ms. norton: thank you, mr. speaker. members may be aware that i come to the floor occasionally in order to make certain that members have the full background as they find themselves in the perplexing situation of receiving legislation on a local government. we had a misunderstanding, i can only think it was a misunderstanding this week, when senator rand paul, who i know has been a student of history when it comes to the constitution, engaged in actions that had the effect of

compelling a bipartisan group of senators to pull back further autonomy for the district of columbia. first recognize that the framers didn't go to war with american citizens, including citizens who live right in the very territory where we are now, the district of columbia, they did not go to war with our citizens only to leave them out of the very franchise and local control that made them commit what i'm sure the british believe were acts of treason. because they repelled -- rebelled against england for its

refusal to recognize the taxes on matter of local control. bear in mind that those who went to war included the residents of this city and that the framers in every respect showed that they respected the fact that the citizens of this city were included in the reasons they went to war. for example in the transition period, 10 years, between the time that the district of columbia became the nation's capital, the framers of the constitution from -- in the constitution from maryland and

from virginia made sure through legislation that their members lost nothing because maryland and virginia had donated land to the nation for our nation's capital. and so they voted in their jurisdiction, maryland, virginia, they voted for representation and they were treated like other americans. in 1802 when the full passage occurred, they lost what they had been promised. they lost their full rights as american citizens. the district got back some of those rights under a republican president when the district was given home rule, the right to govern itself under the home rule act. richard nixon said at the time, i share the chagrin that most americans feel at the fact that

congress continues to deny self-government to the nation's capital. i would remind the congress that the founding fathers did nothing of the sort. home rule was taken from the district only after more than 70 years of self-government, and this was done on grounds that were either factually shaky or morally doubtful. and so the congress returned the district to some measure of home rule. in returning that measure of home rule, the congress nevertheless said to the district that while it had authority over its own budget, it should essentially come to the congress of the united states. before that budget became final.

we are trying, as i speak, to make sure that that budget does not become a vehicle for denying the very principles that the framers fought for and that every american stands for. this is not a country where you can pay taxes and somebody else can have something to say over how those taxes will be used. that will cause another rebellion. so when the matter was put to american citizens, here is what they said. more than seven in 10 americans believe that the district of columbia should control its own budget. the american people are saying, duh, it's a basic founding

principle, why do you need to tell us that? we need to tell you that because there are attempts here and there was an attempt in the senate that went counter to the bipartisan consensus that is arising for local control by the district of its own local funds, funds that not one member of this body has had anything to dole with raising. so you put that to american people you get a predictable answer. seven in 10. what does that mean in terms of democrats and republicans? 71% of democrats -- by the way, 72% of republicans, i'm not surprised at that figure, 71% of americans slightly more, 72% of republicans believe that the people who pay taxes and happen to live in the nation's capital

should be treated as still american citizens when it comes to how they spend their own local funds. that principle is not recognized over and over again in this body, and that's why i've come to the floor today because i do not believe that the failure to recognize this principle comes -- think it comes because there is turnover in the congress and because people don't focus on the bill so they simply do what they are told to do. they don't go into much analysis of why they are doing it, and i can tell you that i know that they don't go into much analysis of why they are doing it. the district of columbia last year was almost shut down three separate times. i don't think i could find a

member of this body -- in fact, i'm sure i can't, who would say when the federal government is engaged in a federal fight over federal spending the district of columbia should have to shut down, too. but that was the case because the district of columbia budget, which had been approved, the balanced budget, unlike our own, had been approved by the appropriations committee was still here, and because it was still here and for no other reason, the district of columbia three different times had to prepare for shut down. had to prepare for the consequences of the possible reneging on contracts. through no fault of their own. it's important to note that the senate appropriation bill this year does contain my no shutdown bill for the district of

columbia which simply says the district of columbia doesn't shut down if the district of columbia -- if the federal government shuts down, forgive me, if the federal government shuts down. and said, of course, if you're spending your own local money, and that's for you to do. when i say we have a bipartisan group of leaders that have come to support budget autonomy, i'm speaking of leaders who have been in the congress, been in the district, and have seen what the effects of not treating the district as a full local control jurisdiction has been.

in this their house, i'm grateful to chairman darrell issa, chairman of the committee with some jurisdiction over the district of columbia, who is a leading proponent of budget autonomy and so much so for the district of columbia, so much so that he has his own bill reflecting autonomy, very much like my own. in the senate, senator joe lieberman and senator susan collins had a bipartisan in committee for budget autonomy for the district of columbia, much like chairman issa's. chairman issa's bill has been supported by majority leader eric cantor. chairman issa's bill has been supported by the republican governor of the state of virginia.

and so when we note what happened in the senate, we cannot believe that that came from banality or some sense that the district of columbia is not a city whose citizens should be treated as other american citizens are treated. and yet as the bill wept to committee -- went to committee, senator rand paul appeared to have proposed any and every amendment he could think of, amendments that no self-respecting american jurisdiction could possibly abide, not because of anything inherently wrong with these amendments, but because they run

counter to what the voting majority of tax-paying residents of the district of columbia had in their own laws. these amendments -- the senator said, we are -- not because he disagrees with this or that policy and he wants to make sure the district -- that this or that thing, he says, i think it's a good way to call attention to some issues that have national implications. we don't have control over the states but we do for d.c. really? what control do you have over our local funds? do you raise a cent of it? this is a misunderstanding. and since senator rand paul founded the tea party caucus in the senate, and is the champion

of small government and local control there, i choose to believe that this freshman senator had not come to grips with the rather come pli kated history of the -- complicated history of the nation's capital. if so i don't think he would have put forward an amendment that would require our citizens to allow conceal and carry permits here. we don't have any problem with conceal and carry in the united states. but that's not what the people of the district of columbia that pay taxes have written into their laws, their constitution law. moreover, public safety is the essence of local control.

if you were looking to the two or three issues that nobody should have anything to say about, in your own local jurisdiction, surely it would be the police power. when that power is consistent with the constitution. and then a whole stream of other amendments came forward, some of them on abortion, some of them on license firearm dealer, one of them having to do with labor organizations. it's as if the senator went down a checklist and said, in fact i think he did, he said so himself, and said, what can i highlight using the district of columbia as if this city were nothing but a play thing? not a jurisdiction of 600,000 american citizens who have fought and died in every war, including the war that created

the united states of america. of 600,000 citizens whose weight of paying federal taxes is second per capita in the united states. . 600,000 citizens, one of whom was killed in afghanistan last month. 600,000 americans who had every, every right to demand equal citizenship. the news from bipartisan support and from polls continues to roll in.

the senate of the united states has just passed out of committee our budget. the most it should be if our budget is here is a pass-through. as of now, we don't have budget autonomy. there is nothing, however, either in american principle or american history which says that once you have to have pass the budget through here, you can do everything you want to do to it, even though it has to do with funds that you had nothing to do with raising. look, i met tea party people for the first time when they came to congress, i thought this was their most original principle. in fact, senator rand paul would like to get the federal

government out of issues where the constitution allows the federal government, historically. what about hopping over those issues and trying to engage in the business of a local jurisdiction? that's not against his principles, that's against everything the framers stood for. an overwhelming majority, we have found, these are polls within the last few months, believes congress should pass a d.c. budget without changes. who are these overwhelming majority? 78% of them are democrats. once again, republicans lead the pack. 81% are republicans. you want to know how this was framed? this is how the question was framed.

today, members of congress are withholding approval of washington, d.c.'s local budget unless the city agrees to a series of unrelated provisions on issues ranging from guns to abortion. do you think congress should or should not interfere in the city's local affairs and budget in this way? so if anything, the issue was framed against us because you can bet your bolt tom dollar that of this 81% -- your bottom dollar, that of this 81% of republicans who answered congress should not interfere with d.c.'s local affairs and budget, were many who, in fact, oppose abortion and oppose any restraint on guns. for gun owners or otherwise.

yet if you ask them a base question a fundamental question if it's your money, should a national body in washington have any, any right whatsoever to impose their will on your locally based budget? you know, congress does lag occasionally behind the american people. this is a big lag. but it doesn't lag behind leaders of this house and leaders of the senate. senator joe lieberman is leading -- is leaving, or retiring, this year. he's been a champion of equal citizenship for the residents of the district of columbia, whether it's voting rights or

statehood or budget autonomy. this issue in many ways partially defines his service. but i must say that the first budget autonomy bill to pass at all in congress came from senator susan collins. that was some years back. it went all the way to the floor and was passed. in a republican senate. it was the house that did not pass it. so when i say i'm talking about first principles, i think there is great evidence that those first principles resonate in the senate and resonate in the house, they resonate in the house. when senator -- when representative issa puts forward a budget autonomy bill.

it resonates in the house when majority leader cantor in fact says he supports budget autonomy. i don't believe that the average member wants the opportunity to use 600,000 american citizens as play things through their budget. we joust with one another, we disagree with one another, but i don't believe when it comes to this serious matter, if we had an opportunity, one-on-one, to speak with members of this body, they would give you a justification for this kind of treatment. that is why i say this afternoon that this comes from a misunderstanding that i hope by coming to the floor i can

help clear up. it comes from a misunderstanding because it flies in the face of the very principles that particularly members of this house have professed from the moment the 112th congress convened. get the federal government out of our lives, even where the federal government has historically been in our lives. get the federal government out of any opportunity to get in our lives. witness the view of the republican house on the affordable health care act. where local control and when it comes to our money, hands off. you can imagine that when we raise $4 billion in the district of columbia from local citizens, we wouldn't want anybody telling us anything about how to spend it. we spend that money on some

issues and in some ways that are different from the way my colleagues spend money. isn't that what is most wonderful about america? the framers put together a country that was so different, that the way they kept us from going at war with one another was to accept brate out local from federal and say, if you stay in your part, we won't go there. we will only go where matters of national concern are to be found. that was the promise. and i must say, for my colleagues, that's the promise that's been kept for every american jurisdiction. except our own. and that is why i have called senator ron -- senator rand wall, i'm sorry, senator rand paul. i have not been able to speak

to him yet. i am going to ask to sit down with him. i'm going to walk over to the senate to see if i can have a good conversation with him about the district of columbia. i have no reason to believe, given his own short history in the senate, that he means to do anything but carry out his own originalist -- originalest principles, the principles that local control is different than federal intervention and that given a conversation, we can at least make some headway on what the district means to our country and how the citizens of the city feel when they basically feel kicked around. we're powerless to do anything about it. if a bill comes to the floor which keeps us from spending

our own money, every member of this body can votenen in -- on that bill, except the member that represents the district of columbia. because as yet, the congress has not in fact given the district the voting rights that we have given to the people of afghanistan and iraq, where -- with citizens of the district of columbia among those fighting for their freedom. i don't think anybody would blame us for coming forward to ask for what every other american takes for granted. what is truly gratifying to me, even as i complain about the loss of budget autonomy in committee that senator joe lieberman and senator susan collins had worked so hard to perfect. what encourages me is -- are, first, the leadership we have in the house for budget

autonomy. the leadership that continues to stand strong with us in the senate. but most of all, mr. speaker, what encourages me are what these two charts tell us about our country. tell us about what they believe . and tell us about what they overwhelmingly believe. american citizens have a right to, when it comes to their own funds, raised by them and them alone, yes, i take heart in the fact that while there are only small differences between democrats and republicans, those who most favor control of the city's own budget by its own local citizens are our republican citizens who are, it seems to me, only, only

confirming their own principles and when it comes to whether or not the congress, when a budget comes here, should make it clean, just as it was when it came, or should in some way use it to talk about national issues, you have a greater majority, essentially sending congress a message that congress should pass our local budget without changes. 7 % of democrats, 81% of americans, regard this as something of a truism. i know that my colleagues represent the people included in these massive majorities and i don't expect my colleagues to spend a lot of time on the district of columbia.

i ask only when the budget of a local jurisdiction comes here, that there be some thought behind what you do when you have the vote on that budget and i do not. that in a real sense, i ask you to put yourself in my position. i am a member of the house of representatives. i have the same standing that all of you have, except i do not have a vote. i would be so bold as to ask my colleagues to put themselves in my position when they see members of this house or members of the senate try to direct the district about how it ought to spend its own local funds. i ask you to put yourself in my position because i think there will be some genuine empathy with the position in which i

find myself representing the citizens, 600,000 citizens, who have lived up to every obligation of citizenship ever since the founding of the republic of which they were part. but never without equal citizenship. we will continue to come forward in good faith and the spirit of -- of understanding, in the hope that with greater highlighting of the discrepancies between our professed principles and how they are occasionally carried out, change will come in a country which is always

striving to live up to its own ideals. i yield back the balance of my time. the speaker pro tempore: under the speaker's announced policy of january 5, 2011, the chair

recognizes the gentleman from texas, mr. gohmert, for 30 minutes. mr. gohmert: it's always an honor to speak before the house of representatives. great storied history here. just as the supreme court has a great storied history. there's some moments in time with regard to the united states supreme court which shows it to have consisted of a bastion of

strong wills, determined, principled actually minded justices. there are other times when the supreme court has shown itself to consist of some great judges and some who are more consist tent -- more interested -- consistent -- more interested in politics, more interested in feathering their friends' nests rather than doing what's right under the constitution, even though it was easy enough for them to rationalize that, gee, if they did help their friends, then obviously that would make it better for the whole country. i think we get some of that rationalization from this administration. gee, if they just throw billions or hundreds of billions of dollars at friends, then their friends will do better, and if their friends are doing better, surely the rest of the country

would. so we have also found that not to be true with regard to things like solyndra, massive number of cronies of the administration that have received hundreds of billions of dollars over time, also at a time when this country is sorely hurting from overspending and running up debt. in fact today we had a bill regarding transportation and a conference report. i know my friend, john mica from florida, worked exceedingly hard, as have other members of transportation, trying to reach an agreement with the conference report. it looked like the senate got the better end of the deal, but i know these people. i know their hearts and i know they tried to do what's right for america when it comes to

chairman mica and those who are assisting him. but unless we heard our friends across the identical over and over today talk about how critically important infrastructure is. how we ought to be spending money. and how just $1 billion added to the transportation budget could really make a tremendous difference. i harken back to a year and a half ago when the president of the united states, barack obama, had told people that if you'll give me basically $1 trillion, whether it's $800 -- looked more like $1 trillion, just hand it over to me and we'll get this economy going. if you don't give it to me, then it will turn out that we may see as high as 8.5% unemployment.

but if you do give it to me, we'll never see eight. of course he was wrong, that we would never see 8% unemployment. we have gone for many months -- i guess that was 3 1/2 years ago now that he was telling us about his big stimulus. how quickly time flies. but as the transportation proponents were pushing the bill today and talking about the good infrastructure, many of us believe that was true back in january of 2009. that it would be good. if we are going to spend money on anything, spend it on the things that we really need to do. bridges, roads, all these things that need construction, need renovation. so the president sold america

largely on the stimulus because we are going to fix all the infrastructure in america. but the last 3 1/2 years have borne out the president did not spend $800 billion, $900 billion on infrastructure. he spent maybe 6% of the largest give away in american history, he surpassed the terrible mistake that tarp was, $700 billion, we haven't been able to get an exact number, but $700 billion, it's my understarning, may have been around $440 billion or so, that his administration inherited, so when you get the $800 billion, trillionle toar stimulus give away -- trillion dollar stimulus give away, pork some of us call it, when you combine it with

$500 billion that he was able to inherit from the tarp fund and you think, maybe $1 trillion, $1.5 trillion he had to give away, and we hear debate over what difference $1 billion would make, not $1 billion, he was talking about 1,000 times that for infrastructure and he spent a tiny fraction on infrastructure, preferring instead to have massive grants and give aways to programs that were his cronies, his pets that are now producing no dividends and in fact are increasing further debt. so, we hear those things, how wonderful infrastructure would be and yet we know when we provided this administration and the congress, we provided them with massive amounts of money

for infrastructure, they diverted it. they did more damage to the country than they did good. the people this president has surrounded himself with, he had a solicitor general, named elena kagan, solicitor general's job is to assist the white house, assist the administration with potential legislation that might come to litigation, assist them with litigation, but as i know from my work 30 years ago in the private sector, you can't advise people about existing litigation and do your job without advising them about the way to avoid future litigation problems that you run into.

so we know that when the biggest legislative agenda item for this administration was the complete takeover of health care. as most thinking people would understand, if you can control all health care, you can pretty well control all people. you get to decide who gets what treatments, who can have a new knee, new hip, radiation therapy, who can have the surgery, and as one secretary in my hometown pointed out, her mother got breast cancer in england, and since the english government's wonderful health care system decided how long you had to wait before you could get -- before you could get to have diagnostic tests done, before

you could have therapeutic activity occur her mother didn't get the diagnostic tests in time to find out she had it for sure, didn't get the surgery in time, didn't get the treatment in time, and she said my mother died of breast cancer because she lived in england and the government was in charge of health care. she said i have been found i had cancer since i have been here in the u.s., and because the government was not in charge of my health care, i got a diagnosed in time, i got treatment in time, i didn't have to live by preconceived requirements of the government, so i'm alive because i was in america and my mother's dead because her health care was in england. well, some think the great panacea is government be in charge of health care.

we have heard over and over, this is for the good of the children. and we have some children on the floor of the house right now, and i'd be glad to recognize my friend from kentucky, mr. geoff davis -- i'm sorry. i thought this was the note i got. but, yes, i would be delighted to yield to my friend. >> i'm going to thank the gentleman from texas for yielding me some time. mr. clarke: mr. speaker, i'm very honored today to commend the united way on 125 years of serving our country. in particular the united way of southeastern michigan has done so much good for our region and for our people. it's helped provide shelters to the homeless, provide education to our young people, and training to the unemployed. so again i want to thank the united way of southeastern

michigan for its service and also for the united way on its 125th anniversary of outstanding work to our country. thank you so much. and i yield my time back to the gentleman from texas. mr. gohmert: thank you. greatly appreciate my friend, mr. clarke, and obviously that is an important announcement. i didn't realize united way had been around 125 years. they have been doing great work and i appreciate my friend and i do mean that, my friend, calling that to our attention. the administration had an agenda item, getting obamacare passed. elena kagan was solicitor general, and she continued to be solicitor general, even up until after the time when the first lawsuits were filed against obamacare. now, she gave testimony before the senate that satisfied them

at the time that she was pure as the driven snow and she would in no way ever compromise integrity. that was the feeling that was gotten. she got the vote she needed to be confirmed, and then went on to the u.s. supreme court. but since that time more questions have arisen -- wait a minute. she was there during this, that, and the other p when obamacare was being drafted, when it was being prepared, and even after it passed and it became law, she was the solicitor general. so now that we see all these things in perspective, we go wait a minute. could she have been the worst solicitor general in american history? that she would never advise the

president, her boss, never advise him on the litigation that would surely be coming when his prize legislation got passed, if it got passed? because a legitimate lawyer, an advisor, counselor, will tell the client, in this case the president, look, if you want to have this pass constitutional muster, here's what you need to do. let's get this verbiage in one place, this in another. could she have foreseen that perhaps a weakness of the brilliant john roberts would be if you call something a penalty in a bill and then later call it a tax after it's passed, then maybe the supreme court would buy it? i don't even think that solicitor general kagen could

have foreseen that john roberts would totally abandon intellectual consistency. no matter how intelligent, i don't think she could have seen that coming. . i certainly didn't. but the law regarding judges, federal judges, is not just a matter of ethics, that gee, you can have an ethics complaint filed against you, as you can if you're a practicing attorney or a judge. the law is 28 u.s.c. section 455. it says any justice, judge, or magistrate judge of the united states shall disqualify himself, that's generic for him and her, in any proceedings in which his impartiality might reasonably be questioned.

