two last points and that is the reality is that the fight about obamacare is not over. we're not walking away. there are several battlegrounds yet to play out. one of course that you've already heard articulated is the movement in the united states congress to work toward repeal. as i understand it, the house of representatives will vote on that as early as july. as you have noticed in the last 24 hours, there's a palpable movement across the united states of america, aggressively pushing for repeal. this is a law stunningly that not only did a majority of americans disagree with, but on the day the case was decided by the united states supreme court, it's also a law, a majority of americans thought was unconstitutional. that majority of americans is

galvanized now, motivated now, more than ever, prepared to go in and do battle, to do everything they can to repeal obamacare which starts in part in the halls of the united states congress. but there's another opportunity. there are millions of americans who are upset about the votes that were cast yesterday by five justices on the u.s. supreme court. those people who are angry about that have a vote they can cast themselves, a vote that will allow them to repeal obamacare if they want to, and you can expect this fight to challenge obamacare will escalate in a very aggressive way as we move towards the november election, which will be the ultimate recall of a policy that americans disagree with. another thing that you will find in that arena is heightened and

intensified focus on one of the most important roles any president can play and that is in the appointment of justices to courts. it will be incredibly important for all americans to choose a president who will appoint judges who will decide these cases along the lines of the constitution as opposed to those who are going to be writing policy decisions from the bench. the last thing i'll say to sum it up, talking about the end result, can be best captured by the language of justice kennedy himself, when he said the court saved a statute congress did not write. in short, the decision was one of policy and in doing so, the lasting legacy of the decision is that freedom is more fragile and the constitution is more

vulnerable. the only way we can firm up freedom and reinvigorate the constitution is for the people of this country to fight back against this overreaching decision. thank you all very much. [ applause ] >> thank you, attorney general abbott. the national federation of independent businesses as i mentioned earlier, represents the bulk of commerce in the united states and certainly one of the greatest sources of new jobs, so karen, will you talk about the impact on the group you represent as well as legal issues and particularly, if you concentrate on what this -- or how this applies to the economy. >> right. thank you, general meese, and it's great to be with you again, attorney general abbott. it has been wonderful, nfib, i need to start by saying with the

partnership we've had with the states. it's meant so much to our members and to the organization so we really are so happy that you all welcomed us into the lawsuit. so yes, as the attorney general mentioned and i think you've seen especially in a lot of the 24 hours after coverage, there are some silver linings in this decision in that we did win our case on whether or not the individual mandate is constitutional under the commerce clause with the court saying no, it isn't, but as the attorney general also mentioned, we lost on the taxing power and for small business owners i represent, their two top issues for decades have been health insurance costs and taxes. so for them, yesterday was truly the darkest of days because although i think some of our

members actually i know some of our members appreciate the victory that we got on curbing commerce -- congress' power under the commerce clause, whether -- it's really -- commerce clause justifying it versus taxing power for them is really a distinction without a difference, because the bottom line is as has been mentioned already, they are now facing a wave of new mandates and new taxes under this law, and nfib, since the '70s, has conducted monthly studies called small business optimism index. over the last 48 months, i don't know, a couple years at least, what we have seen every time is obviously lack of sales is a reason that they're not growing but when you get to the number two and number three issue, it's taxes and it is uncertainty, and

the uncertainty issue has continued to rise over the past several months, and as a result, small business owners who typically get us out of tough times by hiring are sitting on the sidelines. as a result of this decision, i can assure you that's going to happen. we have a member in new jersey who has 47 employees and has said that if this law is upheld, which it was, he will not be growing. he cannot afford to grow. he cannot afford to get to 50 because then he's facing the employer mandate which will require him to spend thousands and thousands of dollars that he does not have. our members operate on razor thin margins. these people are not, you know, driving cadillacs and eating fancy dinners every night. they are just scraping by in many instances and they don't have a lot of discretionary dollars to spend on all that's

coming towards them, namely again, the employer mandate. for those that are 50 or more, they're going to have to pay a fine of $2,000 per employee if they do not cover them with health insurance. there is the small business health insurance tax. this is a tax that will be levied on the type of health insurance plans that our members buy. if you're with a big company and they self-insure which most large companies i think probably all do, they don't have to pay this tax. if you're with a union, they don't have to pay this tax. but if you're a small business owner who goes to a broker and buys their health plan off the shelf from blue cross or united or whoever it might be, you get to pay this tax. those plans are going to have to pay that tax and of course they will get passed on to my members. what we've also seen since this law was enacted many say nobody's impacted by this yet, only the insurors are impacted.

