in the audience. [applause] the executive director of al jazeera english has flown over, john blair. he is here somewhere. i am sure i am forgetting some people so please forgive me for that. as most reporters can tell you, some stories are just simply hard to get. and they may be hard to get because the very institution you are covering is premised on secrecy or because let's say you are covering the crackdown of an authoritarian government and it wants to keep your footage off the air. or maybe you are a war correspondent in the middle of libya or afghanistan. as winston churchill remarked, i think he said something about in war, the truth is precious. she must be surrounded by

bodyguards of lies. finally, what if you have come with a wonderful, horrible scandal that involve revered people and people do not want to pay attention? we will be talking about these and other case histories today. we have a very strong panel. let me introduce them and get the discussion going. to my left, jane mayer. one of the country's most preeminent investigative reporters. for the past 17 years, she has been on the staff of "the new yorker,"specializing in politics and national security. she went to school in new york. graduated from yale university.

studied at oxford. then decided to go straight and worked for some small weekly newspapers in vermont. she worked 12 years at "the wall street journal" where she was the first female white house correspondent. she has also been a foreign correspondent and war correspondent. she found the time to call off their two books. one of the nomination of clarence thomas to the supreme court. feel free to ask for any supreme court questions later. the other on ronald reagan's second term. "the new yorker" -- she is known for exposing practices on the war on terror. torture, detention at guantanamo, the so-called rendition flights to countries that torture people. the in the cia for legal justification for what president bush used to call enhanced interrogation.

all these things and more she examined in her best-selling books of 2008, "the dark side." to her left is may ying welsh, the staff camerawoman, journalist and filmmaker for al jazeera english. she has worked for the pan arab news agency off and on since about 2003. she has ventured into dangerous parts of the world as a one- woman reporter -- she has reported on the u.s.

bombing and invasion of iraq, the rebel camps in darfur, mass killing in southern sudan and insurgency in northern yemen. in san francisco where she was raised, her mother was a documentary filmmaker. her works, among other things, dealt with the tangent and military service of japanese- americans in world war ii. her father, here tonight, has a fascinating background. he is a retired postal worker and at one point was a reporter for ramparts magazine. she studied classical arabic at berkeley. and later at the american university in cairo. she has worked out of the rome bureau of cnn and beijing as a freelance editor and camerawoman, covering everything -- the seize of chechnya, the earthquake in turkey in 1999.

to her left, c.j. chivers of "the new york times"" he is the war correspondent's war correspondent. he is known for his courage, resourcefulness on the battlefield, knowledge of tactics and strategy and finally for his expertise in weaponry, in particular, ubiquitous ak47 about which he has written a definitive biography. a fascinating book called simply, "the gun." after graduating from cornell university, he joined the marine corps, serving in the gulf war. he was honorably discharged as captain in 1994, went to

columbia graduate school of journalism, worked at the providence journal in rhode island and joined the "new york times" in 1999. part of his legend there is that on september 11, he sprinted from police headquarters to ground zero, remaining at the site day in and day out for two weeks. abroad, he has had numerous assignments, including a four year stint as a moscow correspondent. and a specialist in war zones. to his left, sara ganim. at the age of 24, she won acclaim for breaking the story of the penn state sex abuse case revolving around assistant

football coach jerry sandusy. and for staying ahead when the story spiraled into a national scandal. she was born in detroit but raised in fort lauderdale. she went to high school there and fell in love with journalism. she went to penn state and majored in journalism, graduating in 2008. she worked for the local paper in state college, pennsylvania. while there, she began to hear rumors about jerry sandusky's behavior. but it was not until she moved on at the "patriot news" that she was able to gather enough evidence for a first page story in march.

then a strange thing happened. not much of anything. for the most part, the story was ignored. it was not until november when she wrote about an indictment that was imminent that the outside world began to grasp the scope of the accusations against jerry sandusky and the university's failure to act upon them. thank you all for coming here. i apologize for my voice. you may have to talk amongst yourselves for a while. i will like to start with you, jane. did you tell us about your story involving thomas street, a high official in the national security agency who ran into trouble? >> first i also want to say i am really honored to be here with the rest of these guys.

when the reporting on this story, the only threat was the high calories from the diners were i was interviewing people. tom drake was somebody who work inside the nsa, totally secret national-security agency. he had become a whistle-blower. he had seen things that he was really upset about -- huge wastes of money. billions. he was very concerned that he thought the agency was violating civil liberties in a huge program. he understood because he was a computer expert. but the time i got to this situation, he had been charged for leaking supposedly to a reporter at "the baltimore sun" his concerns.

he was being charged under the espionage act and facing the possibility of life in prison. so it was a moment that basically any reporter knows, the lawyer for this man was saying what ever you do, do not talk to a reporter. and he had not talked to anybody at least on the record. my mission was to see if i could somehow get him to speak to me. it turned out he was not alone. he had a small group of friends who had also become disgruntled together. and they had all been rated by the fbi at gunpoint in the most incredible circumstances and were all certain they were being spied on by the nsa and that their e-mail was being looked at. they were afraid to make phone

calls. so i felt like i was dealing with the super paranoid. these guys really had enemies. one of the puzzles was to me was to figure out how to communicate with them. >> did he talk >> how did you get him to open up? what happened was i had help. there was somebody who i had introduced literally eight years earlier. i had stood on her doorstep and she was not home but i left a note. she is a lawyer in the justice department who was also it was a lawyer in the john walker lindh case. she ran a center for whistleblowers and have been working with tom drake. by the time he had been prosecuted, president obama was president. we were supposed to be entering a new regime of a president who was a constitutional law

professor. i was curious about whether some of the people who had been whistle-blowers' during the bush years about the abuse of government would be dealt with differently under president obama. >> may, your documentary which is really chilling, you can see it all on youtube -- "shouting in the dark." we have a segment of it. let's give you the flavor of it. [clip] where the shia muslim are a majority. only to find themselves alone

and crushed. this is their story and al jazeera is the witness. to follow their journey of hope. with the carnage that followed. this is the arab revolution that was abandoned by the arabs. and forgotten by the world. >> i encourage you all to seek it out on youtube. how did you manage to get into bahrain? you went in on a tourist visa. what are the conditions like?

>> at the beginning we were allowed to come in as tourists. we started filming in following the protests going on. there was a revolution in full swing. we started following a round the protesters. everything was pretty normal and then the crackdown started. it came in waves. it would crack down on protesters then pull back. then there was the final crackdown when saudia arabia was invited into bahrain by the ruling family of bahrain. they started arresting everyone who ever associated with the democracy protests and torturing them. some of them were tortured to death. with that phase happen, that is when it became very difficult to work there. >> how do you do it with the cameras?

do you hawaii the camera? but in the beginning, -- did you hide the camera? >> in the beginning, we had the camera out. then we had to start putting it into a purse and going around wearing a hijab. i want to recognize my colleague in the audience tonight. he is a bahrainian journalist. [applause] he risked his life and freedom to work on this film. he basically help me move in this environment which was nothing but checkpnts. you cannot get from point a to b without going through checkpoints. you could be arrested, get your equipment taken. we have to hide from authorities.

we were staying in a hotel. then at a certain point, the regime came looking for us at the hotel. so he warned me that they were in the hotel. so we moved to an apartment building. we were there for a few days and the police came looking for us when we were not there. we had to grab all our stuff and pack it in five minutes. i moved to an abandoned office space. the regime in bahrain attract journalists and anyone they need to monitor to the mobile phones. we were basically after march 25 or so on the run from the government. >> and you were the only

journalist there? >> journalists came and went. cnn came for a few days. then lost interest. we were the only channel that state. became early and did not basically leave until the crackdown was so deep in complete that it was not possible to work anymore. >> chris, he spent most of the past year in libya afghanistan. i am interested especially in libya. you went in went into misrata. how did you get there and did you have an escape plan? what was a situation like there with the gadhafi forces all- around?

>> it was surrounded on three sides. the fourth side was water so the only way in was by boat. when they started going, we got on one. we went in for about a week. it was a full on siege. the people had swords and stones. by the time we got there, they captured some weapons from the gadhafi forces and figured out how to fight. perhaps because their circumstances were such that it was truly fight or die. a lot of the libyan fighters could run away in other parts of the country but here they did not have that alternative. through the school of experience, they began to not

just stop the gadhafi forces were they penetrated the city but beginning to turn them back. but you could not quite tell that. the city was being randomly shelved. you could not step into some of the streets because of the snipers. the people were essentially alone. there were very few journalists getting the story out. we did about a week. we left. other journalists came in. then it was a mass exodus after two were killed. we decided this is the kind of story you train your whole life for. we stayed until the siege broke. only three or four journalists were there. >> is it true you have a disguise? >> there was no way to rely on ships to get you out. there were fishing boats doing

some smuggling and tugboats as well. but they were pretty closely held coming and going. the bay had a very high sea conditions. and the city was strung along the coast line. the port was at the far east. we went to far west. so at the road to get cut, we would not reach the port anyhow. i decided i was reasonably fit and had an understanding of these guys. if the road gets cut, they are not going to surrender so i would just go with them. i will change into local clothes. i thought this particular group of rebels with a fight. they turned out to be some of the toughest rebels in libya. i thought if the door gets closed behind us, we would just

stay. >> sara ganim, how did you first hear about the jerry sandusky scandal? how long did it take you to pin it down? how many resources did you have for your story? i first heard about it right after i graduated from penn state. i had been a part-time reporter and a small paper. there were seven and a half reporters there. i was that half. when i graduated, they had a full-time position for me but they were going to split it up. until they found someone to take the other half, i said i could have a seat until we find something. i really wanted to prove to them that i could have the entire

beat. it consumed my entire life. i was really trying to create a story -- my main focus was to build a good source base. i think that would be the way to get that story that would prove to my boss that i could do this. i got into this habit of asking people after every conversation, no matter what it was, i would say what else is going on. tell me what else you know. what else should i be working on right now? a lot of times it led to my trash pickup is not regular or my son's soccer coach does not play him enough. ridiculous stuff. this is small-town pennsylvania. but occasionally it lead to something good. it was probably 11:00 at night. i was working on a story on

related and asked a source at the end of the conversation what else is going on. this person told me well, actually, jerry sandusky has been accused of molesting a child from a charity. to be honest with you at the time, he was 10 years out of retirement from the football program but he was mostly known for the charity. i vaguely remembered jotting his name down on a note, putting it on my computer screen and say i will look tomorrow. because it was late at night. that is how i first heard about it. i tried to follow up. >> was that a police officer are somebody who was knowledgeable about the grand jury? or can you say? >> i really do not want to. that person they call me back six days later and said that

thing i told you, forget it. it did not turn out to be anything. >> the ultimate confirmation. >> exactly. i really could not get anywhere for a good amount of time. brick walls. it was not until a couple of months later at the annual golf tournament for that of that, that charity, and jerry sandusky is not there. and he is always a big speaker there. i asked somebody where he was and they said he has family issues so he is not here this year. then i asked somebody else and they said he has health problems. so that was really when the story took off at that point. how many sources -- it took, i think we counted somewhere around 25 people i talked to. some of them for one or two minor details, others for 5 or 6 different interviews.

we only had one person on the record who gave us something substantive. we set a high standard for how many unnamed sources we were going to need before we went with it. we landed on five. but independent people we felt would not know each other otherwise. >> you were very confident by the time -- >> at 4:00 -- strange take away from this. i was teaching a journalism class at the time at penn state. this thing breaks in the morning. i went in for four hours and got on the road, drove up to state colleges. and when i left my class, jerry sandusky had put out a statement through his attorney saying he was innocent.

we knew. >> let's talk about sources. jane, how to cover such a secret organization? are there people who dissent on policies willing to talk off the record? or are these people you have known for years to trust you? >> in this case, one of the sources was somebody you i had formed a bond with eight years earlier. you never put out a phone number. it does become much harder in washington when you are writing

about national security to get people to talk to. because of the kind of prosecution of people who are sources, which is what whistle- blowers' often are. i have had a number of sources who had been investigated by the fbi. the legal term is it chills things. and, boy, is that not a metaphor. it is for real. when you are a reporter, you cannot get people on the phone suddenly. they are aware that their own phone calls are being monitored and they may be prosecuted just for talking to us. so it has been increasingly difficult in some ways to do so. so you end up figuring out other ways to meet people. i have not gone to underground garages like woodward and bernstein, but some really bad restaurants. i have had people over to my

house. he was so wound up that he came at like 9:00 in the morning and left at 9:00 at night. my daughter was upstairs and finally said to me afterwards, is he okay? he looked a little bit nuts. but people when they're about to be prosecuted for something that might put them away for life, do have that kind of look to them. and that became -- i had one moment of doubt. i was interviewing officials at the nsa trying to knock the story down.

they wanted to kill it. there was one especially affect official, a woman, who basically said -- i feel so bad for him. he is just not well. and she went into this whole thing about he has family problems, it is a recurrence in his life. but the time i left i was thinking, maybe he is not sturdy. it was a rashomon thing for a bit. but with the help of this whistle-blower lawyer and his colleagues, able to confirm the story. but that kind of insidious "i feel so bad about him" was tough. >> major charges against him were dropped after your story.

>> that was incredible. i cannot take credit for it. but it was unbelievable to see the case unravel. i think the judge did not buy it. it went from 35 years possibly to him and pleading to a misdemeanor. in order to get this thing over with. he had refused to plea-bargain all the way through because he absolutely would not be -- can see to something he did not do. everybody wanted him to cut a deal. at some point he was on the phone with me, crying. literally. you'd not want to become a participant in the story and he was saying what should i do? i was not likely to -- i cannot give an opinion on this thing. but anyway, it was incredibly gratifying to get the case exposed for the fraud it was. >> where his now?

>> he works at local apple store. i feel so lucky. i have someone else to [unintelligible] >> may, your sources -- i am thinking about the doctors at that abbas hospital. some of them paid a price. >> right. almost every single source we had was arrested and tortured. every person that spoke to us. so can you imagine the chill that puts on things? nobody wants to talk to you after they see that everybody who talked to you before is in

the prison and being beaten and forced to drink urine, etc. stuff that leads you scarred for life and makes you question whether you should have ever stood up and say -- stood up and say i would like democracy or ask for anything. basically what we had to do after that chill was being settled on bahrain which drive to people's houses unannounced. i cannot call on the phone because there all monitored. i would wear a hijab with my camera in the back and offered to talk to them with a silhouette interview or filling only their hands -- filming their hands. some people were so scared that they were afraid their silhouette would be recognized for their hands would be recognized. or that the furniture in their house would be recognized.

people were so afraid. but there were some very brave people that were so determined to get the truth out there that day were willing to take risk and continue to talk to us. >> were some of the workers at the hospital also tortured? >> yes. the doctors, nurses, medical staff. one medical staff person who was not arrested but tortured -- he was always calling me continuously. people have this need to get the truth out there. because al jazeera was the only channel that was always there. people felt that no one was paying attention to their story.

they felt really alone. the world paid a lot of attention to egypt and tunisia and at that point was paying a lot of attention to libya yet somehow bahrain wasn't registering. it did not matter. so they were really -- this one guy who was a medical staff worker at a hospital was taken down to the market by the police and the army -- the morgue. he was tortured. they do a lot of humiliation stuff to people, forcing them to say things that are embarrassing. he came and told me they were doing this stuff and i was begging him please stop talking to me. and they told him you have been talking to a journalist, haven't you? that was the main theme of his torture session. the journalist he had been talking to was me.

but that also makes it hard for you because there is possible guilt. >> of course. i was telling him, let's stop this now. we do not need to keep going. then other people would send me an sms sein thank you for your concerns, please never talk to me again -- saying thank you for your concern, please never talk to me again. and pray for me. >> do you think the fact that you are a former marine captain helps you in situations where you deal with the military? do they seem to trust the more because of that? what is your secret? i know you what a lot of trails with guys living their life as they do day in and day out. does that help you get a sense? >> being a former marine and infantry officer, i used to lead in trade for patrols. it cuts both ways. it does help. but it also hurts. people often expect you to enjoy and circulate the

prevailing narrative, even when it is false. sometimes you are on patrols and you see things happening that are much different than the way they should be happening. as a journalist, you cannot speak up. you cannot be direct the patrol. >> even if it is going into a dangerous situation? >> you are there not to lead the patrol. you are a journalist. the patrol is perhaps an essential thing on the military level but terrible on this human thing. at any moment, any of these people can be killed. you do not want to influence that in any way. you are just there to document it. that can be very difficult for it i went on a patrol where someone got shot through the spine. i did not speak up beforehand. there is a reason you cannot speak up. >> if you saw somebody was -- >> it had to do with some particular military reasons, some drills that you go through.