well, it is absolutely clear that her impartiality is certainly questionable in her boss' most prized legislation, obamacare. i see that we have a message. i yield to the speaker. the speaker pro tempore: thank you. the chair will receive a message. the messenger: mr. speaker, a message from the senate. the secretary: mr. speaker. the speaker pro tempore: madam secretary. the secretary: i have been directed by the senate to inform the house that the senate has agreed to the conference report accompanying h r. 4348 and asks to authorize funds for federal aid highway safety program ans transit programs and for other purposes. the speaker pro tempore: the gentleman from texas is recognized. mr. gohmert: thank you, mr. speaker. well, my friend from alabama, one of the great senators over at the other end of the hall, jeff sessions, had extended

eight questions to attorney general holder, asking for answers, and they were submitted timely under the rules, so that they were part of the hearing and would require answers from our attorney general holder and three of them in particular were these. and these are questions to attorney general holder because as 28 u.s.c. section 455 is the law and justice kay began's impartiality has reasonably been questioned, there's potential here for a law violation by justice kay began and we immediate to -- kagen and we need to know more. and since this is with regard to the law that the attorney general is supposed to uphold, fair questions. quote, from jeff sessions, to attorney general holder, are you aware of any instances

during justice kagan's tenure as solicitor general of the united states in which information related to the patient protection and affordable care act and/or litigation thereto was relayed or provided to her? unquote. another question, from u.s. senator jeff sessions, to attorney general holder, that required an answer. quote, when did your staff begin removing solicitor general kagan from meetings in this matter? on what basis did you take this action? in what other matters was such action taken? unquote. because clearly justice -- solicitor general kagan was on the email list for people that were talking about the laws that were coming up that the administration wanted to be -- to get passed, including

obamacare. so it's a legitimate question to know at what point did she stop getting emails regarding obamacare? it's also important to know what she said in those emails. the one email they slipped and let us get a glimpse of was when obamacare passed, she sent an email, something along the lines of, can you believe they got the votes? sounds like an excited utterance. and it's worth noting that under 28 u.s.c. section 455, the law is very clear, this is the law, it's not an ethics, an encouraged rule, this is the law. where he or she has served in government employment as

solicitor general kagan has and in such capacity participated as a counsel -- counselor, advisor or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy, she shall disqualify herself. so clearly she's already disqualified because her impartiality is certainly reasonably being questioned but is there even another law, not rule, but law in which her impartiality can be questioned but it makes it very clear, if she ever, ever expressed an opinion concerning the merits of obamacare, she should not have been allowed to sit on this case. i think history is going to judge this case in a way that

justice roberts never dreamed. he is so brilliant, there's no question that he was able to rationize -- to rationalize that coming as part of the majority as he did was the thing to do. he has gotten accolades, just as chief tussties tauney did when he came out with the dred scott decision. that justice got accolades from people. yes, he got criticism, just as chief justice roberts has, but he got some of the same accolades he's gotten, what a brilliant man. he's removed politics from the supreme court when the truth is, just the opposite occurred. the politics of the white house prevailed. it was pure politics. it was nothing but politics. anyone who honestly leads -- reads this opinion from an entirely objective standpoint

will not be able to say, this is a beautiful piece of well reasoned legal logic because it is not. it is a hodgepodge of poorly written, poorly thought out, poorly pieced together opinion and it's an embarrassment and one day history will record that this court was possessed or four individuals who had political agendas and could not set them aside and that a chief justice who knew better decided he would try to make the court look less than political and in doing so became very political. the answer to these question the third one was, did you ever

have a conversation with justice kagan regarding her recusal from the matters before the supreme court related to the patient protection and affordable care act. if so, please describe the circumstances and substance of those conversations. real easy. we know that this attorney general has significant recollection problems. he recalled under pement of perjury before our judiciary committee that he had only learned about fast and furious a few week he said, a few weeks, before the hearing. within months we found documentation showing that was a lie. it had been months before at a minimum that he had learned and then when he was -- had that presented to him he said, a few weeks, months. what's the difference? highest justice official in america sees no difference teen a few weeks and months.

these questions need to be answered. it's already embarrassing enough that a justice hid behind the refusal to answer questions, the avoidance of questions, to be able to sit on this case and participate in one of the worst thought out and thought through opinions i've read from the u.s. supreme court. and looking at some of them, you go to the opinion itself, first of all -- first of all, the supreme court has to deal with the issue of whether the supreme court can consider the case. because the anti-injunction act basically in essence says if congress passes a tax, then the supreme court does not have any jurisdiction to consider the

case, no one can file such case in federal court until the tax is actually levied and the individual filing suit has had it levied on them. then that individual has standing, can file a lawsuit, the supreme court can consider it. so until the supreme court could decide and determine whether or not the penalty for not buying health care insurance was a penalty or a tax, even though the language in the act clearly said it was a penalty, the court couldn't go forward. that was the first thing they had to wrestle with. you see it particularly highlighted from pages 11 through 15. but it's worth noting, this is page 11, the court says, before turning to the merits, we need to be sure we have authority to

do so. that's justice roberts. before turning to the merits, we've got to be sure we have authority he says the anti-injunction act provides no suit for the restraining of assessment or collection of tax shall be maintained in any court whether or not the person is the person against whom the tax was assessed. the supreme court can't consider it if it's a tax. it won't be 2014 before that happens. so, you look at this decision, page 12, our brilliant chief justice, and he really is brilliant, he just compromised it here, congress' decision to label this exaction a penalty rather than a tax is significant because the affordable care act describes many other actions -- exactions it creates as taxes. because they are taxes. there are clearly -- the

medical device tax. obamacare adds. all these other taxes. they call themselves taxes. this doesn't. and justice roberts points out, it's a penalty. they call it that. and justice roberts says the anti-injunction act, and this is page 13 of his opinion, the anti-injunction act and the affordable care act, however are creatures of congress' own creation. how they relate to each other is up to congress and the best evidence of congress' intent -- get that? best evidence of congress' intent is a statutory test. the text calls it a penalty page 15, he saze the affordable care act does not require that the penalty for failure to comply with the individual mandate be treated as a tax for purposes of the anti-injunction act. the anti-injunction act does not apply to this suit and we may proceed with the merits.

it's not a tax, it's a penalty. all right. so page 15. all this legal reasoning, it's not a tax, it's a penalty. best evidence that what it is is what congress calls it. congress calls it a penalty. ergo it's a penalty and we can move on. now we're entitled to consider the merits. now, he also adds, this is over page 39, the joint dissenters argue that we cannot uphold section 5000-a as a tax because congress did not frame it as such. in fact the four intellectually honest dissenters have pointed out to the chief justice, wait a minute they called it a penalty. you said the best evidence of what it was was what congress

called it. congress calls it a penalty. they treat it as a penalty. and that's the best evidence so you can't uphold 5000-a as a tax because it was not intended to be one. and if you look, page 39, page 39 is where, and this is the full sentence, as an example may illustrate why labels should not control. this is the chief justice saying these lines. labels should not control it. he just said in page 11 through 15, labels should control, congress puts the label on what they mean it to me that should control. now he's saying labels don't control it here. he goes on to say, and this is at page 44, the affordable care act's requirement that certain individuals pay a financial penalty for not obtaining

health insurance may reasonably characterize as a tax. i called it a penalty so i'd have jurisdiction to write this opinion, but now that i have jurisdiction to write this opinion, now page 44, i'm calling it a tax. also on page 44, he says, the statute reads more naturally as a command to buy insurance than as a tax and i would uphold it as a command if the constitution aloud it. well, that is a -- that is really strange in an opinion, that's in a paragraph marked capital d, starts by justice ginsburg questioning the necessity of the commerce clause. you're not supposed to put that -- in good writing of judicial opinions you don't put that in a majority opinion you don't attack another co-majority signer and yet he does that a few times in his majority

opinion. then to add first person, the first person pronoun i and then follow that with a conditional future tense verb would uphold it as a command -- if the constitution aloud it, why is that there? that looks like it should have been part of a dissenting opinion, not, for heaven's sake, the majority opinion by one of the smartest lawyers in the country. he sacrificed not only his intellectual consistency, he sacrificed his intellectual ability to write as one of the best writers we have ever had. really tragic. but the statute reads more naturally as commanded by insurance. i would have allowed it. makes no sense there in that context. one other quote we have down here, found at page 57. he says, we are confident that congress would have wanted to preserve the rest of the act. he knows that's not true.

he knows that the house version of obamacare had the severability clause and the severability clause, every good lawyer, even every bad lawyer knows if you want the whole document to be preserved, even if one line is struck out, you better put that mother hubbard clause in there so that it's all protected. you lose one line, you don't lose the whole document. and that was in the house version. but the senate chose to strike it out. they didn't want it in there to say, if any of these parts get struck down by the court, it all has to fall. they didn't want -- they wanted the bill without the severability clause because if anything got struck, everything had to go. that's the way they looked at it. in fact, that debate was even made. if we don't get this part, we dent get that part, then there's no chance of having any of it.

well, it's pretty tragedy -- tragic, pretty tragic. but there's been so much sacrifice. i'm very grateful to justice kennedy, justice scalia, justice thomas, justice aly theow for maintaining their consistency, the dissent is very well written, very consistent. they not only didn't sacrifice their intellectual integrity, they didn't -- did not compromise their writing ability. it's a dangerous time and now we know because of this supreme court decision, talking to my friend, allen west this morning, he brought this up. i didn't know he brought it up this already in an interview. but since we now know that bringing down the cost of government function is a legitimate interest that justifies intrusive legislation, and you can now have a tax on people if they don't participate, then we know everywhere that concealed guns have been made legal, the crime

rates have gone down. the speaker pro tempore: the gentleman's time has expired. mr. gohmert: when the crime rate goes down, the costs go down. so we need a bill that will require everybody in america to buy a gun and if you don't, you'll be taxed and this supreme court and their intellectual lack of integrity will sustain that bill. with that i yield back. the speaker pro tempore: under the speaker's announced policy of january 5, 2011, the chair recognizes the gentleman from california, mr. rohrabacher, for 30 minutes. mr. rohrabacher: thank you very much, mr. speaker. mr. speaker, i have a policy in my office that every time anyone from my district actually comes to the capital, they have a right -- capitol, they have a right to see me and talk to me, especially young people. and i have over the years seen hundreds and hundreds, maybe thousands of young people from my home district in southern california. and i let them talk to me and ask any questions that they would like to ask and, you know,

i have a question that i always k them and i thought it would be interesting for my colleagues and perhaps any of those who are watching c-span or reading this in the congressional record to know that the answer that i get from -- when i ask a question of the young high school students from my district. mr. speaker, when our kids come in to my office and are talking to me, i note that i was actually in high school in southern california 47 years ago. and i always ask the kids, is the air better quality today or is it worse today than when i was going to high school in southern california 47 years ago ? and 90% of the students over the years who i've asked that question to have had exactly the

wrong answer. their answer is, oh, you were so lucky to live in a time when the air quality in southern california and around the nation was so good. and what's so terrible, that we have to put up today with air quality that's killing us. they've been told that the air quality, when i was in high school, was so much better than it is today, which is 180 degrees wrong. but this is a general attitude among today's young people because our young people are being lied to. they are intentionally being given misinformation. now, their teachers may not be intentionally lying to them, but their teachers may be -- are given information from scientists and other sources that is an compact -- exact lie from people who know that, yes, the air quality when i went back

to school and i go into description about how the air quality was so bad at times we couldn't even go out on the playground. they wouldn't let us out of the classroom onto the sports field because the air was so bad. today that happens maybe once a year or twice a year in southern california. back then it happened once a week at times during the summer and during the school year. so, our kids have this view that their generation is being poisoned. and they're willing to accept stringent measures in order to protect the environment that will give -- take away a great deal of the opportunity that they should have in their lives in order to correct this horrible problem that they're told that they've got. well, when i tell -- what i tell them is just the opposite, they're so surprised. the truth is, our nation's environment is no longer the

disaster that it was 50 years ago. and 50 years ago we did have a problem. 50 years ago i remember that when my dad was a marine down in quantico, when i was a child, i came up here several times and my dad would say, whatever you do, don't put your finger in the potomac river, your finger will fall off. well, it wasn't quite that bad. but it was really bad. we've made tremendous progress over the years in the potomac river. i can't help but notice there are people water skiing and sailing and doing all sorts -- and fishing in the potomac now. well, we don't live in the same time of 50 years ago. the air has -- today has never been cleaner than at any time in my lifetime. the water has never been cleaner at any time in my lifetime than it is today. and i am hopeful that my children will never have to experience the pollution that was rampant when i was their

age. so let's take a look and give credit where credit's due. that progress is in large part because of the efforts of the government, well, and the e.p.a., yes, which came in under president nixon. and others who have used science to fight for environmental reforms and to improve the quality of life of our people. and while i am thankful, i also would like to heed the warning that president eisenhower left with us in his farewell address and i quote, that public policy could itself become the captive of a scientific technological elite. end of quote. he was warning us about government-funded research becoming so intertwined with public policy and the creation of regulations it would compromise the integrity of both.

well, in recent years we've seen political agendas being driven by scientific-sounding claims, being used to frighten the general public again and again and again. an unjustified fear has been used, for example, to ban d.d.t. i remember when i was a kid, i used to run through these clouds of d.d.t., again, when my father was in the military, down in north carolina, and yes it was killing millions of mosquitos in north carolina, but when they banned that d.d.t., and i seem to remember it had something to do with the thickness of shells of certain birds, well, they banned d.d.t. and because of that we have had millions of death it's due to malaria -- deaths due to malaria in africa. millions of young african

children who because they don't have a good diet succumb to a disease like malaria and die because of it. these children are dead, make no mistake about it, because we were frightened into an irrational position on d.d.t., banning that and thus destroying the lives of millions of children in the third world. we've seen alarmism with the population bomb. remember that? in 1968, a book claiming that increasing populations and decreasing agricultural yields would lead to cannibalism and global warfare or -- over scarce resources by the mid 1970's. here we are a long way from the 1970's and i'm afraid the person who started this type of scarism was wrong, wrong, wrong. and there are at love scientists unfortunately who are right now

molding themselves after the mistakes that were made 150 years ago. today's environmental alarmists use faulty and in some cases deceitble computer models to prove that the world is being destroyed one way or the other, quite often in the ones they're using in the last 10 years, of course, was the world is being destroyed by manmade carbon emissions. and this is proven by their computer models, even though the earth has seen significantly higher atmospheric carbon levels many times before and those were not necessarily bad times for this planet. but those computer models were suggesting because of carbon emissions we were going to face a catastrophe and in fact i remember very well the predictions of 10 and 15 years ago that by now we would have reached a tipping point in the

temperature of the world. and it would go -- and we have reached a temperature of about now and then it would go up five to 10 degrees. a big jump. well, we haven't seen that big jump. the alarmists, of course, are not interested in when they make mistakes and they're not really interested in solving real problems. they are part of a coalition that wants to de-- wants to change our way of life. that's their goal. the goal isn't -- with their computization showing that -- computerization showing that just horrible times are ahead of us unless we change, the idea isn't to stop those horrible times because those horrible times are just a product of what they put into their computers and of course we all know what garbage in, garbage out means. if you put into a computer that you're going to have some kind of disaster, that's what you're going to get out of your computer. what they have in mind, of

course, is they want to change the way of life, our life. which requires us to acquiesce or better yet frighten us, to frighten use in submission. make no mistake, manmade global warming as a theory is being pushed by people who believe in global government. they have been looking for an excuse for an inedible freedom-busting centralization of power. and this global warming is just the latest in a long line of such scares. this was recently acknowledged by the god father of global warming, of the -- by the godfather of the global warming theory a man who over the years

has been given such credit for laying the intellectual foundation and scientific foundation for the theory of manmade global warming. his name is james ro -- loblack. however, he's changed his mind. james lovelock now concedes a and after a longtime dialogue with one of the great engineers of our day, burt rutan, he has -- he has come around to understand that he was not being totally honest about things when he would accept, and he was accepting information that bolstered his position and rejecting consideration of other information. and he has changed his mind about the real threat that global warming poses to the earth. not that there wouldn't be any global warming but that it has

been totally exaggerated by the scientific community and that he himself played a major role in that exaggeration. doctor james lovelock, in an article in the "toronto sun," entitled "green drivel exposed," the godfather of global warming lowers the boom on climate change and the hysteria that we have been hearing over these last few years. i would now like to introduce for the record, mr. speaker, i'd like to introduce for the record this article that was recently in the toronto sup. i'd like to put this in the record. the speaker pro tempore: without objection. mr. rohrabacher: thank you. for those listening or those ereading in the congressional record, i'd like to have a quote from ta -- from that article now. it says, having observed that global temperatures since the turn of the millennium have not

gone up in the way computer-based climate models predicted, lovelock acknowledged, and here's his quote, the problem is we don't know what the climate is doing. we thought we knew 20 years ago. the sign of a very intelligent person really is to admit that -- the thing he is doesn't know. i've always said, i'm not the smartest guy on the block but i know what i don't know. thus what -- when i'm talking to people, i can have an honest discussion to try to expand my knowledge. we've had too many people claiming that they know it all and that we have to give up our freedom because they know it and they don't have enough to engage in a debate with us over the debails of something like global warming. let me know, who has heard the words, case closed? three years ago, that's what we were saying here. what does that mean? when you hear people in government and you hear

scientists saying, the case is closed, that means there's going to be no further debate on this issue. i have been here in -- as a member of congress for 24 years. before that i served in the white house for seven years under president reagan. i have never seen a time when there was such an effort made to cut off debate on an important subject that has been done on global warming. never have i heard over and over again people being told to shut up and the case is closed, never have i seen so many research projects canceled because it in some way challenged the theory of global warming. never have i seen so many scientists fired from their position because they believed that the global warming theory may not be accurate. so what we need to do is make sure that we have an honest

discussion of the issue and when we have, even some of the promoters, some of the people who have been the strongest advocates, like the individual the doctor i just quoted, has changed their position, if not totally reversed it, at least said, well, we really don't know what we've been advocating for these last few years. mr. speaker, i would like to introduce into the record a letter from an esteemed physicist, gordon flocks, who is -- this is a letter and some communication between this physicist and aerospace pioneer legend burt rutan. i would like to put that into the record at this point. the speaker pro tempore: without objection. mr. rohrabacher: let me read in part what that letter says. during the nuclear winter scare, about 25 years ago, we redid carl sagan's original

calculations to discover that he had carefully chosen the inputs to his climate code to produce the results he wanted. and when we realized that a highly respected physicist would prostitute himself to support his politics, his stature and his income, we in principle understood all of the other scams of the post-world war ii era. so -- he's quoting there, you had someone who, whoever looked up to carl sagan, when they realized he was cheating on the information, and the analysis, they realized that this was so widespread it was something to be concerned about. i continue. from 1946, noble laureate herman joseph moore, hiding evidence of a threshold phenomena in human radiation

exposure to rah chele carson promoting half-truths about d.d.t., to the unfounded scares about acid rain and ozone depletion, magnetic fields, global warming and ocean acidification, as well as diesel particulates and more. we have been victimized by continuous hysteria that's led to disastrous public policies. far too many scientists and their fellow travelers have supported a grand bilinging of american taxpayers for their own selfish and political interests, end of quote. end of quotation from that letter to burt rutan from this world-famous physicist. it's clear that our current system, fueled by the horrific waste of borrowed money, isn't working. perhaps it's time that we acted on president eisenhower's

warning and find a better way to separate research and the creation of regulations. otherwise, we will find ourselves held truly captive with no access to inexpensive energy or reduced costs for food and access to food and water. and we might find ourselves also with none of our basic free toms because we've given them away because someone has frightened us into giving away our freedom and giving away the opportunity for a better life for our children. mr. speaker, i am someone who is very optimistic about the future. we have great possibilities, there are other people who look to the future and think that the technological revolutions we have faced are actually a detriment to human kind. people did not live good lives 100 years ago.

as i mentioned, my father grew up, was a marine. before that, he grew up on a dirt-poor farm inorth dakota, as did my mother. and in those days, people lived ordinary -- lived -- ordinary americans did not live well. it was a struggle. and the life, the longevity of these people was not that long buzz of the struggle they were in. we need to make sure that we continue our technological development so that we can have, yes, a clean environment, which i have indicated was a product of the good technology and yes, the research that came from honest and hardworking scientists and engineers, quite often on a government contract. but we immediate to make sure that we don't back off because we know there is a group of people in our society and perhaps around the world who for some reason believe that back before the industrial age

that people lived better than they live now today. some of them try their best to fight modernism. they have declared war, for example, on the internal combustion engine. that's why this global warming thing, that was the motive here, the internal combustion engine supposedly is putting out carbon dioxide and carbon dioxide, they believe, is changing the climate of the planet. what i have -- i told you what i have asked young students who have come into my office. i said is the air better or worse than it was 50 years ago -- 50 years ago? i even asked member ofs of congress, and i ask people all the tile, people who are advocates of global warm, saying it's caused by mankind and the internal combustion engine.

i ask, what percentage of the earth's atmosphere is carbon dioxide? i hope everyone focusing on these comments asks themselves, how much co-2 they believe there is. it's being claimed -- blamed for changing the entire climate of the planet. an enormous undertaking to chge the climate of the whole planet so it must be a pretty good part of our environment, of the atmosphere. i have had members of congress tell me that they believe it's 25%. some people say 10%. others say 20%. i have never had a member of congress tell me, come anywhere close. what it really is, it's not 10% or 20%, it's not 5%. it's not 1%. it's less than one-half of one tenth of 1%. it's not just 1%.

