the cost objection is mirror -- mere 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. equivalenl warming.

>> we have had a terrific range of perspectives provided here this morning. buster's briefly recap what they were. -- let's hear briefly. let's briefly recap what they were. >> uri law partner. -- you are a law partner. >> mike when don to express my question that plagues him most over why chief justice roberts did what he did. you heard the theory that this was an absolutely brilliant political move.

he was able to cast a vote that saved the mandate while still framing the president as the person who lied about raising taxes but as his reason for designating roberts says the best politician of all time. he is not happy with the final 5-4 vote. the commerce clause leeway that would have been granted, that stood has no sunk. that discussion is over. he went on to say that, from his

perspective, his interpretation of the spending clause and of the necessary proper clause, he to the direction that you would have approved a. david said that this has never been about health care. i want to come back to that later and ask the rest of you what you think about that. in the and, as you heard david's ultimate concern that the court very clearly spelled out the strictures that i just talked about were made it clear that the commerce clause would not give birth to the individual mandate, that he did think there was an overall problem with

congress -- with court having written the medicaid statute in particular and went through verbal twisting. she felt that, moving to the medicaid portion of the decision, on the one hand, as she pointed out, it looked like the court gave a clear green light to the medicaid expansion. but monkey around with the enforcement standard, the remedies that congress could pursue if they decided not to go ahead with the medicaid

expansion. first of all, designating the expansion population as a new program rather than just a change in the existing program. this created a two-state solution which has created something not like a state option to expand medicaid, but tasted option -- it is not a legally state option -- but giving the states a choice of not expanding the program, but finally forced it's not lose all their medicaid funding. and she believes that there are some states who will decide by 2014 not to expand medicaid. the court went down a very

troubling direction and, essentially, the roberts opinion is characterized the program from the standpoint of both characterizing the expansion as a new and different program and fundamentally mischaracterizing it in the sense that the opinion seemed to read medicated -- read medicaid as a overall low-income definition. so you are low-income pregnant person, in low-income blind person -- and by having this different understanding, it seems to suggest that justice roberts fundamentally a news to the past, the present and the future of the medicaid program. we just heard from greg and he

also stated in his prediction that it would be justice kennedy who would come out and make it a majority to uphold the affordable care act and then going on to conclude that the court upheld the understanding that the penalty was not in effect -- break literally put it that it is not there intended to regulate commerce, but something broader than that. grade) making the observation that the real problem here is the long term rate approved for health spending. the states will complain about cost inherent in, for example

medicaid expansion. notwithstanding the fact that the government will pick up more of the cost of the expansion, but that the states will still be left with some of the tax. so the cost is not really cover for not wanting to cover the population in the first place. so we have a diversity perspectives here to talk about. let's talk about the fundamental point that david made, that this court case was never about health care all along. let's hear how all the rest of you feel about that. sarah, let's start with you. >> at one level, i completely agree that there might have been certain presenting issues that would have brought to head the same kinds of constitutional questions. on the other hand, i'm not sure

that anything other than health care would have led quiet to such a blockbuster law. the complexity of markets, when will you market, when i united market, when do we not want to call something a tax when it is a tax -- health care has always had a unique ability to galvanize the lawmaking and to raise passions in a way that i think you're quite unique. we certainly saw a version of that with the financial regulations law. but 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 whole bunch of letters at the same time. the federal relationship, the individual's relationship to the government -- while the case

technically might be perceived as health care as a byproduct, i'm not sure that any of the social issue in the united states would have brought them to this point. >> at one level, every case is about the facts and circumstances. wilson know that every case is about more than that -- we also know that every case is morabout more than that. sarin is right. as a matter politics and policy, health care provided a uniquely suggestible target with these types of and constitutional strictures being enacted. that the consider

government has not been able to enter the single a simple question. the failure to answer this question is what made it so compelling and made it about the constitution. this is not to lose sight of the social equities, but it cannot be primarily about that. it has to be about law. >> i would say that i cannot enter the question because it is like trying to suspect how many hurricanes there are in a perfect storm. i would say that health care is probably the biggest of the hurricanes because it is such a central debate since the new deal, and achieved ambition for