you take contact at certain ranges. the patrol put itself i thought on the wrong side of a canal. there was a threat on the other side of michigan and on that side. they took fire and could have lived through it. this would have had to stay there in the wide open. i almost said something like are you sure you want to go this way? i did not. they went that way and they came under fire and got shot. but had i said something and they had gone to the other side and someone got shot, that casualty would have been on me. and i never could have gone out again. but it is to not just with the military. with the libyans as well. you would be around them all the time and there is this prevailing narrative, everybody wanted to celebrate the heritage of the uprising. but they were dangerous and their commanders were often

staying way back from the front. these young libyans were getting killed foolishly. and killing flawlessly. -- foolishly. this is not a popular narrative at all. it needed to be told. sources were not sources in the traditional sense. i would collect the battlefield debris, witnessed the stuff myself. i would identify the weapons being used, who they were being used by a report what the facts showed without going to someone to confirm it. because i had been there. >> rerecording if it was critical? >> i would not try to write a story that would redefine -- i thought my job was to write a chip by chip account of what i could document.

it was kind of like a creeping tight, not like one big way. -- tide, not like one big wave. >> you want it -- one of the prevailing narratives was the bombs were meticulous and not leading to many civilian casualties. >> it was that it led to zero casualty's and that was easy to document. >> what did you do in that it to wishing? what there were a few different steps. they dropped a bomb beside me and that was a helpful experience to see their statements on something i had an intimate experience with. they tried to say it did not happen and they gave a bunch of statements.

the was another occasion where they bombed a group of the anti gadhafi fighters and they killed 13 of them and they denied that. they deny that for six or seven months. they issued statements saying we have looked at this closely which is why we are delaying our answer but we want to be sure of the facts. i cannot go out to it that day. i waited in went out later and i collected all the bomb debris, identified interested right back. i spent a lot of time going to different sites, documenting who was killed, gathering death certificates, retrieving bomb debris from the rubble. simple forensics. figuring out where it had been manufactured, what it was. making very clear that it was only nato inventory. nothing that was in the gadhafi

inventory. we had in the end about 27 pages of facts and mammals, pictures -- facts and memos, pictures. nato was not interested in receiving them. b. presented this to them and give them several weeks to reply -- we presented this to them and gave them several weeks to reply. they did not contest. what did they change the policy at all? >> it is hard to tell. nato is an unusual organization that stands for on the surface transparency, civilian control of the military.

yet when you go to nato and sable like to talk to about this particular event, there is anonymity whereby each country that participates in nato on the operational level announced -- anonymously. you do not know which country dropped the bomb. so each country and its public, the nation itself does not necessarily know. so when you go to nato they will say you have to talk to the host participating nations about this. the nation's say you have to talk to nato. at the end of the day while the campaign was mostly for size, there were a number of mistakes. >> is it true that you discovered a spanish cluster in addition that had not been used before in war? but there is a type of spanish bomb that had never been used and no one knew it had been sold to the gadhafi forces.

i had a strong hunch of what it was. but you do not want to say this is a spanish cluster on a hunch. there were no available open source photographs of this thing. there had been a number of casualties. you could observe them being used. i gathered up a lot of the debris. i had friends in the community that disabled bombs so i took these images over night and sent them to friends out of the military. these guys are for guys and they were able to go into some publication they have and they came up with the identification of what exactly this was. we were able to establish that -- we were able to say that very clearly.

they later denied it. i found the export licenses and was able to show that they had been transferred into libya. >> sara ganim, your story appeared at the end of march. it was not widely picked up. why do you think that is? but i have tried not to guess at the answer.

the things that i heard from other reporters was that because our story was sourced, 90% sourced by people they could not verify because they were not named, there was a good degree of skepticism that it was correct. what baffles me about that was that even after jerry sandusky said are facts were correct, he was innocent, there was still a lot of reporters with and pennsylvania -- within pennsylvania that said we would never run that story if we had that. people told that to me, my boss. they were very clear. they said you have ruined that guy's life if he is not charged. our response is always, we did not say he was guilty. he said he is under investigation. and if it does not lead to

charges, we will write that as well but this is a fact, a truth. it is under investigation. and more than one alleged victim has come forward. but still, i love the news organizations did not want to touch it. -- a lot of news organizations did not want to cut it. i do understand on a more national scale -- espn picked it up. ap did a rewrite. i can see organizations saying who is "the patriot-news?" >> it might have been different had you worked for a major national paper or something? >> i do not know the answer. >> maybe they were not able to mask your sources. >> the ap picked it up. >> they probably attributed it to "the patriot-news." >> some of that, yes.

i did not hear much feedback. but i think what was disheartening was to hear it from other local reporters. >> then suddenly in november when the indictment came, everyone rushed in and it became a major story across the country. >> at that point the story was a lot different. there were days where i counted only one day -- i had 86 interview requests. from reporters. >> so they felt comfortable that there was a paper charging the man? >> yes. also at that point, there were

things we could anticipate what we did not feel comfortable clothing -- putting out there before the charges. it was not publicly known that this was going to engulf the university, a charity, the governor essentially. we had a pretty good grasp from where it could go. even for us, i would like to think that we knew as well as anybody -- i was completely shocked when joe paterno was fired. i just did not see that coming. i did not see even the firing of the penn state president coming. i do not know that answers your question but i think it really took on a life of its own very quickly. but there were demonstrations in favor of joe fraternal. did people -- joe paterno. did people turn on you? >> things working at a rapid speed. because of the rioting in protest on the campus, i would go into an interview for an hour and i would miss three events

that were breaking. there was one time that i did get a little nervous. these are 500 or so drunk college kids. and they are rioting. i was going to 1 and of the compass to another. i found myself and a photographer -- i cannot even tell you where we were. but it was clear that we were media and they started screaming obscenities and threatening that they would come after us. i thought they are probably not but it really take just 118-year old drug kid to think that is a good idea -- 18 year old kid to think that is a good idea and come after us.

a couple nights later, they turned over a news van. at that point i got a couple of e-mails saying we wished you were in the news van. >> qatar is a part of the gulf cooperation council. what kind of reaction did your piece get from the authorities in bahrain? >> there was tremendous pressure to remove the film from the air. this film was a huge scandal in the gulf. this was a very embarrassing thing for the bahrain regime to have the things they did exposed -- the tortures,

killing, disappearances, arbitray arresrts. and for qatar -- there is a firewall. whenever a country like saudia arabia or kuwait doesn't like something on al jazeera, the protest to qatar. the first thing that happened when the phone went on -- the film went on the air, within minutes of it being over, the former minister of bahrain sent out tweets criticizing the film. they are relatives of the bahrain family and they did not

understand this was an independent film by al jazeera. there was a diplomatic protest letter and people inside qatar that hated the film. the was a lot of pressure from people saying how dare you hear this pack of lies against our brothers -- air this pack of lies against our brothers. instead of removing it from the air which would have been a disaster, al jazeera created some extra programming around the film to give the regime in bahrain a chance to give people an opportunity to debate. people were attacking members of the ruling family over social media.

>> it was broadcast in english but not arabic. >> right. then somebody in bahrain translated it and put it up on you too. it got half a million hits in english and arabic. >> so many people there have seen it. but everybody in barain have seen the film. also saudia arabia and kuwait, united arab emirates. it is the only real document of the arab revolution that happened in the gulf council state. there is not another comprehensive document that shows exactly what happened. people wanted to see this thing they had not been allowed to

see. >> sees a right at the very beginning -- you say right at the very beginning -- by the way, she shot, edited, wrote and narrated it, but you say at the very outset there is a sunni shiite split. that must be almost inflammatory for many of the royal family is in that region for which that is also true. was that an item that caught their attention? >> it is just a fact that they are majority in bahrain but even hearing that fact spoken out loud makes people very angry. the proximity of iran to the gulf council countries make the extra sensitive.

yes, to an american audience, a western audience, this film is, i don't know, some of -- somewhat explosive. for a community of people that don't talk about these things publicly, this film was a bomb. >> you're dealing with a lot of hidden issues. jane, you mentioned that most of

the previous work had been about abuses under the bush administration and obama came to office with promises of transparency. but he has had more prosecutions of governmental whistleblowers in his administration than any of his predecessors. he has not been able to close guantanamo. do you think the situation in which this country is, with the sense of threat, is one that is leading to a notion of civil liberties? i worry that it is. the national security community has become so entrenched and powerful in washington. it is very hard to push it back. politically, it is hard to push

back in congress. some of not closing on, now -- not close in guantanamo is some of the opposition obama got before tried to do. they did not get very far. i don't think they did a priority. with the drone program and prosecution of those who are critics of these programs to reporters, i think it is a big worry. i don't see it as necessarily over.

there is a lot of turmoil in this. there is a big role for the press to play. >> chris, what you think of the drone program and reactions to that when you're on the ground. when you get into the mind of a pakistan who sees a drone coming overhead? what about the american fighting man? you documented some of the frustration they felt. this was in october, not long before the major incidents. what is it like on the ground? >> for the average person that is fighting the war, that is not an issue.

drones are politically potent. they're not especially impact will. they do not have a heavy payload. the typical infantry platoon is much more concerned about what is going on a few miles around it and that will be inside afghanistan, unless they're a border unit. so you deny hear a lot of discussion about -- so you do not hear a lot of discussion about the rounds. it is a much larger issue when you get next to the border. when you get next to the border, the current generation of troops who have been -- who have essentially inherited real estate that was occupied and developed in a military sense by units years ago, the local occupation and the local fighters, where the bases can see and where they cannot say, the current generation of fighters or there are in many

ways like sitting ducks. it is such a hot war around them. i have been to firefights were people turn to me and say, hey, can you tell my congressman about this because i cannot. >> how do you answer that? you say i am writing the story. >> that is why we're here. that is why we what are you walk. for a lot of the troops out there now, they are there for institutional and personal

reasons. i do not think that, in the rank-and-file, there is a lot of hope. that they will be will to reorder afghanistan the way that there were told when they joined that they might be able to. in a lot of respects, they are out of ideas. >> is the u.s. losing the war? >> losing and winning -- how would you define it? there is this broad list of tasks that was set out to do after 9/11. will the u.s. succeed in bringing women's rights to afghanistan? will the u.s. have an effective strategy over a -- in succeed in treating a government that is moderately what it is supposed to be? the answer to all of these questions is of course not. the list of task is a long -- is so long.

it is not a matter of winning or losing. it is a matter of reaching an acceptable level from which to withdraw. >> since 1 of the reasons that we went into afghanistan in the first place was to protect the united states against allocate at and terrorism, -- against al qaeda and terrorism, is there at least that to? -- on that one thing, you think there has been a success? >> i am hesitant to answer that question. the question if afghanistan is safe now or a breeding ground, you can say, in some ways, it is less so. the threat has migrated. is that success? is that value? is the price of blood and time

and the credibility of the nation -- i ask people on the ground, let's draw a line and and say we are trying to bring water to this village. we can do that. can we connect that to being safer in a shopping mall in cleveland? no.

>> if you have a question, there is a microphone. i would like to ask a larger question about sex abuse cases. you heard when there was this strange epidemic of charges against nursery schools, one in california, one in boston, one recently in new jersey. workers who were prosecuted and were in some cases sent to jail

who were led by people who believe strongly that there was satanic ritual. it was a very strange period in the history of american psychological epidemics. it is a very touchy issue, but said. you have covered other sex abuse cases. what is the best way to oppose this as a problem? -- to approach this as a problem? should we have websites with the names of sexual predators'? have you balance -- had you get to the truth of a case? had you ensure that people are not accused unjustly or not allowed to continue if they are in fact guilty? >> i try not to have a silver bullet answer to a question like that. but i can say that really the only rewarding thing about this

experience for me has been the amount of people who are talking about sex abuse, not just child sex abuse, but all six abuse. very early, after the charges were brought, the psychologist for one of the alleged victims said to me, you know, this boy, who was 17 at the time, had seen that coming ford was a good thing because the allegation -- coming forward was a good thing because the allegation was in syracuse. child sex abuse victims who were then adults, because of these people, i will tell my story, too.

i think that is the biggest problem. we don't talk about it so we don't educate ourselves about it. i know that there is now this push for the sex abuse registry and a lot of states are deciding not to comply with it because of the way that it was set up. there were strings and the cost of it and the personnel that it takes to run something like that. i don't know what the answer is on that level. but i never interviewed a victim who said to me later on i wish i would have kept this to myself. i have never had that. i have always admired the strength of victims who are talking to me. i imagine it is a very difficult thing to do. i think that is a situation

where it is incredibly difficult to make that decision and i do think that talking about it is important and not just for the victims, but for those of us who don't understand it. that is how we educate the next generation. it is incredibly important. if you have a question, just step right up to the microphone. >> my name is edward hershey. anis, you're no longer infantry captain. you're a journalist. you put yourself in danger. who do you speak to about, if at all, the risk-reward aspects? do you touch your editor? -- do you talk to your editor? to your loved ones? to yourself?

>> why we do what we do is pretty easy to answer. i am not there for me. i am not a thrill seeker. i get afraid on sundays, very afraid. but a lot -- i get afraid some days, very afraid. i had a conversation with somebody very close to me, with my wife not too long ago. i said, i don't know how many of these firefights we have done. we lost track a long time ago. and sometimes you're not afraid. and she said, well, you know. i am your wife and these are your kids and we are terrified. so why do i still go out? i have been going up all these years? the answer is, when you take that measure, sometimes used a back -- and the answer is that it is for the readers.

it is not for me. if there is something i don't know and i am still trying to find it, i will keep going out. if there is something to learn out there and i think there is, there is good news reason, i will show you the risk. if there is no news reason -- my principal partner's father is in the audience. sometimes we will sit and want to do something and we will say to each other, hey, if this one goes bad, what does the guy who does not get hurt tell the family? was there a reason for what we are about to do, a news reason? is there something here that the readers in the united states and beyond the united states understanding this more fully? repeating're just

this experience. we need to back up. we need to do not our families at risk and not hurt ourselves. it comes down to all of these issues that you mention. if i got on this one, cannot justify it? -- ken i justify it? if you can not, you might die. if you're telling a story that simply would not be told and you have the courage to do, sometimes, the stories are not quite like that. sometimes the stories are a little more familiar. and there are days where i say i will not do this one. i might come away with a set of notes. we will sit this one out.

inelastic, there have been many days like that. -- in the last decade, there have been many days like that. >> a good question. >> i am an adjunct professor at nyu. there are stories of teachers and the school system having affairs with some other students. do you think there's a difference when the alleged perpetrator is a male or female in a way that it is reported? >> that is a good question. i would like to think not. i know this question came up a lot in the beginning of this scandal unfolding. several people said to me -- and i was at a panel on penn state a week after it happened

-- if the eight alleged victims had been girls instead of boys, would we be here? would we be talking about this? with the reactions have been the same? cani don't know that i answer that. but i do know that in central pennsylvania, there's definitely a reaction -- let me back up. i think the reaction to hearing the rumors was different in this case in central pennsylvania then there would have been if they had been girls, it the rumors were that jury sandusky had been accused of abusing little girls. i think that the reaction in a town like that would have been different. but obviously, i don't have any proof that it would have changed.

either the course of the investigation or his career or if he had left. i have no indication. >> thank you. >> hello, my name is nancy. i am a regular citizen who believes in the importance of good journalism and want to congratulate all of you for a rally where the profession that you have chosen and that you have done. my question is to john and jane. john, you had mentioned that, since in the obama administration there is more prosecution of whistleblowers, i was very surprised and disturbed to hear that and i would like to hear you or jane speak to that as to why that might be. >> we're talking about government will whistleblowers. we are up to six.

the highest it had been before was 3. it has roughly doubled. as to the reason, as jane for the easy part of the question. [laughter] >> i think it represents a mind-set in washington, which is that we are still ostensibly in a state of war, the war on terror, and it is global. his starkly, in american history, -- historically, in american history, these stories have been loaded. i went to an off the record conference with some of the top people in the legal advisers at the cia and others in the intelligence community. some of them are political appointees in the obama administration. they really don't like the press.

i thought it would be different somehow in a democratic administration. but they really think that we are weakening the country by writing about some of these issues. what is troubling to me is that there is a very fine line between writing about things that might be national security concerns and writing stories that may be embarrassing to them politically. like everybody else on the stage here, i think the bottom line for all of us is really that we really believe that telling the truth and getting it to the american public so they can make large decisions about their own democracy. that is what we are all here for. we really believe in getting that information out there. i can tell you that it is not a unanimously held position at the top of the national security community. >> my name is matt. i am working journalists. the doctors that appeared in

your phone, they stated that they were -- in your film, they stated that they were working objectively. but others said that they were working with the protesters. why were the doctors targeted? was it because they were speaking with you? did you see any evidence of their activities?