it's less than one-half of one tenth of one percent. of that, human kind is only responsible for 10% of that co-2. so that makes it so min us kuhl, it would be like putting a string across a football field and that that was going to create chames in the entire football field. -- changing in the entire football field. if we buy onto that -- the fact that people aren't aware at this level of how small the co-2 impact is, it causes them to buy onto these scare tactics, this is a hadge for those of us here because that threaten ours freedom. it threatens us to be able to have -- and our children to have the opportunities that we had and that we hoped that all americans and all people throughout the world will have. let us go back and one thing, i am planning -- planning a trip

this year across the country, even though the gas prices are pretty high, i'm hopefully going to drive across the country with my children. it's a wonderful thing. what a wonderful vacation. we're going to have two weeks to do it. i'm looking forward to that. but we need -- we are going to go, in an automobile, it will cost us the price of gas is up, i am not a wealthy man. but we -- we do have this opportunity, it's a wonderful thing. what about 150 years ago? did people have an opportunity like this? no. what was the biggest challenge that we face to the health and safety of the -- of people in this country 150 years ago? or let's say just at the beginning of the last century, when we turned from the 19th to the 20th century. do you know what it was? it was horse manure. horse manure and horse urine was enveloping our cities and the waters and created health

hazards for people and the flies and the stench and the internal combustion engine came along and it's been a great factor in providing health for the human beings, for human beings. we got rid of this massive, all over the world, depending on animals left us with animal droppings and it was a threat to our standard, to our health and also the fact that we couldn't produce a lot of wealth based on animal strength and we couldn't go on long trips with our families. and we didn't have a good quality of loif but the internal combustion engine provided that for people of the united states and human kind. now, there's no doubt that we need to -- we have needed to improve the efficiency of the internal combustion engine, and we have. in southern california today, and we'll leave with this thought, in southern california today, when i was a kid, it was

so much pollution, although our young people don't know about that today, but today, when they think the air is polluted in southern california, we have twice as many cars on the road and we've reduced pollution into the 90's, probably 95%. this is a tremendous accomplishment. and yes, some of the regulations that we have had from the federal government has motivated this change. we need to accept that. but we need to also accept that it is our tech lo -- technological advances and it has been not canceling out technology for fear of things like co-2 which are not a threat to our health, that's how we have kept america on an upward course. even though we've been dragged down by scare and scare after scare. i remember when we had meryl streep come to this congress and testify about apples.

for two years, apple farmers went broke throughout the united states. there were millions -- not millions, but thousands of families who suffered because their product was not being bought because they were afraid of aler. what happened to that? aler was found three years later, it was all a scare, nothing to do it -- nothing to it. same with cranberries when i was a kid. couldn't eat cranberries for thanksgiving. we see these all over. the gentleman that i quoted here that i mentioned, who is the godfather of the global warming theory, he is also someone who, james lovelock, he is also the man who discovered fluorohydrocarbons which gave people the analysis of the ozone hole. guess what, the ozone hole, as we have found out, as was mentioned in passing there, the ozone hole was overrated as a

threat, in fact, went away and it's a natural cycle. what we have had on this planet is a natural cycle of weather, of temperatures and that will continue and we must -- but what's happening is we've had people step forward trying to create hysteria for their own political ends to try to frighten people into accepting policies they otherwise would never accept. so today, as i'm hoping that as we celebrate the fourth of july we again reaffirm that we will never give up our liberty, we will never be frightened out of our liberty by foreigners who threaten us with weapons and we will never be frightened out of our liberty by people who do not believe in the same type of freedom that we believe in but are using scare tactics to create hysteria among our people , that are phony scare as it

ticks, to try to frighten us to give -- tactics to try to frighten us to give up our freedom. i hope we reaffirm that guarantee of our commitment in this nation to freedom, to opportunity for ordinary people so, that ordinary people can live decent lives, with liberty and justice, prosperity for all. thank you very much and i yield back the balance of my time. the speaker pro tempore: the gentleman yields back the balance of his time. the chair would inform the house that purr -- pursuant to house resolution 711, the speaker has certified to the united states attorney for the district of columbia the refusal of eric h. holder jr. to produce certain papers before the committee on oversight and government reform.

the speaker pro tempore: pursuant to clause 12-a of rule 1, the house will stand in recess subject to the call of the chair.

>> the purchasing power of gold is specified as the weight unit of the national currency. it was constant for four centuries. it seems to me the record of the gold standard is a record by and large of growth in the macro sense and personal accountability in the banking more micro sense. >> this weekend, looking at the origins, departures, and arguments for returning to a gold standard. also this weekend, more from "the contenders," r series on key political figure that ran for the presidency and lost. he ran against woodrow wilson and was the last denominated -- last to be nominated by a major party.

this author writes about the president's. >> he goes to the white house and says to eleanor roosevelt, "can i pray for you?" she says, "no, we need to pray for you." they said it would take all of the people larger than this one for all the people kennedy promised the vice-president seed to. he may have been the last jeffersonian believing in the limit of power to resist the temptation to extend it. >> this sunday, your questions and comments live on noon eastern on "in depth." also, on the obama administration's response to

the arab spring in the israel- palestinian peace process. >> this is the conversation may need to have that no one is willing to have. what role does the government play in housing finance? >> pulitzer prize-winning columnist gretchen morgenson on the subprime collapse and government subsidized homeownership. >> it you want to subsidize housing and you want to talk about this and the populace agrees that something we should subsidize, pull it on the balance sheet and make it clearer and evidence. make everyone aware of how much it's costing. when you deliver it through the third party enterprises, fannie mae and freddie mac, when you deliver this to a public company with private shareholders and executives who can extract a lot of the subsidy

for themselves, that's not a very good way of subsidizing homeownership. i think we have seen the end of that movie in the late 2008. >> more sunday at 8:00 on c- span's "un de." -- "q. and a.." >> next, a discussion on what this means a legally and in policy. from today's washington journal, this is one hour. >> we began this morning with robert barnes was part of team coverage on the court's decision yesterday. in the front page story, the second paragraph, you describe this as a stunning legal conclusion. why is that. guest: very few thought this would be a 5-4 decision that went this year.

they thought justice kennedy would go along with the liberals and justice roberts would go along as well to make this a bigger decision. there were not all that many that fell roberts would go with the liberals. he did this on very narrow grounds. under the idea that it is the court's job to try and keep laws that congress passes in place, that there is a way to do it without bending the constitution. >> that is the core of his philosophy. >> that is what the court undertakes every time it looks at a big law passed by congress. they often say that it's not constitutional and there's no way they can not hold it. that is the court's job. host: he also joined the liberal wing of the court on the arizona decision. are beginning to have a clear

and cogent court? guest: you cannot always tell how it will come out. these choices are all individual. the issues in immigration were not about the constitution but whether or not arizona had passed a law that conflicted with federal law and it takes presidents in any area like immigration. this with a constitutional decision and whether congress had the power to pass a law such as the health care act. there were very different decisions although the winners in the court came out on the same side. host: susan detzen be joining us soon. robert barneses our court reporter. we will open up the phone lines in a moment about your reaction

and on those health policy questions. if you can hold off until susan joins us, we will begin on that aspect. you had an opportunity to be there. what was your observation? >> well, it was very packed. as it usually is on the final day. you know, we never know, reporters who cover the court, what cases the court is going to decide on a given day. we only know that they will be deciding something. now on the last day of the term of course, that's all different. you know what's going to happen because this year there were only three cases left. and so everyone knew that this

would be the health care day. a lot of anticipation, you know, lots of demonstrations out on the plaza. there was a belly dancer, there was a tea party mascot, there was quite a show outside. inside it was packed and as you can imagine very quiet. the chief justice read his decision first because he had the controlling opinion in the case. and then as often happens at the supreme court, after the person who's written the opinion reads, they have to sit there and listen to the people who disagree with them. and so, first justice kennedy read part of his dissent and why he thought the chief justice got it wrong. and then justice againstberg read hers. so that whole process took about an hour, 45 minutes, before the court was finally finished with its business for the term. >> but explain to people who don't understand how this works, justice ginsberg ultimately agreed with the outcome, she just disagreed with the method of getting there? >> that's right. she thought the court was wrong in saying that the commerce clause did not give commerce the power to pass this act.

that was really what everyone thought would be the biggest issue in the case. the five conservatives, including roberts, said that no, the commerce clause does not give the power to congress to regulate basically inactivity. not buying health insurance. and she thought that it did, she thinks the commerce clause, and she was joined by the three other liberals in this, felt that congress has great powers to solve national problems. and that comes from the commerce clause. so, that was their big disagreement in this. the way they found a way out of it was they decided that under the taxing clause, the taxing

power of congress, that the congress could pass a bill such as this. and that's where the four liberals joined with roberts to make that decision. and uphold the law. >> a few years ago this network had an opportunity to interview all of the sitting justices for a special on the court -- >> i know, we were very jealous of that. those of us that cover the court. [laughter] >> good! one of those was the chief himself and he talked about arriving at enough consensus to meeting a majority. >> i think i spend more time on a case that will be 5-4. 9-0, or something that looks like it will be 5-4. it's an opinion that will show up in those bound books on judges and lawyers shelves. >> and you're cognizant of that? >> i'm very cognizant of that. now, dissent is a very valuable part of our process. it shows the thinking of different parts of the court. it shows that arguments have been fully considered. it's valuable for the writer majority. because we have a healthy degree of skeptism about what we're

saying up to the very end. so it's good to see those fleshed out. obviously you don't like it when somebody disagrees with you. but in some cases that can be very important. now, not in every case, and you hope to be able to persuade people. i think it's a good thing if we talk about cases and send memos around and try to come together as much as we can in a group. but sometimes we can't do that and sometimes there's dissent and you need to respond to it. and there's a lot of back and forth. when it comes around, they say you're wrong about this, this and that this. you try to alter your opinion, and sometimes it goes back and forth a lot. but it's an important part of the process. host: well there was the chief justice talking about how the process works a few years back. both of you who are regular court watchers, what were you suggesting among yourself that might have gone on at arriving at the decision yesterday? guest: well, you know, it has

been all speculation. and there has been so much speculation about this case, the way it was going to go and even the way it was going to be decided. anyone who watched oral arguments that found a court was very skeptical of the government's arguments. that congress possessed that power to do basically whatever it wanted in the health care field. and so, it was -- you always think at those points are these questions devil's advocate questions, questions that are probing the limits and trying to figure out for themselves? or does this really show what the justice is thinking and that this is the way it's going to turn out. i find out in most of those oral argument cases you come away with it with a pretty good idea of how the court is going

to come out. but not always. i think this is one of those cases where it seemed as though it were going one way, but justice, chief justice roberts and justice kennedy had seemed to leave themselves a little room in their questioning in which they haven't really made up their minds. >> we welcome susan dentzen to our panel. she and her team of writers and analysts are digging into the health care decision that happened yesterday. of course been covering the rolling out of it since the law passed. so where are we after yesterday in this nation with regard to this law? >> well, where are we politically, of course, is different from where we are in terms of the timeline of imply men cation. essentially, most of the law will go into effect and actually be experienced in the lives of americans in 2014. but a number of pro fissions have already kicked in. -- a number of provisions have

kicked in. we think about americans in general, 257 million americans today have health insurance. really not going to be affected by a mandate or anything else. what has happened for them is the number of insurance market reforms have already taken effect. for example, now if you have an insurance policy, typically it's the case that there's an annual limit or lifetime limit on spending. so if you become very, very sick you might have a million dollar limit. once they have been paid out on your behalf, this insurance goes away, it's void, paid out the entire amount of its policy. that changes as a consequence of the law. and so now there are no more lifetime limits on policy. the provision that many people are aware of, adult children can stay on their parent's policy until the age of 26.

that was another change. so a number of provisions already in effect for most of us. the other part of this law, getting coverage to the people that don't have it, that really kicks in in 2014. in order for that to come in to play, lots have to happen in the meantime. the state needs to set up insurance exchanges which are new market places. essentially going to be online market places, where people who don't have coverage will be able to go, in the future, particularly if you're an individual trying to buy insurance for yourself, if you don't get it through your company. you'll be able to go online, see whether you're qualified for medicaid, which will be expanded under this program, or

whether you are qualified to buy a private health insurance policy. whether you're also eligible for a federal subsidary to help pay for that. that has to be created over the next, literally, open enrollment season begins in october of 2013. so not that far down the road. many of the states are well on the way to setting up exchanges. many others have not even begun. so we're at the point now that many states that were dragging their feet to see what happened with the court, now have to decide whether they're going to move ahead, create these exchanges. there's a federal back-up exchange if the state's do not do that. lots of decisions that have to be made and lots of busy work that needs to be done now to get all this going. >> so phones have been ringing off the hook, as you can imagine this morning, after the decision. let's get our viewers involved in the conversation and we can parse some of these large

picture responses out. our first call is from maryland. on the pennsylvania border. angela is a democrat. you're on the a. caller: hi, yes. i worked for two large insurance companies. one is a claims processing and one in the compliance in the department. i hear the republicans talking about how they want to replace this and let you buy across state lines. i can tell you that would make more difference in the cost of care in that your insurance is based on the zip code you live in. for example, we would pay a provider in miami, florida three times the amount we pay a provider in say west virginia for the exact same service. much like your car insurance, you're going to be rated based on where you live, not because the providers are contacted with the insurance companies, not the state. some doctors are contracted for more and some for less, sorry -- also i think this law is good and will safe on costs. the insurance companies working more than 15% profit, otherwise it comes back in a refund check. they can't charge more than two to one if you're sick versus healthy. and you can't be liable for more than $10,000 if you have major medical illnesses that

that your insurance doesn't pay for. where as before people would have to file bankruptcy because they had hundreds of thousands of bills even if they had insurance. host: ok, angela, thank you so much. she talks from her perspective about some of the cost curving measures in the legislation. this morning i pulled a statement from howard dean who suggests the otherwise. he was a supporter of single payer, but suggested this now -- worries that the law doesn't contain enough cost control measures. who's right? our caller or governor dean? guest: nobody knows all of the answers. let's be blunt about that. it is very true, as the caller said, the fundamental driver of

health care insurance cost is health care cost. and we know a lot goes on in this country that is either not particularly useful. suspicions about a third of what we spend on health care is a complete waste. essentially not helping the patient, mainly helping the people providing the care. so we have to weed a lot of that out of the system. the degree to which insurance adds to the cost, now we've been pushing down on that through the law, they have to pay out 8 5% of every premium dollar they take in as a claim, which means everything else profits, administrative cost, marketing, all of that has to come out of the other 15%. so that's the way of basically making sure that what gets taken in on the health care premium dollar actually gets paid out mostly for health care. those are the kind of constraints being put in place in the law to push down on the insurance part. but the fundamental driver is health care cost. we really have to get a grip on it. i think that's where governor dean is coming in.

he says he doesn't see enough in the law to basically push down on the rate of growth of health spending. the problem is that we put in a lot of tools into the law that are only now being put into place. so we're going to have to see how this rolls out in the next few years, whether there really is an effort to provide people with the care they really need, have it cost less, and get rid of some of the waste in the system. host: even though this aspect wasn't under review by the court, just picking up on a comment about 15% has to account for profits, et cetera, and 85% has to be paid out. congress legislate that sort of profit return in this industry. does it mean since that, they can say you have to use this percentage of proceeds for your profit? you understand where i'm going. >> i understand where you're going. the court really didn't look at this -- the court's issue in

this was more than anything else the individual mandate. and also what congress had said about the states and what the states must do to receive medicate funding. so the courts review was really based on those kids of questions. especially the individual minnesota date was probably the most important one. and you know, there was always an interesting sort of sideline to this case, which was that if congress had said all along this was a single payer or something like social security in which people were actually taxed and then the money went for providing that care, that there would be no question that it was constitutional. what was sort of an unprecedented look was whether congress could force americans to do something that they didn't want to do. that's where the real split on

the court came. host: are there any other examples in society where people are taxed for not purchasing things? guest: no. i think this was the first sort of individual mandate that congress really has ever come up with in that way. and the way the court solves this problem was by saying it wasn't really a mandate at all. that it was more of an option. that you can either buy health insurance for yourself or make sure you have it in some way. or you can pay the penalty for not having it. in many cases that will be less money than it will be to obtain

health insurance. so that's how chief justice roberts sort of found the court's way out of this, was by presenting it more as an option than as a mandate. host: a quick claire fation, the penalty is -- just a clarification, the penalty is what? >> the first penalty will be collected in 2015. starts off relatively small, for an adult, the penalty is $95 or 1% of income, which ever is greater. two years later it is $695 for an adult or a maximum of 2.5% of income, which ever is greater. host: no cap on the income? guest: no cap on the income. but if you're not -- washington, d.c., you're next. caller: good morning, can you hear me? host: yes, sir. caller: i was very happy the law was upheld, but i still feel there will be a lot of people left out. as some of your speakers have already said, some states have barely implemented the changes because they feel the law will be struck down. at the end of the day, there will be a lot of people left out to dry, but overall i'm very happy the law was passed. because the insurance companies

and my personal opinion did right by people, the government wouldn't have to step in. host: what is very frustrating for people who live in the health policy world day in and day out and then see how the court looked at this is the health care system in this country is extremely complicated. where everybody gets together and they will agree to pay collectively for everyone to help health insurance. we didn't go that direction. we decided to have health coverage. we have a hybrid system. as we try to, basically, stretch this security blankets, it's hard. it's messy. but the affordable health care act was an attempt to do that. what's frustrating for people who have spent many years trying to do this, they look to the court and say there's very little understanding that this was an attempt to cobble together a system that is both public and private. you cannot do that by leaving

everything to the marketplace. as you say, what we think we have managed to do with the affordable health care at distressed a blanket enough that we will cover a lot more people, about 30 million, but we will probably still leave about 20 million out in the cold. many will be undocumented immigrants. we're having a huge debate about whether we have any responsibilities to them or not, but some of them will be good old fashioned americans still will not have an avenue for coverage for various reasons. that is why this is always going to be a work in progress have long as we have this hybrid system that we have. host: a comment from twitter from va tex texan -- so skeptic there from governors who are republican side of the isles. so states have the option

tending the republican's intent to repeel this? guest: they can partner with the federal government to have an exchange, completely default to let them run it. or run it entirely themselves. they have a number of options. a lot of governors and states have been pretty cagey about this. they say anywhere not going to set up an exchange but they've already passed laws, issues, executives, creating an ability to have an exchange. we'll have to see now that the court's made the decision.

of course the other thing that people are waiting for now is november and the election, because a lot of states still appear to be hopeful that we'll see a change in administration, a change in the composition of the congress and the whole law will be repeeled. but failing that, i think we're going to start to see at least some more moves on the part of states to get ready for having an exchange. host: yesterday, they announced a july 11 vote to appeal in the house. next is a call from ogden, utah, mike is a republican there. mike, good morning, you are there. caller: thank you for taking my call. i wanted to address the article 1, section vii of the constitution that says all bills for raising revenue have to originate in the house. now, this bill did not originate in the house. it came from the senate and they were trying to push it through as commerce. so, does that not negate the bill? seeing as how the only way they

deemed it constitutional was under the tax revenue collection of congress? guest: well that certainly was brought up in the disent by conservatives who brought up that very point. tot didn't seem to matter the majority in this case. you know there was a bit of fancy foot work that was needed here in a way because the court first decided that it wasn't attacks under the anti- injunction act that said it count be considered. and then they said it was attacks in all practical purposes. because it was paid as part of someone's income tax return if

one paid the penalty. and that it was a percentage of one's income as susan mentioned. and so, there was a bit of -- certainly criticized by the discenters as the way that the majority found this to be attacks, but that is what the court came up with. i don't know that it would be grounds for another challenge. host: this twitter follower says -- guest: probably have to leave it for justice roberts to explain that, again, because it was as i say certainly criticized by the discenters. caller: i have quite a few issues. the most immediate one is i have 10 employees and one company that i own. we were able to purchase insurance for our employees and get a benefit from the tax break and that's the only way we were able to afford it.

healthso worked in the insurance arena for over 30 years. i worked on the medicare side mostly. i watched under the clinton administration when they balanced the budget, a lot of people left what was the medicare advantage market, a lot of the companies left because the clinton budget capped the amount of profit that they could make. which was very, very handsome. and then after he left office, the bush administration did the new medicare changes and the companies came back because the profits were flowing like water. so those are two things. another thing is john adams and both george washington had mandates, so the unconstitutionality of this is farce. george washington had a mandate that all of his soldiers purchase health insurance.

