicaid came during the great society lyndon johnson area and then america was fully formed. >> although reagan famously recorded an lp that can be played opposing medicare.
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>> socialized medicine. >> there's been an evolution. today conservatives understand that if we don't have our own solutions then i think people like myself and others like governor romney who have tried to enact reforms, you will see more momentum in the future. republicans in congress and conservatives int lech chally are more focused on health care reform now than ten years ago. i think that's a good thing. >> in the past couple of years i felt there was more focus from conservatives a few years back. the early versions of the paul ryan road map had a big plan that would have covered the uninshired. it disappeared when they moved to the budget. in roll any's proposal so far, what's there in terms of the uninsured is big. he's specific on cutting
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medicaid. unspecific on covering the uninsured. what should i look at that would make me confident i would be there. i agree through the intellectual movement thinking about health care but it seems politicians see the upside of repdql, believe in repeal and they are backing off. >> let's remember that john mccain in 2008 proposed universal catastrophic health insurance. senator obama then campaigned against it. it's not like republicans haven't had solutions. it's a matter of priority and emphasis. >> that's -- >> i think now in this election it will be a matter of priority and emphasis. governor romney articulated the approach. it will be the priorities about market reforms rather than -- and more choice and competition. one of the aspects of the
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affordable care act is you have to expand medicaid coverage. more than half of the coverage happens and if they formally in the bill didn't do that then they lost all their medicaid money. >> mm-hmm. seven justices on the supreme court including justice kagan and briar joined the other five to say it wasn't constitutional, represented a gun to the head of the states and states can now take or leave the money on the table for the expansion of coverage. what does that mean in terms of how we should expect states to make the calculation? are conservative governors particularly in red states with lots of uninsured like texas or mississippi going to walk away from the expansion? >> yeah. the way i interpret it is they are assayingç the expansion of medicate occurs the same way the program came. it was optional. with federal matching funds that
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varies depending on the wealth of the state from the 50% to 70% range. they are saying the same rules apply here for the expansion. the states will have the option. they don't lose their basic medicaid system if they don't adopt it. the expansion is funded differently. it's 100% federal money for the gap between wherever they are at 133% for three years. then it goes to 95%, then 90% from then on. it's about 95% federal money when you average it out. >> it's a lot of money on the table to cover a lot of poor folks without insurance is the bottom line. >> yeah. those folks show up for care. the estimate we heard about free riders or emergency care is an under estimate. if you see patients without coverage they are sick for a long time. their kidneys fail if ef the diabetes. this is a big deal. that means a state is look at federal funding.
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i can't imagine in the long run. if they don't the hospitals and doctors will say, what are you doing? you are leaving all the money on the table. we have to take care of them anyway. i think state wills come in readily into the system. it would be foolish. >> that's a key point about the political landscape there. it may be popular for republican governors to say, you know, we'reç not going to take this d i'm standing up against obamacare. >> we're not taking it anymore. >> but the hospitals want the money and they could call the governor. >> it's more money if you have a sparse medicaid program. texas with a low medicaid, they get a ton of money because they are getting brought up to the new expansion on the 90-10 match. a state like massachusetts with a generous medicaid program gets little. >> it's a red state transfer. >> huge. in the long run that will be a excelling fiscal incentive.
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>> that's right. >> speaking of fiscal incentives i wrote about this on thursday for forbes. because of the new opt out the supreme court created for the medicaid program -- >> for expansion. >> and the way it overlaps with the subsidized exchanges that are part of the law a number of states like new york, new jersey, california, states with existing generous medicaid programs, they may have the ability to pare those programs back to bring more individuals on the exchanges. that could expand the deficit. douglas holz-ekin said it could cost $500 million over ten years. >> to move people. >> to the exchange. >> medicare is more expensive on a per capita basis. don, what do you think of that? >> this is going to take a couple of weeks for everyone to sort out. the law a person could go into
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the exchanges. that's all of theç subsidies, federal money instead of medicaid. we don't know -- i don't know what happened in the gap. say you are at a state whose current cut off. if you stay out of the medicaid expansion system what happens with the exchanges? i don't know the answer to that. think there will be fine analysis of what would apply. some games will be played. remember whether it is through subsidies this is mostly federal money. for states to stand aside it doesn't make sense to me. >> former administrator of the centers for medicare and medicaid services. thanks for coming on. >> thank you, chris. >> all right. what you know about the fast and furious scandal is almost certainly wrong. we'll have the author of a bomb shell report with us to explain up next.