80 years. and the way it makes us stand as a nation among all these other industrial nations. it is something we have always been exceptionally bad debt. -- bad act. >> it is really too early to tell. and i think the hope is that this will be the opening wedge in a new definition of our congress clause commager's prudence, and our ability to use choose prudence. in one way, roberts, in the entire discussion of the

commerce clause, it is not necessary for the holding. i won't go into the details here, but the tax that here to kill it, both with regards to the commerce clause and with regards to the spending clause, it is currently empty and could be utilized to achieve any result in any case. >> say more about that because you said that in your opening remarks. >> with regard to the spending clause, or have to distinguish whether this is an expansion of the existing program or any program. this is what the great law professors called transcendental nonsense. [laughter] somehow, extending the program to pregnant woman is an extension of the program but

extending it to the three and 60 property line is an existing program. also, it is worth noting that this was a 5-4 decision. indian, whether they are right, we will find that in the next election -- in the end, whether they are right, we will find out in the next election. i view all of those things as open questions. >> one observation about the relationship between this case and health care, health care plan unique role in terms of constitutional law. complexity that persistently included the media

for the most part. -- persistently dilueluded the media for the most part. it let both sides to a partial stories, both in the court and in the media, for the purpose of making their point. i think the leading constitutional lawyers of our time had a real problem grappling with this. this was most dramatically apparent when the class clanked and he had problems with the ice any had trouble getting the argument of cross subsidies. it turned out also in the way that justice can be capitalized and gagged on the argument about cross subsidies.

the system was basically not able to swallow and process health care because it is so complicated. >> perhaps in anticipation, the chief justice was careful on page 44 in his opinion -- "i would uphold it as a command only because the commerce law does not recognize such -- we have a duty to interpret it as a tax. i find no basis to adopt, accept the rules of personal opinions. roberts is the essence of a holding.

>> that is ridiculous. >> ridiculous but not transcendental. >> to me, the interesting question is on the medicaid stuff. i think that my colleagues are missing one of a point. it is not the nature and mechanical sense to go from pregnant women to non-pregnant women. if you take state sovereignty seriously, it is a simple matter, ladies and of men, dollars and cents. if you go with a program like medicaid that is affordable for states in the long run, it is one thing. however, you enlarge the size of benefits, if you do it in a way that it will bankrupt the states, it is that part that throws state sovereignty out the window.

how does it do that? we heard from craig about the 100% contribution. it is utterly non-binding. second, even if that is true, for the first time, this medicaid requires states to provide medical care, to ensure it is providing. having talked with many state officials, a coastal that between the density of the brighter network, the state would have to spend lots and lots of the money. given the continued cutbacks and the reimbursement rates, the states will literally be pauperized. even with the so-called 100%

reimbursement, that would squeeze out the spending of everything, roads, prisons. >> we need to turn to a couple of our medicaid experts to respond to that. >> let me start -- tim and i give each other the high sign. a couple of issues now are on the table. one is the impact of the expansion. the second is the multiplier effect potentially of what is known as the crowd access standard. the third is what significance do we draw overall from the decision? just to backtrack, putting aside this strange and wondrous solution that the chief justice imposed on medicaid in order to give them the breathing room they wanted without in any way sacrificing the money, the

expansion, the power of congress to enact an expansion, if you open up the statute today, what you see is that there is one program. but this is what we would have called a new mandatory cat a courtly needy eligibility grouping consisting of people described in that part of the statue. of course, that is what made that issue so stunning two justices. if you look at the statute, this one piece, it would have been crazy to repeal the whole medicaid statute just to enact the new amendment.