well, that's not true. we have research that shows that for again, those that have 50 or fewer employees, they have seen over the last two years their plans be canceled by the insurors. one in eight have been told by the insuror that plan you have, that plan we were all told we could keep, that's gone. we're not going to offer it anymore. well, why is that? that's because it's not just about having health insurance, it's about having a certain kind of health insurance. it's the kind that congress tells us that we must have. it's the kind that says whether or not you will ever need substance and abuse treatment, you have to buy a plan that covers that which means you have to buy a plan that builds in cost for that coverage. that increases your cost. whether or not you choose to have children, that is irrelevant as well because you must have pediatric coverage. all of this came out in the arguments interestingly by the chief justice and for us, we

were actually very encouraged by this because we saw that he really got it when it came to what this law meant, but at the end of the day, i feel like when now i turn a little bit to the legal side of it, i feel like we're kind of now as americans and small business owners in more of the position the states were in two days ago. by that i mean when it came to your medicaid challenge, it was all about where is the line on coercion, right. but now my understanding of the opinion is that question is one that the courts will examine for years to come on how high's the tax penalty. if it's too high, then maybe it is coercive and no longer a tax. and the courts are going to be calling those -- making those calls going forward for all of us when it comes to our freedoms and what the government can mandate on us through the tax system, and i think again, for our members, that is particularly disturbing because

as the attorney general mentioned, look, this thing was sold to all of us as not a tax increase and now we have the court going right along with that argument, doing exactly what the government was laughed at in the court for saying, coming in on monday and saying oh, no, this isn't a tax under the antiinjunction act. the court said the exact same thing. on that one they decided you can't really look too carefully at the statutory language. we need to look just at the bigger picture and from that, we think the antiinjunction act doesn't apply. then they come back on tuesday and say oh, but it is within our authority under the taxing power and again, the chief justice agreed with them on that one. and on that one, as attorney general mentioned, he rewrote the statute so that he could save it. i guess we should be happy to know that he didn't rewrite the constitution but he did, i fear,

have gaping holes that now congress can run trucks through on what they can do to all of us through their taxing power, and so nfib's and small business owners' two hot button issues that cause them the most concern that are really what they look at before they decide to grow, taxes and health insurance costs, were both -- those problems are exacerbated as a result of yesterday's decision. what i can assure you that nfib throughout this process has been actively lobbying on the hill to try to get rid of some of these onerous provisions like the employer mandate, as well as fighting for repeal of the entire law. we will continue on both fronts going forward. i can sure you our members demand it and we must for their very survival continue that fight. but it really is sad that at the end of the day, i feel like once

again, small business owners really got the shortest end of the stick when it came to this decision. [ applause ] >> thank you very much, karen. at this point, we will open it up for questions from the audience. i believe someone has a microphone and so please wait until the microphone arrives. who has the first question? right down here. please give your name and organization and then ask the question. >> from the manhattan institute, i'm one of those pundits who is humbled but not silenced, i suppose. all of you have seen a lot of supreme court decisions, a lot of judicial appointments. why has the federalist society and conservative movement in general had such a difficult time putting people on the supreme court who judge laws

based on the way the constitution was written and the way the laws are written? >> excellent question. one that many of us have been asking the last 24 hours. gregg, why don't you start? >> well, i can't speak in detail from the approach of those organizations that you mentioned. in part, you could look back, if you would, to some precedents in the past and it seemed there was less of a focus in ensuring they get the right justices on the court that you would see from the other perspective. my perception is when you have a democrat president, there are litmus test in their mind that they will know for an absolute ironclad fact that that person is going to vote the way they want them to vote. you know that barack obama knows exactly how justice kagan is

going to vote. he wouldn't have put her up there if she wasn't going to vote that way. you go back to presidents of the past, it seems like a similar commitment was not there. my perception to draw some personal connection here, my perception is that bush probably more than any republican president was committed to certain principles and idealogical purity. i say that in part because he appointed me to the supreme court in the state of texas. i've been through his vetting process, i know his analytical process, i know his advisors, they are very committed to having people appointed along a certain idealogical purity. you see that with alito and to an extent with chief justice roberts before yesterday. so to have this turn of events yesterday, that made yesterday even more surprising because before yesterday, there's

