>> next on c-span, a georgetown university law center discussion on the supreme court ruling on the health care law. then some congressional reaction to the court ruling. after that, heritage foundation discussion on the ramifications of the supreme court decision. now a discussion on the supreme court-ruling on the 2010 health care law. the court said the law is constitutional based on the congress' power to levy taxes, a reference to the individual mandate requiring most americans to buy health insurance. those who can afford to buy insurance but not will be subject to a special tax. from the georgetown university law center, this is about an hour and 40 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 to a national rorshak test. among the nine justices and three opinions -- if you account for justice thomas' 2.5 paragraphs, there was something to make each side happy what apoplectic depending on which open and you were reading. -- which opinion 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. -- care act. 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 -- author of the "hyppocratic 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? let's see 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 impression is reinforced 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. was justice roberts' opinion 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.

the comstock change anything in the significance -- 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, i would ascribed its two -- it 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 bride's -- barrage of newspaper 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 preservation is an absolute essential. >> most of the questions have come up about medicaid. it happens that the areas i know best in insurance law is medicaid. downthe decision came yesterday, people said, you are toast. [laughter] 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 roberts children. those of you who know medicaid know there are children to this day are referred to as ribicoff children. we see how he arrived at what he did. 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 superimposed, 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 sotomayor and ginsberg were scratching their heads. it meant he could then bifurcate the enforcement provisions of 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 couple 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 -- mike and 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.

the flaw is thatrequiring 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 -- end of quote. 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 -- this court been content with that 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. [laughter] >> but you are eight law

partner. this is reversed the dish addition -- distribution. >> 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 problem is --david's ultimate 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. -- an unachieved ambition for 80 years. 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 is on the medicaid stuff. 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. -- if you enlarge 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. the state's are going to be popularized. i have been looking at projections which would squeeze out the spending and everything. roads, prisons. >> 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 wondrous solutions that the chief justice and post on medicaid in order to get the lead against the briefing room they needed without sacrificing the money -- if you open up the statue, not what you will see is that there is one program. this is what we would have called a new category consisting of people described in that part of the statue to. of course, that is what nicole issue stunning the justices. the question is, look at the statute, there is one piece. it would have been crazy to repeal the whole medicaid statute in order to enact a new

amendment. there have done this numerous times over the past several years. tim is right. there are dimensions of poverty in. in the beginning, we all may recognized a few dimensions. it is one piece. i review the implications for the coercion of doctrine. i am not a constitutional theorist, but i look at it as a practical lawyer who deals in a health care law. i said, what are you talking about? this has no legs beyond a remedy that the chief justice bradley concocted to save these families and individuals from losing money. as far as the provision, i would note that the amendment is to

double obscure for those who are not medicaid people. there is a statute that says you must have prompt access to medical assistance. as of 2012 -- 2010, there was a split as to how to understand that provision. whether it was covered our services, congress clarified that all along, it was services and not just the coverage. access to care is a thing that we care about above all. the financing is the means of access to care. i would say from a doctrinal point of view, the medicaid portion of this decision is the most shaky portion of the decision to attach significance to. i cannot comment on the others. there is limited reach there. on medicaid, i think that he was salamic.

>> i think it is fundamentally wrong on many levels. when is the burden too great? there is no defining principle of it. murray added immunizations -- when we added long-term care and those kinds of things, i do not know when to say it is coercion or what it is not under medicaid. second, i do not understand the expansion at 100% of spending at the offset. if it starts at 100%, i do not see how that constitutes a coercive burden when earlier expenses did not. but on the access provision that he alluded to is first and not in front of the court. it was not part of what i understood to be the deciding quality. >> it is in the briefs. >> it is in the status quo.

the overturned one court decision. it misconstrued what was said. finally, if there is anything that will bankrupt the states or all of us, it is health care costs growing in all sectors. >> ok. with that, we have gone to a different perspective yet again. we're looking into this decision. let's open it up to questions and comments from all of you. four short speeches masquerading as questions. please go to the microphones to some we can capture this. if you can mention your name, that would be helpful.