so it is one piece. i must admit i am not a constitutional theorist. but i look at it as a practical lawyer and i sit what are you talking about? this thing has no legs beyond the generous remedy that the chief justice soberly concocted in order to save the families with the children and the individuals removing the many. as far as the prompt access provision, i would note that the amendment, which is very celebrated, is to obscure for those who are not medicate people to bore you with. there's a part that says you must be given prompt access to medical assistance. as of 2010, there is a split in the service on how to understand the provision, whether it is just the coverage iraq fully the services. congress clarified that kamal long -- coverage or for the

services. congress clarified that, all along, it was about services. the medicaid portion of this decision is the most shaky portion to attach significance to. on medicaid, i think he was just so long neck -- just solomnic. >> when we added child immunizations, did that become too big a burden? when we added long-term care,

those types of things? i don't know what to say it is coercion when it is under the medicaid program. i don't see how that constitutes the coercive burden when earlier expansions did not. with the prompt access provision that he first alluded to, it was not part of the deciding quality over this was coercive and not. it is in the status quo now. the statute was overturning a court decision that misconstrued what the statute said about prompt at this very -- prompt access. if anything was going to bankrupt the state or the fed at all, it is not medicaid expansion, but what craig said

all along. health care costs. >> with that -- [laughter] >> we have gone from the solomonic to transcendental nonsense. let's open it up to questions and comments from all of you or short speeches masquerading as questions. [laughter] please go to the microphones so we can capture that. following up on the cost argument, basically, the way the act was structured, the subsidies, the reason that the use medicaid as a way to expand coverage because it was cheaper to put more people on medicaid then to pay for the subsidies.

now, it the state's decide not to expand -- if those states decide not to expand, the federal government would have to pay more they subsidies. that is not exactly costed out. i don't think anybody expected that this would be the outcome. >> clarify that. i don't think the states would have the authority. >> right. the waste the statute is written -- the way the statute is written, it is possible that, if you're an income at the poverty level and higher, you can have subsidies that was not available. but if you are below that level no assistance's for you. >> so the narrow group between

100 and 133%. >> so the poor people in the united states would find themselves simply out in the cold. >> by the way, that is another transform a feature. as anybody heard about transformational quality? the question of what is the cumulative effect. the state's believe that this final step of expansion, whatever the social consequences, will bankrupt them. as a fact. >> it is long-term care. there are countervailing studies. the urban institute shows that there would be savings over 10 years. so you have drooling process on

both sides. >> we all know that there is enough gray hair. the disconnect between 1965 estimate of how much the medicare program would cost over the years versus the reality of how that program exploded. to me, that is not at all the reason -- i'm not saying we should not have done medicare, that is one of the greatest moral conscience of the country. wet like all of us, when whe invest our money, we are risk averse. medicaid would end up blowing up state budgets, particularly caring for the elderly rather than caring for the poor. the democratic governor of tennessee cutting back on medicare, there are a lot of

examples of that. whether that should be given constitutional status, i think that is giving policy anxiety, but it is real. >> i have to say a word. let's go back to basics. the fed to government doesn't have to have a medicaid program and the states don't have to accept medicaid. ok? so here's david's argument. congress passes a law and offers the state's huge pot of money, medicaid, and david is saying that the states are saying help, help, we might accept this. savings from accepting it. because if we accept it, we will go bankrupt.

this is craziness, right? if you're worried about going bankrupt, for god's sakes, don't fix up the money. the reason why they're tempted to accept it is because they think that they will let go bankrupt and their citizens will benefit from it. it is conservative to say that the states have to be saved from their own decisions. >> money flows and lots of those are ways around states around health care and around medicaid. and we know that a lot of these people who are not covered now under medicaid are also getting health care and they end up in hospitals and some is paying the bill. we know, indirectly, one way that states and hospitals have answered that is by pushing medicaid dollars around. a lot of this is already getting paid for by hook or by crook,

correct? >> yes. [laughter] >> so now we will have something that is much more logical. theoretically, we will have clear coverage for people who scare will be barely be paid for by the medicaid program. but somehow, that is worse than paying for it through all these machinations that we are paying for it now, correct? >> hagel think it is worse. -- i don't think it is worse. that is the argument. that direct subsidies work as cross subsidies. that is odd to me. we have a jury rig an entire insurance system so we can font the budget so we can fund the process of their moral demand. we have emergency room care and all of these other things. so, yes, we created a system where we have moral the man and

we hope directed -- help fund it directly. >> the argument is very simple. we have a situation where states are presented with a choice. the states have been given over voluntarily an opportunity to opt into the program based on certain fiscal projections. now the entire health care delivery network requires it. it was precipitously -- if it were precipitously withdrawn, there would be a major health crisis. if you don't give them a choice, states believe, despite , that medicaid would bankrupt them, too.