probably one or two people in the room who said oh, i knew who the swing vote was going to be, justice roberts. in reality, almost everyone in the country said it's all up to kennedy, whichever way kennedy votes is the way the decision will be decided. most people thought, especially as karen pointed out based on his comments during oral arguments, he was rock-solid. we have to have presidents and vetters be more committed to finding people who will make decisions based upon the constitution if we are going to maintain the strength of this country. >> karen? >> yes. the only thing i would add to that is in the silver lining category, i do think that yesterday has raised the profile of this issue even more with the average american. i know that our members, because really, i feel like yesterday was very much, you know, a great example of so-called judicial activism. they rewrote a statute to save it. i think more and more the

american people and my members are getting that and so maybe that will be helpful going forward as far as putting pressure on our, you know, presidents to find judges that really do act like umpires and not like legislators. >> i was personally involved directly in advising a president in the appointment of four justices to the court. two turned out to be rock solid, two didn't. so -- yet all went through the same vetting procedure. that was everyone, in every case, everyone had been a judge prior to being appointed to the court. and every decision of those candidates was gone through with meticulous care by a team of people to look at what -- whether there was any possibility that they would stray from constitutional fidelity and doing what a judge is supposed to do which is interpret rather than make up the law. yet, nevertheless, somehow at

least in two cases, although most of the time they carried out what the president expected, there were lapses and unfortunately, as in this case, the lapses are in the most important cases from a constitutional standpoint. so i don't know in answer to your question, i don't know what you can do when every possible effort has been made as i'm sure it was by george w. bush. so there's no way you can tell, i don't think, how you can be absolutely sure in any case. it's one of those things that some people's views that you think are absolutely rock-solid when they come to don the robes of the supreme court, somehow something happens after that time that's almost indefinable. the only thing i've thought of over the years watching the parade of change in some judges and i won't say total change but partial change in these tough cases is one factor is that when

they do change and do what the president who appointed them does not expect, they all will be applauded by the "new york times." next question. victor? >> thank you. victor schwartz, chair of the public policy group. i urge people to read this thing. i have an associate who is reading the dayton phone book and he finished it faster than this. i'm still working my way through it. but i mentioned reading it because there's some words in here that really support what karen says and what the attorney general says, and they come from justice roberts. at least the way i looked at this decision, justice roberts, when should the tax power rather than the commerce power, because it provides people who might oppose this law with a greater lever to oppose it.

if i were advising somebody running for office, i would really hammer on words of justice roberts again and again. he says these decisions, meaning like health care, are entrusted to our nation's elected leaders who can be thrown out of office. that is odd to hear a justice say, can be thrown out of office, if the people disagree with him. it is not our job to protect the people from the consequences of their political choices and those words repeated again and again to people say make the political choice. the chief justice is giving you an invitation here and i wouldn't have come down that way if it were a commerce clause decision. the decision has many pearls for people who want to overturn this thing, literally an invitation from the chief justice saying hey, this may be terrible but i invite you to do it and this is the way to do it. don't foreclose that and use his

language to reach the decision that you're talking about. i don't know whether you see it that way but i do see it as helpful. >> well, it was an open invitation and strong suggestion to the public to take matters into their own hands and to be active participants in the in the democratic process. if you don't like outcomes like this, to vote people out of office. there have been probably 4,000, maybe 40,000 stories written about the obama care decision already and analyzing it. i saw one i can't remember if it was late last night or this morning that said that this decision was really part of the mad genius of chief justice roberts. knowing that this would be used in a way that would actually affect the outcome of the election in november. and so he had a bigger broader scheme at play. i won't attribute that much to him. i can say, however, those words that you just read from, you will see repeatedly on

advertisements and on tv screens at a location near you for the next four months. >> i think this is true. for the small business owners i represent, they're even more energized than they were before if that's even possible. i will say though one thing that was -- again, it is disturbing to me that there was so little transparency. at the end of the day he says go to the political process but he's also giving congress the green light to pass taxes and not call them taxes when it's being, you know, debated in the halls of congress and do it in a nontransparent way and for that i hate to be the wet blanket here but the members are not very happy today and so i'm having trouble with the pearls and silver linings right now.