>> hello. following up, basically the way the act were structured, the subsidies -- the reason they used medicaid as a way to expand coverage because it was cheaper to put more people on medicaid than to pay for the subsidies. now if this is decide not to expand, you will have the federal government perhaps spending more on the subsidies. that was a possibility that was not exactly costed out. i do not think anyone expected this would be the outcome. >> i do not believe the state would have the authority to do that. >> the way the statute is written, it is possible if you earned income at the poverty level or higher to get subsidies

if you're not medicaid eligible. but if you are below 100% of poverty, there is no subsidy for you. we would have a paradoxical situation. people in the states without any means of health care subsidies. >> it would be that narrow group. >> who could get a subsidy. meanwhile, all of the poor people in the u.s. would find themselves simply out in the cold. >> by the way, we pointed out there is another transformative feature. let me say in 30 seconds or less, has anyone heard of quality? it is a question of what is the cumulative effect? the state honestly believe the support that this final step of expansion is going to bankrupt

them. that is a fact. the government has no evidence to rebut that. >> there are studies. the urban institute shows enormous savings over 10 years. there were dueling costs estimates on both sides. >> we all know, those of us with great care, though there was a disconnect between the 1965 estimates of how much medicare would cost versus the reality of how that program exploded. i am not saying we should have done medicare. it was one of the great accomplishments of this country. , weall of us, when invest i

are interested about this. medicare is blowing at state budgets. a portion and bob's care for the elderly are the than care for the poor. they are cutting back on care. there are lots of examples of that. there is huge anxiety. i differ with david on whether that anxiety should be constitutionalized. i think that his policy of anxiety that we all have rigid i think it is policy anxiety that we are all worried about. >> it is bizarre. let's go back to the basics. the federal government does not need to have a medicare government. the states did not have to accept medicaid. here is david's are given.

congress comes along and offers the states and a huge pot of money. that is to say, medicaid. david is saying the states are saying help, help. if we accept this, we will go bankrupt. this is crazy. if they are worried about going bankrupt, do not accept the money. they do not have to accept medicaid. the reason why they are tempted to accept it is because they think citizens will benefit from it. it is very odd for a conservative to say that states have to be saved from their own bad decisions. >> i would like to ask tim that we know money flows in bizarre ways around states and health care and medicaid. we know a lot of people who are

not covered under medicaid are also getting health care. they are ended up in the hospitals. someone is paying for the bill. we know it directly one way states and hospitals -- that have opposed medicaid dollars around and raising premiums on the private insurance side. a lot of this is getting paid for. it is getting paid for by bocor,. yes? >> yes -- it is getting paid for by book or crook, yes? >> yes. >> you are saying that is somehow worse than the american nations of repaying for it now, correct? >> i do not think it is worse. direct subsidies -- it seems odd

to me. we had him. an insurance system so we can find the process of to our moral demands. we have the emergency room care. we had terrible laws. yes, we have created a system where we have moral demands. we cross-subsidize it together. >> i will say one thing. what michael delivered was in his characterization. the argument is simple. characterization. the argument is simple. there are certain fiscal projections of the calculations. not every state depends upon it. we have precipitously withdrawn. there will be a public health crisis and a disaster.

on the other hand, if you do not give them a choice, states believe that accepting a medicaid would bring crop them as well. that is a classical a sense of coercion -- went bankrupt them as well. that is a classical sense of coercion. that is called coercion. i am not interested in what is more economically up efficient. let the federal government take care of it. then there be a philosophical discussion. you cannot give the states a choice between a hobbesian level of health care system or popularization like greece. it is that simple. >> ok. we will try to move to other questions. let's go to decide.

>> hello. i run an online network. this is a question and not a comment. we have to focus right away on the states. if you were imagining you were there, what do think some of the first questions you'd get about what has happened to the medicare tourists are the medicaid option s expansion? how would you respond -- medicare choice or the medicaid option? >> there is a condition that states have to maintain their records until 2014. they cannot back off of programs. i have heard a bunch of states -- the opinion has

several places. there is a penalty or at the hammer, but ever you want to call it. it is about the expansion of population. the maintenance of effort is about the existing medicare program. i think the first question that most of their brows, do i have to maintain efforts? the answer is, yes. >> another question that i think will come up is, to the extent that the decision gives states more flexibility around the implementation of the eligibility of group, does the decision to in some way change the characteristics of the eligibility group? for example, states have more flexibility.

