they get sick? the american people are smarter than that. they know the deal. they do not wish to be taken down this primrose path for the 31st time. the american people want stability in their lives, security for their families and safety in their communities. americans want us to stop jerking them around. they cannot have stability in their lives when we are shipping american jobs overseas. they cannot have security in their homes when they are fearful of getting sick. they cannot have s wn their teachers, policemen and firefighters are being laid off while we engage in symbolic episodes. i ask my colleagues to reject this charade and let's vote to restore the american dream. i yield back. the speaker pro tempore: the majority leader, the gentleman

from virginia. mr. cantor: madam speaker, i now yield 1 1/2 minutes to the gentleman from south carolina, mr. scott. the speaker pro tempore: the gentleman from south carolina is recognized for 1 1/2 minutes. mr. scott: thank you, madam speaker. why are we here? we keep hearing that from our friends on the right, why are we here again today? and the reality of it is simple. the numbers keep changing and it simply does not add up. a long time ago in 2010, a long time ago, the estimates were $900 billion will be the cost of obamacare. two years later, now the estimate is at nearly $2 trillion. well, how do we fund this? everybody wants to know this. a program that is already financially strapped, medicare, obamacare takes $500 billion, $500 billion out of medicare. what does that mean? well, to me as a grandson of a

grandfather who's 92 years old, 92 years old, what happens when we take $500 billion out of medicare? well, the answer's clear. there's a 15-member board called ipab, the independent payment advisory board, that will then recommend cuts to medicare payments for doctors, hospitals and other providers. in other words, my grandfather's health may be in the hands of a 15-member autonomous board who will decide what happens to his health. that's wrong. if you look in obamacare, what you'll find is $317 billion of new taxes of a 3.8% tax on dividends, capital gains and other income, you'll find $110 billion on the middle class, for folks who like their health care and want to keep it, oh,

no, no, no. they can't keep it. and then you find another $101 billion -- mr. cantor: madam speaker, i yield an additional 30 seconds. the speaker pro tempore: without objection. mr. scott: another $101 billion, annual tax on health insurance providers, not paid for by those folks who make more than $00,000, but paid for by the -- $200,000, but paid for by the everyday working folks like my granddaddy and mama. who struggle to make ends meet. if you need a medical device, another $29 billion of new taxes. there is just not enough time, mr. leader, to talk about all the taxes that can't be articulated in just two minutes. the speaker pro tempore: the gentleman from connecticut. mr. larson: thank you, madam speaker. i yield myself before i defer to the vice chair of the caucus just 30 seconds to respond

here, as mr. andrews has very patiently and eloquently pointed out, that the $500 billion that was just discussed by the previous speaker is something that the republicans have voted on twice. perhaps they didn't get a chance to read that bill as they sometimes claim about health care on this side. with that i defer to the vice chair of the democratic caucus, javier becerra. the speaker pro tempore: the gentleman from california is recognized for how long? mr. larson: two minutes. the speaker pro tempore: the gentleman is recognized for two minutes. mr. becerra: i thank the gentleman for yielding the time. it took 19 presidents and 100 years dating back to president teddy roosevelt to open the door to all americans to quality health care that is centered on the patient-doctor relationship. 105 million americans who will fall ill no longer will have a lifetime limit on the coverage they receive from their health insurance company. up to 17 million children today

who have pre-existing conditions cannot be denied coverage by an insurance company. 6 1/2 million young adults under the age of 26 today can stay on the health care policy of their parents. 5 1/2 million seniors today receive an average of $600 to help cover the cost of their prescription drugs when they fall into the so-called doughnut hole. 360,000 small businesses in america, men and women who own their own business, got assistance through a tax credit to help provide health insurance coverage to their employees. 13 million americans will benefit in insurance premium rebates from insurance companies who must now show that they're spending the premium money they get from those americans for health care, not on paying c.e.o. salaries or not on profits. $1.1 billion in rebates for 13 million americans. and perhaps the most important thing that most americans don't recognize, the $1,000 that

those of us who do have health insurance throughout america that we pay in premiums to our insurance companies to cover care that -- not for us and our families -- but for those who don't have insurance, the free riders, that will start to drop. those are the things that are at stake. yet, while it took 100 years to get to this point, it has taken our republican colleagues a year and a half to vote over 30 times to try to repeal these patient rights and protections. patient's rights and protections president obama promised, this house delivered and the supreme court confirmed. my colleagues say to repeal and replace this patient's rights and protections is the right way to go, but the only thing we have seen on this floor is all repeal and no replace. it's time for this congress to get to work on the most important thing before us, getting americans back to work. let us vote this down and get to work. i yield back. the speaker pro tempore: the gentleman's time has expired. the gentleman from virginia. mr. cantor: madam speaker, i now yield a minute and a half to the gentlewoman from