one of the mandates was that they had to have fire arms. he was a framer, so was john adams. he also had mandates. there were other mandates that followed after that. lastly, some of the terms that we use, liberals and the media. the media is not checking people on these because they should dig and know that these facts are available for all to have, but they're parrotting of certain terms or catchphrases. i heard the representative from minnesota yesterday, buchanan i believe her name is, she was just going on, like the first time we've had mandates in this country. she's just >> -- she's just a liar, a bald-faced liar. host: ok, thanks. the messenger: mr. speaker, a message from the senate. the secretary: mr. speaker. the speaker pro tempore: madam secretary. the secretary: the senate has concurred in adjournment in the house of representatives in which the concurrence of the house is requested. the speaker pro tempore: the chair will receive a message. the clerk: mr. speaker, a message from the courthouse.

the secretary: i deliver to the house of representatives messages in writing. the speaker pro tempore: the chairs lays before the house the following privileged concurrent resolution. the clerk: senate concurrent resolution 51. resolved, that when the house recesses or adjourns on any day from friday, june 29, 2012, through monday, july 2, 2012, on a motion offered pursuant to this concurrent resolution by its majority leader or his designee it stand recessed or adjourned until 12:00 noon on

monday, july 9, 2012, or such other time as may be specified by its majority leader or his designee and the motion to recess or adjourn or until the time of any reassembly pursuant to section 2 of this concurrent resolution whichcals ever occurs first. and -- whichever occurs first. and when the house adjourns from june 29, 2012, through july 6, 2012, on a motion pursuant to this concurrent resolution by his designee it stand adjourned until 2:00 p.m. on july 9, 2012, or until any time of reassembly pursuant to section 2 of this concurrent resolution, whichever occurs first. section 2, the majority leader of the senate and the speaker of the house or their respective designees acting jointly after consultation with the minority leader of the senate and the minority leader of the house shall notify the members of the senate and house

respectively to reassemble at such place and time as they may designate if in their opinion the public interest shall warrant it. the speaker pro tempore: without objection, the concurrent resolution is agreed to. and a motion to reconsider is laid on the table. the chair lays before the house a message. the clerk: to the congress of the united states, in accordance with section 502-f-1-b of the trade act of 1974, as amended, the 1974 act, 19 u.s.c. 2464-f-1-b, i add the republic of segal to the list of least beneficial developing country under the generalized prrches program. after considering the criteria set forth in section 05-c of the 1964 act, 19 u.s.c. 2462-c

i have determined that it is appropriate to extend lease developed beneficiary developing country benefits to segal. signed the -- barack obama, the white house, june 29, 2012. the speaker pro tempore: referred to the committee on ways and means and ordered printed. the chair lays before the house a message. the clerk: to the congress of the united states, in accordance with section 50 -f-2 of the trade act of 1964, as amended, the 1974, i am providing notification of my intent to terminate the designations of gibraltar and the trade turks and -- turks and cake oast island as beneficiary developing countries under the generalized

system of preferences, g.s.p. program. section 502-e of the 1974 act, 2462-e provides if the president determines that the beneficiary developing country has become a high income country as defined by the official statistics of the international bank for reconstruction and development, the world bank, then the president shall terminate the designation of such country as a beneficiary developing country for purposes of g.s.p. effective on january 1 of the second year following the year in which such determination is made. pursuant to section 502-e of the 1974 act, i have determined that it is appropriate to terminate gibraltar's determine nation of ben feshary country because it is a high income country. accordingly, the eligibility for trade benefits under the g.s.e. program will end on

january 1, 2014. in addition, pursuant to section 502-e of the 1974 act, i have determined that it is appropriate to terminate turks and caicos island under the g.s.e. program because it has become a high income country determined by the world bank. accordingly, the eligibility for trade benefits under the g.s.p. program will end on january 1, 2014. signed, barack obama, the white house, june 29, 2012. the speaker pro tempore: referred to the committee on ways and means and ordered printed. without objection, pursuant to senate concurrent resolution 51 , 112th congress, the house stands adjourned until 2:00 p.m. on monday, july 9, 2012.

>> earlier today, members voted to extend the highway and transit programs for 2014, national flood insurance until the 2017, and hold student loan rates at 3% for one-year. they also improve the transportation and housing and urban development spending bill. they will return to work next weekend they will hold a vote to repeal the 2010 health care law. it is expected to pass the house but not likely to be taken up in the senate. following yesterday's vote on the contempt of congress, they are announcing that eric holder's decision to withhold information about the gun trafficking operation from congress does not constitute a crime and he will be prosecuted for contempt of congress. white house coverage when they return monday, the july 9th.

we will take you back to the discussion this morning on "washington journal" on the health care law. aware of theery courts for vacation and he wants to defend it. i do not think this is a miracle before citizens united if that is what is suggested. i think he feels very strongly probably about both of these decisions and that he was right. the dot just this week, as a matter-of-fact, the court refused to hear another case that would have revisited citizens united saying that they had decided the issues and that the new case brought up nothing they have not already decided. i think they were very separate decisions. host: now to new york on the phone, good morning. caller: i originally called to say that this was somewhere in

the realm of mental gymnastics on the supreme court. they should not be able to trauma civil-rights as a citizen. we are not switzerland. we're not a homogenous society. we are a " of multiculturalism -- a quilt of multiculturalism. we cannot have one modality on something as universal and complicated as health care. i should not have to pay for the degeneracy of people who do not take the most humble effort in protecting their help. if there is a tax, why am i being taxed on something if i

don't buy it? it is already being called a penalty. the mental gymnastics of this alone expos is its perversion and duplicity. as is un-american on its fundamental principles. i don't care about my health care if it means you have to sacrifice your freedom and your rights for self-determination. this is not nazi germany or switzerland. it's like comparing israel depending its little airport and a country as big as ours. it is a misnomer. it is mental masturbation. it is insane. we had better get a grip on where we are going. all this will legitimize the lead status of government workers to grab more and more of our money to pay for their lifestyles.

they will not be told they cannot go see a good doctor and. it will be people like me that are told you go to the right, you go to the gulag and maybe you will see a doctor. host: thank you, you've made some important points. you may need a doctor, because you're getting very upset, sir. guest: this is the way health insurance operates. we see what happens when it does not operate that way. people buying coverage in the individual market, you cannot get coverage if you have diabetes. you cannot get coverage if you have not taken care of yourself. insurance companies will not sell you coverage.

they will sell you coverage except for the things that will make you sick. we know that market is not working. the only way to run the system is to get everybody in the system, healthy and sick. some people are sick because they did not do things to protect their health. but many people are sick because they've got a bad genes or were exposed to something in the environment that was not of their own volition. we have to take steps to encourage americans to be held the, there's no question about that. if we have not spoken about all the provisions in the act that were intended to do precisely that. that is another issue. in any kind of help insurance system, no matter what it is,

medicare, medicaid, private insurance, whatever, essentially, these are pooled risk systems, so we are always paying the cost of everybody. host: the caller talked about the mental gymnastics, also on the taxation issue. guest: chief justice roberts at least three times and probably more than that said in his opinion we are not saying this is a good policy or a good law. in fact it may be one that is not very wise at all, but that it is up to people who don't like it to vote out the people who put it in. that it should not be dealt with in the courts. host: 10 to respond to this --= = = -- can you respond to this -- >> insurance is there for the times when the unexpected happens. you don't ask your homeowner's policy to give you a rebate because you did not have a fire

that year. you say to yourself it is there just in case something happens like my neighbor throws a lit cigarette out the window. it is their right to protect against risk. what we pay for is that protection. health-insurance has gotten a little more complicated than that analogy. we also ask insurance to do other things. we ask insurance to pay for preventive care. we asked it to pay for a colonoscopy to make sure we don't have: cancer. we ask it to pay for mammograms to make sure we don't have breast cancer or to find it early. we have taken the pure risk

insurance model of health care and adapted it for some other needs. essentially it is there more or less to protect us in case we really get sick. and so, what we should all walk out every day and thank our lucky stars if we have had health insurance and we have not been sick in that year. frankly, go spend time with someone who is extremely ill and you don't want to be there. host: manhattan, vicki is our next guest, a democrat. the volume was high on the radio. next, republican in in new york. please hit the mute button and go ahead with your question, or we will have to move on. caller: what i was concerned about was the fact that i would like for the supreme court to uphold some type of law dealing with a separate budget for braces in the mouth. people complain about their

medicaid does not cover full dental work. sometimes someone's teeth can be so crowded that they can affect a person's speech. guest: i think the court would say that is an issue for politicians or for your employer or for someone else on your behalf to try to get that kind of insurance coverage and that the court is really not in that business. guest: the way that the law structures health care exchanges, will dental coverage be decided on a individual basis, by private policies or by state exchanges? guest: dental services typically don't have to be

covered under the essential benefits package that the states have the option to create now. some states possibly will go that direction to require dental services to be covered. is the case that dental services now for children in medicaid are covered, because of the concerns about oral health, in many states. it's not just braces. you can get bacteria in your teeth that can go to other parts of your body and kill you. so this is an evolving story as different insurance motes figure out whether dental services need to be covered or not. the bottom line is there's no compulsion in the law or the regulation the dental services be part of the essential benefits packages. but it will be up to the states to decide. host: this view or on twitter wants to go back to your earlier explanation -- guest: here is the federal law. the federal law says that if you are any individual and you

are in an emergency situation if, hospitals have to stabilize you. they have to treat you and stabilize you before they can send you on your way. that will not change. and has nothing to do with "the affordable care act." that law has been in place for quite some time. it also applies to women in labor. if you are an undocumented immigrant and show up at a hospital, the hospital has to help you deliver your baby. that has nothing to do with the law, again. what happens to undocumented immigrants going forward will be a huge issue. they don't get coverage under "the affordable care act. they cannot purchase coverage

through exchanges. they do not get federal subsidies. in most parts of the country they remain completely uninsured. that is an issue that we will have to grapple with overtime, whether we decide to have people gain citizenship and cover them that way or whether we decide we will have to create other systems for them or not. many states are wrestling with this now up and trying to figure a way to release pay for some coverage for them as long as they are here. but that is not a part of "the affordable care act." host: this e-mail from a viewer -- would all contemporary justices agree with that? guest: i think they would. that does not mean they would agree on the specific piece of legislation in front of them, however. it's not a surprise, in a way, that the four democratically elected justices felt one way on this bill and four of those appointed by republican presidents felt another. they come with and in reality

and that part of the reason the president at the time chose them for the job. but that does not mean it always follows that pattern. yesterday chief justice roberts was in the majority. justice kagan and justice brown air, both democratic appointees, agreed with the conservatives that what congress did with the medicaid funding was too coercive, that it basically forced the state's hands too much and they made it more of an option for the state's. host: next is buffalo, an independent, jim. caller: your guest keeps saying the way this works is everybody gets into the pool, the lady. i agree. is president obama giving exemptions to certain businesses and industries? second, there's so much confusion and nobody knows.

i have called my representative's office and they cannot answer questions. what is the 15-member board that is being set up? will they say you cannot be covered. or will the health care decisions still be between me and my doctor. my mother is elderly and she's having a fit because someone told her she is no longer allowed to have any pets. problem is nobody really knows and nobody can give us answers in plain english. guest: you are absolutely right. it's a big problem because the law is complicated and technical. insurance now is complicated, frankly. so we are changing a very complicated system that is complicated in one way to one that is complicated in another way. i think you are referring on the 15 member board to something called the independent payment advisory board, which was set up as a backstop to try to figure out ways to cut the

cost of health care. we heard earlier governor dean saying he did not think there was enough in a lot to deal with the cost of health care. one of the things that was set up to address the problem is the independent payment advisory board, which is empowered to look across the array of federal policies, especially with medicare, and figure out is they're not the way we can have this cost less. that mainly has to do with figuring out how to pay doctors and hospitals and all kinds of entities in the system in a different way. how to get more competition in the acquisition of durable medical equipment. very technical things like that the that feed into the overall

cost of health care. some people look to that board and say this is going to be the ducks panel board -- the death panel board. it does not have that power in the law, first of all, and it would not do that. who would suspect there's going to be a board that will decide that for all americans? just because something could happen does not mean it will happen. frankly, under the law it could not happen anyway, the way the board's authority is structured. but it is an example of things that probably need to be spoken about more so that people begin to understand that we have these tensions. we want a lot of health care but we don't want it to bankrupt us, so we're always looking for ways to have because less and still get what we want. that is a messy process, especially in a country that spends as much money on health care as we do. host: we have a lively twitter feed going on this morning. if you cannot get signed up for twitter, it is free and easy to do. you can watch and be part of

the conversation each morn. they will continue even after i am finished here, i'm sure. and we are running out of time. i would like for you to talk about what the court will look like next october. guest: i think it will look the same next october unless something drastic happens. there's no sign any of the justices are ready to give it up. as a practical matter, a presidential election year is not a very good time to announce a retirement, because i think it would be very hard for the senate to agree to confirm the president's possible replacements or for the election. election years are especially tough times for those and i don't see anyone who is ready to leave. host: i will take a call. when we come back, would you talk about the cases they decided that they will hear next year?

seattle, this is david, a democrat. caller: if you work for a good- sized company and they don't pay any of your health care insurance, will they have to pay it now under the new law? yes. there are employer melon -- mandates built into the hall -- the law. many employers are looking into this to see how it affects the coverage they currently offer. they will go to a system where they give you a certain amount of money, a kind of voucher to use the money they have contributed to help you buy coverage. we will see new models. employers of a certain size will

have to offer coverage to their workers or contribute to the coverage of their workers. host: take us ahead to next term. guest: there are some things we know they are going to do and some things we suspect they are going to do one is the question of affirmative action in higher education. at the university of texas, texas continues to use race as one of a number of factors in a tie-breaker to decide which students to admit. the court has accepted a challenge to that policy. this goes back to a case the court decided not to bang long ago in which it decided that the university -- not too long ago in which it decided at the

was notty of michigan's using quotas or extra points. that case will be coming back up. there are other cases that could be politically divisive for those who covered the court. the defense of merit at is one that could come. it says -- the defense of marriage is one that could come back. that is on its way to the supreme court. they have not made a decision on whether to take it or not. there could be a number of interesting voters rights cases that could come up. host: from maryland. an independent. caller: can you hear me?

get to the point. how about farm workers and all of those people who work below minimum wage? how would they afford this type of insurance when the people they work for cannot apply for anything like that because the amount of money for farm workers and landscape workers -- i am looking at the people who cannot afford insurance in the first place because the money they make can hardly pay their rent half of the time. host: we understand. let's find out. guest: under the law, if you

are 1.3 times the federal poverty level -- to give you roughly a sense of what that is for a family of four, and come up to about $25,000 a year. it just as the years go by. you would be able to get coverage under medicaid. typically, you pay almost very little if you are covered under medicaid. you have some cost sharing or some cost -- copayments, but they are modest. for people who are at or near the poverty level, the states elective to go for this expanded coverage option. those people will be able to get coverage through medicaid and pay nothing. if you are above that level, he can purchase coverage through an exchange and you get generous federal subsidies that go up as

high as $80,000 for a family of four, even families with incomes that high will get a fraction of the federal subsidy that will allow them to get health coverage. there will be more federal assistance whether it is through medicaid or the subsidies that go along with purchasing coverage in the exchanges. host: our last call. charles, republican. good morning. caller: susan, roberts, who is going to pay for all of this? you keep saying they are in the pool. they are in the pool in sweden and they are paying 68% federal income tax. the gentleman who called from new york, he was right. the second call, there are 50% to 60% of the give me, give mes.

you have not been in an emergency room at 2:00 in the morning to see what is going on. you sit behind the desk and have no idea how this is being paid for. the country is in trouble. host: we are just about out of time. thanks for your call. guest: to the contrary, i spend a lot of time looking at what is going on. we have 50 million people without health coverage. we still give them a lot of care. uninsured people get about 2/3 of care that in short people do. the rest of us pay for it now. they do not get preventative care.

we throw millions of dollars at rescue-type care because we have spent zero on the front end. we are all paying for that. so we are paying for it now in spades. what the system is designed to do is first of all say isn't there a better way of doing this by having everybody in the pool and paying something? isn't there a better way to get involved in people's health care and get them more care on the front end so we do not have to spend quite as much money on the back end? we are paying for it now. a lot of the affordable care act is trying to figure out a better way to spend those dollars that we are already spending. host: that is it for our time. this is the front page of "the washington post" today. all kinds of analysis. you can find it at "the

washington post" web site. thank you so much for being here this morning. >> saturday, a democrat from new jersey will discuss the deal to keep student loan interest rates at 3.4% for one year. and a discussion on increased efforts to repeal the health care law. later, a discussion on the emergency meeting been held in geneva to discuss the violence in syria. "washington journal" takes your calls and tweets every morning.

>> this is the conversation we need to have that no one is willing to have. >> in "reckless endangerment," the subprime lending collapse and home ownership. >> if you want to subsidize home ownership in this country, then put it on the balance sheet and make it clear and make it evident and make everybody aware of how much it is costing. when you deliver through these third party enterprises, and in may and freddie mac, when you deliver through a public company with -- through fannie mae and freddie mac, that is not a good way of subsidizing home ownership. we have seen the end of that movie.

>> more sunday at 8:00 p.m. on c-span's "q & a." >> the georgetown university law center hosted a discussion on the 2010 health care law ruling. the court said the law is constitution based on the to levy taxes. this is one hour, 35 minutes. >> good morning and welcome. i am the editor and chief of health affairs. i have the privilege of moderating this distinguished panel today. in the words of admiral stockdale, who are we and why are we here? we are here because a momentous decision came down yesterday

from the supreme court with stunning implications for the little -- legal community and for the health-care system and health care delivery overall. like the affordable care act itself, the decision amounts for -- amounts to a national rorsha k test. among the nine justices and three opinions -- if you account 2.5 justice thomas' paragraphs, there was something to make each side happy what apoplectic depending on which open and you were reading. we will hear from our panel whether it is remarkable or out of the ordinary to hear a chief justice accused of heroism on one side and treason on the

other, not to mention sophistry, which he was accused of in one of the opinions. i would ask you all, those of you who have been students of the law, to ask yourselves when you have read one group of justices accusing the other of judicial overreaching, not to mention burble -- verbal wizardry. that is obviously not the language we typically read in these opinions. the affordable care act, having survived one near-death experience, moves on to what may be the next one, the november election. given the language that was voiced by the dissenting justices and the chief justice himself, we know that the majority of the court thinks the government cannot compel us to

do something we are not doing already on less we are attacked, in which case it can. as it was put on our health affairs blog yesterday, millions of americans were able to go to sleep secure in the knowledge that the federal government cannot make you eat broccoli. we move on now to discuss a little bit more in detail and in depth what the decision said and what it means going forward. not just for the field of constitutional law, but in all of these fields i just mentioned. we have a panel that will be to speak for about five minutes. anybody will sit down and we will get into some lively conversations. we will hear first from lewis,

a professor of constitutional law at georgetown university and author of "on constitutional disobedience." we will hear next from david, a partner and lead counsel for the 26 states that challenged the constitutionality of the affordable care at. we will hear from sarah, a professor at the school of public health and help services. she directed the legislative drafting of president clinton's health reform proposal in the 1990's. we will hear from timothy westmorland, counsel to the u.s. house of representatives subcommittee on health and the environment. finally, to the organizer of today's conference, we will hear from greg, the all-star --

"hyppocratice myth." i will turn things over to mike. >> thank you, susan. thank you for coming. i want to start with a confession. my prediction about the outcome of this case was completely wrong. if i had any sense at all, i would go out of the prediction business. i thought it was barely possible that the court would uphold the mandate. less that they would do so with the chief justice casting the deciding vote. i would have given you 1000 to 1 odds and be much richer than i am today. how did this happen? what was john roberts thinking?

how could it be that in the two most important cases of the term, health care and immigration, john roberts cast the deciding vote on the liberal side of both cases. i will start by raising two possibilities so we can quickly dismissed them. perhaps chief justice roberts just looked at the legal materials, the words in the constitution and concluded that this was what he had to do. that position is just not plausible. david and i agree about almost nothing. but i think we would agree that roberts could easily have decided that the mandate was enforced by a penalty rather than a tax. some of the arguments he makes about the commerce clause and the spending clause do not pass the great face test.

here is the other possibility. john roberts has had a midlife conversion. [laughter] maybe he woke up and decided that john brennan was right all along. if these are night -- not explanations, what are? how the world looked at john roberts at 10:00 a.m. yesterday morning. the supreme court remains more popular than the president and the congress. confidence in the institution is declining sharply. there is less than a majority of americans who have confidence in it. 3/4 of all americans think the justices use political considerations rather than the law to decide cases. question is enforced by the fact that the most important cases have republican appointed justices on one side and

democratic appointed justice on the other. they think the supreme court handed the election to president bush in bush v gore. justice scalia openly attacked president obama in a partisan rant. and the president attacked the court as the justices sat listening in the well of the house. then we have what is likely to lie ahead. the court invalidated all of affirmative action and in validating the 1965 voting rights act, the centerpiece of the civil rights revolution. faced with this collapse of the met that the court is -- myth that the court is acting

according to politics rather than the law, it makes sense that roberts would voted for the act. the commerce clause argument against the mandate has become the central defining tenet that he would not want to be associated with rejecting it. there is the possibility of substantially restricting social legislation going forward. he would not want to reject that either. but there were also reasons to uphold the mandate. the mandate is quite on popular, but other positions -- provisions of the law are quite popular. strike down the mandate and you take the repeal of of the table and leave the republicans in the unthe enviable position of

repealing the popular -- unenviable position of repealing the popular provisions. how are these positions to be reconciled? as it turns out, brilliantly. chief justice roberts manages to cast the deciding vote establishing the commerce clause and the spending clause arguments. he also manages to save the mandate, while effectively accusing obama of breaking his campaign pledge to not raise taxes on the middle class. opinionice roberts' political? you bet it was. chief justice roberts is one of the best politicians of our time.