>> okay. next question. >> thank you for your comments. i was wondering in light of the silver lining with regard to the medicaid ruling, what do you anticipate the states will do now that previously it really quite frankly wasn't a voluntary entry into the additional requirements of obama care. do you think that some of the states will go ahead now and exercise that option? >> i do. first with regards to texas, i haven't yet talked to governor perry about this. i have seen a statement issued by -- we have in texas what's called health and human services commission and they issued a statement lauding this part of the obama care decision saying that it will provide them flexibility they need. let me emphasize something that i just always kind of assume everyone knows. the reality is the most

challenging budgetary component states have is medicaid spending. it has been a piece of the pie that is consistently grown and occupied other areas of spending that we want to devote resources to whether it be education, law enforcement, public safety, whatever the case may be. our ability to address those issues is reduced because of forced expansion of medicaid. if you lay it on top of that, the forced expansion under obama care of the medicaid program, we were going to face even tighter budgetary challenges going forward. bottom line is the health and human services commission and state of texas is now articulating this will provide them the flexibility to accept or reject this but to chart their own course as opposed to having their course dictated by a bunch of bureaucrats in washington, d.c. we believe in texas that texans can run texas better than bureaucrats in washington, d.c. and this gives us the flexibility to do that.

we will be deciding shortly which path we are going to take. i did see a comment that may not be finalized yet but the governor of wisconsin came out and said he was rejecting the expansion of the medicaid and i wouldn't be surprised if you see some others come out and make similar comments. >> okay. question back there. raise your hand high. there you are. >> i'm an intern here at the heritage foundation. i heard it said a lot and also on this panel that justice roberts is really trying to establish clear limits on government power under the commerce clause by upholding this law using the taxing power and that's a pearl in this ruling. it seems to me the opposite is true. had justice roberts upheld the law under the commerce clause but said as the government had

said that health care is different, that there are limits to the commerce clause but just for whatever reason health care is different in all other markets, we would have a clear limit on congressional power. by using the taxing power as was best said basically congress has ability to regulate whatever it wants and as long as the penalty may be sort of kind of construed as a tax if you think about it so didn't justice roberts give congress a lot more power than he was trying to do? >> not really. i'll disagree with that and i'll try to weave together the perspective that i perceive from chief justice roberts. one is that going into this decision there was great concern about among across the country that the commerce clause

provided congress authority to regulate whatever they wanted to do. we knew if we were going to have any limitations on congress, we had to have some restraint on the commerce clause and so this is really a tremendous victory to the extent that we have now clearly established that there is in fact an outer bound to this commerce clause which is something that most people thought did not exist. so that's a good thing. what you're saying is that, well, there may now be something to the outer bounds to the commerce clause but not tax and spend clause. what chief roberts is saying is true in this respect. no one campaigns on the theory of kicking the bums out of congress because they exceeded their commerce clause powers. people will campaign and you will hear beginning today through the election in november that congress has put an unprecedented expansive tax on

you and small business men and women across the country. the president promised he would not tax people who make less than $250,000 a year and yet he has now imposed a tax on the very people he promised he would not tax. you will get to hear campaign themes like that that you would not have been able to hear had the case been decided on the commerce clause. that goes back to the earlier comment and that is whenever congress does pass a tax, it is incumbent on american citizens to fight against them taxing and spending more. it goes back to the challenge that karen was talking about in our frustration coming out of the case and that is that the reason why we thought all along we were going to win on the tax issue is because in the early draft of this law congress labeled the penalty as a tax. they changed that wording, deleted any reference to taxes whatsoever, categorized it as a

penalty for one primary reason. they knew that if they categorized it as a tax, they would be kicked out of office. it would violate the president's commitment not to raise taxes. and so now we have a situation where congress by clever slight of hand and verbiage can avoid the damning phrase of raising taxes by calling it penalties or fees or assessments and we'll see other creative adjectives. >> or share the cost. >> yeah. share the responsibility. this is going to be a share the responsibility assessment. but the problem is as long as -- they are supposed to use the word tax so americans can campaign against them for raising taxes. that is the biggest challenge in my opinion coming out of this case and that is going to embolden congress to pass more income generating taxes by not calling them taxes.

>> the only thing i would add to that -- i agree to what the attorney general said. you asked in your question why didn't they say the health insurance market is unique which is an argument the government was making all along with regards to supporting its commerce clause power arguments and honestly, i am glad they didn't go that way. i do think that would have -- there are so many things that affect our health whether it's what we eat, it's how much we sleep. i mean, that really would have opened the floodgates and we would have seen so much follow litigation that wouldn't have been a clear line at all. in that respect i am very happy that we have a clearer sense of what congress can and cannot do under the commerce clause than we did two days ago and for that i am very grateful. >> in a moment i am going to do what