washington, the republican conference vice chair, mrs. mcmorris rodgers. the speaker pro tempore: the gentlewoman from washington is recognized for 1 1/2 minutes. mrs. mcmorris rodgers: i thank the leader for yielding. i rise in support of this legislation today, to repeal obamacare, because the control of health care and health care decisions belong in the hands of patients and families and their doctors. obamacare was a big government takeover of one of the most personal aspects in our lives. and i come to this debate as a mom, as a wife. i have two children, one that was born with special needs, and i understand firsthand talking to so many within the disabilities community and i hear their fear, their fear of not being able to find the doctors, not being able to find the therapists within the medicaid programs, within tricare because of the government -- these are government programs that are too often making false promises. i think about my parents who are signing up for medicare and over $500 billion in cuts to

the medicare program. and in eastern washington, it is very difficult to find a doctor right now who will take a new medicare patient. because of obamacare, my family, like millions all across this country, are facing longer lines, fewer doctors and lower quality of care. we can and we must do better. if we don't repeal this law, the results are going to be disastrous. c.b.o., the congressional budget office, has already estimated 20 million americans will lose their employer-provided health insurance. health care premiums continue to soar. innovation and life-saving technology and devices are being threatened. the first step to putting individuals and families back in charge of their health care is to repeal obamacare and i urge support. the speaker pro tempore: the gentlewoman's time has expired. the gentleman from connecticut. mr. larson: it gives me great honor to introduce the dean of the connecticut delegation and

a voice for compassion, who believes passionately about this health care law that's in effect for the american people, rosa delauro from connecticut, i yield a minute. the speaker pro tempore: the gentlewoman from connecticut is recognized for one minute. ms. delauro: what will happen if the house majority skeds in repealing the -- succeeds in repealing the affordable care act? 16 million children will once again be denied coverage. 6.6 young adults under 26 will no longer be covered by their parent's insurance plan. insurers will be allowed to discriminate against women again, charge them more, deny them coverage because they had a see syrian section, leaving maternity and peed at rick care out of -- pediatric care out of their policy. 360,000 small businesses will lose tax credits. americans will have to pay out of pocket for preventive services like cancer screenings and wellness exams. preventive services that could have saved the life of syria, a 50-year-old east haven woman

who died from breast cancer because she simply could not afford a mammogram. and 30,000 americans will lose their health insurance and be left to their fate, while every single republican in this house will maintain their health care coverage. . repealing is wrong. it was wrong the first time. it is wrong the 31st time. welcome to "grouped hog day" in the house of representatives. -- "groundhog day" in the house of representatives. this majority needs to start working to make our economy healthy. i yield back. the speaker pro tempore: the gentleman from virginia. mr. cantor: i now yield a minute and a half to the gentleman from georgia, the republican policy committee chairman, dr. price. the speaker pro tempore: the gentleman from georgia is recognized for 1 1/2 minutes. mr. price: i thank the leader. as a physician one of the tenets of medicine is first do no harm. sadly the president's law does real harm. the supreme court has said the law is constitutional.

that doesn't make it good policy. it harms all of the principles that americans hold dear as it relates to health care. it increases cost, decreases accessibility, will hers quality, and limits choices. the wrong direction for our country. it harms patients, especially seniors, by removing $500 billion from medicare and having 15 unaccountable bureaucrats deny payment for health care services. decisions that should be made by pasheents and doctors, not government. it harms doctors. over 80% of whom in a recent poll said they would have to consider getting out of medicine because of this law. and it harms our economy, killing over 800,000 jobs and making it more difficult for small businesses, the job creation engine of our nation, to create jobs. and it's that much more frustrating because it doesn't have to be this way. there are positive solutions that don't require putting washington in charge. there's a better way. the first step to that better way is to repeal this law so that we may work in a rational

and deliberative and yes, bipartisan process, for patient centered health care, where patient, families, and doctors make medical decisions, not washington. the president's law doesn't just harm the health of patients and seniors, it harms the health of our economy and nation. the first step to replace is to repeal. we can start today. the speaker pro tempore: the gentleman yields back. the gentleman from connecticut. mr. larsen: may i inquire how much time -- mr. lrson: may i inquire how much time? the speaker pro tempore: the gentleman from virginia has five minutes remaining. mr. larson: the gentleman from california is recognized for one minute. million miller: for the 3 st time this congress, the house republicans are trying to put insurance companies back in charge of america's health care. the house republicans are preoccupied with taking away the patient protections while they are keeping their own protections. i recreptly got a letter from a woman who lives in the fran san