>> pleasure to be with you this morning. it is not as good a morning as i thought it would be. let me talk to you about the long-term implications of the decision and we can talk about what may be chief justice do what he did. i am basically quite happy with what i consider to be the long- term thrust of this opinion. the self-serving part of that, which we pressed for for a considerable number of years -- forward for a number of years have been pushed fourth perfectly by the 5-4 decision.

folks have been defending the individual mandates and a half to see that that should pass up. as far as the tax argument is concerned, it was rejected by congress. it was made feebly by the government and at the district court level and pressed little in the appellate briefings. you have to it knowledge that is what happened. it is a good thing. one of the thing i want to emphasize -- this case has never been about health care. it has been about the vitality of our constitutional architecture. to paradigms justice kennedy, lopez is the most robust

decision in our constitution. that diffusion ensures accountability and prevent a single set of hands from amassing all of the power. that is, in my view, the right position. the commerce clause argument has been founded in 200 years of jurisprudence. i remember numerous debates with people not in academia, but in the moon scored kind that -- context debating if we assume the two-step position necessary. dick comstock change anything in what is the significance of justice -- dick cons -- did comstock take anything and what is the significance of justice scalia's writing.

it is not an independent grant of authority. it does not allow you to escape otherwise existing constitutional limitations in article 1. that does not make it any less exciting that five justices embraced it. on the spending clause. since the days of stewart and machinery, which was a 1967 case, we know that there is a notion out there that there are some restrictions on the spending power. take the proposition that the federal government has limited powers. all of them working together. why shouldn't there be limitations for the spending power? i am gratified that the court actually spelled it out.

the separation of powers is safe. in the long run, it is a good thing. it is a 5-4 decision and a compelling decision. i give roberts considerable credit. what is unfortunate about the case, leaving aside and the motivation, i would say i am a more idealistic person despite being a practicing lawyer rather than a law professor. its two -- itibed to the legitimacy of the courts and not whether it is going to help president obama or romney. leaving that aside, what bothers me most is that the court rewrote the statute. this opinion in the rates and protect the separation of

powers, -- this opinion in invigorates and protect the separation of powers. i do not think any serious student of the law would say that is constitutional. the court rewrote the individual mandate. congress said it is not a tax. you do not need to call it what it is. he did not need to label it. it is jarrng to transform an -- jarring to transform it into a tax. that is not the way it is supposed to work. the court wrote the medicaid section. the court said you could not have compulsion.

the other way you can do it is the greek way. you can popularize states. the court rewrote the section to give states a choice. that is not how it is written. at the tactical level, it is jarring. in the long run, the basic contours of this opinion are going to be imported. justice ginsburg's dissent is quite vitriolic to underscore for you y i am drawing these long-term implications. thank you very much.

>> my task up here is to describe in five minutes or fewer what this decision means for health reform and the transformation of the health- care system. i think the starting point is the is central green light that the decision gets to the entire act, which is enormous in scope. it goes beyond the issue of coverage itself and deals with system transformation on matters of health care quality, health care access, improvements in the public health, bringing greater transparency and compliance to the expenditure of health care funds.

putting aside the legal significance of it, it would have been almost unthinkable to have done what the dissent wants to do in an attempt to pull this log back. so many parts have been set in motion. there have been many articles in the past couple of weeks in the of newspaperrrage articles about the decision having to do with what it means to stop the law in its tracks, what would continue on and what would not. there is no question that had been locked -- law been repealed in its entirety, certain things already underway would have been proceeding like they did in 1994 even when efforts to reform coverage stopped. the law makes so many investment

and transformation that i think it's-- and most of the questions have come up about medicaid. it happens that the areas i know best in insurance law is medicaid. when the decision came down yesterday, people said, you are toast. it became my job for roughly 12 hours to try to help people understand what the court had done and medicaid. i actually disagree with david on his characteristic of what they did. if you opened up the statute books today -- not that anybody has had time to reopen things yet.

you would see that the medicaid expansion group, all of the individuals whose coverage is subject to 100% federal financing under the new law is exactly the same expansion group as yesterday. it sits in the same place in the medicaid statute. what has changed is not that group and not congress's power to create such a group and not congress's power to spend money on this group. not even congress's power to enforce its expectations regarding coverage of that group in the case of states that participated in coverage. what has changed is the remedies available to congress when it comes to assuring some aspects -- not all aspects but some aspects of compliance.

how did we get to this? it is one of the great feats of all time. i said to a friend last night that those of us who think the most about coverage of health care of the poor and underserved should call the children and adults that will benefit from the expansion. those of you who know medicaid know there are children to this day are referred to hazard a cough children. -- \ we see how he arrived at what he did. as justin did at -- as justice ginsberg noted, seven justices thought that some aspect of the medicaid expansion was unconstitutional. what chief justice roberts told

us is that it was only unconstitutional to pursue certain kinds of enforcement remedies as opposed to creating a group setting expectations for this group assuring the coverage in accordance with those down the line. how did he do this? he did it by imposing what i call a two state solution. the super and posed, an astounding but absolutely life- saving distinction between what the medicaid its statute requires and how they get enforced. the expansion is totally lawful and congress has the power to spend money. what congress cannot do is threaten states by withholding money from their existing

medicaid program over their failure to implement what he calls a new program. he was able to convince briar and kagen to go along with this. justice sodomize air and justice ginsburg were scratching their heads. -- -- sotomeyer and ginsberg were scratching their heads. it meant he could then eorcement isionsf medicaid. because the social security act and provisions are subject to their own severed ability clause, it was possible to uphold the expansion while at the same time limiting enforcement of the provision. what we are left with is something that i would say we cannot call a state option today. it is something. it is an element of the program that is the new affordable care

act. it is subject to different rules having to deal with enforcement. we await guidance from the secretary regarding how she plans to implement the decision superimposed on the statute. i am convinced 60 million poor children and adults will have their benefits because of what justice roberts did here. i think just in closing on this issue of implementation, january 1, 2014 comes around we will have a few states that had either not implemented in whole or in substantial part -- but i think the urgency of the problem is too great. the situation facing 16 million people is too large to ignore.

i need to begin with a coupe of disclaimers. the most obvious one, my views cannot represent past, present, and future employers and funders. unlike david i did not focus on constitutional law in the framework of the constitution, i focus on health law. finally, as is usually the case when i follow sarah, i repeat and concur with most of what she had to say. my major points today are that the roberts opinion does no real harm to the medicaid provisions of the affordable care act. it is a mischaracterization of medicaid as a program and as a concept past and present. first, no real harm.

what the court struck down is an enforcement -- no federal official ever has or ever would use, cutting off all federal matching payments to a state doing too little and its medicaid payment. nobody would support this action. it punishes the wrong people. it is cutting off poor people's noses to spite legislator's faces. it has always been a problem that they have largely ineffective remedies to states that underpay, underspend, or underperform. the federal government can respond to that. they can take this allowances and refused future matching payments to the state or even ask for a refund. i was in the position of signing a letter to a governor saying, please remit $1 billion to the federal government. if the state spends money on the

wrong thing the fed can do the same. if the state were to spend money on ineligible people or for uncovered services, the fed can respond. how do you take money back for spending too little? what do you accomplish? no administration past or present would have cut off all federal funding. is the threat useful as a bargaining tool? maybe. but it also is possible for states to simply dear the feds to do something about it. i also think following up on something sarah said, it is unlikely the tool will be needed to get states to take part of the new expansion under the affordable care act. the aca will pay 100% of the expansion with federal funds for the first three years and glide down to 90% for all future years.

that is the highest match ever in any federal, state health insurance program. i think the historical analogy here is the children's health insurance program or chip. it is voluntary but all states take part in it. the matching rate is higher than medicaid but not nearly as high as what the aca will provide. i also will point you to other optional benefits and services, one of the newest ones his eligibility for women who find they have cervical cancer, they pay higher matching rate. then there is also from the other side, not just the carrot but the stick, the counter intuitive nature -- the possibility the state could end up with its poorest citizens being altogether uninsured and

nobody else. the people under 100% of poverty are not eligible under the statute to take part in the exchanges of the affordable care act. oddly enough the only people under 100% of poverty are legal aliens who have been here less than five years. it will be a strange circumstance for a state legislature or governor to be looking at its population and say, these are the only people we choose not to cover. in addition to that there will be pressures from providers of health-care services in the state's who were not expecting to see a whole lot of uninsured uncompensated care in the future, at least not among citizens. i think the tool we lost is one that would never have been used in one that probably is not necessary. but i would go on to say i think the roberts characterization of past expansions and the present one and the affordable care act

betrays a misconception of the medicaid program. his opinion suggests the central feature of medicaid as it exists is the eligibility category. where as i -- i think most observers, republican and democratic to have worked on this program would say the central feature of the medicaid program is people's low in comes. the existing program is not -- as opposed to how the roberts characterization runs. it is not to all pregnant women regardless of income. it is not to all people with disabilities regardless of income. it is not to all children regardless of income. the common denominator among the many different eligibility categories in the existing medicaid program is slow in coming. adding the remaining poor people in america to this program fits

exactly with the existing program. the program has been altered in many other respects over the years. managed care versus fee-for- service, define benefits versus benchmark plans that were very basic. it has always been regarded as the same program for low-income people. i do not know why chief justice roberts and others would want to get to this line of establishing an anti coercion doctrine. i would leave that to my can david to help me understand. i think they have done it, created this doctrine in a way that misunderstands -- may be deliberately the past and the present and future medicaid programs. thank you.

>> thank you. thank you to susan for moderating and to our wonderful georgetown law defense programmers for putting this together. i have my own admission to make. i thought the man they would survive, because i figured based on oral arguments that justice kennedy could not vote against it. kennedy said this about americans without health insurance, >> they are in the market in the sense that are creating a risk that the market must account for. a bit later he added, the young person who is uninsured is uniquely approximately very close to affecting the rights of

insurance and the cost of providing medical care in a way that is not true in other industries. that is my concern in this case. there is. he will be the fifth vote in this narrow opinion that oppose the mandate or finds a way to have the mandate left and tact. i saw you actually have to register or pay $5 a month for the use of the site and i am to absent minded to unregistered. we bet a quarter on this. my rationale, i think i should now -- [laughter]

if the uninsured were in the health-care market for kennedy, using health care when risk became reality, then the man they regulated their market activity. it did not force them -- the mandate regulated their market activity. he somehow said his concern about the creation of risk aside. in the eyes of most progressives who backed the mandate -- some single payers supporters oppose the mandate. in the eyes of most progressives who supported the mandate, justice kennedy did not get it. that is, he did not get the argument driven home by liberals. the argument that people who can afford insurance but do not buy

it are freeloaders to burden the rest of us by saying no and then get emergency care paid for by the rest of us. you have heard that argument made. it is an appealing argument and is a nice sounding messages about personal responsibility. as an economic, it is deeply flawed. in their oral arguments they drove the message home. only justice roberts -- take your pick, did he just blank out of fear of history's judgment, is he trying to build street credit for judicial activism next year. whatever he was doing, which i guess people will argue it out for the ages, saved the affordable care act. requiring the uninsured to buy coverage acts like a tax. is the same function as actual

taxes and health-care systems like canada's and many others that provide universal public coverage. it brings money into the risk pool. the anti mandate side brought this message to court with results that were devastating for the argument that the mandate regulated market activity. in justice roberts words, this is the longest ", the individual mandates regulation of the uninsured as a class is divorced from any length to existing commercial activity. the mandate primarily fax healthy, often young adults who are less likely to need health care. it is because these individuals as an actual class incur lower health-care costs that the mandate helps counter the effects of forcing insurance

companies to cover others who oppose greater costs than their premiums are allowed to reflect. if the individual mandate is targeted at a class, it is a class whose commercial inactivity rather than activity is defining feature. this i suspect -- and of ". it's hard to argue with that position. this is what killed the creation of risk argument for justice kennedy and almost killed the affordable care act. had discording content with the last 75 years of commerce clause jurisprudence, the free rider argument might have been enough. for an activist court intent of going back three-quarters of a century of jurisprudence to cross out subsidies from the healthy and the sick obscured, they were fatal. the argument of being at risk

for illness but not buying coverage constitutes action or inaction does not have a purely logical answer. this argument is a mere placeholder or fail to the classic conflict. it will now have added over this issue to our politics. the most immediate consequences of the core's decision is that an election will decide the fate of the affordable care act. meanwhile, implementation will proceed. the pace will vary. tea party dominated states will stage their versions of a sit- down strike over creation of insurance exchanges and many other features. in the coming electoral season, many will complained about the

cost of expanding coverage to 30 million. i will conclude by observing this. the cost objection is mirror cover for philosophical objections to public provision for people needs. the increased cost of covering 30 million is a little bit greater than our typical annual national increase in medical spending. is a one-shot increase. it is much less significant in america's medical spending. picture over several years or more that are rising medical costs. the real problem is not the cost of covering the people who go to sleep at night anxious about what will happen if they discover a loved one has a tumor and how that will get paid for. the real problem is the long- term trajectory of our health care spending. the long-term rise and all of our medical costs. our equivalent of global warming. a challenge has hardly begun to pick up, i hope they will start

paying attention to once the arguments for the affordable care act to die away. thank you very much. >> we have had a terrific range of perspectives provided here this morning. let's briefly recap what they were. we heard that they bet wrong initially on the outcome of the law like just about everyone else i suspect. >> i got a quarter out of it. >> wealth transfer. >> mike went on to express the question that most plagues him which is, why did justice roberts do what he did?

you heard the theory that this really was an absolutely brilliant political move. justin -- justice roberts being too brilliant that he was able to cast the vote that saved the mandate while still framing the president has the person who lied about not raising taxes on the middle class because the mandate is a tax on the middle class. that was his reason for designating chief justice roberts as one of the best politicians of all time. we heard from david that obviously he is not happy with the 5-4 vote, but there was much in debt to like for those who brought the suits and the first place. the commerce clause leeway that would have been granted had a the court said a grant the leeway. that ship has now sunk.

that is over. that discussion is now over. he went on to say that from his perspective some of what the court said over all on its interpretation of the spending clause and of the necessary and proper clause to the interpretation, the direction he would have approved of. david said this case has never been about health care, which is a proposition i webb like to come back to later and ask the rest of the what you think about that. although it was decided on constitutional grounds, i think there was plenty about health care policy. we can revisit that. in the end as you heard david posey ultimate concern that the ultimateis --david's concern, the commerce clause was

not going to give birth to the individual mandate, he did think there was an overall problem with the congress having -- court rewriting statutes in particular and having gone through this verbal twisting and turning to decide something was a tax and did not a tax. from surat we heard -- from sarah we heard the core represented a green light to the entire aca. moving to the medicaid portion of the decisions. on the one hand, it looks as though the court did give a green light to the medicaid expansion. they monkeyed around with the enforcement standards and enforcement remedies that congress could pursue if courts

-- state's elected not to go ahead with medicaid expansion. dead -- designating it as a new program as opposed to a change in the existing program as she put it, this created a two state solution that will be -- that has created something not quite like a state option to expand medicaid, but a state option -- it is not legally a state option. it gives states the choice of not expanding the program and therefore not being subject to the penalties of losing medicaid funding. as she concluded you heard, there will be a few states as of january 14 that will have decided not to expand medicaid. the vast majority will go along.

you heard similarly a feeling the that the courts went down a troubling direction and what it said about medicaid. essentially the roberts opinion mischaracterized the program from the standpoint of both characterizing the expansion of a new and different program and also fundamentally mischaracterizing it in the sense that the opinion seemed to read medicaid as being a question of eligibility standards put together as opposed to an over all standard of low income. you are a low in come pregnant women, low-income elderly disabled individual, the standard is that you are low income. having this different understanding in the fact is you heard from tim, it seems to suggest justice roberts

misunderstood in the past, present, and future of the medicaid program. finally as you just heard, we heard from greg. he made a prediction that having believed it was going to be justice kennedy who would come around and make it a majority to withhold the affordable care act. going on to conclude that essentially the court upheld the understanding that the penalty was not -- you literally put it, it was not there to regulate market activity, it was intending to do something broader than that. gray was closing by making the observation that the real problem here the long-term rate of growth -- long-term growth

spending. notwithstanding the fact the federal government will pick up the bulk of the cost of the expansion, the states will be left with some of the tab. greg indicating that is cover for not wanting to cover that population in the first place. we have a diversity of perspectives here to talk about. let's go back to the fundamental point that david made it. this court case was never a about health care all along. i would like to hear how the rest of you feel about that. >> you know, on one level i completely agree that there might have been certain presenting issues that would have brought to a head the same

kinds of profound constitutional questions that arose in this case. on the other hand, i am not sure anything other than health care would have led it quite to such a blockbuster law. the complexities of markets. when are you in a market, when are you not in a market. when do we not want to call something a tax when it really is a tax? healthcare has always had a unique ability to galvanize law making and to raise passions in ways that i think are quite unique. we certainly saw a version of that with the financial regulation law. that law was really much more about regulating and industry. here you can see how in health care any solution to the vast problems we face in the united states requires pulling a bunch

of letters at the same time. state federal relationships, individual relationships to the government and to individuals, and so while the case technically might be perceived as health care being a by product, on the other hand i am not sure any other social issue facing the united states would have brought us to this point. >> at one level, every case is about the facts and circumstances. yes, it was about health care. i was trying to say to people like myself, it was about the constitutional principles. as a matter of politics and policy health-care, provided a uniquely suggestible target with these types of unconstitutional

structures being enacted. on the other hand, let's consider the fact that for two and a half years, the government represented by a superb lawyers has not been able to answer a single simple question, what is the limiting principal? if you can apply the commerce clause by itself or is aided by the necessary and proper clause, why couldn't you do this? there is no principle that made this so compelling as being part of the constitution. we're not supposed to lose sight of the social and policy equities but if we take the law seriously, it cannot be primarily about that, it has to be about the law. >> i would say that i cannot answer the question because it is like trying to decide how many hurricanes there are in a perfect storm, i would say that

health care is probably the biggest of the hurricanes because it has been such a central debate since the new deal, and i achieved ambition. also, the way that it makes us stand out different from all of the other industrial nations, something we have always been exceptionally bad ad. i think it just becomes the biggest of perfect storms in a perfect storm. >> i cannot answer your question because it is really too early to tell. certainly, the hope is that this would be the opening wedge in a redefinition of our commerce clause jurisprudence and our willingness to set the modern welfare state. there are some reasons to doubt that it would be right, for one thing, despite its claim to the

contrary, the entire discussion was not necessary for the holding. the test he articulates with regards to the commerce clause and with regard to the spending clause are just completely empty and could be utilized to achieve any result in any case. >> you made that comment in your opening remarks. >> with regard to the spending clause, we have to distinguish whether this is an expansion of the existing program or a new program. this is what the great law maker called transcendental nonsense. somehow, this is extending the

program to pregnant women is an expansion of the program but extended to people at 103% of the poverty line is an existing program. you can do anything you want. also, it is worth noting that this was a 5-4 decision. whether in the end, i think, whether or not david is right will depend on the next election and on who the next justices are and even if obama wins the next election, if he can possibly get anyone confirmed. i view all of those things as open questions. >> i want to make one observation about the relationship between this case and health care. health-care played a unique role in terms of constitutional law. the unique complexity of the subsidy patterns and the