can a state cover fewer than all people within the new eligibility grouping? can the state cover what the law might got reasonable such a classification of the eligibility grouping? if so, what with the federal contribution level be? 100%? the earlier question about the availability subsidies, at what point can the state stop the coverage and instead have otherwise medicaid eligible people rely on exchange subsidies? i think fleshing out whether the decision in some way changes the characteristics of the new eligibility group aimed, it will be right after maintenance effort. i have always tended to think --

i have never really understood the provision. they do many other things. they did not want to do that. i think all we can do -- there is nothing about the decision. that is where i started my remarks with that there is nothing about the decision that changes the statute. open up the text of the statue. it is still the same in terms of describing that eligibility grouping and the participation level. a question for the secretary in interpreting the affect of this gloss on the statute will be, do i give states more leeway? there have newfound flexibility. i think it will be months before we know the full answer. >> another question over here.

>> hello. my name is michelle. i have a more technical question and that a broader and philosophical one. will states be allowed at any point in the duration coming forward to at a later point off than -- opt in to receive these funds? will there be an open period? also, if they opt in now, will they be able to later withdraw? that is a practical question. the other question is, i have read from spinning on the impact of this ruling of the congressional power and the commerce clause. david, your referenced that a bit. what other people's opinions are? will the somehow hamper our limit capacity of congress to

use the commerce clause to implement social or economic policy? >> let's go to the first part. we can paraphrase it. can the states -- are we making this states eat broccoli or do the states have the option to eat broccoli if and when they want to? >> i think that is a very good question. here is what the statute says. beginning in january 2014, this new group becomes a and a group under the program. it is a group with limited enforcement powers. federal financial participation for this group is available according to the schedule that is laid out. that is in the several procedures. it is under%. it drops in the years after. -- it is 100%.

it drops in the years after. there'll be this concept of flexibility. it will be clear that the states have flexibility, at least to the year it comes in. the funds that will be available will be the bonds that would have been available in that fiscal year. if you do not come in until 2020, you'll get a 90% chance and not 100%. now having to think about, what is the full meaning of what the court did to that provision by essentially putting in the flexibility it were there had not been flexibility. some of those questions would come up with mandatory coverage groups any way. my guess is that we would find

that there are many issues that hhs wrestled with. it is not exactly starting from scratch. i expect we will see some comprehensive guidance in the coming weeks about how the secretary is inclined to interpret the law. >> the court did not do a good job rewriting the medicaid provision. which is why we are having these questions. >> very briefly, i think there is more ambiguity in this. m.a. the interpretation. for the second question, i would ask back from the devil's advocate, or else what? if they did not apply for the new money, what is the enforcement? >> ok.

there's also a commerce clause question. >> sure. i will see what i said before. it is too early to tell. the way that the architect for in the question is, they went out of the way to say that this law can be struck down without implicating anything else. this was unique because it is regulating the someone who is not in commerce. if that is what it continues to be, it will not be important. on the other hand, one can see the possibility that this will be an opening wedge in a systematic effort to unravel the modern welfare state. whether that happens or not depends who the next justices will be. >> connect those dots. how would it unraveled? >> david indicated one way. one way to read the opinion, it

is not the on the way, but one way to read it is a very narrow interpretation of the clause. if that clause were to be significantly narrowed -- we will have to wait to see it -- than many of the programs might also fall. another thing, as i read -- this is quite bizarre -- i think their opinion can be read as saying, if a government spending program gets a too bid, then by definition it becomes -- that means any large program is therefore unconstitutional. one can imagine if mitt romney gets elected and he gets its people on the court, and knows what to do? >> in my opinion, no statute

violates the commerce clause. to be fair, the concern has always been that in an effort to save, folks would stop in acting mandates that affect cross-subsidies in an effort to avoid as the problems and not be able to raise taxes. it is to stave off future problems that this was waged. ought to take down the existing statute. to take down the existing statute. let them run things indirectly. they can raise taxes to 99% and

have lead wonderful lives. euro shows us what happens. it is not a constitutional problem. the federal government cannot do it itself. there are not enough bureaucrats to do this. they have to throw in the states. it is only that part. >> ok. here is a question over here. >> hello. i am from the u.s. government accountability office. i have a question about medicaid. specifically, congress chose to make a mandatory medicaid category and an exchange beyond that. the question becomes when estate talks about opting out. can congress look out -- look back into account for a different amount of uninsured in