francisco bay area. she told me how vital this law s her husband is self-employed. he has diabetes, and thanks to the affordable care act the husband will fenally have access to qult affordable coverage. -- quality affordable cofrpbl. thanks to this law insurance companies won't be allowed to deny her coverage. and annie's son, a 25-year-old, thanks to this law is able to get on his mother's health care plan and save the family money. today the republicans want to take that away. they want to takeway these protections and benefits these american families haven't had in the past. today the republicans in the congress want to put the insurance companies back in the business. the same insurance companies that took away your policy, where your child was born with a disability. the same insurance company that didn't allow to you have cancer surgery because had you a lifetime limit or pre-existing condition. the same insurance company that decided that your children would be kicked off their policies when you're 18. i don't think we should go there, america, but that's what

repeal brings you. that's what the republican plan is to give it all back to the i shurens company after 00 years of struggling to take it away -- insurance company after 100 years of struggling to take it away. the speaker pro tempore: the gentleman's time has expired. the gentleman from virginia. mr. cantor: madam speaker, i now yield three minutes to the majority whip, gentleman from california, mr. mccarthy. the speaker pro tempore: the gentleman from california is recognized for three minutes. mr. mccarthy: thank you, madam speaker. thank you to our respected leader for yielding. from the moment obamacare was introduced, house republicans and the american people have expressed concerns about the quality, the cost, and the effect it would have on our jobs. we are here today because the supreme court ruling made one thing clear. it's up to congress to do the repeal. the devastating tax increase and what it would affect upon our

economy. obamacare stands today because the supreme court said it's constitutional as a tax. the chief justice stated in his opinion, members of this court are vested with the authority to interpret the law. we possess neither the expertise nor the prerogative to make policy judgments. those decisions are entrusted to our nation's elected leaders who can be thrown out of office if the people disagree with them. it is not our job to protect the people from the consequences of the political choices. but it is our job. unfortunately we have learned over the past two years this law has proven to be bad policy. you know what's more important? it's filled with broken promises. we all remember president obama's first promise, if you like the health care you have today, you can keep it. that's not true.

80% of those in small employer plan risk even keeping what they have today. the president also promised the law would bring down premiums by $2,500. but that's not true, either. because it's already been increased $1,200. c.b.o. says it will even rise higher. president obama did promise as i sat right here and listened to him, he would not add one dime to the deficit. you know what? that's not true, either. it's going to add billions of dollars. president obama promised he would not raise taxes on those making less than $250,000. turns out obamacare includes 21 new taxes, 12 of them on the middle class. promises made, promises broken. there was another president from illinois who was quoted as saying, as our case is new, so

we must think anew and act anew. we must disenthrall ourselves and then we shall save our country. now is the time to listen to the american people. now is the time to put the patient first for they are empowered. now is the time to repeal and begin to bring this country back together with a quality of health care, where the patient has the choice, not the government. i yield back. the speaker pro tempore: the gentleman yields back. the gentleman from connecticut. mr. larson: thank you, madam speaker. i yield myself 15 seconds as we ask the dean of the delegation to step forward and just say that aside from the platitudes that we have heard today as been expressed by many on our side and so many elements of debate we have heard, we continue to see no plan from the other side but a persistence endeavor to repeal a plan that would cost more than $100 billion for the taxpayers. recognize the dean of the house

of representatives, the gentleman from michigan, john dingell. mr. dingell: i thank my good friend. the speaker pro tempore: will the gentleman suspend just for a moment, please. the gentleman from michigan is recognized for one minute. mr. dingell: i ask unanimous consent to revise and extend my remarks. the speaker pro tempore: without objection. mr. dingell: this is a gavel i used when i pre the speaker pro tempore: sided over the passage of medicare. and when i presided over the passage of legislation called a.c.a. this legislation takes care of the american people. i'm willing to say to my republican colleagues they can use it for a good cause. what is important here, you are going to lose the debate because the american people know what you're trying to take away from them. this is the 31st time we voted on this and it isn't a law. we have 44 days left to finish the business of this congress and interestingly enough we are not going to deal with important

questions like jobs, employment, the economy. the worst economy that the president inherited since the days of herbert hoover. the american people wonder why this congress has not been doing it. the reason is the republicans have been wasting the public's time. in those 44 days they are not going to be able to do the nation's business. unemployment -- unemployed will continue to be unemployed. i'll loan you the gavel if you promise to use it for something good. it's a fine piece of good and its tasks in terms of dealing with the public's concerns are not yet done. having said these things, i say shame. you are wasting the time of the american people. you are wasting the time of the congress. where is the replacement? it is not to be seen. where are the steps that you should be taking about jobs?