i often cannot reject it. that is called coercion. i'm not interested frankly about what is economically efficient. but the aggregate -- that the federal government do medicaid directly the way they do medicare. a constitutional sense, you can i give the states a truce between pickoffs of -- a choice between that and authorization. -- and pop operation. -- and pauperization. >> sarah and tim, we have to focus right away on the states. if you were still at hhs, sarah, what you think the first questions would be about what

happened in the medicaid choice and how would you respond? >> i think that the very first question -- the expansion does not occur until 2014. but there is a condition that says states have to maintain their efforts until 2014. they cannot back off of current programs, the so-called minutes of effort provision. i have already heard a bunch of states asking does the roberts opening 05 minutes of effort. and i think the question to that is -- the answer to that is clearly no. the roberts decision has several places in which he talks about his nullification of the penalty, the hammer, whatever you want to call it. >> gun to the head, i think is the phrase. [laughter] >> it is quintessentially about

the existing medicaid program. sweat think the first question that most states and the governors might ask is to a still have to maintain effort and i think the answer is clearly yes. >> another question that i think will, broadway, to the extent that the decision gives the states more flexibility around the implementation of this eligibility group, does the decision in some way change the characteristics of the eligibility group? because states have more flexibility, can a state cover fewer than all people falling within the new eligibility group? can the state have sub- classifications of the eligibility grouping? if so, what would the federal

contribution be? would it be 100%? and there would also be a question about the availability of subsidies. at what point can the state stop the coverage and instead have otherwise medicaid-eligible people exchange subsidies? i think fleshing out whether the decision in some way changes the basic characteristics of the new eligibility grouping as far as the state flexibility is concerned will be right after the minutes of effort, which never really understood the brouhaha around this provision. they don't like to cut people off from the program anyway. they do many other things, but they don't want to do that. there's nothing about the decision -- that is why i

started by saying that nothing about the decision changes the text of the statute. it is the same text today that was there the day before yesterday in terms of describing the eligibility of grouping or the transportation level. but interpreting the effect of this gloss on the statute, doing give states more leeway in a reasonable representation of the flexibility that existed before, i think it will be months before we know the full answer. >> i have a more technical question and a broader philosophical one. will states bailout at any point to opt into the medicaid expansion later or will there be an open enrollment period?

and the berbers, can they often now and, at a later point, withdraw when they realize there is a fear of bankruptcy, for example? that is the technical question. the other question is -- i have read some spinning about the impact of this ruling on the congressional power with the congress clause. david, you referenced that. i was wondering what other people's opinions are. will this somehow hamper or limit the capacity of congress to use the commerce clause to implement social or economic policies? >> let's go to the first part. riggins repair phrase it. can the states -- are we making the state's eat broccoli or can they decide when they want and if you want to?

>> that is a very good question. beginning in 2014, this new group becomes a record group with an asterisk in the program, so it does not a record group in the normal sense with limited enforcement for the powers of the secretary. and financial precipitation is available according to the schedule that tim blew it out. the first several years is that when had% and then it drops down to 90% and whatever for the years after. i would assume that the secretary, in thinking through how she will interpret this concept of flexibility, will make it clear what the state has flexibility as to the year it comes in, the funds that will be available which would be available for the fiscal year.

if you come in at 2020, there will be a match, but not a 100% match. there are so many unknowns about taking what was a relatively viewed provision in one way and now having to think about what is the full meaning of what the court did to that provision by putting in flexibility. but some of those questions would come up with mandatory coverage groups anyway. it is not as if these are questions that don't get asked. the timing, no. but my guess is that there are so many issues that hhs wrestled with even in the context of a mandatory coverage group that it is not exactly starting from scratch. i expect we will see some pretty comprehensive guidance in the coming weeks about how the secretary is inclined to interpret law.