different states that do not accommodate the way it was envisioned for universal coverage? does that make sense? >> you go. [laughter] >> on a policy basis, does it call into question how this fortunate house will payments are calculated? or what assumptions were made about uninsured people? of course. it calls into question the policy there. does congress have to go back and change that? no, i did not think so. there are strong political reasons that both sides might want to leave the confusion in place. people who want medicaid expansion would have a strong motivation. >> i completely agree. i think one of the incentives for states to move forward on the expansion will be precisely

that there are other revenues making -- coming in. there is a great need to can maintain -- maintained. the points that have been made all morning, you need to do it directly or indirectly. this is the indirect way to do it. you have a good reason to adopt the expansion. >> question or comment over here. >> my name is michael. i work in the government and in private practice. first a comment and then a real question. but, it is, i think this was entirely about health care. many people die every year without insurance. i think it was part of the 33 million folks who apply and get turned down. we are the most expensive health

care system in the world. we are 25th and let expectancy. i think the court looked at that and try to find a way, a special justice roberts, not to inteere with congress trying to address that problem. they do it with dealing with one little component. also, the was a great article in the "pstost." health care is all a commodity that you must have. having said that, i have a question on the medicaid program. i have been struggling with this since i read the opinion yesterday. when i was in the government, we found a way to read of the program. it said congress could not finance states and had to take money back if there was a single kid who was not served.

we almost had to take some money back from a state. we found a way to read into that. congress really meant a 5% and not 0%. i am wondering if we will be able to find a way with political discussions and setting up ways for the state or states who did not want to participate but still have some cover. to drive poor folks through the exchange in the states and france a mechanism to read into the law, a way to subsidize. >> long winded. >> i think the question of what inducements the secretary can use -- assuming the states the flexibility -- the question becomes what inducements exist by the inherent nature of the structure of the law versus what

other inducements the secretary still has for encouraging states to come in. his point is exactly right. we talking about it before. the funding is going down. it becomes a significant issue. other issues have to do with the fact that if you are below a certain income level, the law simply does not provide for you to get subsidies through the exchange. the real big question is, should a woman working as a waitress for minimum-wage really be told that she does not have insurance unless she works enough overtime hours over a year or have your income, up?

this has been significant from the beginning. he will literally be able to make a picture for state legislators and showing the same women at showing the same women. she can get 20 hours of extra work time during the holiday season. but then she will have zero. that is a big difference between signal gun medicates sometime -- between saying you'll be on medicaid some time. >> we are almost out of time. >> hello. my name is jonathan. my question is not a policy question. it is a personal-legal question. in reading the opinion, the chief justice roberts went to great lengths to avoid making policy judgments. much has been made about him try to be an umpire. there was judicial restraint.

i saw that in much of the opinion. it did not come through in the medicaid section. there is a definition of any program as seemed entirely activists. and a particular, he said many of the poverty limit was not among us. but was not the original congressional intent. have others felt this discrepancy? i have not heard much comment on that. >> it was the bottom 5% of the bottom 1% among us. >> let me point out some very simple propositions. medicaid began as an effort to and gave states the option to opt in. the question is, is this a step

too far? what they are trying to do is -- if you took down medicaid, the rest would not work. he would have to take down the whole statute. he did it to save the statute and try to write it. year by definition start making art seek judges. -- you, by definition, start making artsy judges. >> this is an indication of how out of touch some members of the supreme court are with the ways and americans have to live their lives. on the question of activism,

there is no justice on the supreme court who is not a judicial activist. when the supreme court strikes down affirmative action programs, which will almost certainly next year, that is an activist decision. no justice on the court has ever pointed to anything in the language of the original understanding of the constitution that says affirmative action is unconstitutional. same thing with finance. but we have is not activists and judicial restraint. we have a conservative activist and liberal activists. the sooner we get that straight, the sooner we will come to some mature understanding of what constitutional law is all about. >> thank you. next question. >> hello. i am a recent graduate at this school. my question is directed toward greg and perhaps others.

greg is a physician like i am. access to health care is one thing. availability of health care is something different. what did think the impact of this law will have on availability? particularly on physicians who see their requirements of the law as onerous? whether it is in reporting are diminished in, or a requirement to set up a whole new style of practice, the impact will be significantly on physicians who are in mid-career and further on. the are the largest percentage of physicians in the country. how many of them do you think will be the profession and do something else because of the impact?