they are not to be seen. you have the gavel. use it. use the leadership the people have given you to lead the congress of the united states. the democrats will work with you. but you won't work with us and you won't work for the american people. the time of dealing with the business of this nation is short. the speaker pro tempore: the gentleman's time has expired. mr. dingell: nowhere are we seeing anything, my republican colleagues -- the speaker pro tempore: the gentleman's time has expired. million dingell: i say have a -- mr. dingell: i say have a more enlightened outlook. the speaker pro tempore: the gentleman's time has expired. the gentleman from virginia. mr. cantor: madam speaker, i'm prepared to close and reserve the balance of my time. the speaker pro tempore: the gentleman from connecticut. the gentleman from connecticut has two minutes remain maining. -- remaining. mr. larson: thank you, madam speaker.

madam speaker, i want to compliment both sides for the quality of debate that has occurred on this floor over the last couple of days. today we are here for the 31st time to act on repealing the affordable health care act. i give my colleagues credit for their persistence, but i'm deeply troubled by the obstinance and the obstruction that they have demonstrated in an almost indifference to the needs of american families. most importantly the simple dignity that comes from a job that more than 14 million of our americans are being denied. and we can't in this great civil body bring forward the president's bill that will create jobs. one of the people in my district

said, do you not understand that you have plunged us into the dark abyss of uncertainty? the only thing that creates and corrects that situation is the simple dignity that comes from a job. yet today we spend our time on the floor talking about something where we should be working together. where members on our side of the aisle who would have preferred medicare for everyone, the majority of our caucus would have been there, and yet embrace the compromise that extoled the virtues of the romney plan in massachusetts, but there is no room for compromise on the other side of the aisle. so we can only surmise this, that you would rather see the

president fail than the american people succeed. person after person on both sides of the aisle have gotten up and talked about the need for us to come together. you embrace most everything that's in this plan but would rather see the president fail than the nation succeed. the speaker pro tempore: the gentleman's time has expired. the gentleman from virginia is recognized for two minutes. mr. cantor: madam speaker, i yield myself the balance of the time. the speaker pro tempore: the gentleman is recognized. mr. cantor: madam speaker, i introduced this legislation on behalf of my colleagues so that we may all be on record following the supreme court's decision in order to show that the house rejects obamacare. and that we are committed to taking this flawed law off the books. this is a law, madam speaker, that the american people did not want when it was passed and it remains the law that the

american people do not want now. first and foremost obamacare violates president obama's central promise to the american people, that if they like their current health coverage, they can keep it. . the jastvort of people like the coverage they have and they can keep it. now, thanks to this law, patients across the nation are losing access to the health care they like. millions stand to lose health care coverage from their employers because obamacare is driving up costs and effectively forcing employers to drop health care coverage. beyond that, obamacare takes away from patients the ability to make their own decisions and individual choices. instead of letting patients and families work with their doctors to decide the best care, obamacare puts washington

in the driver seat to make health care choices for them and their families. driving up costs and making health care draw matcally more -- dramatically more is not what americans asked for. madam speaker, we know in this tough economy we need to be doing able we can to help our small business men and women. they are struggling because of uncertainty and facing the pros pects of one of the largest tax hikes in history. obamacare increases that burden by adding new costs and more red tape. the new harsh reality is that creating new jobs and bringing on new employees may just be too expensive and too burdensome if this law is left to stand. the president said throughout the health care debate, as did

former speaker pelosi and my colleagues on the other side of the aisle that this health care law was not a tax. well, we now know that the supreme court has spoken. it is a tax. madam speaker, it's time to stop all the broken promises and give back to the kind -- get back to the kind of health care people in this country want. it cannot be overlooked that obamacare also has disast russ implications for the moral fabric -- disastrous implications for the moral fabric. this paves the way to funding of abortion. violating individuals' religious, ethic and moral beliefs. it is when president obama required employers to cover items and services with which they and perhaps their

employees fundamentally disagree. washington-base care is not the answer. there is a better way to go to improving the health care system in this country. the american people want patient-centered care that allows them to make the very personal decisions about health care with their families and their doctors. they want to keep the care they like. they want to see costs come down. and they want health care to be more accessible. that is the kind of health care we on the republican side of the aisle support and frankly the type of care that the vast majority of the american people support. madam speaker, we have said since day one that we must fully repeal this law. today we can start over and we can tell the american people we are on your side, that we care about your health care, we want

quality care and affordable >> by democrats and voted with republicans in supporting repeal of all. >> up next, at the heritage foundation a recently concluded supreme court term. the senate finance committee holds a hearing on how medicare phase -- pays physicians. >> are we approaching peak oil or a new era of oil abundance? tomorrow, the new america foundation considers that question as energy analyst, economists discuss it.