>> the doctors and nurses, the first thing they did that upset the government was that they were assisting the protesters who had been beaten or shot by a regime and they allow that to be filmed and documented. they let me come in and fill all that stuff, which was incredibly -- and film all of that stuff, which was incredibly embarrassing. the other thing they did was defied the government. the government was told them no ambulances. we will send our military ambulances. we decide who gets help and when. and some of the hospital staff defied the orders and sent an ambulance anyway. another thing that a set them is that some of those doctors and nurses were politically opposed to the regime. some did protest in their off hours. in general, there was a mood in bahrain, a revolutionary mood,

where everyone was hoping the protesters, except for some regime loyalists. the hospital became a safe space for the protesters and that upset the government. at one point, the charges were set against the doctors. one of the charges was that they had created injuries in the protesters and invited the journalists to document that. that is the level on which the government was dealing with the doctors and nurses. >> i am the chief editor of my high school newspaper. last year, when i saw it, the crowd was cheering and i

wondered why. they were cheering the death of osama bin laden. me, as a person, personally, do not think that humans should be celebrating the death of another man. what is your take as journalist who sees the turmoil that terrorists because society? [laughter] >> i had this conversation with my daughter. she was in high school last year, too. she was out as a crew member on the potomac river and cannons were being shot off to celebrate. she went to a quaker school and she was very disturbed about this. what can i say?

first of all, as a reporter, i feel uncomfortable in some ways opining about things anyway. i don't take great pleasure in anybody's death. but i thought that -- it was not something i wanted to jump up in the streets about. but i sort of thing, and i told her, that it was a justified death. >> as journalists, i think my reaction to that would be trying to cover the people that were covering osama bin laden's death and figure out why they were celebrating his death and look more deeply into why did they think that way. what are the values that america represents that are different from osama bin laden? i would more investigate it as a journalist and use it to

understand and help others understand. >> where did you say you heard this cheering? >> a baseball game. >> so it was a crowd reaction. people were already assembled. there may be some mob element to it. but i think there is irrelevant response to that. but think you'd have to take the very wide survey. i was in his rodham -- i was in misrata in the middle of a firefight. i woke up and we were sleeping on the side of the building. we figured out where many of the shells are coming from and we put ourselves on the far side

of the building where we thought we could take a direct hit from some of their fertility and survive it. food supplies were still ok. but there were worries about fuel. there are worries about getting a lot of laborers out and a whole mess of tactical and humanitarian problems. i woke up and my colleague said some choice words and said that osama bin laden was dead. and i thought, we're busy. this places busy. i have seen 9/11. i have seen the costs of 9/11 parent and the cost of western reaction to 9/11. i have seen the world get up and did -- but ended -- up ended.

i was struck by where was that day and the irrelevance of the information. >> my observation that there was that i found, in the city where i was living and from reading of a people's coverage, a lot of those people were young. i think what chris was saying about mob mentality might play a little bit into it. but you have to remember that i am that age. so those young people were old enough when it happened to remember a world before 9/11 and also young enough to see that their lives going forward will be tremendously changed by

that. i think that plays into it. i think that they feel, even if they had no -- i am sure every american feels personally attacked. but the point of view when you are young -- i think if you asked some of those people who went out that night and cheered in 25 years if you do that again, they might say no. when i covered the riots after the joe paterno firing, i asked people why are you out there? they would say, because my friends are here. because it is a historic night. i was on his front lawn.. about 20 kids were on his front lawn just staring at his house. you could hear the roar downtown of the street fights coming down and the riot that

was happening. there were 5000 kids downtown and there were 25 on his front lawn. i asked what made you come to his house instead of going downtown? they said i'm going to downtown next. i just wanted to come here first. it may have something to do with youth. >> we are in overtime. we have time for a two quick questions. >> great panel. it would be wonderful to ask you all questions. but i will ask one. you work for an interesting hybrid beasts. could you explain how that works? could you explain who aljazeera english is and who aljazeera is and what the overlap is? what is this beast?

>> al jazeera started out as an arabic channel. in 2006, it launched english. they have two separate buildings and have separate staffs. i think the editorial decisions they make are more for an arabic-speaking audience. and for the english channel, it is more what is of interest -- i don't want to say a western audience because we do have viewers in india and others. >> it is astonishing what you can do on al jazeera english cannot be played for the interested parties in the arab world. anyway. -- in a way. but not through the institution itself. >> i don't work for the channel

anymore. i cannot speak to their decisions at this time. i can only talk about the editorial decisions on the english channel. bahrain in the dark was only aired on the english channel. >> my name is harvey simpson. i am a world war ii and korean veteran. when we won in germany, we put our military colonels and captains in charge in every town and village. the germans cooperated in all cases. now you have a situation where religion is involved in this war in iraq. there have been fighting each other for a thousand years. do you think anything we have done there be successful?

why would they stop fighting each other now? i feel like everything we have done there has been a complete waste. i have one more question about afghanistan. we have been in afghanistan for good reason. we defeated the taliban and have them on the run. now we leave 10,000 men and concentrated on iraq. how do you feel about that? had we not gone into iraq and put 60,000 people in afghanistan, we could have defeated taliban. by decreasing our troop strength, they are back. i think they will always be back. again, religion is involved. i do not feel that, in these types of wars, we can win any of them. >> so what is the question? [laughter] >> do you feel that in fighting the stuff of wars, like in iraq

where religion is involved, can we ever change the nature even when the war is over? the shiites and sunnis have been fighting each other for several years. >> if you were 22 now and -- you are a vet of world war ii and if you were wearing the uniform that the men and women are wearing their now, you would not sound very different from any of them. i will rely on someone else's words. a photographer who lost his legs and afghanistan. i had gone to iraq in 2006. we were laying around one night and we had sleeping bags. he said, you know, we're just a

passing the storm -- a passing dust storm. i think he believed it could i -- i think he believed it. i think a lot of people do. how do you fight a war in a place like this? >> we are going live this afternoon to the cato institute where they are hosting a discussion on the supreme court's ruling thursday on the 2010 health care law. >> the next battle will be discussing the substance of the matter, where we go from here as a matter of health care policy. like so many who heard the oral arguments in the obamacare litigation in late march, as described by cnn as a train wreck for the administration, we are -- we were taken aback and

stunned by the supreme court's decision upholding the obamacare in detroit mandate, not on commerce clause grounds, but on congress oppose the taxing power. no one had taken that argument seriously and many still do not. but chief justice roberts did and the courts for liberal justice have said, in effect, if it worked for the chief, it will work for us, whatever our reservations may be. we are here now to dissect this decision. and unlike with kato's normal practice, however, we decided that with -- even before the decision came down, we would do so not with our common practices, but with people who share roughly the same views, and we did so to try to find from that perspective, we wanted

to use your win on that perspective and drop as much time as we can to do so. i am going to introduce each speaker before he speaks, starting with randy barnett. i will give a very brief introduction to each of our speakers because there bios are extremely long and distinguished. randy is the professor of legal theory at georgetown university law center where he teaches a lot -- constitutional law and contracts. he has been a visiting professor at the university of pennsylvania, northwestern, and at harvard law school. in 2008 he was awarded a guggenheim fellowship in constitutional studies.

in 2004, he appeared before the u.s. supreme court to argue the medical canada's case after successfully -- the medical canada's case after successfully arguing it in a previous court. he co-authored an amicus brief in lawrence become my taxes, as well. -- in lawrenceby, texas as well. he has co-authored many books. and articles. would you please welcome randy barnett? [applause] >> thank you, roger. it is always a pleasure to be at

cato. i think i have been here on happier occasion. i have been involved in this case, challenging the affordable care act, since before the law was enacted in 2009. i first wrote a legal memorandum on the constitutionality of the individual mandate with two others. the only person who has been involved longer than i have in fog -- in fighting the constitutionality of the idea of an individual mandate is kenneth rivkin. his wall street journal piece in 2009 was the first and then got me reading and thinking about the constitutionality of this case. as you all know, it did not go the way we hoped it would. this was a crushing blow to liberty and it was a crushing blow to myself. i was pretty devastated by the loss. i am still pretty devastated by the loss.

i'm going to say some positive things that came out of this case and i do not want to be characterized as some of spending the outcome -- some house been in the outcome or putting an unrealistic view on the outcome. in fact, it was a bad day and a bad loss. i just because it was, it does not mean it could not have been worse. because it could have been. under circumstances like this, to engage in a kind of extreme doom and gloom that denies the stuff that we accomplish while still bemoaning what we failed to accomplish is actually to give the other side a bigger victory then they, in fact, obtained. and in order to explain that, i want to suggest -- the reason why this case was so big, the reason why this case was so restored and the reason why the supreme court granted three days

of oral argument is because there were not one, but two huge issues on the table in this case. the first was on obamacare. the first was on the issue of whether the government in this country could control medical care. and if the government does control our medical care, i believe as do others, that will fundamentally alter the relationship of individuals to the government and essentially fame out -- change our form of government to a political system more closely approximating western europe. i do not have anything against going -- against western europe. i go in there. they have nice building and the food is good. [laughter] but that does not necessarily mean i want to live under a social democracy. if this particular bill is to remain law, i believe that is the inevitable outcome. that was huge. the second huge thing that was

on the table with this law was the constitution of the united states. our constitutional form of government, and in particular, the part of the government that says that the federal government is one of limited and enumerated powers. it is a principle that this country has stood for since its founding. it is a principle that the supreme court has never denied and often affirmed. it did not deny it during the new deal or the warren court or during the great society. but if the individual mandate, which is the core of this bill, which was enacted by congress under its commerce clause authority, is going to be upheld in this case under the commerce clause authority, then the theories by which it was going to be upheld will eliminate the enumerated powers scheme. if this can be regulated to the commerce power, anything can be. essentially, what we have at the end of the litigation is a

national powers, -- national problems clause in the constitution. which is exactly what 99.9% of all professors believe the commerce clause stands for and how they teach it to their students. i have been debating this for many years and this is how it is a perch from the other side. -- is approached from the other side. at what happened last week? before i get to that, let me say what we thought was going to happen. are was not surprised necessarily about -- that we lost, but how we lost. everyone was surprised by this. including those on the other side, everyone assumed that we would win on these issues or lose on these issues. in other words, in order to prevail in our challenge the constitutionality of the individual mandate, we would have to prevail on our commerce

clause issue. but if we lost our challenge to the individual mandates, that would necessarily mean we would have to lose our commerce clause. . therefore, we will lose both our challenge to obamacare and our efforts to preserve the power skiing in the constitution. we would lose on the medical scheme and on the constitution. everyone assumed that is what was going to happen. one way or another, including on the aside. even of the law professors at said this was justified on the tax authority, not one of them said it was only justified under a saving construction of the statute under the tax power, but unconstitutional under the commerce clause. everyone of them took the position it was constitutional under both, which is not what was decided last week. now let's talk about what was decided. what was decided last week was that there are five votes for

the proposition, five votes in the supreme court for the proposition that every lawyer on the other side said was for frivolous. that is, that their art is a -- that there is a mandate under the enumerated powers. the commerce clause is restricted to regulating commerce or economic activity that has a substantial effect on interstate commerce and it does not reach inactivity. it does not reach people who are not doing anything. it does not give congress the power to economically mandate activity in order to regulate it. that is what the court decided. five votes. that was the position that 99.9% of law professors and legal experts said was a frivolous position. their position that congress had in mind -- an unlimited discretionary power to address these problems, that position

did not command five votes. at best, it commanded for votes. a -- four votes. if we are told that the meaning of the constitution is not been mean -- the original meaning of the constitution, if that is what we are told by those who leave in a living constitution, then under those rules of engagement, we have five votes for the proposition that the government is of limited and enumerated powers, and that the commerce clause is the way we maintained it from day one and that the insurance mandate exceeded that restriction. i consider that to be major, thank you and -- because the alternative would have been so much worse. i do not think that is spinning or putting an unrealistic picture tuesday that happen. let me put it this way. if you were in a big battle and you lost that battle -- and it was a big battle -- but during

the course of the big battle you gain some terrain. at the end of the day if you lost that battle, but still engaged in the same war, would you surrender the terrain you gained? of course not. we have actually moved constitutional law on the books in a positive direction. the position that has now been affirmed by five justices was not on the books and so explicit a form that law professors who teach constitutional law could say, of course, that is a reasonable position. they thought that it was not even reasonable. now it is the law. the or it is the loss of five justices. where do we go from here? this is why i think this is important. just as the way it happened is important. david in our division of labor will talk about the tax power issue. that is obviously on your minds. i do not have time to talk about

it. if david does not say everything i think about it, i will mention it in the follow-up time. it was not a good thing, but not so terrible as compared to the alternative. where do we go from here? the way this happened is highly significant. imagine we are actually in 1935. in 1935, the supreme court strikes down the minimum wage law by a 5-4 vote. what is coming after that is 1937 when as a result of public pressure and the democratic administration, the new deal is reauthorize, at a different version of it is, and there is a so-called switch in time that saved nine. we could be at this point in 1935. only our position is the position that could conceivably emerge later.

why? because for the first time in my lifetime the american people -- and by that, i do not mean every single person, of course. i mean the people engaged in public affairs and people who follow these things. americans have been following these cases before the lawsuits were filed. the american people were riveted by the decision made last week. they were engaged and were where and a majority of them thought that the act was unconstitutional, and a majority thought the supreme court would find it unconstitutional. they were deeply disappointed last week. now what happens? i do not believe the meaning of the constitution changes, but the meaning of constitutional law, of course that changes. how does the supreme court changed? it changes the same way it always changes. the president nominate -- an

elected president nominates. and the senate confirms. in which justices do you pick? that will be determined by an election. if i had to choose which of those two things we were fighting about, obamacare or to preserve the constitution, if you put a gun to my head and mandated that i had to choose one of those things -- >> no, we can only tax you if you do not do it. [laughter] >> right, if you tax me if i choose not to do this, i think i would have chosen the constitution. it is within the power of the electorate to reverse the obamacare decision. it is not easy and it can -- but it can be done. it would be next to impossible to reverse an adverse ruling about the constitution that we were expecting if we lost on obamacare. that would take generations.

as it is, we made good law as opposed to that law on the constitution. but five justices are not enough. if you only have five, somebody breaks. as a result, this election will not only be about obamacare, but also about the supreme court. this election will be about electing a president who commits himself to nominating for the supreme court those people who believe in the constitution and the enumerated powers being contained therein, and have the courage to uphold the constitution when pressure is brought to bear upon them. in other words, upholding an inherent judicial aspect.

if the american people are so offended by what happened last week -- and time will tell if that is true or not. but if that is true, then it will be made into an issue so that the next president does not in a better justices that have been nominated in the past. -- does nominate better justice is that have been nominated in the past. from now on, justices will be selected because they are committed to the constitution and they are committed to resist pressure to the contrary. if that happens, we will look back on this day, this week as the turning point that was actually necessary to occur for that to happen. am i predicting it will happen? no, not. in that sense, i'm not optimistic. i did not predict the way this case would come out, not once. and i'm not predicting the election. and i'm not predicting what a republican senator said they

would do if they won. i am merely predicting a reaction based on the ruling that was made this week. there is reason for hope, and is counter productive for conservatives and libertarians to be completely pessimistic and have nothing but doom and gloom about what happens, or is likely to happen. now is the time to hitch up and go to town and insure that -- ensure that this constitutional moment that we now see takes place. this is our 1935, and what is coming is going to be our 1937. thank you. [applause] >> thank you, randy, for that upbeat reaction to the opinion.

i'm not sure how large the class to which you belong is, but it is good to have that view, in any event. we're going to hear now the tax issue from david rivkin jr.. david is a member of the baker hostetler is litigation international and in armenta robertson and he cochairs the appellate and -- environmental group and he cochairs the appellate team. he has been involved in numerous high-profile cases. he represented the 26 states that challenge the constitutionality of obamacare and was the lead outside counsel of the district court and in the court of appeals in that litigation. he also represented the problem of croatia before the international -- the republic of

croatia before the international tribunal on a wide range of issues involving humanitarian law and laws of war. he is also experienced with litigation involving national security related matters including issues brought before secretary of defense donald rumsfeld. from 2004-07 he served on the united nations commission for the protection of human rights. he has received numerous awards, including one for the best maritime article, as well as the burton award in 2011. he is a prolific writer and commentary in. you have doubt the seen his articles in the "wall street

journal," and the "new york times" and elsewhere. he is a graduate of georgetown university where he received his m.a. in soviet affairs as well as his law school degree. please welcome him. [applause] >> thank you. thank you for reminding me of how old i really am. going back to professional endeavors in the 1980's. i am torn about how i feel about the case. on one level i agree with randy, that the commerce clause in this, or the improper clause portions of this case are superb not only in terms of the separation of powers, bridges, and particularly the sovereignty of the system. randy has done a great job

covering debt. i would add that it is not only the big picture, but the language in which the court majority has rejected the theory is that obamacare had been advancing for over two years is wonderful. it builds upon justice kennedy's concurrence. i can not be any happier than that. particularly on the improper clause, as those of you who do what those issues know. we are squarely within the four corners of case law.