>> the court did not do very good job at rewriting the medicaid provision. >> first, there's more than sufficient ambiguity in the court opinion -- the court opinion to allow the secretary interpretation of the guidance. according to the rorts opinion, the only thing the secretary can use for enforcement is withholding the money. if they don't often, what can they do? >> it is too early to tell. the way that the architects of this law would have of their way to say that this law can be

struck down that enacting anything else, and if that is what it continues to be, it will continue to be relatively important. on the other hand, this can be an opening wedge in a systematic effort to unravel the modern welfare state. whether that happens or not depends on -- >> how so? connect the dots. how will it be the opening salvo in unraveling the modern welfare state? >> one way to beat the opinion -- not the only way -- but one way to beat the opinion is a very narrow interpretation. if that clause would be significantly narrowed, then many other programs but also fall.

as i read not roberts opinion, but the other tenors, a does quite bizarre. i think their opinions can be read as saying that, if a garment spending program gets too big, then by definition it becomes coercive. that means that any large program is therefore unconstitutional. and one could imagine -- if mitt romney gets elected and he gets his people on the court, who knows what they will do. >> in my personal opinion, it is -- no existing statute violates the commerce clause. no. 2, to be fair, the concern has always been that, in the effort to scare -- to save the full draft, folks would start

enacting numerous other mandates in order to avoid pesky problems. to stave off future problems. the final point, if you read the joint descent, there are only talking about the spending clause in the context of holding in states. let them run it directly. they can raise taxes to the tune of 99% and have everybody lead waterfall lives. maybe we can last a few years on that basis. that is not a constitutional problem. the federal government can not sell. the have to pull in the states. when to pull in the state, the

color version comes in. >> ok -- the coercion comes in. >> ok. >> i have a question about a piece of what we have been talking about. congress chose to make a mandatory medicaid category. now the question becomes when a state talks about opting out. do they have to account for different amount of different and insured that don't accommodate? >> on a policy basis, as a call into question those disproportionate -- yes, it

called into question the policy there. does the congress have to go back and change that? no, i don't think so. the congress might want to leave this sort of confusion in place. >> i completely agree. one of the incentives for the state to move for on the expansion will be precisely that of the revenues coming in may begin to drop. so there's a great need to maintain -- if you think of medicaid as a way of providing health care for individual people, the points that have been made all morning, you do it directly or indirectly. this is just the indirect way of doing it. if the funds are dropping, you

have a real good reason to adopt expansion. >> first the comment and then a question. the comment is, i think this was entirely about health care. there are 22,000 people who die every year without insurance. i think it was about that part of the 33 million folks in the individual market could get turned down. i think that we have the most expensive health care system in the world. and i think the court took a look and tried to find a way, especially justice roberts, not to interfere with congress trying to address that problem. however, they do it with one little component. also, by the way, there was a

great article in "the post" that did find the distinction health care is the only commodity that you must have and a number people cannot get it because of pre-existing conditions. having said that, have a question on the medicaid program. since there the opinion yesterday, when i was in government, we actually found a way to read the espt program that said that congress could not find states and take money back if they could not -- if there was a single kid but did not qualify for espdt. i wonder if we will not be will to find a way with political discussions and setting up ways for the state's, for states to do want to participate, to get

some political cover to drive folks -- to drive the poor folks in those states, a way to subsidize them? >> i think the question of what inducements the secretary can use -- assuming the states have flexibility, so we're not worried anymore about coercion, the question then becomes what inducement basis by the inherent nature by the structure of the law versus what other inducements to the secretary still has been hurt armamentarium for encouraging states to come in and come in fully. we're talking about this before. the very fact that this funding was going down becomes a significant issue.