live coverage begins on c-span3. then the nomination hearing for steven crawford. >> when you think about cyber actors, let's put them in five groups. you have nation states, you have cyber criminals, you have hackers, and you have terrorists. not all those our nation states. when you think about one theory, you were not thinking about just nation on nation, you have other non nation state actors that you have to consider. in one of the attacks, you may not know who is doing it. who is attacking your systems? either way, the outcome could be the same. you lose the financial sector or the power grid, or your system's capability over time.

doesn't matter who did it, you still lose that. so you've got to come up with a defensive strategy that solves that. >> watch national security agency director general keith alexander discuss cyber threats on line at the c-span video library. >> u.s. solicitor general donald verilli discuss the ruling on health care and other major cases. previews of the cases coming up before the court in the next term. this is two hours. [applause] >> thank you ladies and gentlemen. i am joined in welcoming you to the heritage foundation and this annual event, looking at the most recent supreme court term. we have had over the last

several weeks and number of rather momentous decisions by the court and so we have the scholars in this panel and the writers in the next panel to analyze them and put them in perspective and give their opinions and analysis. we have as the scholars here, three excellent attorneys. people who have themselves participated in either actual appearances in advocacy before the supreme court or extensive writing about it. our first speaker who has requested to lead off is the honorable donald verrilli, jr., the solicitor general of the united states. we appreciate you being here. the solicitor general has held various offices within the department of justice. before that, he was in private

practice with a well-known law firm here in washington, d.c. he also has been active in pro bono work, helping to serve the community and has received several awards for that effort. in addition to all of this, he has been a commentator on the supreme court advocacy and graduated from yale university and has received his doctor jurors degree from columbia law school. he served there as editor in chief of the columbia law review and was later a clerk at the court of appeals for the d.c. circuit and for the honorable justice of the united states supreme court. our second speaker will be michael carvin. he also has extensive appellate experience. he served in the department of justice and handled a number of

cases there and now in private practice again, heading up the supreme court advocacy there. he was one of the lead lawyers in the famous case of bush against gore. he has been involved in a number of other major cases. our third speaker is professor richard epstein. he is a distinguished professor both at the university of chicago law school and also at new york university. he started his career in california at the university of southern california where he started teaching and is also a fellow of mine at stanford university. he is an extensive writer on legal subjects, having published many books and many more articles of the various sorts and specializes in his teaching in a variety of legal setbacks,

including constitutional law and legal history and law policy. we are pleased to have the speakers with us. please join me in welcoming the first speaker, the solicitor general of the united states. [applause] >> thank you. i will take a sip of water here. [laughter] having done that, thank you for that race is introduction. i am sure you all understand that because of my position, i will not be offering any personal views today about the courts' decisions or the term. i will stick closely to what the government said in its briefs and the argument. i will touch initially on three cases, the health-care cases, the arizona immigration case and united states and alvarez.

it is not clear how much i can add to what everybody already knows given the saturation coverage of the last couple of weeks in. i think it is safe to say everybody knows that the court upheld the affordable care act's minimum coverage provision and the insurance reforms which will make it affordable insurance coverage available to millions of people who cannot now obtain health insurance they need. everyone knows that the congress has the authority under the spending law to enact the medicaid expansion but the states could not be required to give up their existing medicaid funding as a condition of declining -- if it were to decline to participate in the medicaid expansion. i am sure that michael carvin and richard epstein will have

more to say about the decision. the bottom line is that the court held the act as a legitimate exercise of the federal government's constitutional authority. i would like to spend some time on the arizona case which was also quite a significant decision in. it had a couple of days in the sun but then was quickly obscured by the health-care decision. the provisions of the immigration law were pre-empted by federal law and declined to hold a fourth provision which required state officers to check the immigration status of anyone detained for other reasons which pre-empted. the three preempted provisions for section 3 of the law which made a state crime punishable by imprisonment to violate federal immigration registration requirements. section 5 which made it a state crime for unlawfully present --

to seek or obtain employment and section 6 unauthorized ever some officers to make warrantless arrest of those they believed had probable cause to be removed under federal immigration law. each state is not free to impose its own regime for deciding who may lawfully be in the state. i think that is best seen in section 3 of the law were the court held congress occupy the field regarding registration removal of aliens and that states cannot enforce their own sections even if the standards were identical to the federal standards. six of the eight justices participating in the case joined that bottom-line conclusion on section 3 of the law. section five is also significant. the court held that because

congress had stepped in and enacted a very significant set of standards to govern the sanctions for employment of unlawfully present aliens, that the state could not at sanctions on top of what congress did. you also have a section 6 of the law. i do think those rulings on section 3 are quite significant. the court did allow section 2 of the law to go into effect. that is the provision that requires officers check on the immigration status of persons lawfully detained for other reasons. unlike the provisions that the court found preempted, the court thought this provision was capable of being implemented in a way consistent with the federal emigrates -- the federal