having the decision on the necessary and proper clause is a triumph. while i am not as cheerful as i would like to have been is not just the loss. and i agree with randy's characterization about the constitution verses the press will impact of the decision. to me, this case has never been about health care. what troubles me greatly is that there is considerable attention and i do not think anyone would disagree with me when i say that there has been serious tension. while roberts court opinion articulates powerfully for the

federal government to not only exercise limited enumerated powers, meaning each enumerated powers have to have a limited enforcement principle. that is an opinion that some of us have argued and talked about before, but it includes all three of us here who have made the dramatic point that following the case, commerce -- congress cannot by itself do this based on all article one powers. one level of opinion recognizes that, but then you have the problem of the taxing power. you have read some discussions about it, including a piece in the wall street journal editorial, which i commanded to our attention.

the fact that chief justice roberts, with all due respect, rewrote the law. he did not interpret the language that congress enacted, he wrote it. -- enacted. he rewrote it. it took the supreme court to write the law to uphold it. and clearly, rewriting the lot is not just -- not justified in favor of constitutional deference. it is not justified in order to save it from oblivion. he rewrote the law. that is my honest opinion. that is not a judicial function. that is unfortunate, but hide of a one-off, perhaps. justices have written the law before.

what troubles me more is the way he conceived taxing power. let me remind you that we do need, as i said a few minutes ago, a nutley and judicially enforceable enumerated principal for each power, but they are not the same. with regard to a taxing power, let's reflect. the framers were very concerned about taxes. they wanted to have permeable limitations, and recognizing that the federal government needed to have some taxing power. the framers wanted to put some serious restrictions on the taxing power. the power that particularly bothered them were not the

excise and post, because those powers were understood. if you jack up the price on excise tax on tea or coffee or firearms, people will not buy them. the government may not get as much revenue. but as far as the ability to draw upon individual liberty, it was not that dangerous. the framers were particularly concerned about direct powers, which is the powers to direct an individual to pay tax. for those of us who have been giving with the dichotomy between general police power and enumerated powers, it can morph very easily into a general police power. the framers understood that. therefore, they came out with a couple of ways of discipline.

the cap on the exercise is direct taxing. one of them is direction apportioning. it has only happened once in history to my knowledge. the basic premise is that while the cap on the taxes would be the same cut by the way it would be structured is that the idea was that the largest state would find it particularly difficult to vote for such a thing because as a symbolic matter it would look like if you were new york or massachusetts relative to rhode island -- talking about the relative composition of states -- it seems like your state is paying a lot more. justice roberts, in my opinion,

in correctly concluded that this is not a direct tax. he did not point out what this is a tax that is triggered by you having an income. but it is not a true tax in the sense that a vast majority of taxpayers argue early on in the first stage of litigation. it is not a tax that is truly measured by your income. the essence of an income tax is measured by wealth. it is really in the nature of the hand tax. it is not an excise tax. now there is a passage about the tax on gasoline. the whole point is that taxes on gasoline or taxes on coffee or tea are taxes on a commodity. taxes on transactions.

it is exactly the same as things that can be reached through the commerce clause. now as an experiment and vision for a second that you can tax somebody for an excess of gasoline or can't tax somebody for purchasing broccoli. can you tax somebody for an absence of broccoli. the notion that it is an excise tax does not pass the test. now to get around the issue of why it is not a direct tax it is an early opinion. i was told that is the case. basically says direct taxes are only imposed on individuals without any regard for their circumstances. i think in the opinion the

circumstances they are talking about are really the profession or business. under his logic if an excise tax is imposed on the american people the same time it would have to be a direct proportion. say first the tax is imposed on all pregnant women and all women and all men. since it wouldn't be imposed on everybody at any given point in time. in three stages you can impose a direct tax on everybody it. does not work. it is bad. badly conceived. he also disdelame -- disclaims the proposition basically saying look. i understand that this tax is a regulatory impact.

there were used to be days we worried about that. but we don't do it anymore. if you look at page 42 there is an elegant in the sense that it is wrapped in elegance. the problem of the argument going back to the fundamentals about which randy and i, talking about if you can have a tax with substantial regulatory impact,, and you hear not at all about the impact. the court is not looking at it. you will have a tax that would accomplish the same general police type impact but the commerce clause or the necessary and proper clause can accomplish that. it is very easy to stipulate how that can happen. aside from this particular mandate you can have dozens of other mandates backed up by a regulatory panel. and it is interesting. justice roberts in an effort to

disclaim that outcome talks about his own limiting factors. unpersuasive as the kind tried to advance in the necessary and proper clause. well it is really money and money. with respect this is long. there are human behavior that can't be monetized. but 9% of the time people believe it can be. there is absolutely no difference between mandating the use of broccoli and penalizing you for not doing that to the tune of $500 and taxing you $500 if you don't buy broccoli. a rational man would discern no difference between the two-manidates. perhaps the chief justice believed that by calling it this

type of an approach, a tax, he is providing the accountability that the politicians have not seen fit to provide at the front end. we provided that you can enact a tax properly, increase everybody and have a tax credit to accomplish the same result. politicians disclaim resolutely and president obama and speaker pelosi. they all said this is not a tax. it would destroy the constitutional architecture as the commerce clause but it would be more difficult. consider that as a possibility. i noticed a strange thing.

have you noticed this administration so far has been able to maintain statements by both the presidents and the same nancy pelosi and the white house chief of staff and many other folks. i haven't spent all of my weekend looking at the sunday shows. their point is that it is a penalty. we have something that is taxed for constitutional purposes but the penalty on freeloaders. that is rhetoric. penalty for political purposes. the chief justice was really planning to use the t-word as a palpable way of making this more difficult. i wonder if he succeeded. but the fundamental problem is that even if he is right the only thrust of it has been to say that it cannot just be political obstacles. my good friend who argued the case before the supreme court

one time made an excellent observation. it is prefered to a particular case where the supreme court found one aspect of separational power drnt to be enforced. it is a very narrow situation in the garcia case. you cannot have the fundamental part of the structural separation of powers enforced for purely political means. that is what we are talking about here. and the factors that the chief articulates, his own limiting factors. the amount of the levy is reasonable. what is reasonable? a few hundred dollars? is there any constitutional basis to say $4,000 would not be reasonable. and saying we always argued this. if that is all that it takes to put in the internal revenue code

you can get it all. somehow it is less destructive if done as a tax. back to my point, for most things in life a $500 penalty for not buying broccoli is no different than a $500 penalty for not buying broccoli. we are left with the wonderful portion of the opinion. and the medicaid. a very, very dangerous deconstruction of a taxing power that really, in it contains no enforceable limiting factors and may provide for an opportunity to get at this by other means. let me finish by giving you one last horrible scenario. nothing would prevent the government, it would be stronger in this case, to have a true tax. imagine the government taxing everybody at 99%. there are 500 provisions that

say if you buy this, you get a tax credit. if you buy that, you get a tax credit. the totality of your behavior is still controlled by the government but it is done through the tax code. can one really say you can't look at the regulatory impact and say that is a general police power? that is very difficult. maybe we will never get there for political reasons. but at least the opportunity for this morphing of a tax power is inherent, unfortunately in the chief justices opinion. thank you. >> isn't that what we got? give the money to the government. if you buy a house you have a tax credit. we have come to that largely. >> as a matter of quality, not yet.

>> ok. we are go to wrap it up. the first scholarly review of the court's term. this will be a big one. there were many important decisions. before joining cato he was a special assistant advisor to the multinational force in iraq on rule of law issues and he practiced anti-trust litigation. he, like the other two guests is a writer. he contributes to a variety of academic, popular and professional publications including "the wall street journal," harvard journal of law and public policy, " l.a. times" and so forth. he is a guest on tv shows

oftentimes, including the colbert report where he defended the second amendment. he is a graduate of princeton. and the london school of economics where he did a masters degree and university of chicago law school after which he clerked on the u.s. court of appeals for the fifth circuit. >> thank you very much. it is an honor to be on this panel. not just because of randy and david's great reputation individually but they are the intellectual godfathers of this litigation. it has been an honor watching them work and seeing the theories develop and trying to

do what little i can to advance the challenges and try to restore the constitution. the greatest honor i had is being randy's lawyer in the sense that before he joined the council table in the state he was a friend of the court. this has been a fascinating journey. and seright. this is a weird sort of victory for federalism enclosed in a law. about my theories on the commerce clause and necessary and proper. i filed four briefs at the

supreme court. luckily i wasn't charged with addressing the taxing power. i was there in the court on thursday. it was frightening. i understand why fox news and cnn got it wrong immediately. i think all of us did sitting in the court as we heard chief justice roberts go on so passionately about why there are not limits. the language is incredible. the commerce clause is not a license to regulate individuals from crade toll grave because you think he will engage in particular transactions. such an expansion of federal

power is not a proper means for making those reforms effective. those could have come from my briefs or randy's writings or david's oral arguments below. that is incredible. my heart was racing. i thought we won. but we didn't. i was not quite sure what was going on. ultimately i think it was a political decision. as i wrote in a blog post it just went up. it seemed like he made this tactical decision for something less than wales. you perjury yourself and your legal soul to get something else. the character became the attorney general of wales. i am not sure what chief justice roberts is saving the court for.

i think that dye has been cast already. let me move to what i am actually supposed to talk. perhaps the biggest win and it perhaps may turn out to be the biggest thing the case is remembered for. for the first time since the new deal the court found unconstitutional a federal law as exceeding congress' spending power. the question the court asks, and this goes back decades, is whether the financial inducement offered by congress is so coercive to pass the point which pressure turns into compulsion. the federal government can't mandate states and their officials to enact and enforce federal law or regulations. the court upheld that in 1992

and 1997. you can't have state officials do federal bidding. also to the people. here in effect congress is getting the people to do its bidding. nevertheless on this medicate part what the court held in agreeing with the state's arguments and claims was that congress violated the constitution by threatening all existing medicaid funding. funding that went to the states. congress said all of that funding would be lost if they did not accept the new regulation and expansion of medicaid that is required under obamacare. they said congress can offer states grants and require them to apply with the strings

attached to the grants, but the states have to have a genuine choice in the matter. they must accept a basic change in medicaid in which they are connected and intertwined or lose all medicaid funding. they are effectively between a rock and hard place. rather down coming down on all of the medicaid funding -- by the way seven justices agreed. i don't know if you remember this. but the states are being offered a boatload of money. sounds like a pretty good deal. she found it was an unconstitutional deal.

again, the remedy after finding this by five justices at this point. the four other republican appointees dropped off. again, rewriting this provision rather than making it all or nothing, it is voluntary. states can choose the new funds if they are willing to accept the new expansions and regulations associated with those funds that seems to throw off the national transformation. perhaps not quite as much as the individual mandate in insurance reforms in title one. but there is title two stuff. here in effect he rewrote the

medicaid expansion. the descent calls it -- what do they call it? right. rather than a separatibility, it was an amendatory invalidation clause. there was a clause that said if part of this provision is found unconstitutional, the rest can stand. here it is a rewritten thing was standing. a curious resolution here. the spending clause grants congress to pay the debts and provide for the general wellfare of the united states. says the constitution, first clause. the court says in roberts opinion we long recognized congress may use the power to grant federal funds to the states and may take certain actions congress could not

require them to take. because spending clause legislation also in the nature of a contract is just another approach. the federal government is effectively breaking its contract or trying to impose a contract of adhesion as lawyers would call it in private law. here, the state signed up for medicaid and they are being forced into another. the last state to join medicaid was arizona in 1982. clearly what was in place then is different than the new transformation. rather than just taking care of pregnant woman and disabled children here we have a massive expansion up to 133% of the prove erty line and a host of

other requirements. this system to prevent the legislation from being coercive, the majority through chief justice roberts said, a freedom enhanced by the creation of two governments and not one. going back to federalist 10. the multiple sovereigns working to preserve and protect liberty. when pressure turns into compulsion the court says, echoing that case i talked about at the beginning. the legislation returns contrary. the constitution simply does not give congress the authority to require the states to regulate. again, congress may attach appropriate conditions to tax

and spend programs to control the use of those federal funds. chief justice roberts says it is more than mild encouragement. it is a gun to the head. congress may not simply conscript state agencies into the national bureaucratic army. i will leave you with this. what is the test for this revolutionary effectively? most precedent-setting part of this opinion of the medicaid section, the spending clause jurisdiction? we are left with some factors that courts will be grappling with the next time health care or environmental or social security or other program starts intruding or being pressuring states. the court brings the issue of whether a state has a legitimate

choice to accept the federal conditions in exchange for federal funds. the size of the grant that can be withdrawn. here, something more than 10% of a state's total budget vs. a half of 1%. second whether the newly imposed conditions make the law a new program or a modification of the old one. and then whether the states are threatened with loss of existing funds or a choice about new sources of revenue and finally whether the attached conditions govern the use of funds or take the form of threat as a means of pressuring the state to accept policy changes. yes, there are line drawing problems with this. the court said it didn't need to exactly specify the line but there can be coercion by the spending clause and this is what it is. these are the guidelines for the

courts in the future to evaluate the challenges. i think i will leave it there. as we move forward, a big case was filed a few weeks ago. these are what we are going to remember from this case. obamacare is upheld. that is a big loss for health care and the economy. but the constitution, i agree with randy with how that goes. i am not sure how many legs the taxing power political decision will have. that is basically put in place

for the spending clause issue. that really was breaking new ground and imposing new limits on federal power, which is what the challenge was all about. thank you. >> now we are going to have is a little discussion among the panelists before we turn to questions from the audience. let me begin by asking randy, granted that the clause. how much of a gain was that? congress has, so far as anyone could tell, never engaged in any such command as this. it is highly unusual.

the decision did not address the massive expansion that has followed the new deal that you spoke about. so, isn't it really, from that perspective, a relatively small victory? a victory against the academics with whom you so often dispute. they would have had the full commerce clause that the act sought. >> that is all that we would ever win if we won the case. i said we are saying that there is a line beyond which congress has never gone before. it never has gone that way. if we win this case only one law that's ever been passed in the

history of the united states would be under the affordable care act. we got that. so, i agree with how you are characterizing it. there was always coupled the point with another point. what the case would stand for was the power scheme of article i and that we also got. so, we got that too. the affirmation of the general principle and the specifics. that is all we would get if we won the case. i want to. i want to propose a thought experiment to you. my position is that it could be worse, a lot worse. that is the so-called optimistic scenario. it could have been a lot worse.

let me explain it to you. imagine that the drug laws, national drawing laws and controlled substances act which are commerce clause regulations are actually enforced under the tax power, what would happen that would be different? what would happen is that we would empty millions of incarcerated individuals. that is what would happen. if we could actually turn the tax laws into tax laws we would fundamentally alter drug policy in this country in a libertarian direction. it would not be a libertarian outcome. you would still have to pay a fine. there is a big difference in paying a fine and then going to jail and taking adult males away from their families and destroying the family structures in certain communities in this country. i am giving you a real world reason why the tax power can be less dangerous than the commerce

power. i didn't always believe that. for the first year of the litigation, it might have been in my article that it would be a more dangerous power because it would be uneliminated. it would allow congress to prohibit anything as long as they limit themselves to a fine. it would be more dangerous and open ended. but i was actually convinced otherwise when i attended an oral argument and the judge said it is more dangerous because they could put you in jail. tax penalty you can change the fine. secondly we all know from a political standpoint taxes are toxic. that is why the administration is doing a dance about why it is a tax or not.

and chief justice roberts also included in his opinion the idea that says look, if the penalty gets too high it might be unreasonable and we might run it in. i am not saying i think that is what anybody will do. but it brings me to the final point. it goes to the legitimacy of the decision. the only part of the decision which is bad for us, the tax power decision. what kind of decision was this? first of all, it was obvious on the face of the opinion before the reporting took place yesterday that it was a political decision. it wasn't a legal decision. now we find out that indeed we won the case after oral argument. this is what cbs news reported yesterday. that chief justice roberts changed his vote after

conference. we walked out -- i did not know we had won. friday the supreme court had a conference and we won the conference vote. weeks after that and beginning in the next week the president of the united states began to attack the supreme court for how the oral argument had gone. every major spokesman. many major folks entered the fray. not just arguing why the case should be decided a certain way but why chief justice roberts should rule culminating in the chair of the senate committee making a floor speech about this. what that did is that it

injected politics into this case. now we find out, which we did not know, that we won the case in conference and lost the case later after that pressure was brought to bear. so, what difference does it make? the case is lost. rule is the rule. obamacare is upheld. that can't be redone. what is the presidential weight of this decision? my first suggestion to you is that with any kind of change in our political culture this decision is not -- the tax part is not one for this world. it can be easily distinguished and limited and reversed. what it would require is a change in our political culture. if we don't, if that political

culture does not change as a result of this and a result of the fact that we have only the political route of eliminating obamacare. tax penalty on the consumpion of broccoli will be the least of our problems. i wouldn't be concerned about that. >> i don't disagree with randy that there are some respects that the commerce clause is more impressive. i think that is one of our points the chief justice made in distinguishing between the two.