>> the point is often made that after the clinton health care reform effort collapsed, change happened quickly been made medical care. there are powerful economic forces operating in both the public and private sides in health care today. they will sell limits -- set limits. there are situations where there can be a multi-specialty group practices. there'll be more incentives from the public and private sides. if mitt romney got the paul ryan plan plan activated in 2014,

there would be powerful incentives for positions. they could follow protocols to a greater extent. there are a lot of changes coming. it is less a matter of who does it and more of the reality. i think some of the medical specialty groups are fighting actions that ultimately will bought prevail. -- will prevail. it does not really matter that much who wins politically. both sides, whether you are talking about the affordable health care act are the paul ryan plan, both sides are doing similar things. >> with that, i will close by

asking each of you a very quick question. we have four law professors. david will make an honorary law professor for the day. given the name of the seminar you repeat next year to third- year law students, what would you call it? just the title. no syllabus. give me the title. greg? >> oh, my. >> now what? >> doing it right. >> politics and law. struggle for the soul of health care insurance. >> say that again. >> the struggle for the soul of

health care insurance. >> and there you go. thank you. [applause] [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2012] >> we also talked with members of the house about their reaction to the supreme court ruling on to de's washington journal -- today's "washington journal." >> were you surprised? >> i was hoping chief justice

roberts will look at this. looking at his legacy, the opportunity to make sure that millions and millions of americans were able to get health insurance -- i thought he might resist overturning it. host: what work need to be done? many people calling in today seem to be confused about the scope of this legislation. can you talk about what will happen for americans next? guest: i am grateful for the opportunity now to talk about what is really in this bill and what it means is women will no longer faced discrimination. being a woman right now is like having a pre-existing condition because we pay about 48% more for our healthcare. we are helping seniors be able to afford their prescription drugs. millions of seniors right now are paying an average of $600

less for their prescription drugs. young people able to stay on their parents policies until they are 26 years old. when the bill kicks in, no pre- existing conditions will disqualify someone from getting the health care they need. this is absolutely huge. we are going to find all the people who have been excluded from the health care system are now going to be able to get coverage at an affordable rate. i think that will get the worry off of american shoulders. host: we will take a call for you. our viewers have been in deep conversation. let's hear from kathy, a democrat from chicago. caller: good morning. my question is i read 600 pages of the house bill.

there are death panels. for the very old and the very young, they are not going to be able to get care. the government has no business in our health care. the senate version is even more complex. did you know that people from u.s. territories who do not pay federal taxes will be covered by this health care bill on the backs of american taxpayers? guest: right now if you are injured, you are paying up to $4,800 a year in additional health insurance costs. the average is about $1,000 a year for people who are not insured. we do not leave them on the side of the road if they are in an accident. we take care of them. all of those people who are uninsured are a cost to you

right now. those people will be a part of the program. actually, we are going to see the cost of health care for you and others who are injured should actually go down over time -- insured should actually go down over time. host: many comments discussing the unionization of doctors in this country. is that something you have spoken about and that you support? guest: it was an odd question that a reporter asked me yesterday. this has nothing to do with obamacare and now what is the law of the land. doctors in many places including the cook county hospital in chicago do have -- one of the best health care systems in the world.

i did not really understand this connection because it has nothing to do with the legislation. host: from georgia, you are on. good morning. caller: i am concerned about employment. these large corporations and even small businesses are going to stop hiring because they do not know or understand this new health care law. if i was an employer, i would be concerned. hold off on employing people because we need to see how much this is going to cost us. guest: actually, the employer benefits, especially small businesses, are going to be some of the greatest

beneficiaries. right now if you are a small employer and one of your employees gets very ill, your insurance premiums skyrocket. now that person could go into a health care exchange and continue their employment. the employer is no longer going to be burdened. those employers who provide health insurance for their employees -- there is not going to be any change whatsoever. this is going to be the period of time when people are going to be able to fully understand exactly what is in the bill. i fully believe most are going to say this is going to benefit my business, benefit my family. the chief cause of bankruptcy, personal bankruptcy, is health care costs. that will no longer be a burden or a worry for americans after

this fully goes into effect. host: how is illinois organizing its exchange? guest: the governor announced yesterday that illinois is going to implement the medicaid expansion program. we are going to have hundreds of thousands of people who will be eligible for medicaid. that expansion for the next two years will be paid for by the federal government so the state will not be burdened. host: was this decision affected by the ruling on the medicaid expansion? guest: excuse me? host: was the decision affected by the ruling? guest: yes, because now it is up to the governors about whether or not they will participate. no state can be penalized if