other issues have to do with the fact that, if you're below a certain income level, the loss of the does not provide for you to get subsidies through the exchange. so the big question is, should a woman working as a waitress with a minimum wage making 70% of the federal poverty level really be told that she doesn't have insurance unless she works enough overtime hours every year, some time and a while, the issue of switching among markets has been a significant one for this law from the beginning. you literally will be able to make the picture for state legislators showing the same woman, depending whether it is the christmas season -- as 20 extra hours a week a precious work time, will have insurance and then she will have zero. and that is a big difference

between saying you will be on medicaid some time and in the pool at others. >> alright, we will try to get through very short questions and very short answers. >> my question is repulsed a question. it is a personal legal question. in reading the opinion, chief justice roberts went to great lengths to avoid policy judgments. five but it didn't come through the medicaid definition. it seemed entirely activist. it was particularly interesting to me that he said that 133% of the federal parliament was not the least among us. that was the original congressional intent, to cover

the least among us. others felt that this discrepancy and judicial activism vs restraint. >> so is the bottom 5% the least among us or the bottom 1%? >> the original medicaid program began as a cooperative, giving the states a choice to locked in and it had certain parameters. those parameters have been repeatedly changed. what they're trying to do here is -- if you took down medicaid fairly, the rest of the statute cannot work. he did it to stave the statute than try to rewrite it.

once you embark on that path, which rest you have? >> i think it is appalling and insensitive or the chief justice to say that people at the 132% poverty level are not the least among us. that shows how out of touch some members of the supreme court are with the way many americans live their lives. on the question of activism, the truth of the matter is that there is no justice on the supreme court now that is not a judicial activist. when the supreme court strikes down affirmative action programs, which they likely will next year, no justice on the court has never appointed to anything in the language for the

original understanding in the constitution that says affirmative action is unconstitutional. what we have is not activists and believers in judicial restraint. we have concern about -- we have conservative activists and liberal activists. >> this is derivative of the discussion that we have had. access to health care is one thing. availability of health care is something entirely different. what do you think the impact of this law will be on availability, particularly on physicians who see the requirements of all law as sole

owners, whether it is in reporting, whether it is in diminished income, whether it is a requirement to set up a whole new style of practice in larger groups, which some physicians don't want? they prefer to be individual practitioners. the impact will be significantly on physicians more on mid-career and so on. how many of them to you think will leave the profession? and do something else because of the impact? >> the point is often made that come after the clinton health care reform effort collapsed, change happened quickly in medical care of the sort that can happen only if the clinton plan had succeeded.

operating in the public side and the private side, they will set limits on the discretion that the physicians have and they are also operating to nudge physicians to situations whether they be the multi-specialty group practices or not. if president romney got the rhine plan before medicare enacted in 2014, the same thing would play out for medicare. powerful incentives for physicians to spend less, to follow evidence-based protocols , and less discretion. i think that there are a lot of changes coming. it is less a matter who doesn't then just the reality -- who

does it than just the reality of what is coming along. i saw a case on making this point that it doesn't matter all that much who wins politically. both sides, whether you're talking about the affordable care act or the ryann plan. >> with that, i would like to close by asking each of you very quick question. we have four law professors -- david, we will make you an honorary law professor for the day. to me the name of a seminar that you would teach next year for third year law students about this case? what would you call it? just the title.

you don't have to give me the curriculum or the syllabus, just the title. >> chaos theory or random walks? [laughter] >> now what? >> accountability, doing it right. >> politics and law. >> i would still -- the struggle for the soul of health insurance. >> there you have it. those of you who want to come back and take those courses next year, i will see who can bring that to you. thank you so much. [applause] [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2012]

>> next, live, your calls and comments on "washington journal." after that, the house debate on the contempt of congress citation against the attorney general eric holder. then the attorney general holder statement. >> this is the conversation we need to have in this country that nobody is willing to have. what role does the government play in housing finance? >> "reckless endangerment" the tells the subprime lending collapse. >> if you want to subsidize housing in this country and we want to talk about it and the populace agrees that it is something we should subsidize, then put it on the balance sheet and make it clear and make it evident and make everybody aware

of how much it is costing. but when you deliver it through these third party enterprises, fannie mae and freddie mac', whn you give it to a company with private shareholders, you can extract a lot of subsidies for themselves, that is not a very good way of subsidizing home ownership. i think we saw the end of the movie in 2008. >> war with gretchen morgan's announcement -- more with gretchen morganson on q&a. >> next, reaction to thursday's supreme court ruling on the affordable care act. then matt kibbe on the court decision and would