government's immigration authority. caveat indicating how the law is interpreted could have a bearing on whether it was a lawful exercise of the state's authority. a couple of minutes now on the united states versus alvarez. united states did not prevail. it is fair to say it is of less practical significance than either of the two decisions i mentioned so far but it is a case with first amendment significance. the stolen valor act, the defendant in that criminal prosecution made a false claim that he was a medal of honor winner. one thing about it is there was no opinion for the court. there was an opinion by justice kennedy and four members of the court which built on a decision a few times earlier in the

steven's case to a poll there was no categorical exemption from first amendment protection from false statements of fact and that false statements of fact that fell into historically a protected categories such as defamation or fraud or beyond protection of the first amendment. the broad category of false statements were not. two members of the court did not join the opinion and instead suggested that this kind of case was one that called for something approaching intermediate scrutiny. but they femme -- but they found there were other means by which the government could achieve its interests and therefore the law was unconstitutional. justice alito wrote for himself.

false statements of fact were held to be beyond the protection of the first amendment. there was no real risk of chilling constitutionally protected speech. those are the three cases i put on the table. i am sure we have much to discuss about them later. >> thank you very much. [applause] now if he would join me in welcoming michael carvin. [applause] >> thank you. unlike the solicitor general, i will be offering my personal opinion. [applause] one of the luxuries of being in private fact -- practice. it is the old saying of the operation was a success but the patient died. we got some really good

commerce clause of rulings and the chief justice wrote the statute and gave congress the power. i thought i would quickly explain why this was clearly a judicial regrading of the statute and not an interpretation of the statute as the chief justice correctly noted. if you have a legal violation that you cannot offend them whatever monetary consequences attached to that is the penalty. if they ban cigarettes across the united states and say if you sell them, the penalty is $5 a pack fine. that is a penalty. if they say sell the cigarettes

but when you do, what attach a $5 a pack surtax, the same economic consequences but one is obviously a tax and the other is a penalty. chief justice roberts looked at a provision that said you shall buy insurance and we will pay a penalty by failing to do it by the legal requirement. he interpreted that to mean he may pay a tax if you do not do with the government suggests. he clearly rode the stat sheet. he did not look at the structure of the statute which had different exemptions for the penalty on the one hand and the mandate on the other which showed that they were not the same. a high-level of generality. opposite the government did not want any money from the individual mandate. they wanted people to purchase insurance because that was the key to the entire scheme. the last thing they wanted to do was have them pay the penalty and forgo the insurance.

that overlooks the obvious point witches who else but the irs can monitor and activity by a citizen? you cannot establish a new bureaucracy to say have you bought your health insurance? the only way you will be able to do is to have the americans tell you whether or not they bought the mandate. some conservatives are taking solace in the fact that while the chief justice wrote the statute and not the constitution and made some commerce clause law, i do not think that survives scrutiny either. everything he said that the commerce clause was designed to prevent the federal government from doing, impose a mandate to buy a particular product, he then turned around and said they can do that under the tax.

and they do not call it tax. this is a question of whether or not it was a legal violation. they don't have to call it a tax, it is not a question of labor, it is a question of whether or not there is legal violation. the chief justice will rewrite that to say, if you buy broccoli, or don't like broccoli, you will pay a tax. everything that they want to do under the commerce clause they are empowered to do under taxing powers. i don't take it was a victory in terms of limited government in the long term or provisions of this act. contrary to what some people have said, i don't think there are limits on the new found principle the penalties can become taxes. a some people say that the penalties can't be too big. you figure the more the government would want the revenue and it was 10% of the annual and come. they have very serious ways of imposing these penalties.

any activity or inactivity, you can pass the violence against women act that was struck down and say if you commit violence against women, you will pay a civil penalty. the point of this, people think this is a very different attitude about how they will behave. if you write a statute, congress would never enact its and could never enacted because they could never pass this law if they told the american people it was a tax. that concern about hong -- about independence of the judiciary, it makes it look like president obama's wholly improper and unprecedented attack on the court somehow did influence the adjudication of

the third branch which will give legitimacy to this kind of lobbying in the future. it was a very unfortunate precedent and i am sad to see some reports about the chief justice's activities have confirmed that it could happen again. i will switch to two cases where i did like the results, the alvarez case. the court said that full statements are protected by the first amendment. you had six justices on that quite clearly. the comments about false statements always remain in the context of full statements that induce material, on a fellow citizen. if you defraud them out of money or anything, but they were not going to extend that to the political arena because there are a number of hogs that would create causes of action is he