they do not do it the medicaid expansion. i cannot imagine why any state would not since the federal government foots the bill. our governor announced right away that we would do it in illinois. host: atlanta. scott. caller: how are you guys doing? i would like to support the bill. i am a small business person and employ eight people. i provide insurance currently but it is not that good. it is what i can afford. two and a half years ago, my son who was a sophomore in college came down with a chronic illness. it could have happened to anybody. we had to pull him out of school to get the treatment. he had to go through 21 days of recycling your blood.

at the same time this happened, i was paying $1,200 a month for insurance premiums. we had to pull him out of school. the insurance company because he was not a student was going to drop him from the insurance right when i needed the insurance to cover him. basically, he would have gotten the treatment but he would have bankrupted himself. no way a college student could afford that and no way i could afford that. host: what is your bottom line? caller: if you start talking about the benefit of this program, democrats will be a lot better off because people like the fact about the coverage you are getting. host: let me stop you there. thank you. guest: i certainly agree this will be the moment where we can tell the american people just how many benefits there will be. right now, i think all

americans walk around with a worry about how my going to pay for it. i think that burden lifting off american shoulders will be a tremendous freedom that we will be able to offer people. they know they will be able to get health insurance no matter where they go. host: democrat. you are on with the congresswoman. caller: good morning. i am glad i got through to you. i think it is a wonderful program. i think everybody will be covered with insurance. when my daughter was growing up, i was always worried how long she would have insurance. everything is great about the bill. anybody that would fight against it -- if i could come close to a billionaire, i would

vote for them. anyone who is a regular working person, why would you vote for them? got to be crazy. host: thank you for your call. this has been reviewed by the court. he worries the law does not contain enough in the area of cost containment. halwhat would your response be? guest: we are doing a good job of cost containment. there are going to be millions of people who will get a rebate this summer because we require insurance companies spend 80% of the immune dollars on health care. not on ceo salaries and marketing, etc. people are going to get rebates because of that.

they have to spend the money on health care. i think there are many, many provisions in the legislation to reduce the cost. and also to get fraud out of medicare and medicaid. we are going to make the system more efficient and cost effective. host: what about the cost of procedures, the actual cost of delivery? guest: i think there is going to have to be more justification in the legislation for the kinds of procedures and x-rays and cat scans that have been ordered. i think that we are going to see the costs have the potential of going down. there will be more competition in the health care field that will drive costs down.

host: let me tell the viewers about you. thank you for being with us this morning. guest: thank you. a host: what was your reaction and to the opinion? guest: he went through the commerce clause explanation and why the bill was unconstitutional. it related to the commerce clause. we are pinching ourselves and hoping that would be the outcome. then it went through this convoluted explanation of how the penalties are not penalties. they are taxes. congress has the power to tax. very strange decision.

then there came out of the room. host: you probably have the option to congress's power to tax. guest: it is important to a pc with the court has said. congress can tax what you do as an individual and what you don't do. if you do not do something that congress wants, we have the power to tax you. it is a dangerous precedent. it is one the american people will say about that it is not what they believe is the role of their government. i think bills be allowed in november and select members will turn this around. we need to repeal this now not is because of the health care challenges, but because of the policy challenges and the taxing power that is within this bill. host: before we get to calls, would you explain the legislative process to a successful appeal? you have been struggling with getting legislation through the

senate. how does this work? guest: it will require a new leadership in the united states senate. it will require individuals who believe that this is not a proper role for congress and a majority vote in the united states senate. as long as the republicans are able to hold the house and the american people are energized and we turn the senate to the republican leadership and a lack governor romney to the president of the united states, -- and elect governor romney to the president of the united states, we can get back on track. we can have patient-centered health care. that is patients and doctors making the decisions and not the government. the decision should be patients, doctors, and families. host: one article i read this morning is that mitt romney has been an imperfect critic since parts of the legislation were drawn from his own experience. guest: we are a federal system and states have the right and authority to do what they

believe is most appropriate for the population. that does not mean everything that can be done at the state level should be transferred to the federal level. governor romney has stated why this is an unwise decision. it does not work for employers or job creators and it clearly does not work for the states. the courts recognize that yesterday as well. host: let's go to cathy from new jersey. you are on with congressman tom price. caller: good morning. i have a situation where i am a five-year cancer survivor. i need to have a procedure. i am unemployed, my husband is unemployed, and my unemployment is running out. my cobra is increasing in october 18%.