of course i prefer the opinion we got. call me greedy, but i would have liked to have bigger parts of the opinion without the bad ones. i would say leaving aside the few aspects of behavior where criminalization vs. penalty is very different. the drug laws that randy mentioned. one of the reasons they felt that we were in danger on this the reason that the mandates were so insidious, and i wish we had more time to talk about it,

we have a mature wellfare state you have seen what happened in new york. rising debt. declining tax collections. very clever mandate. the reason the mandates came about is because of a perceived need to provide a cross subsidy that couldn't have been done for a taxing power and talk about personal responsibility. we can think about dozens of other instances where such mandates would be tempting to the politician. if the danger was real, and i agree the danger has been adverted with the commerce clause, unfortunately in all of those circumstances the same

danger exists relative to the taxing power. but it is more modest. it is not as acute. i will close my answer by saying those familiar with constitutional history, if you look at how they tried for more than a century, it has alternated because of the taxing power and the commerce clause. it really would go back and forth. you look at the early 19th century where congress comes in and tries to ban another commerce clause, the manufacture injecting interstate commerce with child labor only in a few years to come back -- and was struck down by the court. they would try to do it as a

tax. i am not saying something that never happened. it has gone back and forth. so, this is not a farfetched opposition. again, on balance we are on the same page. it is better than what we could have been but it is a heck of a lot worse than it should have been. >> turning now to the medicaid issue, the court said states must have a real choice. how much of a choice do they still have? unless they expand their medicaid roles vastly, and if they don't do that their taxpayers will have to continue to contribute to the medicaid funs and yet not get any of the

benefits. how realistic is it to say they have a real choice? >> this is the problem with rewriting a statue in order to save it. absolutely. it is unfortunate that income earners will stilling paying taxes and contributing without getting anything in return on a little bit more that will now be assessed. so, yeah. it is not a complete voluntary choice. but perhaps, i don't know if the chief justice thought this much, enough much of one to be a dole type situation than a situation of what this was before he rewrote it. >> we will now turn to the audience.

it is said that it is a tax. taxes have to origin nate in the house. this bill origin nate instead senate. any basis for a constitutional challenge? >> the reason that this is a technical problem congress has mastered. you have an unrelated bill in the house that gets shipped away. what is left is a tag line and gets mated with a senate bill. i am afraid that would not be -- that is not what the framers

intended. but i am afraid that practice has been going on for a long, long time and it would be difficult to imagine it on that basis. >> there is the ridge nation clause that says revenue bills must originate in the house. the senate takes a bill that would origin nate in the house. they amend it with a new bill and claim it originated in the house. the courts won't do anything about it.

>> ok. this gentleman right over here. >> this is a question about the opinion. i read in one of the newspaper reports over the weekend that roberts and his tax decision said that it could be upheld as a tax only if there was a realistic choice between either paying or doing. and it seems to me -- first of all, i guess the question is in fact that language to that effect in the opinion? and second wouldn't it suggest that if the tax equals or exceeding or became close to equaling the cost of doing that there is no realistic option. you would always do it instead of pay it.

you could avoid the tax if it gets very high. >> that is a very astutely question. i try to sort of make the same point by indicating that the vast majority of activities that we seek to compel is no different between a fine or penalty of $500 or a tax of $500. he is talking about the choice in a different box. he is pretending, if you will, that the essence of mandate under a clause is somehow that it is inherently compulsive. and paying a little bit of money is not. that is a bait and switch. it has to be annualized in the

context of what you are being asked to do. yes. in the context of drug laws there is an enormous dinches between being in prison and not. i am sure a lot of people would rather pay a fine. that is a narrow sliver of human behavior. the tax penalty is no more compulsive -- compelling and punitive than a mandate. you are right. it is a sleight-of-hand. it really does not work. again, what he is trying to say there is that there can be some circumstances where there is a form of attack so high as to become punitive. >> very simply, a future court

can use that to limit the opinion? that's all? >> i am with the washington legal foundation. cato published something called rehabilitating lock near. i wonder if you think the commerce clause language in this opinion is strong enough to start looking at other past opinions and whether we can start bringing more market principles back? >> i don't think so. it was never on the table in this case. what was on the table is that this can go no farther. the other side wanted everything. our position is as far as congress as gone and no farther than that. we have an opinion that says that. that opinion does not say less than we are now. that was never on the table in this case. and we did not get what was not

actually at issue here. >> i will say a technical thing about that which might be a ray of light, there is a point where she lists all of these nefarious rulings to uphold economic liberty and so forth. it is not so much that it is all about lochnerism. but he was merely one of these bad cases that unfortunately is not an improvement. >> as you know well, our conservative friends elevated the concepts of restraint to the other branches to a fetish. chief justice roberts was

confirmed of his willingness to pay homage to those principles. isn't it incumbent upon us to make sure the public understands what a complete disaster this is so that they will take the appropriate action and respond, which is to say that no future supreme court justice who cannot articulate a concrete theory of justice should never put on a robe again. >> i misnamed you when you didn't introduce yourself. that is clark neely from the institute of justice. his question goes to the principles of the matter. >> i am familiar with that and congratulations on the work that do you. quite frankly i don't buy that. the problem is not deference. the problem is that there was

nothing to defer to. you don't defer to the two political branches. deference, to me, largely operates in the context of, you know, practice administrative law for a living. wish i could do nothing but constitutional law but that is not the reality of a private practice. it can be interpreted in a variety of ways. and one, you know, the worst possible interpretation saves it. you uphold it on that basis. you know you do not try to hold legislature and the president because really the political branches would bring our constitutional system. you don't hold them to that. they can never meet. there is nothing to do with deference. the problem with pushing for more aggressive open-ended judicial review, if you will,

you get people for every decision to uphold the decision you have five others that legislate from the bench. and if you are looking at it purely from that standpoint -- i understand where you are coming from. if you look at it at a standpoint from a social conservative being scrutinized from a perspective would violate a bill of rights, that kind of approach is bad. so, it is hard for me to accept the notion that it would be uniformly good across a range of cases. does that make sense? >> we do have differences on this panel, after all. perhaps randy would care to respond.

>> this decision is the fruit of 20 years of conservative public judicial nominations. this is what you got. republican presidents have been nominating justices for 20-30 years. this is a decision you got as a result of taking justices that way. justices have to be picked a different way. what makes the decision so difficult to swallow is that chief justice roberts articulated all of the right lines we have been advocating. couldn't have written it better myself. and then he deferred. and he deferred by rewriting the statute and by the way, that actual technical phrase is that he gave it a scathing construction. it is not the natural reading. it is is a different reading that is a conceivable reading and the statute might be constitutional.

that is the doctrine he invoked. but in this case you should call it political construction is what he did. but this is the fruit of that kind of judicial nomination, and that is what must change. and if that does not change, and the results will continue. >> gentleman right here. >> hi. i am tom curry. professor barnett, this may be a policy question than a legal question, but you said the mandate is the core of the law. wouldn't it be more accurate to say it is the core of the legal challenge to the law? if you think about limited government, which many support, the mandated south, the $4 billion they collected in penalties and taxes, that is a small part of the overall impact on the public.

the new medicare tax will collect 10 times as much as the penalty. then you have the skrt of hhs defining the benefits. it is much, much bigger. >> fisay it is the court of the law, i don't know the context i said that. i don't remember it. but i agree with you. this was the only part of the law, other than the medicaid part that we had a legal shot at. the health insurance company regulations, we couldn't go after that. there is a 1944 case that says insurance equals commerce. it was under the commerce clause. this was simply the constitutionally vulnerable part that funded the rest of it. i don't disagree with how you characterized it. >> this gentleman right here. wait for the microphone, please.

>> i wanted to ask you a question of this issue about a tax vs. a penalty. i thought it was a direct tax. i actually found something compelling about what the judge said in terms of it being a tax. to me it seems like a tax is simply something that raises revenue. regardless what the purpose might be, it does seem that if it raises revenue, it is a tax. >> the definition is that a tax was a measure input for the purpose of raising revenue. all penalties, all fines raise revenue by definition. if that were the correct definition all fines would be

qualified as taxes and the supreme court does not accept that proposition. a penalty is something that is a monetary action as a result if you are breeching a duty or requirement which is what this law was. and a tax is a measure for the purpose of raising revenue. the revenue derived from the penalty here wasn't included among the provisions of the affordable care act. not according to the law. not according to the statute. >> if the mandate worked as it was supposeded to and hoped to work there would be no revenue raised because everyone would buy insurance. so it would be a zero take. so, if that were a necessary condition for a tax, it wouldn't be a tax. this woman right here in the front.

>> over the weekend a commentator from the "washington post" basically said let's not undereimate john robts when he is not playing checkers, he is playing chess. perhaps it was a political move on his part. perhaps it was a political move in our favor, well thought out with the purpose of what he is achieving. i would like your comments on that. >> he belongs in the legislature then, doesn't he? >> let's assume you are right. i don't agree you are right. i think actually think it was a foolish move if it was done out

of calculation because it misreads the politics of the country at this moment. let's assume you are right. that is an illegitimate basis on which to make a constitutional ruling. everything you said is a political consideration. if you are right that means the case was decided politically. that is the reason i can say the case was decided politically. that is the way it is reasoned. now we know that the vote was changed after political pressure was brought to bear. this is one of the best things you can say about it. it was a political decision but a smart decision. that means it is an illegitimate decision. temporary is ironic, because all along the supporters of the legislation warned the court against being political and against having five votes to strike it down. clearly that would be republican politicaling. forget the idea that the four democraticly appointed justices were never in play. the more interesting point

related directly to your question is that if it was a political maneuver for the long-term, three dimensional chess we can't understand because we have not achieved the correct level of wizardry that john roberts has, what is that? it is a variation of saving the court. saving the reputation. institutional integrity, whatever. what is he saving the court for to fight another day? to fight for what? the reason why we care about the court having a high, independent reputation and being in robes and not getting into the political muck is because we want his decisions to be respected. because it is the premiere count majoritarian part of our system. if this is not the date for which the court is meant to be

saved i can't imagine that. >> one more point. i know what you are talking about. i can put it no better than today's "wall street journal" which is to say it is not an instance where if you credit my part in today's discussion, it is not a situation where you exchange the political lifelines to the obama administration in exchange for no backsliding reaffirmation of our constitutional architecture. there are two good portions of the opinion and one bad one, taxing power on steroids that is capable of abuse. that is not a brilliant chess move to me. frankly the people that talk about it haven't read the opinion. law of 183 pages. they don't understand what the roberts court has done to the taxing power.

>> i just want to add something because i have been very hard on the court or justice roberts. i want to say something. i think it is important to be realistic about how the other justices behaved here. the four that were on the liberal side of the court were deciding the case out of principle. it is a principle with which i disagree. a principle that 99% of law professors agree with. that is the position. they were voting out of principle. we have to recognize, and i say it to temper what i said about republican judicial nominees, the four justices prepared to strike down the law, who felt betrayed and tried to prevail upon him to not change his vote. they deserve credit for that and for the opinion they wrote and the fact that they refused to mention the chief justice's opinion in their opinion.

they wrote an opinion that refused to mention the existence of the chief justice's deciding opinion. they only attacked or criticized the liberal justices opinion. >> and the government's argument. >> this was a deliberate statement by them of how offended they were about how this case was decided. i think we have to be realistic about where our attention is drawn and not drawn. it is is not a pox on everybody's house or on everything. we have to be calibrated in what it is that we object to. that is in the future what we have to insist upon. justices that have the courage to enforce the constitution even when the pressure is applied to them. at least four of those justices did have that courage. >> you can see randy is a professor because he has to make one tiny point. roger gets to ask the last question before we break. >> do you see a path in the future to challenge the

constitutionality of this taxing power that the court created? >> it is like thinking what i think about the quality of a conser treatment. there has to be some use of a taxing power to replicate it and morph into general police power. certainly weaknesses in the court's taxing opinions such that it is not very tight. yeah. we can challenge it. it depends upon the court and various other factors.the sad t-

dunked in terms of case law. this opinion does not help us challenge the use of the taxing power. >> please join me in thanking our panel. >> there will be a short break in this discussion. we will be back here in about 15 minutes for more. panelists will look into the future of health care. until then, your phone calls from this morning's "washington

journal." host: a good monday morning to you. it will be an important week politically with fallout from the supreme court decision and the new jobs numbers coming out on friday. this morning we want to turn to an article in "the christian science monitor." "up in arms." i want to take you inside that story today. it states today military officials concede despite prohibition against women serving in combat, there are notified front lines.

host: it is a highly controversial prospect, and the pentagon is proceeding cautiously. last february, officials rejected a recommendation that prohibitions on women in combat be lifted, announcing they would be open on a trial basis -- 14,000 jobs previously closed to female service members. to give you some information about those jobs, i want to turn away story earlier this year. it said women were allowed to be assigned to 99% of its positions. most new jobs have opened up to

been meant in the marine corps, navy, and the army. it will allow female volunteers to participate in an infantry often treat -- infantry course this summer. the pentagon is maintaining its ban on women in combat roles. give us a call and let us know what you think what the role of women in combat should be. i want to read you more about the cover story this morning. there is a picture of a former

assistant secretary of the u.s. department of veterans affairs. she also ran for congress. she lost her legs in combat. duckworth had been wanting to be part of the fight in the wake of the 9/11 attacks. the article says she has not been alone in her experiences. the pentagon's 1994 policy means women can be attached to infantry units -- we want to point you to a

congressional report which has a few facts about women in combat over the past 10 years. this was from april earlier this year. the report notes --

host: we want to start this morning with jim on the republican line. guest: 80 for taking my call. i am a root marine corps officer, and my first is on the training, and you mentioned about that marine corps is opening the officer corps to

female candidates. i cannot fathom how a female will pass. my comment would be geared toward congress, that the military is not a socially engineered project. it fails miserably. host: the you think this experiment is a good thing? caller: i cannot think that all those would be a good thing. that brings me to my second point. this is an official numbers. the anecdotes, you have these

female engagement teams in southern afghanistan. what the deal was was these women would engage with afghan females to promote women's rights throughout parts of afghanistan. it is a horrible idea. congress got behind it. a lot of folks like it. it falls into this continuing narrative that we need women on the front line. host: thank you for that call. thomas, he writes on twitter -- again, we will be discussing this issue and specifically this story from "the christian science monitor" this morning. give us a call. we will go to curtis on the

democratic line calling in from pensacola, florida. good morning, curtis. caller: good morning. i am very disappointed -- i am a patrice cox fax copps at the officer that spoke, very republican mind-set and of chauvinistic and very anti- woman. it is sad. if a young lady wants to protect her country, so be it. i would like a little editorial, if you don't mind. it seems like democrat or something has a problem with their phone, you cut them off but if they are a republican you give them more time. i wish you would give the democrats as much time to talk and speak as you do -- host: what do you think about the 14,000 positions that are

opening up that were previously closed as the experiment? caller: just the fact that she happens to be a woman -- if she can do the job. why are you going to penalize her? host: open it up all the way, is what you are saying? caller: if they can handle the job, so be it? why are white male chauvinism wants to penalize a person for being a female. if they can handle the job, go for it. i am proud of them wanting to be in the country and defend it. i don't get it. host: curtis from pensacola, florida. thank you for coming in. here is a chart that goes with the "christian science monitor" story that talks about the growing numbers of women in the military going back to 1970. the numbers were about 27,900 women serving in the military, about 1.1%. officers, the smaller block, you can see the number of officers if who are female, 12,750 from 1970. thefast forward through the years to 2010, today, up to

166,729. 35,341 are officers. today, women make up about 14.1% of the military. i want to read you a little bit more from that story this morning, talking about some of the personal experience that she gets into in her story. she talks about army reserve colonel ellen herring who had a 28-career in west point, the upper officer echelons and said she will advance no further because her job has been "limited" to support positions with no ability to compete in combat arms.

host: john is on the democratic

line from high point, north carolina. what do you think about the policies opening up more roles for women in combat? caller: sir, thank you very much for taking my call. i know this is kind of peripheral to what you're speaking about. but the truth is, i think the mos distinction should not be as important -- because you have to pass the ability test to get the mos and to get the job. so i would see why they would open these doors. but until they fix the problems where they say these women are sexually harassed and molested -- i have a 21-year-old daughter and a 40-year old daughter and i come from the vietnam era and i am retired. from my point of view, until they can protect us from us, how can they possibly protect them in a situation where it is more distinct and more isolated.