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holder in criminal contempt for refusing to disclose more than a hundred thousand internal justice department documents related to operation fast and furious, a project by the bureau of alcohol, tobacco, firearms and explosives to stop the trafficking of guns into mexico's drug war. this ises the first time in history a sitting cabinet member has been held in criminal contempt of congress. the department of justice issued a ruling saying it would decline to pursue the case because of the assertion of executive privilege. holder dismissed the vote on thursday as an act of political theater by republicans. >> it's clear they were not interested in bringing an end to this dispute or even obtaining the information they say they wanted. ultimately their goal was the vote of the help of special interests they have now engineered. >> darryl issa chairman of tl house oversight committee accused holder to cover up gun
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walking claiming they intentionally allowed drug smugglers to transfer weapons to drug cartels in order to track the weapons and penetrate the cartels leading to one of the guns ending up at the crime scene where a u.s. border patrol agent was shot and killed. that account has been the largely accepted by the political establishment in washington. but an explosive new argument in fortune magazine up ends many of the basic facts underlying the republican case about fast and furious and how it went wrong. the author of the article catherine eban joins us. >> thanks for having me. >> because you are a member of congress, congresswoman clarke, what is your sense of where it goes now and what was your reaction to the vote on contempt? >> i think it went over like a lead balloon. clearly the republicans have been looking for every opportunity to create political theater. this was one of those circumstances. i think catherine's article goes
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to the heart of the facts and that's something we are not dealing with much in washington these days. it's the epitome of poor work on the part of the congress. we walked out. i walked out. i thought it was important to send a signal we are not going to be come police with the this type of theater. for me to put a vote on the board for something where the hearings had no democratic witnesses whatsoever. >> right.ç they orchestrated what they knew they wanted to do all along. there was no factual basis for what took place. it's unfortunate. >> let's start with a context. if you heard about it from reading a blog or something it was unclear what was the problem it was set up to solve? >> it was unclear what was the
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issue they faced. there is a massive flow of weapons now from the u.s. to mexi mexico. 70% of weapons in mexico come from the u.s. that's largely due to the fact that mexico has tight gun restrictions and the u.s. has lax ones, particularly along the border. what was the idea here? >> what's alleged or what in fact is the idea here? >> let's go go with the facts. what was the idea? >> the idea behind this atf investigation, it's not a program. it was a single investigation called fast and furious was to stop straw purchasers from buying guns they were then funneling to mexican drug cartels. >> what is a straw purchaser?
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>> somebody the cartels tap who can go and buy weapons legally. inç arizona it might be an 18-year-old kid who is not old enough to buy beer but if he or she has no criminal record they can go into a gun dealership buy 50 ak-47s, pay in cash and face no waiting period or a need for extra permits. there are a lot of kids in arizona who want to make a few extra bucks and this is what they do. >> the cartels find them. you buy the guns and give them to the cartels. >> or intermediaries who give them to the cartels. >> one of the folks they investigated was on food stamps but made $300,000 in purchases of weapons. >> correct. >> the initial problem they face was what a? why didn't they just den when the 18-year-old kid walks out of
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the gun shop slap the cuffs on him and bring federal law down on him? >> the kid made a legal purchase. there was nothing in the laws that gave the atf agents grounds to seize the guns or make arrests. complain all you want that guns were walked. however, we are a nation of laws. i can assure you if atf agents were running amok making baseless seizures. >> of law abiding citizens purchasing guns that would have been a political fire storm. >> they would have been hauled before congress. the reason i can say that with confidence is that's what happened in 2006. atfç agents were hauled before congress for making allegedly illegal seizures at a gun show. >> i want to hammer on this specific point. they didn't have enough legal authority to arrest them is key.
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you were intentionally letting guns go to mexico. >> yes, ma'am. the agency was. i'm boots on the ground in phoenix. we have been doing it every day since i have been here. here i am. tell me i didn't do the things i did. tell me you didn't order me to do the things i did. tell me. >> that was john dodson, an atf agent. that's the explosive interview he gave in march alleging the core of the scandal which is that atf agents were instructed to intentionally let guns walk, as it were, these straw purchases. let them go and watch them wade off into the sun set with a vague sense they would be traced and lo and behold one of them ended up at the crime scene in which a u.s. border agent named brian terry was shot and killed. what about your reporting calls that story into question?
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>> well, first of all, and john dodson may not have been privy to this although they talked about it every day, but prosecutors repeatedly told the group supervisor and the other case agents that they did not have grounds to seize these weapons. there is a long record of e-mails which clearly supports the contention. >> a huge difference between we ird letting guns walk as part of a strategic vision of how we are going to bring down the drug cartels and what you say and the reporting indicates happened which is that the agents said we want to do something about the straw purchasers and they said you cannot. these are legal gun purchases. >> that's correct. >> john dodson who has been portrayed as the whistle blower
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who exposed this, one month after he claims this phoenix group seven was driven over the conflict of gun walking he proposed and completed a separate investigation in which he walked guns. it was the most egregious form in which he used tax colors, handed them off to a suspected firearms purchaser and failed to interdict them. seemingly had no plan to interdict them. this stands in stark contrast to his testimony that if even one gun gets away we never get home until we seize it which he says is the ethos. in this case he left for a four-day vacation which he himself documents in the atf log of his own case.