what do i do? i am in a tough situation. i do not know whether having this insurance and hold onto it and not to be able to scrape enough money to survive and is paying for my insurance, but i havei have household bills and rent. host: thank you. let me get a response from the congressman. guest: a real challenging health situation. my mom passed a little over a year ago. i wish you all the best. i would contact your position -- yoru physician immediately to make sure you can get the highest quality care. i think the take-home discussion is pre-existing conditions can be solved for a wonderful way in the market. by allowing individuals to pull together with millions of other americans.

that way nobody's held status increases for the pool. that is the way to do it. the president wants to say we believe that your health situation deserves treatment or not. it puts washington in charge of your health care. not you and your family and your doctor. that is the distinction between the challenges in health care that we have right now. host: donald writes on twitter -- you have a piece of legislation. what does your ears do it? -- yours do? guest: h.r. 3000 is our bill. it has a lot of different tenets. one is you have to get everybody covered. the way to do that is make it so it is financially feasible for every single american to select the insurance they want for themselves and their family.

we do that through tax deductions and credits. so that every american can purchase the insurance they want. insurance challenges of affordability and pre-existing. everybody ought to be able to own their health coverage regardless of who pays for it. like 401k plan. we talked about pre-existing illnesses and injuries. there are hundreds of billions of dollars of waste in our health care system right now primarily through the practice of defense of madison. -- defensive medicine. it's the things that doctors say, i did everything. everything is not necessary to treat the patient or diagnosed the illness. we addressed that with robust reform which is vital to the economic vitality of our health care system. it was ignored in the bill. host: from alabama, a republican. caller: how can we not call

this a new tax? period. we just funded 600 new agents. -- 1,600 new agents. it is going to be regulated and imposed as a tax. it is absolutely a tax. to not call it a tax, you are just lying, obama. it is absolutely a tax. there are several good things that i agree with but the inability to come up with a resolution or bi-partisan agreement -- of course kids need insurance as they are going to college. of course premiums are getting too high. of course doctors are being sued frivolously. a lot of states have tort problems. instead, we would like to argue. of course it is a tax. it is absolutely the most over- worded piece of crap legislation i have ever seen.

it is horrible. response.s get a guest: i think the gentleman is right. this is a tax. house of agents will be empowered to enforce this new -- thousands of agents will be empowered to enforce this new tax. how do we come together? it takes leadership. the house republicans have passed multiple pieces of legislation on this and other kinds of things to correct the economy and create jobs, but the senate refuses to act. harry reid refuses to take up these pieces of legislation. they may disagree but they need to pass some legislation so we can get together and come to a compromise. host: one of the opinion pieces i read this morning suggested that an employer health care system -- there is high unemployment and people are much more local. -- mobile.

let me ask you this question off of twitter from a viewer who said -- if you really cared, and you would divorce applause from this. what about that employer connection? why does it work today? guest: the connection is a hold over from a bygone era. which is what our legislation equalizes the tax treatment. there is preferential tax treatment to purchase your health coverage. you get penalized if he purchased it. we believe you ought to equalize those and allow individuals and small groups to purchase it with pre-tax dollars. that makes it so the purchase of that health coverage goes the way that the individual once, the patient wants. patients, families and doctors ought to be in charge of this, not government. host: employers are required to

offer health insurance and not, do they pay a penalty? guest: there is an employer mandate as well. employers will pay a penalty if they do not cover employees. the problem with the president lal -- president's law is the penalty for not providing coverage for an employee is a lot cheaper than covering the individual with health insurance. which means the whole incentive for employers will be take their employees off of their employer coverage and push them onto the state or federal coverage. which is where it will be less efficient and of lower quality, i believe. that is why we are adamantly opposed to this law because they believe it violates those principles of health care that are so important which are making sure that it is affordable and of the highest quality and that patients have those choices. host: sean, independent.