and i also have another question, which is kind of my own, just the fact that the people that i met were highly professional, they were women, but they were much less. i was surprised to see there was so little difference in the amount of women that were in the service now that were in combat situations that were deployed from back in the 1970's because participation. but this sexual harassment thing has to be corrected and the protection of our own troops -- if we cannot protect them from us, how can we protect them from anything else? host: john, thank you for the call. earlier this year the pentagon announced its new policy regarding women in combat and i want to show you a little bit from the announcement. secretary for military

personnel policy. [video clip] >> the department required additional time to make sure this important issue receive the fullest consideration within the department of defense, military departments, and joint chiefs of staff. i will now provide a brief reflects the secretary of defense position that removes barriers that prevent service members from rising to the highest levels -- with the responsibility their talents and capabilities warrant. the report's findings represent the concerted effort of all the military services and have the highest confidence of both departments civilian and military leaders. the report recommends changes to current assignment policy and -- prior notification congress of our intent to open over 14,000 positions to women. these were identified -- two -- >> back now to a keynote

institute discussion on the supreme court's decision last week. >> we know that "obamacare" is constitutional, and nothing about it has changed. this is still a health care bill under which you can not necessarily keep your current insurance, even if you are happy with it. it is a health care law that will cost billions, if not trillions, and more spending, taxes here it is a health care law that puts in place the structures that down the road will ultimately lead to the rationing of care, and is a law under which we could actually end up with fewer insured people

than we have today. there is a lot of reason to wonder about the policy going forward -- what should be done about this? what can be done about it? people talk about repealed and replaced. repeal is easy. what do we mean when we see replace? we have a panel that will talk about that. first up today, grace-marie turner. she has been working in health care since "hillary-care." she worked on a wide range of think tanks across the political spectrum that came out with ideas for market-based health care reform. she went on to found the galen institute, which is one of the

premier organizations promoting market-based health care reform. she is tied into pretty much everyone and everything in washington and has been all the while i have known her. she is someone who knows what is going on in this town. with that, i will be happy to turn it over to you, so, grace- marie? >> that you very much, michael, and think for all that you and cato do to keep the conversation going on health reform and for your diligence on these issues. nancy pelosi -- we have to pass this bill in order to find out what is in it, and now we all have to find out what is in it. a lot of us believed we would be rescued from this law by the supreme court, strike it all down, we do not want to find out what is in it.

we now know we have to learn what is in it, and the president has to spend the next four months defending a law that he has basically stopped talking about in the two years-plus since this has passed. he stopped talking about it. not only does he have to defend the law, but he has -- the law has a day sign -- the law has a big sign around it saying it is a tax. it is important to recognize that the supreme court did not uphold "obamacare." two specific issues were under question -- the individual mandate and the medicare -- the

medicaid expansion. if either one of them had been struck or both of them had been struck, then whole wall could have come down. but there are many other challenges to many other provisions in this law that are making their way through the courts, and we will talk about those in a minute. instead of upholding "obamacare," the court reached a narrow decision. the individual mandate is ballot as a tax. now otherwise free citizens will be required to spend our own personal after-tax money to purchase some expensive private products that could cost $20,000 a year for private family or pay tax, and the state can tell the federal government's best the

federal government can tell the state to dramatically spend their medicaid program, but there is no consequence if they don't. we need to get ready for the debate. about 7 in 10 americans have told -- wanted the supreme court to take down all or part of this law. since it did not do that, we all now must be armed with the facts to help people understand what is really in the law. get ready. over the next several months, leading up to the election, the election -- the president will talk almost exclusively about 26-year-olds on their parents' policies, pre-existing conditions, refunds extracted from insurance companies because they could not jump through the latest hoop. that is maybe a few dozen pages at most in this small.

it is incumbent on us to understand what is in the other 2650 pages in this law so we can be informed about what this means for our economy, our health sector, and the future of freedom. there is a checklist of the 10 worst things in "obamacare" that are not the individual mandate and the medicaid expansion. number one, the employer mandate. this is the deterrent to job creation. employers are required to provide and pay certain percentages for health insurance policies for their employees or pay a penalty. that was not questioned but before the court, whether or not the employee mandate is a kennedy or talks -- a penalty or

a tax. terrific work has been done on how states can protect themselves from the employer mandate. number 2, the anti-conscience mandate. in the text. the legislation said preventive care would be provided at no cost to the employees. secretary sebelius decided that would include a free abortion drugs, sterilization, and contraception. the catholic bishops are wisely challenging this in court as a tremendous affront to their religious liberty. number three, new and higher

taxes. the law contains at least 20, now 21, that we know that mandate is a tax cuts totaling more than $500 billion over 10 years that will hit medical innovators, insurance, and the sale of your home. the americans for tax reform has a good list on its website of the many taxes that are in this law in addition to that tax on not paying for health insurance. $120 billion on investments in come, $86 billion in the medicare payroll tax, taxes on health insurance, which is of course going to increase premiums, and the fees that we will be paying if we do not purchase health insurance. number four, the independent payment advisory board. this is a board of the

unelected, appointed bureaucrats with virtually no need to respond to the voters, the electorate, that has a huge power over spending in medicare. the cold water institute in paris and it is challenging this as an unconstitutional use of allowing these unelected he officials -- officials to have tremendous say over medicare spending. state exchanges can be compelled to set up these past new bureaucracies. this will check into our finances, our family size, our health habits in some cases, so they can hand out generous tax payer subsidies for health insurance of our choice based upon the choices that are given

to us for families making up to $90,000 a year. that number will continue to go up. number six, medicare payment cut. the medicare program is a big the bank to pay for the law. $575 billion with cuts to medicare that will hit medicare advantage plan, drug companies, that will cause more and more physicians to stop seeing medicare patients. they are unrealistic cuts, and yet they are a big pay-for for the law. the kaiser family foundation says the average price of a family policy has risen $2,200 since president obama took office. when he took office he promised the average price of a family policy would be reduced by $2,500 by the end of his first term.

i do not know about you, but 47 of the dollar's a pretty big -- $4,700 is a pretty big market to mesiss. 8, government control over dr. decisions. the lead-based payment decisions, at least half of doctors are seriously considering leaving madison rather than practice mother may i medicine with all of these rules and regulations that will be dictating to practice medicine. number 9, huge deficits. cbo has raised its cost estimate to $1.60 trillion to reduce our budget deficit, which no one believes, but on the floor of the house, i watched the final

vote, that fateful sunday night, in the house gallery as the members of congress were talking about all the wonders of this mall, how it was done to reduce the deficit, we were trying to get to universal coverage, and under the most optimistic projections we missed that mark by 25 million people. the deficits are going to go on and on. the american action forum estimates as many as 35 million additional people will wind up getting subsidized coverage to the exchanges because of the perverse incentives in the market. it increases the cost of this law by $1 trillion. number 10, at least 159 new boards, commissions, agencies, s will have huge control

over virtually every aspect of how our -- 1/6 of our economy works. even the individual and the employer mandate, if they had been struck, i believe the authority in this law to create all of these boards and commissions could easily move us toward government-run single payer systems. the miracle is that this is four months before a national presidential election. the american people will have their say in deciding whether they walked this law to stand or fall. it is important that it is a lot more than the people on their whichs' policies, insurance companies now have said they would do voluntarily. republicans are talking a lot about what they would do to help

people existing conditions. i will talk with you about that. it is now up to us to be informed and to help people understand what is in the law. several of my colleagues -- i obamacare'ok, "why ' is wrong for america" -- you can find it at our website. it is our duty as citizens. thank you very much. >> thank you. next up is michael cannon, who is the director of health policy studies here at the cato institute, which means he is in charge of our health care work. he is also my co author of a

book author"healthy competition -- of a book called "healthy competition." he is the principal author of the book, and he is the co- editor of a new book called " going forward," and i mean he is the principal editor of the book. i am delighted to turn it over to michael cannon. >> thank you for coming today. i will talk about how the health wall is weaker and how the pact to repeal is more clear than one week ago. first, i want to talk about the day of the ruling.

i spoke to a number of reporters. i did eight radio program opposite a former obama administration health policy adviser. the coast of the program asked her if she could think of anyone who would be harmed by the decision, by the law remaining in place. she said she could not. think about that. this is a law that is spending $2 trillion over the next 10 years. that is just the federal budget. it is going to be compelling states, individuals -- maybe less so states than before -- to be spending further trillions of dollars, and this adviser could not think of a single person who would be hurt by having the government spend all that money much less taking that money from the people who earned it in the first place. there was not enough time for me

to talk about all the ways this law is already hurting and is going to hurt americans. if you are how the mandate in this law imposes on businesses are discouraging employers from hiring, how medical device taxes will eliminate jobs, the millions of people this law has thrown out of the health plan. a study that estimated this law will cost 150,000 americans with high-cost conditions, very sick americans, to lose their health insurance. how this law has caused some premiums to rise by 30%, and that was immediately upon its taking effect. house supporters of the law acknowledged it will cause some people's premiums to double after the subsidies are made

available. how it will impose marginal tax rates in excess of 100% on low- and middle-income americans. this is like when the secretary of health and human services hreatened bankruptcy to insurance carriers. the one that bothers me the most, how this law's help insurance exchange's traded race to the bottom by forcing insurance companies to provide laos coverage to the sick and the night care to the sick. supporters of the law say this law as a matter of life and death. they have no idea how right they are. it is not just the administration is oblivious. after the ruling i spoke to our

reporter who has followed healthcare for decades. i told him repeating the -- repealing the law is health care reform, because that law is hurting so many people, especially the popular parts of that law. the supposedly popular dependent coverage mandate that requires employers to offer it to dependents of to the age of 26 -- one provision left thousands without coverage. this reporter never heard of that happening. the pre-existing provision -- should it caused carriers in 39 states to flee the market for child-only health insurance and have caused those markets to collapse in 17 states, leaving parents who do not get coverage at work with no where to go to

get health insurance for their children. he said he never heard about that. we have a lot of education to do, but i keep thinking the polling has been consistent for two years. the public as opposed this law since it was introduced in congress. a recent poll said 65% of the public wanted the supreme court to strike down all or part of this law, yet we hear that the reason the american people do not like this law is because they do not understand its. i think the people who do not understand this law tend to be geographically concentrated here in washington, d.c. when we were planning this forum, we were planning before the court handed down its ruling. we did not know what we were going to be saying. i was fantasizing that i would be able to have it from talking

about all the ways that this law is already hurting people and will hurt americans in the future, from talking -- to talking about all of that health care reforms available that would make health care more affordable, bring us in breach of lower-income people. i did not get my wish, but i am glad for this, that i can pivot to talk about how the supreme court made the law sick of it in the weaker. -- significantly weaker. it is clear last week's ruling severely hobbled the law. it already gave states the ability to block half of its huge entitlement spending. by refusing to treat one of the new agencies it asked states to create. the court of's weren't the states the power to block the entitlements law's

spending. the states can now reduce the deficit over the next 10 years by $1.60 trillion, and all they have to do is sit on their hands, say we are not want to implement this law. the law relies on states -- the health insurance exchanges, and the expansion of the medicaid program. the exchanges will cost billions of dollars. states, contrary to popular myth, which has been advanced by a lot of its supporters are under no obligation to do either of these. they are under no obligation to expand medicaid program. they were never under any obligation to create a health insurance exchange.

it is a myth that if states create an exchange they will have greater flexibility over how the health law takes effect in their state. while industry the federal government can create a health insurance exchange in a state that does not treat one itself, it is not certain that that government will be able to do that because the law operates no funds for them to do that, and the republicans in the house are not likely to give them any money to do that. the law requires state-run exchanges to the approved by the secretary and empowers the secretary to force a state's-run exchange to do everything she would have done through a federal exchange. for the privilege of having the secretary dictate how states run their exchanges, states would have to pay up to $100 million

per year in operating costs, and here are the estimates we have collected for how much this costs will be. in just the first year that states have to pay for these exchanges. more important, due to the interlocking nature of the law's many features, to the lawyer the exchanges and the employer mandate, which texas employers up to $3,000 per worker if they fail to require coverage, sees the creeks changes will be needlessly exposing their employers to that mandate. the law is clear on this point. that tax is only enforceable in a state that treats its own exchange, because what triggers that tax is if one of those workers as interim exchange and receives a tax credit or a

subsidy to purchase insurance, and as credits are available only through state-run exchanges. they are not available through exchanges created by the federal government. the law is very clear about that. they will restrict subsidies to exchanges greeted by state street states that refuse to create exchanges and therefore block those subsidies, and exempt employers from that tax, and lure jobs away from other states. the court handed the law a serious defeat by striking down its medicaid mandates. federal grants comprise an average of 12% of state revenues right now. the law required states to expand programs, and they set

either you expand that program is the way we want to, or you are losing 12% of your revenues. 26 states challenged that mandate. they won. the court ruled that the federal government cannot do that. states can now refuse to expand their programs without reprisal. they should pick this is a program that is rife with fraud and abuse. some states with fraud and abuse at 30% of medicaid expenditures. white colleague st -- my colleague estimates this expansion would cost states like florida, kansas, up to $20 billion each in its first 10 years while states like new jersey and new york would pay significantly more. california makes out like bandits. we're not cooking the books

here. california would actually that money if they expanded their programs. they should still refuse to expand their programs because just as this is money that states do not have, the federal current -- the government with its deficits and that cannot afford to spend another $900 billion it does not have. this includes california, state can expect whenever these projections are now, their costs will exceed projections because the moment the u.s. credit rating severs another downgrade, congress will shift work cost to the state superior nicolette predatory federalism. as soon as they are hooked, it changes the terms on them. so far 72 members of congress have sent a letter to the national governors' association,

urging them not to create a health insurance exchange, because that is essential to repealing this law. governors were already expressing their refusal to do so. rick scott in florida came out and said we're not going to expand our medicaid program either. all the gin mill in louisiana, scott walker, and other governors are making similar of voices. they will not expand this program if 26 of them thief hoffa for one of

avoid more than 70 percent of the nevada-

the health law is weaker now than it was last week. the path ahead is clear. thank you. >> last up is a -- last up is a senior fellow with the institute. he has been bouncing back and forth for the last couple of days. he is one person whose blogs i make sure to read every day. they go into bowring death. i have read all 2500 pages.

if you have not, you will really get something out of his digging on that. he is also significantly an adviser to the run a campaign on health care. [applause] >> and he meant bowring in the sense of drilling down. >> thank you for having me here. i should disclose since my goal was kind enough to imagine my affiliation with the brahney campaign. i am an adviser with the mitt romney campaign. he gets advice from any people, and are not affiliated with the campaign. -- from many people and i am not affiliated with the campaign.

i am here to let you in on a little secret. the individual mandate is too weak. i do not subscribe to the fact that it is a tax. it is a fine.

thanks to obamacare as the president reminded us last week, you do not have to get health insurance. if you get sick, you can gospel and buy insurance that day and the insurance company has to accept you. if you have a choice between spending $15,000 on a health insurance plan, or $695 to get all of the same care if someone is injured, which will you choose. i think the choice is clear? -- is clear. this gets to the heart of the obamacare because of all of the changes. because of all of a constitutional challenges and some of the other related aspects, there is something that has been completely missed. this law will massively drive up the cost of health insurance and the private market, effectively destroying the private health

insurance market, unless significant reform takes place in the ensuing years, or appeal. what it comes down to, in essence, is that obamacare inverts the laws of health economics. a key principle to understand is called adverse selection. what happens with insurance is, let's take the example of homeowners insurance. let's say, you have two people who own homes of relatively equal value. one person lives in a neighborhood where a lot of arson attacks take place. another person lives right next to a fire station in a town or region of a town with a low crime. one was more risk than the other in terms of the house being burned down. should they both paid the same? classical economic theory would be that they should not.

the person and a higher risk area, whereas a higher risk of arson should pay more than the person who is next to the fire station in the safe area. it is not just a matter of morality, but economics. if i live in the hall next to the fire station and you ask me, you have to pay as much for your homeowners insurance as the person who lives in the arson zone i will say, that is not a good deal for me. i will pay a lot more for my insurance than the actual risk my home is going to burn down. i will not buy that insurance plan. that is what creates adverse selection. what is happening is, only the people in the arson zone by the insurance because their average expense, or their average claim is much higher. the cost of insurance goes up as a way of averaging out the overall expenditures for the whole group.

people who are in progress of we safer, but moderately risky areas opt out. it is a bad deal and the insurance market goes away because it is unaffordable for everyone. that is exactly what obamacare will do in the private insurance market. because the americans who will be forced to pay this mandated find no that is a better deal for them to pay that fine than to buy insurance. and that is not the only aspect of obamacare that accelerates the adverse selection. the law forces young people to pay as much as 75% more for insurance or that older people will play -- will pay slightly less for theirs. every insurance plan must occur -- must cover contraception. every insurance plan must cover drug abuse. it will have all of these things that you may not need, but he will opt to pay for. it is like going to a restaurant and been told that you have to

have a seven course meal even if you only wanted four courses and you do not like seafood. the benefit sound great in terms of every insurance will have to do this or that. but everyone of those mandates drives up the cost of insurance, and makes a raw deal for the young people who are uninsured today. this is the key thing about the uninsured population. the uninsured population is predominantly young. 55% of all the people without insurance in america are under the age of 35. 72% are under the age of 45. these young and healthy people do not buy insurance because government regulation makes it too expensive for them. the congressional budget office did a study a couple of years ago asking why young people are uninsured. 71% said it is because of the high cost of insurance.