institutional arrangements in health care. the complexity which persistently alluded the media for the most part. and made it possible for the various sides, and i think that there is equal opportunity defenders here across the political spectrum, to tell partial stories both in the courts and in the media about how these subsidies were. i think the leading constitutional lawyers had a real problem grappling with this. this was most dramatically apparent when the general's class a clinton and he had troubles with the ice-- generals glass clinked and he

had troubles with the ice. the system was not able to swallow and process health care because it is so complicated. >> perhaps an anticipation of the observation, the chief justice was careful enough on page 44 of his opinion to state as follows -- this is a command to buy insurance as a tax that would uphold the constitutional out. it is only because it does not authorize such a command that is necessary to have the power, it is because of a duty to say it was fairly possible and this can be interpreted as a tax. i would find no basis to adopt such an instruction under this rule or opinion. the view of a decisive vote, which is roberts, is the

holding. that is not an interesting question. that is ridiculous. >> ridiculous but not transcendental. to me, an interesting question .s on the medicaid stuff o it is not the nature of going from pregnant women to non pregnant women. if you take state sovereignty seriously, it is a simple matter of dollars and cents. if you look at the the program like medicaid that is affordable for the states in the long run but taking them down the path of greece, that is one thing. if you in march the program. however you structure it as bringing in a new class of the fisheries or you in march the size of benefits, if you do this

anyway that bankruptcy estate, it is that part that is not permissible. how does it do that? we heard about the 100% contribution. that is utterly non-binding. second, even if that is true, for the first time this requires states to provide medical care versus just paid forward. after having talked to many state officials about these programs, i was told what would happen is to ensure the sufficient density of the network that can be done, the states would have to spend lots and lots of the money because giving be continued cutbacks, the physicians will flee from the business of providing medicaid services. are going to be

popularized. i have been looking at projections which would squeeze out the spending and everything. >> when needed to turn to a couple of our medicaid experts. >> let me start. a couple of issues are on the table. one is the impact of the expansion. the second is the multiplier effect potentially of what is known as the prompt access standard. the third is what significance do we draw over all from the decision. putting aside the strange and wonderful solution that the

chief justice imposed on medicaid in order to give litigants the breathing room they wanted without sacrificing the money, the expansion, off the power of congress to enact an expansion. what you see is that there is one program and this is what we would have called a new eligibility group consisting of people described in that part of the statute. of course, that is what made the whole issue so stunning. if you look at the statute, this is one piece and as justice ginsberg pointed out, it would have been important to enact this amendment. there are whole new eligibility groupings. they are all a matter of degree or certain dimensions of

poverty and in the beginning, we only recognize a few dimensions of poverty. this is one piece and i view the implications of the coercion doctrine. i look at it as a practical lawyer who deals in health-care law. this thing has no legs beyond the remedy that the chief justice concocted in order to save these families with children and individuals from losing their money. there is a part of the statute that says that you must be given prompt access to medical assistance. there was a split about how to

understand that provision, whether it is just the coverage or actually the services, congress clarified that all along it had meant the services and not just the coverage. access to care is the thing that we care about about law. financing is the means of access to care. the medicaid portion of this decision is the most shaky portion of the decision to attach significance to. >> i would say that the argument about the stage is fundamentally wrong. the first one is what mike alluded to. there is no defining principle here of what it becomes worse

and when it is not. when we added a childhood immunization, did that become too big of a burden? say it isow when to coercion, when it is not. i don't understand how the expansion at one under% of federal spending, i don't see how this constitutes the course of burden when earlier expansions did not. the prompt ted -- the action that he alluded to it is not in front of the court. that is not what i understood to be the deciding quality of whether this is coercive or not. this misconstrued what the statue said about contact. finally, if there is anything that will bankrupt states for

the feds or at all, it is not the medicaid expansion. health-care costs are growing in all sectors. it will not grow at stake levels because of the expansion. >> ok, with that, we have gone to the transcendental perspectives yet agains we have looked deeply into this national roszak test. let's take some questions. please go to the microphone, if you would. please introduce yourself. >> hello. the following up on the cost argument, basically, the way that the structure was, the reason that they use medicaid as

a way to expand coverage is because it was cheaper to put more people on medicaid and to pay for the subsidies. now, if the states decide not to spend, you will now have the federal government spending more on the subsidies and i think that was a possibility that was not a scenario. i don't think anyone expected that this would be the outcome. >> they that believe the states would have the authorities. >> the way the statute is written,, it is possible if you earned income at the property level or higher to get subsidies if your net medicaid eligible. if you are below 100% of poverty, there is no subsidy for you.

you have this very paradoxical situation without any means of health care subsidization. >> it would be dead narrow group between 100% and 133%. >> all of the people of -- all of the poor people would find themselves out in the cold. >> that is another transformer to future. has anyone heard about transformation of quality into quantity? is a question of what is the cumulative effect. this final step of expansion will bankrupt them. that is the fact. >> the urban institute shows

enormous savings over 10 years. like in all of these issues, there was building processes on both sides. >> those of us within have gray hair know that what this came after was between the 1965 loss estimates on how much the medicare program would cost versus the reality of how that program exploded. this was one of the great moral accomplishments of the country. all of us, we invest our money, we would take risk averse and are usually anxious about this. actually, the portion that involves care for the elderly rather than care for the poor, which is really a blow and of

the state budgets. the governor cutting back on care. lots of other examples of that. there is huge anxiety. i differ with their that should be constitutional lies the should be constitutional-- i defer whether that should be constitutionalized. >> this argument seemed so bizarre. let's go back to basics. the federal government does not have to have the medicaid program and the states don't have to accept medicaid. here is the argument, congress comes along and out of its beneficence offers the states a huge pot of money, that is to say, medicaid. david is saying, the states are saying, help, help.

we might accept this, save us from accepting it because if we except it, we will go bankrupt. this is crazy. if they are worried about the impact broke, don't accept the money. they don't have to accept medicaid. the reason why they're tempted is because they think they will not go bankrupt and their citizens would benefit from it. very odd for a disservice to say that the states have to be saved from their own bad decisions. >> money flows and lots of bizarre ways around states, health care, medicaid. we know that a lot of these people who are not covered now under medicaid are also getting health care and they are ending up in the hospital and someone is paying the bill. we know that indirectly, one way that hospitals and states have

financed that is by pushing medicaid dollars around as well as raising premiums. we know a lot of this was already getting paid for. correct? >> yes. >> now, we will have something much more logical. theoretically, we will have clear coverage for people, their care will clearly be paid for through the medicaid program, but somehow that is worse than pay for it through all of these machinations that we are paying for it now, correct? >> well, i don't think it is worse, that is the argument. direct subsidies are worse than cross subsidies and it just seems odd to me. we have jerry rig an entire insurance system so that we can take care of people up to the level of our moral demand.

we are requiring emergency room care. we have these terrible laws. yes, we have created a system where we have moral demands and then we don't finance them directly. >> what michael delivered is a mischaracterization of the argument. the argument has been very simple. we have a situation where states have been presented a choice. the states have been given over voluntarily to the front end and a program based upon certain fiscal projections. now, every state, the entirety of the health-care delivery network depends on that. it was withdrawn, it would be a public health crisis and a disaster. that is one wrong choice. now, if you don't give them a choice, the state's police that except the new medicaid would bankrupt them, too. that is the classical essence of

coercion. often they cannot reject. that is called coercion. i am not interested in what is more economically efficient, let the federal government to medicate directly like they do medicare and then have a philosophical discussion. you cannot give the states a choice between a collapse of the health care system or popularization like greece. this is the surest way of destroying sovereignty. it is that simple. >> ok, we're going to try to move through these other questions. >> i worked at the national academy for state health policy and i run this state reform. we have to focus on this day.

if you were still imagine you were there, what would you think the first questions you would get. what has happened to the medicaid option? how would you respond? >> most of the expansion does not occur until 2014. there is a condition that says that states have to maintain their efforts until 2014. they cannot back off of the current programs, the so-called made its of effort provision. i have heard a bunch of states asking, does the roberts opinion nullify the menace of effort. i think the answer to that is clearly no. the roberts discussed the notification of the penalty which is exclusively about in

the expansion population. this is quintessentially about the existing medicaid program. the first question that most states might ask is do i still have to maintain the effort in the answer is clearly yes. >> another question that i think will come out right away is to the extent that the decision gives states more flexibility around the implementation of this eligibility group, does the decision in some way change the characteristics of the eligibility group? for example, because they have more flexibility, can the state cover if you were then all people falling within the new eligibility grouping? can the state cover what the loss might call for what

regulations might call resembles of classifications. if so, what with the federal contribution of will be? does it stay at 100%? at what point can the state stop the coverage and instead have otherwise medicaid-eligible people rely on exchange subsidies? fleshing out whether the decision in some way chase's -- changes the basic characteristic of a new eligible a grouping will be right after megan's of effort, which i have always tended to think is sort of a canard. -- the basic characteristic of a new eligible grouping will be right after the maintenance effort.

so, i think all we can do, there's nothing about the decision -- that is why i started my remarks saying nothing about the decision changes the text of the statute. if you open it up, is the same there today as it was yesterday in terms of the federal financial participation. the question for the secretary is in determining the effect of the gloss on the statute, well, do i give states more leeway as a reasonable interpretation of their newfound flexibility? i think it will be months before we know the answer. >> ok. let's go to a question. >> hello, i have a more technical question and then a broader philosophical. will states be allowed at any point in the duration to move forward to add a better point

of to in to this medicaid expansion and receive the funds or will there be an open enrollment? the question in the reverse, if they opt in and now, will they be able to add a letter point to withdraw if they realize there is a fear of bankruptcy? that is the practical question. i have read some spinning about the impact of this ruling on the congressional power with the commerce clause. what other people's opinions are in terms of whether this will in some way hamper or limit the capacity of congress to use the commerce clause to implement social or economic policies? >> let's go to the first part. i guess we could paraphrase this. can -- are we making this states

eat broccoli or do they have the option now to eat broccoli when they want to or if they want to? >> well, i think that that is a very good question. here is what the statute says, beginning in january, 2014, this new group becomes -- this is not really a required the group. this is a group with limited for smud powers. and federal financial participation is available to the schedule that was laid out. that is at 100% and it drops down to 90%. i would assume that the secretary of thinking through-20 in sheriff this complex of flexibility will make it clear that the state has flexibility at least as to the year it comes

in. the funds that will be available would be those that would have been available in that fiscal year. if you do not come in until 2020, you would get a 90% match, not 100%. there are so many unknowns about taking what was a relatively- viewed provision in one way and thinking about what the full meaning that the court did to that provision by essentially putting inflexibility where there had not been flexibility. some of those questions would come up with mandatory coverage groups. my guess is that we would find that there have been so many issues that hhs wrestled with that it is not exactly starting from scratch. we will see some pretty comprehensive guidance in the

coming weeks. this is about how the secretary is inclined to interpret the law. >> there is more than sufficient ambiguity in the court opinion to allow the secretary to have plenty of room for testing in this area and the interpretation of the guidance. a second question i would ask back is, or else what? because according to the roberts opinion, the only thing the secretary can use is new money. it they do not apply for the new money, what is the enforcement? ears also a commerce clause question. >> it is too early to tell. the way that the architects of

this law framed the question, they went out of their way to say this law could be struck down without indicating anything else, that this was unique because it was regulating somebody who was not in commerce, who is doing nothing. if that is what it continues to become it will run -- it will be relatively unimportant. one could see the possibility that this could be an opening wedge in a systematic effort to unravel the modern welfare state, and whether that happens or not depends on who the next justices are. >> connect those dots. how would it be the opening salvo? >> david indicated one way, so one way to read the opinion -- it is not the only way -- is a very narrow interpretation of the clause. if that clause were to be significant lead narrowed come

at the airport have to wait to see, many other programs might also fall. another thing is as i read not roberts' opinion, but the four dissenters, is quite bizarre, but their opinion can be read as a if a government spending program gets too big, then by definition becomes coercive. that means any large program is therefore unconstitutional. again one could imagine, if mitt romney gets elected and he gets his people on the court, who knows what they will do. m in my personal opinion, it is worth no existing statute exists the commerce clause in the four corners of this opinion. to be fair, the concern has always been at least on my part that in the effort to save the rrain, folks would start

enacted numerous other mandates that affect cross subsidies in an effort to avoid at the problem of not being able to raise taxes. it is to stave off future problems that this was waged, not that they are doing it to an existing statute. the final part, they are on a talk about the spending clause in the context of pulling in states. nothing prevents the federal government from bankrupting everybody. let them run it directly. they can raise taxes and have everybody lead wonderful wives. maybe we can last for a few years on that basis. europe shows what happens when he continued that practice. the federal government cannot do

it itself because of its institutional capacity. they have to pull in the state's .s >> let's go to a question here. >> had a question about the medicaid piece of what we have been talking about the auspices of billy, when you look at -- congress just to make a mandatory category and the question becomes, does congress have to look back at the provisions put what they did with the funding cuts, to account for a different amount of uninsured in different states that do not accommodate the weight it was envisioned for this universal coverage piece? >> you go. >> on a policy basis, does it

call into question how some of those disproportionate share hospital statements were calculated, or what kind of assumptions were made about how many uninsured people -- yes, it has always been a policy question there. does the congress have to change that? no, i do not think so, and there are strong political reasons to think both sides in the congress might want to leave confusion in place. people who want an expansion might want providers to have a strong motivation to try to get a medicaid expansion pick people who did not maybe want chaos. >> i think one of the incentives for states to move forward on the expansion will be precisely that it is the other revenues coming in may begin to drop, and so there is a great need to maintain -- if you think of medicaid as a way to finance health care for indigent people,

the point that had been made all morning, either directly or indirectly. this is the indirect way of doing that. if your funds are dropping, you have a good reason to adopt the expansion. >> question or, at here. >> i am just a dumb health-care lawyer. the comment and then a question. the comment is i think this was entirely about health care. i think it was about the 22,000 people who die every year without insurance. it is about that part of the 33 million folks who are on the individual market that it turned down. it is about the fact we are the most expensive persistent in the world. where 25th in life expectancy and 37th in quality. the court took a look and try to find a way, especially john roberts, not to interfere with congress trying to address that

problem. however they to do it by dealing with one little component. also, by the way, there's a iece, whichle peac found a distinction, which set out here is the only commodity you must have and cannot, no. people, upon -- and a number of people cannot get the cause of pre-existing conditions. when i was in government, we found a way to beat the epsdt, which said congress could not finance states if there was a single kid who was not served by epsdt, we had to take some money back from a state which was improving. we found a way to read into that that congress meant 5%, not 0%, and i am wondering if we're not going to be able to

find a way which political discussions and setting up ways for the states who do not want to participate to get political cover to drive folks -- poor folks through the change in those states and find a mechanism to read into law by which to subsidize them. >> i think the question of what inducements the secretary can use -- assuming the states have flexibility, so we're not worried about coercion, the question then becomes, what inducements exist by the inherent nature of the structure the law versus other inducements the secretary still has in her armamentarium encouraging states to come in the fully? i think the point is exactly right.

we were talking about it before, that the fact that the funding is going down, becomes a significant issue. other issues have to do with the fact that if you are below a certain income level, a lot does not provide for you to get subsidies to the exchange, at said that real big question is, should a woman working as a waitress for the minimum wage, making 70% of the federal poverty level, really told she does not have insurance unless she works enough overtime hours over a year to once in a while, sometime during the year, after in come up for somebody who has a seasonal job. the issue is switching among markets has been a significant one for this law from the beginning, but you will have -- you will be able to make a picture for state legislators showing this a woman, depending the christmas season and she

gets 20 extra hours a week a precious work done, she will have insurance, and then she'll have zero. a difference between saying you are currently on medicaid sometime and the poor others. >> >> will try to get through very short questions and very short answers because we're almost out of time. >> my question is not a policy question. it is a personal legal question. in reading the opinion, the chief justice went to great lengths to avoid making policy judgments and much has been made about and try to be an umpire. i saw that and much of the penny, but it did not seem to come through in the communicate section. the definition of a new program seemed entirely activist, and particularly interesting to me was that he said that 132% of

the federal poverty limit was not the least among us, that was not the original congressional intent, which was to cover the least among us. have others felt discrepancy in judicial discrepancyversus street? comments. heard much >> let me point out a simple proposition, the original medicaid program began as a cooperative program that states could opt in. at certain parameters, and those parameters would change. the question is, is this a step too far? what they were trying to do here, which i think all you should love, at least on this panel, is he had 7-2 to take the whole thing down.

he did it to save the statute pic. you engaged in activities, you start making policy judgments, which is why it is and a corporate function. what choice do you have? >> i have to say i think it is appalling and in sensitive for the chief justice to have said that people at 133% of the poverty level are not the least among us. this is an indication of how out of touch some members of the supreme court are with the way many americans have to live their lives. and the question of activism, the truth of the matter is there is no justice on the supreme court now who is not a judicial activist. when the court strikes down affirmative action programs, as they will next year, that is an

activist decision. no justice on the court has ever appointed to anything in the language or the original understanding of the constitution that says affirmative action and constitutional. sinking about campaign finance. what we have is not activists and believers in judicial restraint. we have conservative activists and liberal activists, and the sooner we get that straight, the sooner we will come to some mature understanding of what constitutional law is all about. >> thank you. >> i will try to make it is responsible. i am a recent graduate of this school, at my question is directed toward gregg, perhaps others, because he is also a physician. this is a derivative of the discussion that you had had picked access to health care is one thing. availability of health care is something entirely different. what do you think the impact of

this lot is gone to have on availability, particularly on positions who see the requirements of law as so onerous, whether it is in reporting, diminished income, whether it is a requirement to set up a whole new style of practice in larger groups, which some positions did not want. they prefer to be individual practitioners. the impact is going to be significant we on physicians who are in need kirk and further on because they are the largest percentage of physicians in the country. how many of them do you think will leave the profession because -- and do something because of the impact? >> the point is often made that after the clinton health care reform effort collapsed, change happened quickly and medical care of the sort we would expect happen only if the clinton plan had succeeded.

there are powerful economic forces operating in both public sides and the private side in health care today. they are going to set limits on the discretion that physicians have. they are also operating to nudge positions to larger group practice situations, whether they be kind of multi- practitioner group practices. there is going to be more incentive from the private and public side, and if president ron make got a ryan plan for medicare and acted in 2014, the same thing would play out for medicare, just beat private plans doing appeared powerful incentives for positions to spend less, to follow evidence- based practice critical to a great extent, less discretion. there are a lot of changes that

are coming. it is less a matter of who does it than just the reality that they are coming along. i think some of the medical specialty groups are fighting rear-guard actions that will ultimately not prevail. i had a piece in month ago cost control, making the point that it does not matter who wins politically. both sides, whether you are talking about the pact under the affordable care plaque, or the ryan plan's approach to medicare. both sides are doing similar things straight, i will close by asking each of you very quick questions. give me the name of the seminar you would teach next year to

third-year law students about this case. what would you call it, and just the title. he did not have to give me the curriculum. only the title. >> chaos theor? >> now what? >> accountability, not doing it right. >> politics and law. >> the struggle for the soul of health insurance. >> ok, there you have it. those of you who want to come back and take those courses texture, we will see if we can do that. thanks very much.

[captions copyright national cable satellite corp. 2012] [captioning performed by national captioning institute] saturday, a discussion on the deal to keep student loan interest rates at 3.4% for one year. then a discussion on increased efforts to repeal the health care wall. later, a discussion on the emergency meeting held in geneva to discuss the violence in syria. we hear from someone from the washington institute for near east policy. >> harry truman goes to the white house and says to eleanor

roosevelt, can i pray for you? she says, no, we need to pray for you. >> there are a lot of promises made. they said they would have to rent a very large hole to get all the people that jack kennedy present -- promised -- >> calvin coolidge may have been the last jeffersonian, to resist the temptation to expand federal power. >> also it this sunday, a middle east expert on the obama administration's response to the arabs spring and the israel- palestinian peace process. that is sunday night at 9:00 p.m. the purchase >> in power of gold

specific as an international currency, was constant for. the four centuries. it seems a record is by and large of growth and of personal accountability in the micro sense. >> this weekend, and look at the margins and arguments for returning to the gold standard. that is saturday evening passed 7:00 p.m. eastern. then "the cotendntenders." american history tv this weekend on c-span3. >> is the conversation we need to have, that nobody is willing

have. what role should the government play in housing finance? >> and all other details the subprime lending collapse, the 2008 financial meltdown. >> if you want to subsidized housing in this country, and we want to talk about and the populace agrees it is something we should subsidize come out and put it on the balance sheet and make it clear and evident, and make everybody aware of how much it costs. when you deliver to these third- party enterprises, fannie mae and freddie mac, and he delivered the subsidies to a public company with private shareholders, and executives who can extract a lot of that subsidy for themselves, that is not a very good way of subsidizing home ownership. i think we have seen the end of that movie in 2008. >> sunday at 8:00 p.m.