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>> thatç gets to something important. it is important to lay out the fact pattern. these are agents working in phoenix in this operation trying to deal with the gun smuggling problem. it's clear that the men do not like each other much. it's clear that he's giving a side of the story different from what we have heard from dodson that was channelled through chairman issa, et cetera. i'm a liberal. so i'm disposed to when i read this i was like, see, this is the fact. maybe that's just confirmation bias. maybe i'm happy this backs up what i was predisposed to think. why should we believe this account rather than dodson's account? is this a he said/he said situation? >> one of the things i did in my reporting is spent six months trying to actually knock down
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every single claim that dave voth made as well as trying to report against the e-mails i had obtained and the documents i obtained which seemed to confirm the story. it really wasn't until i could not knock down the case anymore and also had four other law enforcement agents supporting his account separately. didn't sit them down in a room together and interview them. that we felt comfortable that we had gotten to the truth of the matter. >> the facts laid out here when you read them. like i said before, it's liko a horror movie or a governmethic . it reads like someone condemned to an insane asylum and he's not crazy and he can't convince anyone because everyone says
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they are in the crazy. how did this alternate story about what happened get injected into the bloodstream and end up with eric holder being voted for contempt. tell me that after the break. tss of any small business credit card! pizza!!!!! [ garth ] olaf's small business earns 2% cash back on every purchase, every day! put it on my spark card! [ high-pitched ] nice doin' business with you! [ garth ] why settle for less? great businesses deserve the most rewards! awesome!!! [ male announcer ] the spark business card from capital one. choose unlimited rewards with 2% cash back or double miles on every purchase, every day! what's in your wallet?
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[ honk! ] it's our most innovative altima ever. nissan. innovation that excites. ♪ so you wrote this piece, a six-month investigation, tremendous amount of evidence and reporting that lays out a set of facts about what's at the core of what happened in fast and furious. in some sense it's directly contradicting other facts promoted by republicans on the hill and in the conservative media. in a lot of other cases, radically shifts the context of what we know. the question to you is how did this other story, the one that everyone knows to be true that they allowed guns to walk intentionally without any idea to trace them, how did that story become the dominant story? >> well, it's hard to say exactly. you know, i'm definitely not here to point fingers. >> sure.
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>> but republican senators stood strongly behind this narrative. they raised some of the questions but i assume if they put it in the scales and weighed it they chose one side. >> there are twoç complaints levelled here. i want to refer to the second one. one is that this was a botched operation which i think the atf and doj conceded though you make the point it wasn't a poched operation. they couldn't get prosecutors to sign on to prosecuting. atop that is the idea that this was an intentional conspiracy by the obama administration to produce some sort of gun tragedies which they could then use as an excuse to crack down ton second amendment. here's darryl issa making the point. >> could it be that what they
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really were thinking of was, in fact, to use this walking of guns in order to promote an assault weapons ban? many think so. they haven't come up with an explanation that would cause any of us not to agree. if you don't think this fast and furious and things like it are the beginning of an attack on a the second amendment you haven't evaluated this president. >> how plausible is that for you? >> there is no evidence to support the claim. john boehner himself has said it. you don't need to have a botched gun walking operation in order to produce evidence that we need an assault weapons ban. >> right. the attempted assassination of a u.s. member of congress would seem to some to be sufficient evidence. >> which didn't trigger any -- >> no.ç
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>> the main gun control advocacy group. there is no appetite on capitol hill for gun legislation. >> it's interesting. the lengths people will go to in order to discredit the president. this is really a manufactured scenario here with respect to this whole fast and furious. they were looking for something. they are constantly manufacturing things on the hill. the bottom line is you're right. we have not raised the issue of gun control on the hill. that's not been a part of any political agenda as far as i can tell. as a matter of fact gabrielle giffords herself was a gun rights person. >> right. >> it boggles the mind that we have wasted so much time on the hill and distracted away from
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all of the key issues here. >> there is an incredible irony here. one of the at f'if agents who s out against the issa narrative, linda wallace who said they whipped the country into the frenzy identifies herself as a strong second amendment supporter and says in part she chose to speak out because she feels representative's issa's inquiry is harming the second amendment because he is effectively advocating thatç a agents make illegal seizures of legally purchased weapons. >> you say irony abounds with the scandal but the ultimate irony is this. republicans who support the nra are lambasting atf agents for not seizing enough weapons which in this case prosecutors deemed to be legal. that's a fantastic piece of reporting, exactly why
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journalism exists is to sort out fact from fiction. thank you so much. the article is in "fortune." we'll post it on the website. >> thank you. >> what do we know now we didn't know last week? my answer is a after this. [ male announcer ] don't miss red lobster's four course seafood feast, just $14.99. start with soup, salad and cheddar bay biscuits then choose one of 7 entrees plus dessert! four perfect courses, just $14.99. come into red lobster and sea food differently.