62% said because their employer did not offer it. or they are unemployed. only four percent said it was because of health status. the vast majority of those uninsured are not uninsured because of pre-existing conditions. the vast majority are uninsured because insurance is too expensive. an insurance is too expensive because of government policy that drives up the cost of health insurance. obamacare is exhibit "a." it does everything almost precisely as if it were redesigned to destroy the private insurance market. that is the first problem you have to understand about obamacare. it is a week individual mandates. all of the other insurance regulations that the president carter that the white house today, those things down nice in theory for the 1 percent who benefit from them. but for the 99% of people who do

not, insurance will go up. and insurance is not cheap today. the average median household income in america is $51,000. the average family insurance plan is $15,000. that is 29% of household income. in the last year alone, the price of insurance went up by 9% because of obamacare's regulations. and it will continue to go up. think if your tax burden when up 9% per year for the next 10 years, what would you say? and yet, that is exactly what obamacare is. it is not a tax. it is forced allocation of your own money to insurance and health care. and bad as ultimately the biggest, biggest problem with this law. -- that is ultimately the biggest, biggest problem with this law. the supreme court also noted that it allowed states to opt out of the medicaid expansion of the law.

by this keystroke by john roberts, he may have added to the federal deficit by $5 billion in the next 10 years and expanded our unfunded liabilities by trillions. the reason is, a lot expand coverage in two ways, one, by expanding medicaid, the existing kurram for the poor. and also by expanding the subsidized exchanges for the state. but these two programs overlap between 100% of the federal poppet -- poverty level and 130% of the federal poverty level. it is all federal dollars, whereas state is shared broadly by the state and federal government. states have incentives, particularly those that currently have generous medicaid programs, to pare those programs back and put all the people on the exchanges were you will get much more generous coverage at the expense of taxpayers in other states. and a former director of the cbo who was brought up earlier,

he estimated it could cost as much as $1 trillion over 10 years, but a more realistic scenario is $500 billion in the next 10 years. john roberts did not just reinvent the definition of taxation. he also added $500 billion to the deficit last week. finally, i was asked to talk about what the real solutions are that governor romney is promoting and offering and proposing. what should those who believe in market-oriented solutions seek to achieve at our health care system? the most important principle for people to understand is that there is a lot of misunderstanding about american health care. we often hear from our political leaders that american healthcare is the best in the world and there was nothing wrong with it before obamacare. it is true that american health care is good in many ways, but there were many things wrong

with it before obamacare. before obamacare, governments and half the health care expenditures in america. before obamacare, the u.s. federal and state governments spent more per capita on health care than all of the other countries in the world. we spent more than france, canada, u.k., germany, luxembourg, -- all of these places that we think of as a health care utopia. this is not a system that is sustainable. it requires real change. and a principal theme of governor romney posing proposal -- gov. romney's proposal is to put people in charge of their own health care again with medicare. but seniors be in charge of their own plan. let them decide if they want a more luxurious plan and keep the savings if they want to spend less.

with medicaid, let the states decide the level of insurance. in the private market, let people decide their own insurance, instead of letting them decide for you determined by where you work. because that is way -- the way you shop. you can keep your plan when you change jobs, when you lose your job. you can shop for a plan that is what -- that is right for you. and in that way, we can truly start to move to bring the cost of insurance down and if you bring the cost of insurance down, you make insurance more affordable. you reduce the uninsured problem the right way by bringing the cost of insurance down. with that, i will yield to questions. [applause] >> thank you very much, as you were talking about homeowners fire insurance and selection, i

am reminded of the fact as the second homeowners insurance sold in the u.s., it was benjamin franklin. he charged people who lived in brewhouses less than those who live in wooden houses because the risk was lower. -- those who lived in brick houses less than those who live in wooden houses, because the risk was lower. we will take your questions. make -- to wait until you are caught on and wait for the record phone, so those who are watching on c-span and who are watching the live streaming can hear you. please, ask a question. do not give a speech. i will cut you off. let's start right there in the yellow shirt. >> thank you, and adel fisher. i am a licensed independence clinical psychotherapist.

i would like each of you to outline an insurance and health care plan that would be acceptable to all of you, because if we're all going to pick our own and doctors are dropping out of accepting medicare and medicaid, what insurance plan would each of you design? that would not cross a lot of money for the patients and families. >> i do not know how to design a health insurance anymore than i know how to design a suit or marquardt. i can tell you what i value in health insurance, but that is not really of general interest. i'm not exactly sure where to go beyond that. if your question this -- is what kind of health care reform do we like to see, and how will we manage people to the kinds of health care plans that we would like, the answer is simple. not easy, but simple. you let people control their earnings, and you remove barriers to competition among

insurance companies and health care providers, so they can provide different plans, different types of benefits structures, different ways of delivering medical care. we hear people talking in washington d.c. about trying to get the government to impose, to subsidize things that already exist in the united states markets today. they are just awful regulations that prevent them from spreading. where we give the market room to breathe in the u.s., we have seen some memorable innovations. my preferred health insurance plan is not available in the region in which i live because of relations. >> i would say there really is no one size fits all health insurance plan that everybody would like. michael and i may have very different desires in terms of our health care. i personally would like a very high deductible puritan someone else may be risk averse and they do not want to take a chance --

a very high deductibles and someone else may be risk averse and they do not want to take a chance. some people may want natural medicine cover. of the people in our believe in that. we should all be designing for ourselves. >> i would wholeheartedly agree with what michael tanner just said. health care is very personal. we have different levels of risk tolerance and different needs in terms of maybe some people in our family that have different health insurance -- health conditions that require additional insurance. you do not want the government involved, number one. having said that, it is true in america in general we have the problem of over insurance. to many have comprehensive insurance plans -- too many have copra's insurance plans that they do not really need. imagine if we all went out to eat every day instead of going to the restore. obviously, our food consumption

would be a lot more expensive, but not with more nutritional value. that is true with our health insurance as well. we buy these expensive plans that are far more insurance than we need. more people than are currently are indeed health deductible plans. we should encourage people to save money. if you save for your own health care, then you have an incentive for healthy habits. you are paying for it in the end if you get sick. it would be great to move to a system that would encourage people to get the right kinds of plants. -- plans. >> in a country of 300 million americans, there is no way that government could come off with a plan that will work for everybody. i think that is truly the difference between our perspective and the perspective of the drafters of this law who have come up with gold, silver,

platinum, bonn's plan. they think they know better than we do what we need. the real problem that we've got in this country is that too few have the opportunity to choose the kind of health plan that fits their needs and the needs of their family. i think that most of this talk about changing the incentive and the financial arrangement so that people have more control over their own choices, that forces the market to offer them more choices. moving to the defined contribution system of payment with subsidies for people at the lower end of the income scale. and giving the market an incentive -- i think that there are probably thousands more options than anybody ever thought of. when wal-mart decided it was going to give its employees a choice, i had something like 25 different plans. they made it easy for people to

make decisions because they went down a decision tree. the most important thing in getting back to raise the ball and sense of -- sensible system of health insurance is for people to understand the cost of their choices, which they do not now. then they begin to make more sensible choices about the kind of plan, and there are trade- offs. they want to make sure they are covered if they get sick, but if they want all the bells and whistles they need to know they will pay for that. >> regarding increasing costs and trying to reduce costs, the one thing i never hear people talk about that i think would be dramatic in terms of reducing cost is if we could get rid of all of the licensing rules, like licensing for doctors and licensing for prescriptions with

the idea that you can devise a computer program that would go through a hole pre-structure of -- go through an entire pre- structure of questions and basically diagnose yourself. if you were not comfortable with this program, you could hire somebody who is at least knowledgeable in that program without having to hire a doctor. >> and your question? >> that is a fantastic illustration in the different approaches between obamacare on the one hand and markets on the other. >> obamacare tries to reduce the cost of health insurance by subsidizing it. they are not reducing costs, just shifting them. they are hiding the premium. you will not pay it yourself, but the taxpayers for you with people that are younger and healthier and lower incomes than you. but when you shift cross it does not reduce costs. increases costs because it encourages irresponsibility.

what you are talking about is something that i think most people, if they are asked if they support licensing of doctors, they do. but licensing does not actually increase the quality of care. it may increase the quality of care for some individuals. broadly speaking, what it does is reduce competition in the market for clinicians, not just doctors, but also no prep -- nurse practitioners and physician's assistants and others down the line. it strengthens what the mid- level clinicians are able to do so that their competitors -- so that they are competitors for doctors in providing certain services. and these health care cost increases by forcing low-income and to pay more than they need to because those conners practitioners are competent to do a lot more things than the licensing regime will allow them to do.

and away the markets make things more affordable to people, the way that they bring within the reach of low-income people items that were out of their reach yesterday is what a harvard business professor and some of his colleagues explained is allowing people with less training to do what only people with higher training and who cost more could do previously. thoseou're talking about, ideas have been advanced by a lot of people. instead of having doctors provide all of these services, why couldn't nurse practitioners with diagnostic software make more diagnoses? it is not that they get it right all the time. but they probably get it as much or even a little more often. these are the sorts of innovation and experimentation and cost saving innovation that

laws like licensing bottle up. it is an illustration of the differences in approaches between markets and obamacare. obamacare only lead to higher costs. instead of making health care look -- more for -- instead of making health care more affordable for low-income people. >> in the back there. >> this is a question for all of the panelists. i believe one of you said that one of the problems is shifting from a fee-for-service based system to a value based payments system where doctors get paid on the quality of their care. and also, quality care reporting. those two things are causing 50% of the doctors for -- to be forced out of the work force. i would like to know how the figures in, and why a value-

based system is not as beneficial as a fee-for-service based system. >> we might have some debate on that subject appear. -- up here. >> we have all these wonderful terms. of course, we want a value-based system. but the way they have structured this -- one example is the account will care organizations, basically hmo's the people rebelled against in the 1990's. doctors and other health care providers are incentivize to provide less care to increase their profits. and it is not transparent. oftentimes, seniors will not even know they are being enrolled in plans in which their doctors have those provisions. doctors do not want to be compromised in that position. of course what value-based payment systems, but we do not want them as they are defined in this orwellian help law because

it will give doctors an incentive to say, you know, let's just put this off. that may be fine, except the doctor could still get sued. if the patient thinks they needed that service. we are not making fundamental, underlying changes in the system. it is an incentive for transparency and it would engage patience as partners in getting the best -- the best value for their health care. instead, we are going to tried this with more and more rules and regulations and bureaucracy, which will not work. >> i think the answer to your question is, and defines what value is? is it going to be you work is going to be the government? and there are all sorts of ways of defining value, defining quality. some people like to be able to choose their doctor. that is one dimension of quality. other people like being able to e-mail their doctor. that is more important than choosing their darker. some people value highly getting all of the medical care that can

possibly help them. other people are worried about avoiding medical care that is unnecessary. the question is, who will make those trade-offs for you? medicare is making those decisions for you if you're a senior citizen on medicare. and they are very far on the side of -- err very far on a set of giving a lot of doctors from which to choose. but they also could expose you to a lot of harmful medical care. e-mail may not be as high a priority for senior citizens as it is for the intergenerational. under the value-based persian same -- purchasing in the obama health law, the government will be making those decisions for more than just seniors. if you want to know what kind of job the government is going to do, look at the medical error rates we have seen in the u.s. research shows that one-third of medicare expenditures are wasteful. in other words, we are exposing

seniors to lot of medical care that is not helping them at all. do you want the government to make the decision for you? if you get to make those decisions, then i get to have the kind of health plan i want. and competition happens between all of these health plans and forces the others to improve when they are weak. that you did not get when the government is making the decision for you. >> i would add one sentenced to death. if you are controlling your own health dollars galaviz patient- -- sentenced to add to that. if your control your own health dollars, all of these patient- centered programs will appear. >> i think we would all agree that fee-for-service medicine over incentivizes the provision of treatment. doctors will give you lots of input. and the opposite effect, if you get people sicker, you get more money because you can treat them

again. on the other hand, the hmo model incentivizes under treatment because the doctor will get the same amount of matter how much he provides for you. there is no incentive for him to go the extra mile and do the extra thing. you want both out there in the marketplace competing with each other, not trying to impose one single model from washington. blue shirt right in the middle there. we have plenty of time for questions, please do not worry. >> it was pointed out how states could strike large parts of the law by refusing to sign up for the exchanges.

but the insurance regulations part, the community environment, the individual mandate will not be stopped by that. they can still effectively destroy the insurance. my question is, is there any realistic way to stop that? if obama gets reelected as president, perhaps the republicans can take control of the house, but not the majority. is there any other realistic way to stop this? orix is a good question and a very grave concern. -- >> it is a good question and a very great concern. remember, health insurance controls under a bomb, we call the pre-existing conditions, those are the provisions that cause the insurance to collapse in 17 states.

and in a further 18 states, to collapse slowly. that is the potential of what could happen when those price controls are applied on the entire market in 2014. the case is made that we will still see a lot of adverse selection, even with the individual mandate in place. it is designed to force the good risks to pay the inflated premiums that those price controls forced upon them. if people declined to purchase health insurance, pay the penalty, and wait until they're sick to buy coverage, they can save up to $3,000 per year, and up to $8,000 if they are a family of four. even with the penalties in place, it makes sense for people to opt out of the market.

with those changes and subsidies in the market, the the -- does it make sense? it is the health insurance price controls better leading to adverse selection. with those tax subjects -- tax subsidies, would they be able to mitigate adverse selection? perhaps not. but even with those tax credits in place, i think the financial incentives are such that the market is going to collapse. all we are deciding is how quickly that is going to happen. but if that happens, it states refuse to create exchanges, then you have ever won doing that and everyone will see the writing on the wall. -- everyone is doing that and everyone will see the writing on the wall.

the insurers pulled out of the market before they had to comply with those provisions. they will know this is going to happen in the market -- in the broader market before it even happens. it forces congress to reopen the law before anyone gets hurt. before the law creates these incentives for an insurance company to become the worst at providing care to the sick because if they become the best at providing care to the sick, they attract all of the sick people who caused hundreds of thousands of dollars, but they can only charge them a $10,000 premium, and then they got of business. now you ask the question of whether president obama is still the president. i leave that up to him, what he is going to do, if his lot is going to cause health insurance

markets to collapse. what is he going to do? is he going to let that happen? and into that vacuum create a single-payer system. i do not think he will. i think that faced with hundreds -- 100 million americans facing this prospect, i do not think that he would just let that money go without health insurance. he certainly has some tolerance for three people out of their health plans, but i do not think it is that high. >> one comment about the actual decision from justice roberts, it was astonishing to me that he said that deciding that the mandate of not helping -- not purchasing health insurance as a tax, he said it was a neutral choice. people have a choice between purchasing health insurance or pay tax. he said this is not of a penalty.