telling untruths during a political campaign. imagine the work that would create for federal courts of that was ever accepted on the federal level. and finally, there was a significant decision that involved the controversial issue of taking mandatory fees and can you send it to politically related expenditures. as long as you gave the employee, the non-union employee the ability to opt out of the fees that we were going for, the political advocacy, i think it was a strong indication that from now on, the constitutional rule is not to allow the employee to opt out of the payments that go for political advocacy, but to make him talk yen to endorse it. if that is where they go, it could have a significant effect on public union employees ability to engage in politics

and would have an even more significant effect if it was extended to private sector unions under that case, but i will leave it at that. thank you. >> and now, join me in welcoming the professor richard epstein. >> thank you for having me here. how will have to take something -- [unintelligible] speaking of severability. the one point i would like to make is this, on the question of the medicaid exemption, everybody kind of laughed. they said, this argument was so bad, it will not carry a single vote anywhere, republican or democrat. the argument was so pathetic that the state of texas and

florida refused to raise it before the supreme court and were held against their will by a supreme court that said we would like to hear this kind of thing. it seems to me you have a pretty good chance of winning. the interesting feature of that is i regard this as a relatively easy case of a matter of first principle, what i thought it was an extremely difficult case as a matter of constitutional law. one of the most interesting cases hall was south dakota versus dolt, in principle but said that certain conditions attached to government grants, he did it in that particular case by introducing the distinction between inducements on the one and and coercion on the other. it is a correct distinction,

but he drew it in the wrong place. if i said, give me all your money, that is coercion. if i said, give me a 5% of what you have in your wallet, that is a form of inducement. you can draw the line between what you ask for, but the line is, i would like to get your wallet and i will pay you dollars for it, it is and is meant by giving my own situation. he managed to haul appeal the entire lot of property by not understanding the difference between coercion. the chief justices never wanted to attack the fundamental distinction. what he did do is make an argument completely inconsistent with the way we look at the tax. it is different from making a direct order to somebody. you are dead wrong on that, the entire lot of preemptions as a

penalty is tantamount if you make it large enough. when he got to the other half, he said there are serious conditions the you can and can't attach to the government grant. if we require you to sacrifice something, the action is not voluntary even though you may well choose to do it like the blues states were willing to do. he takes a different view on the relationship and understands the sacrifice of what was previously an entitlement would count as coercion. it was ironic that under these circumstances, you're sacrificing a government grant under terms of a contract where the government was allowed to alter or amend the arrangement, but thinking more of an antitrust law. consenting to elyssa ties, that will not be the case here. he came up with the right conclusion, you can condition the way in which the money you

give them may be used, but you can't tell them they'll have to give millions of dollars of money unless you play ball with the government. everybody will realize that the large dependency you have on other programs or the most hopeless you are in trying to deal with anything else. i think he made the right decision on that particular case, but was desperately wrong. talking about some of the other things, i thought in the arizona case, what struck me, lies nearly closed out of my head. it is clear just looking at this that somebody has got a lot of work on pre-emption. occupation, field, everything is working if you were the government, and i thought he was going to win all four points. he says the state is sovereign if you go back to the original, the federal government never

exerted a zero -- any power over immigration. the only means the same thing by the time we get to the 1870's or '80s. he thought there was a dual sovereignty issue in this case. in effect, he was willing to let the thing ride. i think in the end, he has to be wrong. on that basic score, i am not sure that the court was right saying it was ok when saying that the state can refer people and a corroborative arrangement. it turned out that the federal government was willing to have the cooperation, but they announced, what are you doing

in this thing, these federal enforcement levels we do not accept, it seems to have a reasonably credible case. another couple points of measurement, you ask how is it that these people could wish to bring the kind of action that the government brought against the epa. i am not talking about a lot and if it is a final judgment, but a guy that is four blocks away from the water, he tries to build a foundation and goes to his neighbors. we understand this guy is charging pollutants into the water of the united states. intellectual double talk of the worst nature. the fundamental mistake in every piece of environmental legislation is that instead of waiting for imminent harm, you have all these anticipatory remedies which apply to cases that in one case and a million will generate the kind of harm in question. you have a discussion about the kind of rock he is using will change the ecology so a single

drop of something will end up in summer for 800 feet away. it is a classic case in which the federal government aided by the united states supreme court has grotesque interpretations to things like the navigable waters of the united states, and what should have been done was visit something and say you can't use these kinds of clubs to beat people up. the last case i will talk about, the federal government had no business whatsoever -- ho is a waste of public funds to try to prosecute religious organizations which has its own definitions of who is or who is not a member of its organization. using the handicapped and anti- discrimination laws which i have been opposed to on principle, it puts the court and the government in the position of telling you are or are not in practice. the obama administration's efforts to narrow the free