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in just a moment what we now know that we didn't know last week, but first a quick update that we did last week on the university of virginia president teresa sullivan is back in her job after the board voted unanimously to reinstate her on tuesday. they forced sullivan out in order to create a more corporate university to get rid of, quote, obsolete disciplines like classics and german. another beneficiary of the up bounce is new york state assemblyman humphries with 97% of the vote in one his primary
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on tuesday to become new york's eighth congressional district. and subsidies for student federal loans were averted for a doubling of student loans for millions of students. my book "the elites" is on sale now. on wednesday, july 11th i'll be at the commonwealth of club in san francisco. it's been awesome to see you alç come out in los angeles and cambridge and around the country. check out the twilight of the elites facebook page for more information on other upcoming appearances. what do we know now we didn't know last week? well, we now know that the republican party of texas is actively opposing higher order hicking skills ordering that students fixed beliefs and undermine corporate authority. they believe capital punishment is beneficial.
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we know nbc news justice correspondent pete williams took the unusual step of reading the supreme court's health decision before reporting on it. cnn and fox news failed to read past the first page producing this dewey defeats truman moment, but not before the president's soul was crushed that his legacy was null and void. president obama's boost has a huge vote in confidence thanks to a poll by usa today and national geographic, we know 65% of people surveyed say obama would handle the invasion better than mitt romney, but most americans claim they would not mind a minor ail an invasion because they believe the creatures will be friendly, so this won't be a critical factor in the swing states this fall. finally, we know we lost one of the nation's warmest and funniest voice this is week. a person who in the wordsover carrie fisher was so alive.!f j
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boys club with her wit and talent and writing iconic films like "when harry met sally" and most recently "you lee and julia." efron told the graduates of her alma mater was lee not to be the victim of their life but the here heroine of her life. that's feminism. back to the table to find out what you think we now know that we didn't know at the beginning of the week. congresswoman yvette clark. >> we know obamacare is the law of the land. that's extraordinary. the supreme court has ruled that health care for all in this nation is going to be very, a part of our lives going forth and i'm excited about that. >> we debated what happens if
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mitt romney is elected president. the law does survive and could have one last final challenge before the cement dries on the law being permanent, but obviously that's the big news of the week. what do we now snow in. >> we focus on the court's ability to strike things down. it also has the similar et rick power when this occurs when the institution is controlled, a democrat law, by republican appointees. that's interesting. andç relatedly, we know that t institution in washington, where on some things democrats and republicans can actually vote on the same side. so john roberts voted with four liberals to basically democrats to uphold, an john roberts is a republican appointee, to uphold obamacare. and he vote odden the other side
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with four conservative republicans and two liberal democrats. and that's news that there's at least one institution in our nation's capital where sometimes democrats and republicans work together. >> i know more about the constitutionality and the apf organization or lack thereof. that piece is amazing journalism, and they are taking something we don't fully understand, put in the work to help us see the truth. >> absolutely. >> we learned this week that the federal society with once again conserve tiff intellectual movements can appoint strict constructionism to the supreme court who look at the original intent and lang wanlgs of the constitution. it looks like they missed out once again. >> i'm not so sure about that. it will be so interesting to see what the roberts' courts look like in the wake of this. there's one interpretation this was just what he was persuade by.
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if others say he was storing up reputational capital, which he'll begin to spend over what will be one of the longest terms as supreme court justice in the nation's history if not theç youngest. my thanks to congresswoman yvette clarke, democrat from new york, and thank you to all of you for getting up. thank you for joining us today for "up." joining us tomorrow morning at 8:00. i'll have kris kobach. coming up next is melissa harris perry. melissa sat down with an interview with nancy pelosi to discuss her political ruling and the prospects for democrats this november. and blair underwood will talk about his role in the new black cast of the broadway show streetcar main desire. i've heard amazing things about that.
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that's melissa harris-perry coming up. thank you for getting "up."
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the president from interview: i talk to folks on rope lines and in coffee shops. people who have been out of work. you can tell it wears on them. narrator: he's fought to pull us out of economic crisis for three years. and he still is. president obama's plan keeps taxes down for the middle class, invests in education and asks the wealthy to pay their fair share. mitt romney and his billionaire allies can spend milions to distort the president's words. but they're not interested in rebuilding the middle class. he is. i'm barack obama and i with two times the points on dining in restaurants, you may find yourself asking

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