>> president obama traveled to colorado springs today to survey while fires -- wildfires. he ordered federal aid to support the local recovery efforts. more than 32,000 people have been evacuated with an estimated 346 homes destroyed, making it the most destructive wildfire in colorado history. these remarks are five minutes. alright >> everybody. obviously, we just had a chance to tour some of the damage that has been done by the devastating fire. i had a chance to thank the mayor as well as the governor

and the entire congressional delegation, members of the fire service, the forest service, as well as local fire officials, and have got a full briefing. what you see is an example of outstanding coordination and cooperation between federal, state, and local agencies. we have been putting everything we have into it trying to deal with what is one of the worst fires we have seen in colorado. it is early in the fire season, and we still got a lot more work to do. because of the outstanding work that has been done, because of not only coordination, but also some unprecedented of arrangements that have been made with military resources, combined with the symbol resources, we are starting to see progress. as you saw and some of these subdivisions, the devastation is enormous. our thoughts and prayers go out

all the families who have been affected. one of the things i have tried at the size is that whether it is fires in colorado or flooding in the northern parts of florida, when natural disasters like this can come up american comes together. we all recognize that but for the grace of god, we got to make sure we have each other's backs. that spirit is what you're seeing in terms of volunteers, firefighters, in terms of government officials, everybody is pulling together to try to deal with the situation. we are not completely out of the woods yet. these folks have been working 18-hour days, try to make sure that these fires to put out. they are going to be monitoring the situation. they will need help from mother nature in order to fully extinguish these fires. in the meantime, some lessons are being learned about how we can mitigate some of these buyers in the future, and the

officials already in those conversations. it means out of this tragedy some long-term planning occurs and it may be that we can call her back some of the damage that might happen next time, even though you cannot control the fires that start up in these mountains. the last point i want to make is we can provide all the resources. we can make sure they are well coordinated. but what we cannot do is to provide them with the courage and determination and professionalism, the heart that they show when they are out there battling these fires. when we had a chance on-site to see some guys who just saved three homes come for those families, the work and the sacrifice of those firefighters means the world for them.

they are genuine heroes. we want to say thank you to all the folks who have been involved of this. we are proud of you. we appreciate what you do every day. i hope folks around the country are reminded of how important our fire departments are, our forest service is pricked sometimes they do not get the credit they deserve until your house is burning down or your community is being threatened. they're putting their lives at risk to take us and help us. we got to make sure we remember that 365 days a year, not just when tragedies like this strike. thank you very much, everybody.

>> now more on the supreme court bus ruling supporting the supreme court's ruling upholding the affordable care act. this is just under an hour. >> good morning, ladies and gentlemen. yesterday, we had a rather momentous decision of the supreme court, perhaps the most unusual aspect of it being the result one that no one had

predicted. it state we will talk about that, what its implications are, what are the next steps dealing with the issue, and talk about it a little bit of a critique of the decision itself. to you that we have people who were intimately involved with the whole process of dealing with the issue of "obamacare" from the start. attorney general greg abbott is with us today. his state is one of the states that was protesting the invasion of liberty. he has made the protection of liberty, protection of the people of that state, his primary objective. he is a leader of the republican attorney general association. he was named trial judge of the

year. he has been made a principal honoree from the federalist society, the texas trial of law and justice, and he has been active in many of these important issues that we face as a conservative move from a creek joining him is karen harned. she is the executive director of the national federation of independent businesses small business legal center. she has been active in the fight for liberty and freedom of small businesses to do the job they do so well for our country, which is provide jobs and services for people want, and she has acted in a number of these important issues. she received her bachelor's degree from the university of oklahoma and her j.d. from george washington university law

school. we will start out by opening up with greg. >> thank you, general. i was unaware until right now about the texas- >> ou complex we may have. we are fighting for the same costs. i would say that yesterday was a day full of surprises. one of the things we were surprised about was not only the outcome of the case but the way the case was decided. we were surprised about the new role of the chief justice of the united since supreme court. i was there. it was interesting -- the

roller-coaster ride will take on. as the chief justice came in and read the opinion, and went through in detail the analysis of the individual mandate and whether congress had the authority under the commerce clause to impose individual mandates and to conclude they do not. congress acted in violation of the constitution. i thought this would be a dramatic victory. then when he began to explain in more detail about the necessary lause, this woulde, be a tidal wave movement that would change constitutional history. my fourth thought became right. he talked about -- my fourth thought became right. he talked about the tax

components. it would become a span provision. you could tell as he began discussing the tax component of the decision there was a palpable movement in the court room where people were in a state of confusion, shock, uncertainty, and disbelief about what exactly they were hearing. you could tell some were dismayed and is appointed about the decision, whereas others were overjoyed. -- disappointed about the decision, whereas others were overjoyed. there are a lot of takeaways we can come up with. i want to run through some of those. i want to talk about some broader context. then i will run through the

detailed aspects, and then about some issues going forward. one thing that is important to do is to put in context what happened in the last 24 hours is something that had been developing for the last 2.5 years. remember this -- we may have lost this case at the u.s. supreme court yesterday, but in reality, almost all of america, whether you are lawyers or the average person, they thought we would lose the case long before it ever got to the u.s. supreme court. few people gave us very much chance at all that the case would make it to the high court. the outcome we got yesterday was not the outcome that we wanted.

it exceeds what anyone gave us any chance of achieving two years ago. to trace back in time what happened, two years ago, myself and some other attorneys general, going back to the fall and winter of 2009, were deeply disturbed about how the country and health care law seem to be hijacked by would seem to be accepted public bribery to things like the cornhuskers kickback, tools used to extort money for a state to get a vote on the floor of the united states senate. we knew this was not the pathway we wanted to see america go down. several state attorneys general joined together to inform congress that they can expect litigation for the health care

reform law if the moves forward with things like the cornhuskers kickback included. about the same time, a lot of state attorneys general benefit from research that was prepared by the heritage foundation. for me personally, it was the defining pivotal moment when in reading the research i began to be convinced that the individual mandate component of the health care bill was something that not only was contrary to the constitution, but something that must be vigorously contested if we are going to hold out any hope for the future of the constitution in this country. i called randy barnett. i visited him about the paper he had written. i got better educated and gain

insight from their perspective. learned more and eat more, drawing from the insights and expertise and research from the heritage foundation, we decided referred proceed for with litigation. we could not have done it with nfib. we questioned whether we would have standing to bring a claim. nfib did, and some people involved, adn small businesses in this country -- and small businesses in this country were able to get involved. it began on shaky grounds. even when we filed a lawsuit, we were ridiculed, criticized, condemned, mocked.

we were told that the lawsuit would be quickly dismissed. there was no grounds was so hatsoever. congress could do whatever they wanted to do. all of that changed when we finally got that federal district court ruling in florida agreeing with us that obamacare was unconstitutional. those attitudes change when the federal court of appeals upheld that. but they changed even more when the pundits saw the figure that was used by the justices on the u.s. supreme court when we went through the three days of oral arguments. to go through some of the issues decided by the case road quick and put them into context, one is hthe individual mandates.

the individual mandates for us was the focal point of this lawsuit. we thought we would win or lose based on individual mandate. we knew we had a mountain to climb because of past presidents -- precedents. we were told by legal scholars that the individual mandate would be upheld because the necessary and proper clause of the united states constitution. the more we analyzed this and saw this, we knew that our fight was for a just cause because of that one very simple notion, and that is if congress can force you to buy a product against a will, there will be no limits whatsoever to congressional power, and it will fundamentally change the relationship between individuals in the federal

government for evermore. we were very pleased to see that the united states supreme court articulated the very position that we had maintained all along. it arrived at a conclusion that congress had violated the constitution, trebled our individual rights by trying to impose the individual mandates. that victory turned out to be a hollow victory because of what the remainder of the decision looked like. however, we would be ignoring the shift in constitutional history that took place just a day if we do not recognize some silver linings. concerning the rulings on the individual mandate. it was a meaningful reigning in of congress's authority under the commerce clause.

it was an unintended by -- unanticipated by scholars and pundits for the past two years. it was a way that is going to give life to future potential legal challenges for acts of congress and hamstring congress in the future with a consensus exercise of authority based on the commerce clause. the ruling yesterday was the first time there had been a ruling that congress exceeded the commerce clause on a safety nets -- shall say the debt issue since the time of fdr . we won on the individual mandate, but we lost as it concerned congress's taxing authority. for me personally, this came as

a total surprise. for several reasons. congress did not consider it to be a tax so much so they deleted any reference to the word tax on the legislation. the president insisted it was not a tax. no lawyer or party i talk to in the case seemed to think it was a tax. the obama lawyers had to make the arguments. it seemed like it was a claim that they would throw in, hoping it would stick. as far as i know, of all of the different obamacare decisions that have been made across the company -- country, the two that were made at lower current -- lower courts, no court or judge anywhere at any time agreed that

the obama care law was a tax. that made the decision that came out of the more surprising. we will have to do with the aftermath of the decision. this will be the biggest concern and challenge going forward because now congress can tax inactivity. if you do something, congress can tax it. if you do not do something, congress can tax it. i cannot remember -- you may remember from the time ronald reagan -- was the phrase he used? his complaint about if washington moves -- in washington, if it moves, attacks it. -- if it moves, you must tax it.

now reagan would be even more stunned to learn that if you do not move or a few move, he will be taxed. the federal government is telling citizens and now that you have an obligation to act to engage in an activity with you want to or not, and if you refuse to engage in that activity, you will be subject to a tax imposed by the irs. that fundamentally changes constitutional power in this country and it expands control of the federal government into our lives and into our wallets to a new and dangerous level. maybe more troubling is that the decision seems to distort and abandon conservative legal

principles of deciding cases based on what the law says as opposed to what policy decision a justice of the court may believe in. the decision amounts to in the words of justice kennedy to judicial overreach. condemning obama care, we talked about it being an unprecedented government overreach by congress trying to grab more power and assert themselves more into our lives. completely unaware that the way that this would end is by the judiciary exercising an unprecedented judicial overreach. amazingly, the president is claiming victory over this new tax mandate. the president is going to wind up having raised taxes dramatically over the middle

class in america. the very constituency he promised he would not raise taxes on. the third issue was the medicaid expansion issue. here again, we were completely surprised by this. this is an issue in which we had -- the states who filed the lawsuit, had an on mitigated win. -- and mitigated win. in hindsight, not the case is over, we thought we did not have a chance to win this case. we inserted it in part to ensure we had standing. we thought multiple times about abandoning the claim altogether because of the magnitude of the legal challenge. policy wise, we knew we had to challenge the medicaid expansion mandate. legally, we thought it was a

loser -- loser all along. we were stunned to learn that the u.s. supreme court agreed with it, and congress violates the constitution by coercing the states into expanding their medicaid programs against their will. as chief justice robert put it, it was congress putting a gun to the heads of the state's, forcing them to engage in conduct and recognizing that in doing so, it violates the sovereign rights of states. as we go through the process of learning more about this case, and applying this case in years to come, this will be one of the silver linings of an otherwise dark day in american judicial history.

this sober lining gives more power to states -- this is a silver lining because it gives more power to state and gives a stamp of approval to that state sovereignty. it is a meaningful turn with regard to social safety net decision making coming out of the supreme court because it is the first time that the supreme court put a limitation on the expansion of the medicaid system. let me quickly touch on a few other topics that i know i need to pass the floor. one is its ka and practical effectsitsrne will talk -- one is at it impractical affects. karen harned will talk more about -- will talk more about this. let me limit that to the state of texas. my comments are based on personal conversations that i have had with businessmen and women in positions across the state. this decision that came out

yesterday is going to hamper hiring by employers in the state of texas. before the decision came out, businesses large and small repeatedly tell me that they were afraid to hire because they were afraid of the effects of obamacare and the penalty they may have to pay, the regulations they may have to deal with, etc. they were refusing to hire because of the possibility that obamacare was going to be upheld. now that is a reality. you will continue to see a cap on the upside of the hiring going on. it is frankly better than hiring and most days across the company -- country. the uncertainty from this law will continue. one thing the court is supposed to do is to resolve issues, provide clarity, and eliminate

the uncertainty. we left the courtroom yesterday with very little clarity and ongoing uncertainty, filling that little was accomplished. -- feeling that little was accomplished. we will see concerned physicians. i have talked to countless positions at all corners across the state of texas who have told me because of this they will get out of the practice of medicine. i have yet to find a single person to identify anyone who says because of obamacare they will get into the practice of medicine. you'll not find it. this is a problem that it raises -- what it will do is force more people into the public health care system at a time when there will be fewer positions providing the health care for those people. there will be greater demand for services. you will have a lot of unmet

health care needs. the pundits who are repeatedly wrong about what happened in this case -- first they said there is no way this case will have any legs to it. it will never make it past go. they all predicted it would be 9-0, 8-1 decision. undering congress's power the commerce clause. then after oral arguments concluded, the pundits change their opinion. they said that obamacare has transformed into a train wreck and plane crash. everyone has been predicting that obamacare would be stricken down. the only issue was how bad the damage was. the pundits were proved wrong

again by what happened yesterday. there may be another silver lining that day -- that can be taken away. it will silence and humble some of the pundits out there. [applause] -- [laughter] the reality is that the fight about obama care is not over. we are not walking away. there are several battleground to play out. one is a movement in the united states congress to work toward repeal. the house of representatives will vote on that as early as july. as you have noticed in the last 24 hours, there is a movement across the united states, aggressively pushing for repeal. majority of the american

disagree with this law. on the day the case was decided, a majority of americans thought it was unconstitutional. that majority is galvanized, motivated more than ever, prepared to go in and do battle. to do everything they can to repeal it, which starts in part in the halls of the united states congress. there is another opportunity. there are millions 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 they can vote pass themselves. it will allow them to repeal obamacare. you can expect this fight to challenge obamacare will escalate in a very aggressive way as removed for the november

elections, 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 in the president can play, and thiat is in the appointment of justices to courts. it will be important for all americans to choose a president who will appoint judges, decide these -- who will decide these cases along the lines of the constitution as opposed to those who will be writing policy decisions from the bench. end result.bout the it can be best captured by the language of justice kennedy himself. he said the court stayed a statute congress did not write.

the decision was one of policy. 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 of freedom and to 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 gregg abbott. the national federation of independent businesses represents the bulk of the commerce in the united states and the greatest sources of new jobs. karen harned, please talk about the impact of the group you represent as well as the legal issues. concentrate on what this -- on

how this applies to the economy. >> thank you. it is great to be with you. it has been wonderful. the partnership we have had with the state has meant so much to our members and to the organization. we are happy that you welcomed us. as the attorney general mentioned, you have seen in the 24 hour after coverage, there are some silver linings in this decision. we did when our case on a whether or not the individual mandate is constitutional under the commerce clause with the court saying, no, it is not. as he also mentioned, we lost on the taxing power. for small-business owners, their

two top issues have been health insurance costs and taxes. for them, yesterday was truly the darkest of days because although some of our members -- some of our members appreciate the victory that we got on curbing congress's power under the commerce clause, it is a distinction without a difference. the bottom line is they are facing a wave of new mandates and new taxes under this law. nfibb has conducted surveys. but we have seen every time is a

lack of sales as well as taxes and uncertainty. uncertainty has continued to rise over the past several months. as a result small-business owners who typically get us out of tough times by hiring are sitting on the sidelines. as a result, that will happen. we have a member in new jersey who has 47 employees and has said that if this law is upheld, he will not be growing. he cannot afford to grow. he cannot afford to get to 50 because he is facing the mandates. our members operate on razor- thin margins. these people are not driving

cadillacs and eating fancy dinners every night. they are getting back in -- they are just getting by. they do not have a lot of discretionary dollars to spend on of that is coming toward them. namely, the employer mandates. for those with 50 or more, they will have to pay a fine of $2,000 per employee if they do not cover them with health insurance. there is the small health -- small-business health-insurance tax that will be levied on our members. if you are with a big company they do notnshoresure, have to pay those tax. if you are with the union, they do not have to pay these taxes. if you are a small-business owner, who goes to a broker, you get to pay this tax.

people will have to pay those taxes. it will get passed on to my members. many ask, -- many people say no one is impacted by this. that is not true. we have research that shows that for those with 50 or fewer employees, they have seen of the last two years their plans be canceled by the insurers. 1 in 8 have been told by the insurer that plan you have or is gone. we will not offer it anymore. it is about having a certain kind of health insurance. it is the kind that congress as we must have. it says whether not to use these treatments, you have to buy a plan that covers that, which means you have to buy a plan with built-in costs for that

coverage. whether or not you choose to have children, that is irrelevant. you must have pediatric coverage. all of this came out in the arguments by the chief justice. we saw that he really got it when it came to with this law meant. at the end of the day, i feel -- i turn to the legal side of it and i feel like we are in more of the position to -- when it came to your medicaid challenge, it is all about where is my and coercion? that question is one that the courts will examine for years to come on how high the tax penalty will be. it is too high, maybe it is coercive and it is no longer a tax. the courts will call those -- made those calls going forth for

all of us when it comes to our freedoms in but the government can mandate on us through the tax system. for our members, that is part to curley determine which is particularly disturbing because this thing was sold to all of us as not a tax increase. now we have a court going right along with that argument, doing what the government was laughed at in the court for saying, coming in on monday, saying, this is not a tax. the court said the exact same thing. they decided you cannot look to carefully at the statutory language. we have to look at the bigger picture. from that we see that does not apply. they come back on tuesday and say it is within our authority under the taxing power. the chief justice of great on that without one.

one. he rewrote the statue so he could save it. we should be happy to know that he did not rewrite the constitution, but he did have gaping holes that now congress can run trucks through on what they can do to all of us through taxing power. hot-button issues that cause some the most concern that are what they look at before they decide to grow -- taxes and health insurance cost are exacerbated. i can assure you that nfib has been actively lobbying on the hill to try to get rid of these onerous provisions like the employer mandate and health insurance tax as well as fighting for repeal of the

entire law. we will continue on both fronts. i can assure you our members' demands it. we must for their survival to continue their fight. it is said that at the end of the day, i feel like once again small-business owners that the short end of the stick when it came to this decision. [applause] >> thank you very much. we will open in up to questions for the audience. i believe someone has a microphone. please wait until the microphone a rise. who has the first estion? right down here. please give your name and organization. >> i am from the manhattan institute. i am one of those pundits who is humbled but not silenced. all of you have seen a lot of

supreme court decisions. why has the federal society considered to move in general putting people on the supreme court who judge was based on the way the constitution was written in the way the laws were written? >> excellent question. when that many of us have been asking in the last 24 hours. >> i cannot speak in detail from the approach of those organizations you mentioned. you can look back to some presence in the past. it seemed as though there were less of a focus on ensuring that they get the right justices on the court that you would see from the other perspective. my perception is when you have a democrat president, there are litmus test in their mind that they will know for a fact that

that person will vote the way they want them to vote. you know that barack obama knows exactly how justice taken will vote. he would not have put her up there if she would not. if you see the presence in the past, you see a similar commitment was not there. my perception to draw some personal connection here is that bush probably more than any republican president was committed to certain principles and ideological purity. he appointed me to the supreme court in the state of texas. i have been through his feting process. -- vetting process. his avisos whated -- his advisers wanted certain people with ideological purity. we saw the to a large extent ith chief justice rogeberts

until yesterday. then made yesterday even more surprising. before yesterday, there is probably one or two people in the room that said i knew the swing vote with the justice roberts. almost everyone in the country said it is all of to kennedy. most people thought he was rock- solid. we have to a have havend v etters the more committed to -- have to have president to find people who are more committed to the constitution. >> the only thing i would add to that is in the silver lining category, i do think that as today has raised the profile of this issue with the average american. there are members -- yesterday was very much a great example of

so-called judicial activism. they rewrote a statute to save it. more and more the american people and by members are getting bad. maybe that will be helpful going forward as far as putting pressure on our presidents to find judges that redo act like umpires and not like legislators. -- beverly to act like umpires and not legislators. >> two turned out to be rock solid. two did not. all went through the wentvetting procedures. everyone had been a judge prior to being appointed to the court. every decision of those candidates went through which

they was gone through by a team of people to look to see if there was a possibility they would change and constitutional fidelity. judges are supposed to interpret rather than make up the law. nevertheless, some how at least in two cases, although most of the time they carried out with the president expected, there were lapses. the lapses are in the most important cases from a constitutional standpoint. i do not know what you can do when every possible effort has been made by george w. bush. there is no way you can tell. in anyu can be sure case. it is one of those things that some people's views you think are rock-solid when they come to the on the ropes of the supreme court, somehow something happens that is almost indecipherable.