there is no value judgment here. it is a simple putting it on the scales and making a decision. what are people going to do? they will say, well, it's is a completely neutral decision, i will pay the tax, especially because i know that health insurance company has teselle made policy no matter when i applied that others have been paying all along. the chief justice said this is a neutral choice. >> are you german or french? i cannot tell from your accent. maybe alsatian? >> israeli. >> with the eurozone crisis, nobody wants to let the greeks go. they want to preserve the euro. that is what is going to happen if the president is reelected. they will not get rid of the law because they're worried

about the private insurance market getting in the way. they will triple the fines associated with not buying insurance, or multiplied by five. it will increase the fines, our ongoing roll you in a government approved insurance plan. they will not unravel their prized legator architecture does because a few companies go bankrupt, not in the least. the only way to get rid of this law if you really want it to go away is to elect a republican president and a republican senate. sorry. >> i was going to ask about forcing doctors to do things i remember as a kid and my parents had no insurance when i got sick. can you explain how they came about that paying for health

care became different than any other service or commodity in our country? >> world war ii price controls. michael tanner has a chapter in a book wrote called "and powering consumers through tax reform." it is a history that protect people from the full cost of health insurance through the consumption of health care. its story will ii and perpetuated to this day. it is the foundation for the employer-based health insurance system and our country and has become after several generations basically assume that someone else pays for your health care. jane sterling has done studies showing how much that delusion has cost us. he has concluded that the cost of the income we lose because our employer is taking part of our pay to purchase our health insurance, the part of the premiums we pay in addition to

that, the taxes we pay, and are out of pocket costs, the average american family pays $25,000 per year for the illusion that we get free health care. >> essentially, there is a reason for insurance, to protect you against large-scale catastrophic costs. if you have a heart attack or cancer crop -- or cancer, it will pay the doctor or the hospital. it is just like life insurance or any other insurance that protects you against a certain risk. the question comes when you are just prepaying routine costs up front. then you are just paying the insurance company profits for doing it. >> i am a retired army physician. i'm curious about the

discussion, but the proposal that you have and also your adversary from the left, what will happen to the military system, which includes the v.a. system? >> i am glad you brought this up because it is little appreciated that one of the fastest-growing items in the defense budget is actually health care. it is not just the veterans administration budget, which is separate from the defense department, but defense department of spending, both of which are going up considerably. they are separate systems from the conventional health care system and they do not attract as much attention. there have been many complaints from people who have come back from iraq and afghanistan that the plans they are on are inadequate for their needs, or

because they have served in the military and the promises being made to them when they enter the military are not being met. i think there's a lot that can be done to integrate the lead to -- the military and the v.a. health systems into the rest of the health-care system. in the era of world war ii, when we did not have the architecture broadly that we do today, it makes sense to be in the v.a. hospitals that are more specialized. i think it makes more sense to say that if you are a veteran, it will give you a more generous amount of money to buy your own health insurance plan. if we do that, not only will we give people more freedom and more choice, nicolasa create more competition among health- care providers. people like to blame the insurance companies because

health care is so is this -- is so expensive. the insurance company is just the men signature. the reason insurance is so expensive because -- is just the messenger. the reason insurance is so expensive is because of what hospitals charge. if the va said we can provide more efficient care, you have the price competition and the quality competition that would benefit both sides of the equation. >> my name is jim delong. my current identity is the author of a book on where we do not have a welfare state, but a special interest day. where are the corporate players? where are the hospitals, the doctors, the insurance companies, the form of that we have all read about recently? -- the pharma that we have all

read about recently? how will they all be put dissipating in the next few months? >> they have been conspicuously silent, haven't they? they are keeping their are dry. pardon? >> [inaudible] >> there has been a lot of action by the insurance industry. there was fear that their business model would just collapse. they're preparing the ground for a big assault on a pre-existing provision at least. if the supreme court had done the right thing and struck down the individual mandate -- it did not, but i expect that these dates will block the insurance subsidies and tax credits. states will block exchanges and therefore denied a federal permit the statutory authority to issue those tax credits and

cost sharing subsidies. again, they are talked -- we are talking about hundreds of billions of dollars that go to private insurance companies. i think they will activate the way they plan to in case the supreme court struck down the individual mandate. they will put pressure on congress to reopen the law. and they may not want to reopen the entire law. they may want congress to spend more money on them. they may want congress to increase the penalties under the individual mandate, which is the one complaint they had about the regulatory part of this law. they complain the individual penalties or taxes or whatever were not hire enough. -- not high enough. but they will take this complaint to a congress that at least one party is in control of a chamber where it will be struck down in the law. the republicans will go further

than the insurance companies would want. >> one thing in this rift is you have barack obama standing for the people on the one side and all of these big bad industry folks, the insurance companies that we hate, and big pharma and doctors and insurance companies on the other side fighting him. they were all on the one side cutting a deal and the american people were on the other side. >> a lot of industry stakeholders do not favor freemarket reforms for this simple reason, we spend more per capita by far than any other country, both public spending and private sector spending. if there is a market-oriented system that encourages individuals to allocate their money more efficiently, a lot less of that will go to health care come qed. >> just an interesting factoid,

all of the six major pharmaceutical companies that route the negotiating table at these backroom negotiations that -- that were at the negotiating table at these backroom negotiations that took place in preparation for obamacare, in the case of every one of the six companies, the ceo is a retired, departed, were left under up some of their circumstances. as well as farm -- pharma. you have a whole different team of people that will be negotiating the next phase that are not as invested as the folks that made the deal to the first place. it is very interesting to see how many folks have left. >> one in the back there, and that will take you two, and then the last one there. >> my name is peter. i am the health counselor [unintelligible]

i would appreciate it if mr. roy could elaborate a little bit on governor romney's ideas on health care being repealed in this administration. >> as i said in my formal remarks, if you can call them that, the main theme is to give individuals and localities more control over their own health dollars. i will divide it up into the -- into four parts. with medicare, the goal is to do something similar in character to the widen/ryan plan, which you may be familiar with. it gives a choice to traditional plans, and employer based insurance for which they would compete. they will say, we will cover a set of benefits for this prize.

there will be an index, so maybe the average price would be tabulated. if you purchase a plan lower than the average price, you would save money. if you purchase a plan over the average, you spend a little bit more money. but that would help the market be more cost-efficient. with medicaid, the idea is to block grant that to the states. this is a very successful approach that we used with welfare in 1996 that has been hailed by both sides as a tremendous success. right now, though program is micromanaged out of washington, but sort of managed by the states. and right now, washington prevents the states from enacting some reforms that would allow them to allocate their dollars more wisely. one example, in illinois, a state run by democrats, ill. under a huge budget crunch right now. as part of that budget crunch,

they were trying to reform the medicaid program because it is the number-one item in their budget. right now in illinois, you cannot check and medicaid applicants residency status, or income status. if they submit a piece of paper to you saying that they have a certain income was one pace of, and of course, those can go up and down -- one pay stub, and of course, those can go up and down they said, you have to submit utility bills and more paychecks so we can get an idea of your income over time. that has now been blocked and made illegal under the affordable care act. these are the kinds of things that block granting would get rid of. states would be able to run their programs more efficiently. and in the private market, to eliminate the tax discrimination in the tax code right now. right now, because of the wage

controls that we talked about earlier, if you get insurance through your employer, you do not pay taxes. if you buy insurance for yourself, you are doing it after you have already paid your income tax and medicare tax and social security. that makes insurance that people do not buy through their jobs very expensive. you want to change us about the tax break is equal for people who get it through their employer and for people who do not have that opportunity. then you can buy your own plan and keep it when you change jobs. or if you are freelancing, etc. and making sure the fda is doing a better job of getting innovations to market. that is part of what the american system does well. and that is what the left wing completely ignores, the role of innovation in the betterment of everyone. >> when i hear governor romney talk about health care, i would

describe my attitude as skeptical. now when i hear of it speak about health care. -- not to when i hear ovix speak about health care. the one thing that concerns me about what governor romney would do, he talks about repealing obamacare. but he says included in giving states waivers for obamacare. i do not think he can give states waivers for obamacare in the way that most people understand that. the president does not have that power. i get concerned because i think what he might mean is that he would give states waivers like what he got from the bush administration when he put romneycare into place in 2006, which was the model for obamacare. when i hear that from the governor and from the iran a camp, i get concerned -- from

the romney camp, i get concerned. it makes you wonder whether he really understands the danger that obamacare poses. >> i am concerned as well. look at the things i have talked about. half a trillion dollars in new taxes and half a trillion dollars in medicare tax cuts. the employer mandate, the exchanges. he cannot waive those any more than the president can decide that he will ignore immigration law that the congress has passed. i am very concerned that he is saying he can sort of make -- wave a magic wand when you have the statutory changes to make the changes that he wants. >> the governor's point about the waivers is, first, there is no democratic senate. the one thing that he can do as

president without the incentive of congress is to do as much as possible to liberate states from what the new affordable care act imposes upon them. he has stated explicitly over and over again he will assign a repeal deal -- repeal bill as soon as one is put on his desperate -- put on his desk. in my capacity as a forbes blogger arar de peace about whether there is a chance of -- i wrote a piece about whether there is a chance of repeal if governor romney is in charge i have others -- is in charge. i have had people ask me how i could write that. i said, what about reconciliation? is he in favor of repealing it

by reconciliation? one of the things they told me is that they do not know if they will have 60 votes in the senate. and the policy advisor said, we do not know if we can repeal obamacare rohrer -- through -- repeal obamacare true reconciliation. the next day, governor romney said he would not repeal obamacare by reconciliation. i am 100% convinced that the governor is committed to repealing obamacare, but we have to do the hard work of giving him a republican senate. >> i am not convinced. and i'm not dumping on governor romney, because the president has certainly been very duplicitous about the individual mandates. it was a tax and that it was not a tax.

if governor romney said his first act as president would be to rescind the irs ruled that tries to rewrite the obama health spa by issuing -- the obama health law by issuing those tax credits and subsidies in exchange where they are not authorized and there by taxing employers who would otherwise be exempt, -- the irs essentially issued a rule that without congressional authority, employers could spend hundreds of millions of dollars without congressional authority and all to save these at created exchanges. >> the campaign is well aware of your excellent work in this area. [laughter] let me recap and say that would be an impressive signal that the governor is really committed to getting rid of this law. >> we will let the three of you ask her questions and then we

will let the folks up here answer them and then i'm afraid that we will be cut off on the feed. >> michael william, disappointed libertarian. [laughter] ollanta go off of what you said about the illinois. i recently -- i want to go off of what he said about illinois. i recently worked on a project and at the end of it we had one in five illinois on medicaid down from one in eight. if this works, we will have one in three. how do we convince the governor, short of a mandate from the president, to not go ahead with the full medicaid expansion, and to add into that an exchange? >> let's go on with the next question and then we will answer them all. >> could you give us insight

from the practitioners standpoint what you think the impact is on what the health care supply will be? >> and the last one right there. the legs i am a theater critic for the d.c. theater scene. -- >> i am a theater critic for the seat -- the d.c. theater scene. i want to know what the independent payment advisory board is. i hear about it. these unelected officials have unfettered power, but they can submit the proposals and they can automatically become law even if the congress does not vote to support it. i understand that part, but what is it, and why is it, and what can it do that is so nefarious? >> i will let each of you answer one question. if you will take the first one. you can take medicaid. and then we can finish up. >> it is one of the 159 new

boards and agencies in the law. there is a great sense in congress that is just too hard for them to figure of medicaid payments. and they needed to create a board that is sort of like the base closure board that was apart from politics and was able to look at the data and decide what needs to be done to get costs down. they have not yet been appointed. one of the reason senator mcconnell is keeping the senate in session over the recesses is in order to keep the president from making recess appointments. but even if they do not appoint the board, the secretary of health and human services is sort of the defrock the cider.

and how payments can be reduced in order to reach certain quotas in medicare. one of the things people do not realize is that obamacare puts medicare on a global budget, which is what european countries have. somebody has to enforce that. and these independent, and elected officials have the power to decide what needs to be cut from -- not elected officials have the power to decide what needs to be cut from those financial trigger point. it is difficult for congress to override it, and there is no judicial review. that is one of the reasons the goldwater institute is suing because you've got people now who will have the authority over hundreds of billions of dollars in medicare spending who are not elected by the people. that is not constitutional. >> [inaudible] could not getting shingles vaccination. >> they cannot deny any

particular type of care. they could reimburse them for it. >> the president has really double down on that, and he wants to reduce further the ability for the sport to reduce payments to doctors, hospitals, drug companies, and others in the health spectrum. >> and to answer the gentleman's question, this is a world that providers will live under its obama health what stays on the books. it is a super legislature. it is a group of up to 15 not elected to government officials, who will be able to cut or change medicare, medicaid, and even health -- private health payments. compan it will be able to ration care. they will be able to raise taxes if they want you. there are prohibitions in the statute that may reinforce

things that are not meaningful. they will be required to enact these ipad proposals. there are proposals, but laws. and the kicker is, if the president does not appoint anyone to the board, or if the board does not come up with a proposal itself, all of these powers default to the secretary of health services, who can then execute her own laws, laws that she has written. this is the road to serfdom playing out before our eyes. it is a threat to not just freedom, but to democracy. the legislature and congress is not doing very good job of planning health care. and all its efforts in medicare seem incompetent. people complain that politics is growing more corrupt and we need a panel of experts.

and when that does not work, we need an economic dictator. that is what is happening with ipad. >> and lastly, medicaid. >> let me stella -- tell you a story of a 12-year-old boy who grew up not far from here in prince george's county. dear dontae was a seventh grader -- he was a seventh grader and lived on the wrong side of the tracks. he had the usual problems that those kids do. he was homeless from time to time. he grew up without a father. he was on medicaid. his mother found out one day that he was complaining of toothaches. she tried to get him a disappointment. but she could not find a dentist who would take him because medicaid, in order to cover as many people in the cheapest possible way, pays physicians 58% on average, and in some cases, much, much less than what they would get from a private

insurer. a lot of doctors do not take medicaid. you have this card that says you have insurance, but you cannot actually get an appointment with the doctor. after a while, she finally managed to get a dentist who would see him. he had six abscessed teeth. he needed to go to a surgeon to get these teeth pulled out. it was another two months for him to see a surgeon. it turned out the assets by that point had spread to his brain. so he had to go to a neurosurgeon to get the infection taken out of his brain. that took another month. by the time he was ready to have the appointment for the surgery he died. this is a 12-year-old boy, poor, homeless, who died not because he was uninsured, but because he was insured by the government. i bring this up to say, you will

convince conservatives, of course, not to expand medicaid because it bust the budget, or because they have an ideological problem with government run programs. but the way he will convince americans is to explain to them the health outcomes of four people on medicaid are in many cases worse than those who do not have insurance at all, and far worse than those with private insurance. the real problem and the way to address the problems with the corps is to redirect medicaid dollars so that they have access to high-quality private insurance. health insurance is not the same as health care. if we are concerned about the poor, then we do is to get them out of the medicaid track and get them access to health care -- better health care. >> thank you all very much. and thank you to our panel.

[applause] [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2012] >> thank you all for coming into this nice school auditorium out of the heat. we have a reception outside. thank you very much.

>> sopa and pipa are dead. there was a lot of controversy about those deals.

they are not coming back this year, or any year, for that matter. >> a discussion of prospects on anti- piracy legislation and a member of other telecommunications issues. that is tonight on the communicators on c-span2. >> with congress ought in recess this week, we are featuring programs on the tv. tonight, the impossible stake, which examines the family of kim jong ilia of north korea. and then exxonmobil, the largest and most powerful private corporation in the u.s., and the book, private empire. and finally, a talk with wall street journal international editor, matt murray, and his book that won the nobel peace prize. but tv in prime time all this week at 8:00 p.m. eastern on c-

span2. earlier today, the justice department announced a health care settlement with glaxosmithkline totaling $3 billion. it is the largest of its kind and settles multiple criminal and civil investigations involving drugs. here is more about that with attorney general james cole. it is half an hour. >> good morning. we are here today to discuss the latest development in the administration's continuing fight against health care fraud. first, it is my privilege to introduce people. i am joined by the deputy secretary of the department of health and human services, the acting assistant to the attorney general for the civil division, the inspector general for the department of health and human

services, the united states attorney for the district of massachusetts, the deputy commissioner for global regulatory operations and policy at the food and drug administration, the u.s. attorney for the district of colorado, and the acting executive assistant director for the fbi. it is quite a group up here today. today, i am pleased to announce that the justice department and our law enforcement partners have reached an historic $3 billion resolution with the pharmaceutical manufacturer nicolasa -- glaxosmithkline llc, and this is to resolve multiple investigations into the company's sales and marketing practices. this constitutes the largest health care settlement in united states history and underscores our robust commitment to protecting the american people from the scourge of health care

fraud, and it provides the effectiveness of strong relationships that we have forged with our partners to ensure the health and safety of the american people and to safeguard the integrity of the health care system. under the agreement announced today, gsk will plead guilty to criminal charges and pay $1 billion fine for illegal forfeiture for marketing the drugs will be tran and taxol for uses not approved by the fda. this includes the spreading to children as well as adults for ailments including anxiety as well as adhd. and it will be provide a report about the drug avandia to the fda. and it will pay an additional $2 billion to resolve civil allegations that caused false claims to be submitted to the

federal health-care programs for these and other drugs as a result of the company's illegal promotional practices and payments to physicians. the settlement also resolves the civil investigation of the company's alleged it rebates required under the rebate program. today's multibillion-dollar settlement is unprecedented in both scope and size. it underscores this administration's firm commitment to protecting the american people, and hold accountable those who commit health care fraud. every level, we are determined to stop practices that jeopardize patient health, harm taxpayers, and violate the public trust. this historic action is a clear warning to any company that chooses to break the law. since may of 2009, when attorney general eric holder and hhs secretary kathleen sebelius

announced the creation of prevention and enforcement team , this cabinet has been a level prior reported. over the past three years, the justice department has recovered a total of more than $10.2 billion in settlements, judgments, fines, restitutions, and forfeiture in health care fraud matters. and our medicare strike forces have brought criminal charges against more than 800 defendants seeking to defraud medicare. these results and a groundbreaking resolutions we announced today are extraordinary. they have been made possible through seamless coordination between state and agency partners both here in washington and throughout the country. and they demonstrate the fierce determination shared by every official, attorney, an investigator who has contributed to these efforts to be relentless in pursuit of be relentless in pursuit of those who break the