you are on. caller: i am mostly neutral about this bill because i have no idea what it contains. it is all bias. but i think we deserve as americans is an independent committee to go through the bill, highlight its actual features and post links to the pages on the bill that represents those features. that is what we deserve as taxpayers. >host: -- guest: heritage.com has a wonderful interpretation of law. galan.org. these are individuals outside of the political process that have a value waited this long and determined that it is destructive to the quality of health care in this country. i would urge people to go on- line and seek out those interpretations.

it is important for people to know what this law includes because they will not like it, i promise you. host: heritage has a point of view, doesn't it congressman? >> on the law itself? host: they come from a political point of view. guest: absolutely. people believe government ought to be making these decisions and you can find those folks online as well but they are not in the mainstream of what the american people -- 60% of the american people continue to oppose this law because they have a sense that it ought not to be government in charge of health care but patients and families and doctors. host: what is your assessment of the most significant thing that could happen that could dent the top -- cost curve in health-care delivery? guest: it does not address the cost but i will share with you a system i have had to read many

of my former colleague contacted me since the decision came out yesterday and they are frustrated with the status quo now in health care. they're fearful of what is about to come. that is washington telling them exactly what they can and must do for the patient and not making those decisions with their patients and families. this is fundamental. these are the principles of health care be hold dear. this is as personal as it gets. as a physician, the flood is coming. american people have never seen this. washington making these personal decisions for you. it is wrong. >> tomorrow on washington journal, new jersey congressman rod andrews discusses the congressional measure that provides student loan interest rates from rising. and as we action to thursday's supreme court ruling on the affordable care act. freedom march president and ceo also talks about the court decision and what his group plans to do.

david pollack from the washington institute for near east policy previous united nations security council emergency meeting this weekend in geneva on the crisis in syria. washington journal live at 7:00 eastern on c-span. next, a heritage foundation discussion on the ramifications of the supreme court decision. then president obama force parts of colorado in -- impacted by wildfires. then a campaign rally in new hampshire with caroline kennedy, daughter of president john f. kennedy. >> this is the conversation we need to have in this country that nobody is willing to have. what role will the government play in housing finance? >> new york times columnist greg gen mortensen details the collapse and the issue of

government subsidized home ownership. >> if you want subsidized housing and we want to talk about it and the populist agrees that is -- it is something we should subsidize, put it on the balance sheet and make it clear. make everybody aware of how much it is costing. but when you deliver it to these third party enterprises, fannie mae and freddie mac, when he delivered through a public company with private shareholders and executives you can expect a lot of that subsidy for themselves, that is not a very good way of subsidizing. we have seen that in 2008. >> more sunday at 8:00 on c- span's q and a. texas was one of the 26 states that challenged the health care law. texas attorney general talked about the court's decision at the heritage foundation.

he is joined by karen harned, representing the national federation of independent business, another plaintiff. then a panel talks about what the supreme court's decision means moving forward and other challenges in the courts to the health-care law. this is an hour and 35 minutes. >> to put them also in this context. one is the individual mandate. the individual mandate for us was the focal point of this lawsuit. we thought that we were going to win or lose based upon the individual mandate. we knew we had a mountain to climb because of past presidents. we were told by knowledgeable scholars and the individual mandate was going to be upheld because the necessary improper

klaus 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 co hadssiolated the nsou 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 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 social safety net 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 country, the two that were made at lower courts, no court or judge anywhere at any time agreed that the obamacare law was a tax. that made the decision that came ouof 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 what's the phrase he used? his complaint about -- in washington, if it moves, you must tax it. now reagan would be even more stunned to learn that whether you move or not, you 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 obamacare, 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 the states, who filed the lawsuit, had an unmitigated win. in hindsight, not that 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 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 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 impractical affects. karen harned will talk more about. 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 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, feeling that little was accomplished. we will see concerned physicians. i have talked to people in 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, upholding congress's power under 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 can be taken away. it will silence and humble some of the pundits out there. [laughter] the reality is that the fight about obamacare is not over. we are not walking away. there are several battlegrounds 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's have a vote that they can 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 that is in the appointment of justices to courts. it will be important for all americans to choose a president who will appoint judges, who will decide these cases along the lines of the constitution as opposed to those who will be writing policy decisions from the bench.

let's talk about the end result. 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 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 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. nfib 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 employee mandates. our members operate on razor- thin margins. these people are not driving cadillacs and eating fancy dinners every night. 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 mall-business health-insurance tax that will be levied on our members. if you are with a big company and self insure, they do not 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 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 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. meant.