as i watched the parade of change -- a one as a total change. there has been partial change in these tough cases. one factor is that when they do change and to what the president who appointed the has unexpected, they will all be of a project applauded by the new york times. >> chair of the public policy group. i urge people to read this. i have an associate who was reading the dayton phone book. i am still working my way through it. [laughter] i mentioned reading is because there are some words that release support what karen and the attorney general says. they come from justice roberts. the way i look at this decision is justice roberts wanted the

tax power rather than the commerce power because it provides people who might oppose this law with a greater lover to oppose it. if i were advising someone running for office, i would hammer on the roads of justice roberts. he says these decisions are entrusted to our nation's elected leaders who can be thrown out of office. who can be thrown out of office if the people disagree with him. it is not our job to protect the people from the consequences of their political choices. those words were repeated again and again. make the political choice. this chief justice is giving you an invitation. it would not have come that way if it were a commerce clause decision. the decision has many perles for people who want to overturn this

thing, an invitation from the chief justice saying, this may be terrible, but i invite you to do it. this is the way to do it. do not forecloses and uses language to reach the decision you are talking about. i see it as helpful. >> it was an open invitation and strong suggestion to the public to take matters into their own hands and to be active participant in the democratic process. if you do not like outcomes like this, the boat people out of office. there have been maybe 40,000 stories written about the decision. i saw one that said this decision was part of the mad genius of chief justice roberts knowing that this would be used in a way that would affect the outcome of the election in november. he had a broader scheme at play.

i went to a tree -- i will not attribute that much to it. those words that you read bomb will you -- you will see repeatedly on advertisements and tv screens for the next four months. [laughter] >> this is all true. the small businesses i remember -- represents are more energized than they were before. one thing that was -- it is disturbing to me that there was so little transparency. at the end of the day, he is giving congress the green light to pass taxes and not cobham taxes when it is being -- and not call them taxes.

i hate to be the wet blanket here, but our members are not very happy. i am having trouble with the pearls and the silver linings right now. >> next question. >> thank you for your comments. in light of the silver lining with regard to the medicaid ruling, which do you anticipate the states will do now that previously it was not a voluntary entry into additional requirements of the health care bill. will states exercise that option? >> first with regards to taxes, i have not talked to governor perry about this. i have seen a statement issued by the health and human services commission. they have allotted this part of

the decision, saying -- lauded this part of this decision. the reality is the most challenging budgetary component states have is their medicaid spending. it has been a piece of the pie that is consistently growing and occupied other areas of spending that we want to devote resources to. our ability to address those issues is reduced because of force expansion of medicaid. if you lay it on top of that, the force expansion under obama care -- we would face tighter budgetary challenges. the bottom line is that they are articulating this will provide them the flexibility to accept or reject this and try their own course as opposed to having

their course dictated by a bunch of bureaucrats in washington, d.c. texas can run texas better than those in d.c. this gives us the flexibility to do that. we will decide shortly which path will take. i did see a comment that may not be finalized. the governor of wisconsin said he was rejecting the expansion of the medicaid. i would not be surprised if you saw others make comments similar to that. >> the question that there. >> -- back there. raise your hand high. there you are. >> i am an intern at the heritage foundation. i have heard it said a lot that the justice office is trying to establish clear limits by of holding this law using the

taxing power. it seems to me this is the opposite issue. had justice robert upheld the law under the commerce clause and said that health care is different. there are limits to the commerce clause but not this limit because health care is different. we would have a clear limits on congressional power. by using the taxing power, basically, as has power to regulate what ever it once. as long as the penalty may be conceived as a tax, the court will give congress power. roberts gave congress more power than he was trying to do. >> not really. i would disagree with that. i will try to weave together the perspective that i perceive from chief justice roberts.

going into this decision, there was great concern among people across the country that the commerce clause provided congress authority to regulate what ever they wanted to do. we knew that if we were going to have any limitations on congress, we have to have some restraint on the commerce clause. this is really a tremendous victory to the extent we now have clearly established that there is an outer bound to this commerce clause, which is something that most people thought did not exist. that is a good thing. what you are saying is there may be some out of bounds to the commerce clause. there may not be a need to the tax and spending clause. what chief justice roberts is saying is true in this respect -- no one campaigns on the theory of taking the bums of congress because they exceeded

their commerce clause powers. people will campaign and you will hear beginning today through the election in november that congress has put an unprecedented expensive tax on you and the small-business men and women across the country. the president promised he would not tax people who may lessen $250,000 per year. he has now imposed a tax on the people he promised he would not tax. you will hear campaign themes like that. u.n. not have been able to hear that at the case been decided on the commerce clause. that goes back to the earlier comment. whatever congress passes a tax, it is incumbent on american citizens to fight against the taxing and spending more. our frustration is that the reason why we thought we were going to win on the tax issue is because in the early draft of

this law, congress labeled the penalty as a tax. they change that wording, deleted any reference to taxes. they categorize it as a penalty for one primary reason. they knew that if they categorize it as a tax, they would be kicked out of office. it would violate the president's commitment not to raise taxes. now we have a situation where congress can avoid the phrase that raising taxes by calling it fees or assessments. we will see created adjectives. share the responsibility. [laughter] they are supposed to use the word tax so americans can campaign against them for raising taxes. that is the biggest challenge

coming out of this case. it will embolden congress to pass more income-generating taxes by not calling them taxes. >> the only thing i would add to that. i agree with what you said. you mentioned about why did not they just say the health insurance market is unique. the argument was made by the along.ment of the long \ if so glad they did not go that way. there is so many things that affect our health, whether it is what we eat or how much we sleep. that would have opened the floodgates. we would have seen so much following litigation. that would not have been a clear line. in that respect i am happy. we have a much clearer sense of what congress can and cannot do under the commerce clause and we

did two days ago. >> in a moment, i will call up our all-star panel. they would discuss what we have had to say in the first hour. i will turn it over to robert alt, who will be the moderator and a dissident in the pan with two other of our top people here at heritage. please join me in thanking gregg abbott and karen harned. [applause] >> thank you, general. >> panel, come on up. >> more from the heritage foundation. scholars on the law, religion, and health care talk about what the supreme court decision

means moving forward. this is 35 minutes. >> thank you for joining me. i am robert alt, director at the heritage foundation. i have a difficult and easy job. difficult because i am following a distinguished panel. i am here to talk about the legal elements. i had one former and one current attorney general. they describe all the legal issues. i am plane moderator today. let me begin before i give my -- i am plane moderator today. let me begin by giving a brief

introduction of the other heritage colleagues to look on me on this panel. after i speak, we will have a presentation by nina owcharenko, who is director for the center for health policy studies where she oversees the foundation's research and policy prescriptions. she came after spending nearly a decade on capitol hill as legislative director to then representative jim demint. he was also in 82 -- she was also an aide. she was on the staff of the late jesse helms. she will talk about the health policy implications of obamacare being upheld. next is jennifer marshall, who the director of domestic policy

steady for heritage. she is the head of our richard if and hellen center for religion. she will be speaking on the challengines. she will look at the hhs mandate. as well as the impact of its being upheld on that policy. turning to my presentation, i would like to begin by saying i agree with attorney general gregg abbott that yesterday's decision has certain silver linings. i feel they surround a dark cloud. let's start with the positive.

the commerce clause. reed receive this has to be viewed as a victory that beat the expectations of the academy and the pundits party or argument when everyone suggested that there was nothing there. one week before oral arguments, you had people saying this was frivolous. that was not true. additionally, there are some strong language is as to what will mrs. there are on congress's authority. -- there is a strong language as to what limits are on congress's authority. there was a famous case of

whether or not congress could regulate a farmer who was growing wheat for personal consumption that will stop going to the market. in the 1942 case, the supreme court said yes they could because this would affect the interstate market. the court said that is the high water mark with regard to congressional authority. we will let them go that far but no farther. that alone is a substantial victory in terms of providing at least some major limitation on the authority of congress with regard to the commerce clause. the argument that had been put forward in obamacare that we ould track individuals who's characteristic is that they have not purchase a product into

commerce so that they could be regulated would remove any limitation to congress's authority under the commerce clause. the rejection of that theory is a source of cause for celebration. the second silver lining in the case was the court's ruling on the spending cuts. this was probably the greatest advancement in terms of constitutional law. new law was created where as with regard to the commerce clause, they made clear this far and no father. it helped the ground with regard to the spending clause. they develop some new laws. we may see additional challenges arising from it. it is interesting to note that on a question where before the court ruled, the expectation is that he would see as many as one of vote in favor of the position

that there are some limitations on congress's authority under the spending clause. you saw seven votes. this is something that transcended the traditional party lines on the court. in this case, the court rewrote the law to prevent the coercion which could occur if the state had to forfeit all of the medicaid funds if they did not agree to all of the new requirements and regulations. the next several mining is one that starts to bleed into the darkness -- silver lining is one that starts to bleed into the darkness of the cloud. they twisted the statues more than the constitution. it is fair to say they flipped the penalty provision on its head to declare it a tax rather than taxing and support of the

general welfare. the majority should have had some sense of since they were on shaky ground as they searched for analogies to include in the opinion. the analogies they include were ones that were excise taxes that showed how congress could use its taxing authority to regulate conduct. there is something interesting about excise taxes. they are taxes on purchases. the constitution specifically talked about excise taxes. if you have a tax that is not a tax on the purchase, it is a tax that is made to force you to purchase. it is and ought to jubilation which turns out authority on it -- an odd situation which turns

this authority on its head. here is where we get into the darker section of the cloud i described. it is not clear that there is any limiting principle here other than perhaps a political check. the workspace said it did not matter how much the president lied about what they were doing it calling it a penalty. we permit congress to pass what is functionally a tax under subterfuge that reduces the initial political responsibility. they are going to get the constitutional benefit of it being a tax. how could this operate? we ended up getting in a bit of a hint from the chief justice.

it gave everyone in the room pause. imagine for instance if congress wanted to force you to buy energy-efficient windows. if they could go ahead and do that, and if you had a certain income and failed to make the purchase they could go ahead and enforce that purchase with a tax. this is not generally how we have done business. normally we have done things in quite the reverse way. because of the limitations on power, but we've done things in a relatively inefficient way. they give you a financial inducement to get you to behave in a certain way. now what you have is the claim that they can have on regulated taxes.

what the court gave with one hand with regards to the commerce clause they took away with the other in regards to the taxing authority. it may indeed be a new font of information traditionally be on the regulatory authority of congress. when i began we suggested that in this particular case the court twisted these debt to more than the constitution. he might be sang what they have done that sounds like a contortion of the statute but where is the constitutional twisting. the court gave it short shrift. they did less than capable work on the description of what sort of tax this was.

they assumed it fell into the category of income tax because the irs was administrating it. that is not quite good enough for constitutional purposes. inmate more aptly be described as a capitation tax. these exceptions are quite frankly making it unconstitutional in terms of its -- they have to be apportioned evenly among the states. by having so many exceptions a potentially would make it unconstitutional. you may be asking why do i know something about this obscure topic. if you are looking for an analysis of the decision

yesterday, i can recommend one publication on it. it is a publication of the heritage foundation from 2009. it was the original legal memorandum on the constitutionality and legal obama care.l, car you will find that it is probably still be best. it has been hailed as something of a road map for the legal arguments made before the court. it also ends up being one of the best sources you can find. what will we see after this? there will be more litigation

and you will hear more about that from jennifer later on in the panel. ultimately, the general was correct with the decision makes clear that it was delegated back to the proper source of power, the american people. this is a question we will hear quite a bit about over the next several months. i will turn it over to me that to talk about policy implications. >> regardless of the constitutionality of the health care law, it is bad health care policy. that is the core of the problem with this lot moving forward after yesterday's. it remains unworkable and unaffordable for the country.

one of the president's own goals was to reduce the number of uninsured. it is actually crumbling as we see this lot coming into place. the decision itself makes that argument even weaker. if the goal is to reduce the number of uninsured, what is its purpose if we are not reaching that goal? i am going to look at the implications of the individual mandate tax as well as the voluntary medicated expansion. as was already noted, the decision changed the individual mandate from a penalty to a tax. the tax will now be the greater of a flat dollar amount starting at $95 and reaching a $695.2015.

or it will be a percentage of your income starting at 1%. it will be capped at 300% of your flat amount for the year. we will learn more about how this tax is going to be implemented at once the irs moves on its regulations relating to this new tax. it is certainly a tax on the middle class for not buying government approved health insurance. it is what the government is going to approve as health insurance under this new law. this is how the challenge the

administration will have moving forward. as premiums continue to rise, there will be more people paying the taxes. the individual is going to make a calculation, is it cheaper for me to pay the penalty or do i need to continue to carry the weight of the health insurance plan. the president wants to reduce the number of uninsured. if the tax is less expensive than the premiums, it will be easier for them to pay the penalty and stay uninsured. this will be a huge shift to more people, in particular young adults, instead of paying the higher premium. even those people who may be

eligible for a subsidy, the administration will say they are handing out lavish subsidies. even the remaining amount will be too expensive for them and they will opt instead to pay the tax. that raises the question if the goal is to reduce the number of uninsured, what is the purpose of this lot? the voluntary medicaid expansion has been described nicely, but under the law states are required to expand medicaid coverage to all citizens. they risk losing all federal medicaid dollars. they can choose not to expand the program up to 138 percent signein poverty.

it is important to note that the medicaid program is already strained in its current form without the expansion is crowding out other state priorities like education and transportation. it is taking up more of the medicaid dollars. the logical fall would be to say to look at our situation and see if we want to expand the income scale. let's look at the implications for this president's health-care law. two things will happen. individuals that would have been eligible for the medicaid

expansion, will now be eligible for the federal subsidy run through the exchange program. those subsidies for low income populations well now be eligible for the most generous of subsidies through the exchanges. you can see how wild the state might make an economic choice to keep cost down, it is actually going to blow the cost at the federal level in order to support this subsidy scheme that is in place. those at the lowest and, of below 100%, to not apply. claim is toident's reduce the number of uninsured,

those below 100% of poverty would now remain uninsured and the under the health care a lot. the one exception i would like to point out that shows how this law was hard wired together is the one exception to the people eligible for the subsidy below the poverty are actually illegal immigrants. citizens and those states would not be eligible. this raises more questions about how unworkable the law is as this moves forward. a question is what the president promised the american people. it was noted by the attorney

general that he said he would not raise taxes on families making less than $250,000 a year. this is joining all the new taxes that will impact the ddle class families. the next point is if you like your help insurance plan you can keep it. as plans are changing their benefits to comply to the federal regulations and mandates, not all so employers are facing a growing uncertainty about the future of the health- care law. that too is moving forward. it will not add to the deficit. only if you believe in accounting gimmicks in washington. we can have them look through a tunnel and forget the forest around them.

it would protect medicare. there are 2000 some pages that are changing of this policy. they take $500 billion of medicare savings to offset the cost of covering the uninsured. he said it would cut premiums by $2,500. this seems to be adding to the cost of premiums and not reducing them. i have raised the idea of free preventative health care services. what happens is the more benefits that have to be covered, the higher the benefits are.

we have more americans facing higher health-care costs. i do think there is more to come, and as the american people learn more about the individual mandate, they will be more opposed to the law. i think the legal cases that jennifer is going to talk about also leads into this issue of the essential benefits package. that mandate on covering contraceptions and other benefits actually was the first glimmer of what this administration is going to have to do through regulation and explaining to the american people what is considered a government approved health-care plan. we will be watching what will come out of that. it is going to raise a large issue for this administration coming up to the election.

one of two things happens coming up to this challenge. if they continue to add more special interests to the package, the premiums increase. if they turn down the dial on the benefits and say they can't do as much to keep it under cost, you have many people who were anticipating this administration providing benefits of every make and color to all american people. all those people will come out of the woodwork and put additional pressure on the administration to make the benefits more generous. they are in a constant struggle with that. the last point on the horizon is

the 2013 net tax hikes in the health-care law. this is not just about the individual mandate. there are many billion dollars of individual taxes including in this health-care law. in addition to the expiring bush tax cuts, we now face new obama care taxes. the medicare payroll tax is 3.9% today. that will increase to 3.8%. it will also now applied to investment income. that is a tax explicitly for those earning over $200,000 a year. that does not apply to the promise. it is not a middle-class tax hike.

ironically, in the health care law, they wrote it so that the tax is not indexed. as time goes by, more and more people will then be taxed over time. there is plenty for the american people to be worried about beyond what the court decision came out to yesterday's. we must continue to educate the american people about that. this remains on an unstable path and is doomed to collapse. the question is when do we get there? it is time for the american people to refresh themselves about what is in the 2700 pages in the health-care law and all of the regulations to come. i would recommend people coming to the heritage foundation and reading our case against the

program. i will turn it over to jennifer. >> thank you for being here we are in the midst of what is calling the fourth night of freedom. we are also calling attention to threats to religious liberty in the midst of these two weeks. it is fitting that it has come down during this time. it represents a challenge to religious liberty. it is every bit at risk as it is was before. there are two competing fronts. the legal challenges going forward and the implementation of this massive law. yesterday's action did nothing to stop the legal challenges

coming against obamacare. there are 23 lawsuits coming against the health and human services mandate. the mandate is completely different than the cases that were considered by the supreme court yesterday they represent 56 plaintiffs so far and they now become the next legal battleground. gives, yesterday's action the green light to implementation. this is great. the mandate should alert all americans to what we faced down the road toward increasingly centralized health care policy. now that the supreme court has allowed it to proceed, the weight of the massive lot will begin to take its toll on our constitutional order. as the lawsuits show, one of

the first places that implementation will be felt is on that religious liberty. it takes us back on august 1, just a few short weeks away. as employers start new health plan years over the coming months, they will have to apply to the mandate to cover abortion drugs, contraception, and sterilization regardless of religious exemption. the exemption is extremely narrow and only covers houses of worship. others may be able to get a one- year delay of enforcement on this mandate, but that does not apply to businessmen and small family businesses who want to run their businesses according to their beliefs. because of that, several such have filed suit. one of those will have to begin

the planning for the health plan that violates their conscience. these are the things to watch over the next few weeks. there are over 50 other plaintiffs seeking relief. they include catholic and protestant colleges. we have been profiling these victims by the way on our blog a t the heritage foundation. the mandate forces at the ministry to be there based deep fines or violate conscience for providing services like abortion drugs. these remain a very controversial in the american

public at large. we expect we will see many more collisions of conscience in the affect of that implementation. in conclusion, there are probably many americans who do not yet feel the pressure that religious institutions are experiencing under the mandate. we would all do well to heed the old admonition that we should all bear our neighbors burdens. they will soon be all of ours when we experience the full implementation. in the remaining days we will

provide a wonderful opportunity to do that. the one thing we might like to call attention to is a " to justice ginsberg and yesterday's opinion. a mandate would be unconstitutional if the date of bridged the freedom of speech, interfered with the free exercise of religion, or it infringed on a liberty protected by the due process clause. that is what we should be talking about. we are going to see collisions under the mandates and rules of the law. it is only beginning here. we are looking forward to continuing to celebrate the freedom ending with the fourth of july.

finally, what the mandate is being litigated in court, but the broader fight for freedom now moves to congress. policy makers must repeal obama care. they must replace it with health care that reduces cost and respects religious liberty. americans need and want health care reform that matches and meets their needs. thank you. [applause] >> i should note that folks who are interested in seeing what a plan like that would look like could look at our plan for reforming health care on a line.

we will open it up to questions. please state your name and affiliation. >> my name is dave. you are talking about the burdens on the populace, my question is why our conservative so eloquent about how precious life is in the womb but not after words? should we not make family planning and birth control easier? especially for poor women?

>> because we take a pro-life perspective, we also take it in the investing heavily on our work for better poverty and health care solutions. this is why we have worked so hard on policy to cover the poor and uninsured. we think the welfare state has else served them for the last 15 years. we believe in a policy the restores responsibility and marriage and family. because we take life so seriously, we take policy that succeeds it very carefully. >> just on the health care front, instead of empowering the

government bureaucrats, but the poor themselves should make decisions on their own. they should be making decisions for them. they can barely get to see pediatricians to care for them. we need to give them an ability to get better health insurance through the market. >> please join me in thanking our panelists. [applause] thank you for coming here. we are adjourned.

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