exercise of religion is, i think, one of the constitutional miscarriages that will play out in the medicaid context in connection with, as we well know, the question of whether or not catholic institutions can participate in federal programs. the government is inexcusably wrong on that gesture. [applause] >> we have heard an analysis of several cases. we will give each speaker a minute or two to respond to anything that they may have heard from the others, and we will start with the solicitor general. >> picking up where he left off, no doubt those were tough cases for the united states. factually, so we're clear about

this, although those were tough cases for the united states, they were tough cases based law-enforcement policies that each of the relevant agencies had adopted a long time ago and had been forcing in the particular instances, actually. in the prior administration as well as this one. part of the job in the solicitor general's office is to defend the enforcement positions of the federal agencies, especially when their longstanding and well established. those are tough cases. in terms of thinking about policies at issue, it is important to understand that they were longstanding policies. >> i will pick up on that last one again. it is true the solicitor general is in the unenviable position of sending the more egregious

policies, that is why they make their way to the supreme court. it is quite clear they were seeking to expand their ability to regulate churches hiring decisions or employment decisions. there had been this exception that was pretty well formed that the ability to eliminate employment discrimination did not apply to somebody that was a minister. there was a lot of confusion about who qualified as a minister and who did not. that was the enforcement policy. the thing that got most attention was not the bottom line position as motive analysis where they argue that the free exercise clause did not give churches or religious institutions any special autonomy, even making their most basic decisions that go to the heart of who is going to run the ministry. that position was rejected by the supreme court.

the solicitor general's position is that you can get some protections and the general right to associate, but the court said there is a specific provision that deals with religious institutions and the notion that they have the same rights as everybody else in the religion clause does not make a lot of sense. i will point out that there is a bit of confusion. under this decision of the court, in terms of eliminating religious practice, it is a non-discrimination rules. you can stop people from exercising their religion, which, if you have a prohibition, catholics can't have sacramental wine. the church is to have greater rights than other citizens in terms of resisting the nondiscrimination commands of the government, as some of the

things you saw in that line of cases seems to have wiped away some of those rights, all of which would be implicated in the affiliated catholic challenges to the contraceptive mandate under the affordable care act. >> in terms of long-term enforcement, i have lots of uneasiness about it. it is clear that that case is not going to be enforced, but it is quite clear that there will be some selectivity. looking at the particular statutes, it is not a longstanding policy to give a narrow interpretation as is under earlier administrations. this is such an utterly indefensible position, and i will take it one step further. the freedom of association should dominate against anti discrimination cases. i would go so far as to say this stuff is completely

unconstitutional, a limitation on freedom of association. the reason is you don't want the government or anybody to have to say, religions have themselves greater preferences from everybody else because now you or favoring an establishment of religion. you are establishing a religion or prohibiting. no matter what you do, you are always wrong. if you have the freedom of association position, you don't have to worry about those kinds of embarrassments. those guys just have to go home and return to contracts. the mandated terms essentially never make things work. the thing to understand about this is the bad structure of the anti-discrimination laws which are accepted in respectable circles, i am getting a sense of that.

the central theme here is that it does something that gets the common law's distinct went backwards or wrong. it never should be part of competitive markets. they get it backwards in the case like that. there was a huge change in position when the republicans ran this operation. the navigable waters of the united states meant navigable waters of the united states. that becomes anything that has an effect on navigable waters. what they and defensively did of the commerce clause, using the stress test instead of saying, are you interstate commerce? and you get an administrative policy that essentially, when it comes to a joint of relief,

cares about one kind of error. the one in a billion chance that it will start it forever, and they don't care about the 999,000 times it wishes to go over protection. it seems to me the common-law rules on this to preserve the cases for imminent peril should apply for people forced to the government and collectivization of remedies designed to pick up coordination. it should never allow the government to have more force than a group of private individuals to be polluted to get things that they themselves did not get. the fundamental mistake of the modern environmental movement is the moment you bring this into government area, it becomes unlimited power. you see what is going on in these cases. the only suits are those about cases that are so egregious that people are willing to do it. most of the permits issued in

the united states are professional busywork which essentially destroys the industrial fabric of the united states while doing precious little to protect the environment, given the fact that the structure of all the clean air is crazy, every time you have tough standards, you perpetuate the use of old and dirtier ones so that the net effect of the various crusades for a pollution free environment has increased the total lovell because they simply don't understand how the whole system is put together. >> you have heard from these colors, it is time to hear from the audience. please wait until the microphone has reached you so that you can give your name and your organization if you wish and ask your question. let's start from the back there. please give your name and ask your question. see if the microphone is on.

>> [inaudible] >> of the question for the audience watching us, the question about your performance where there is a second thoughts about your performance and how might it have been upgraded if you see it that way. and what were your thoughts? were you vindicated by the decision? >> i will answer the question this way.

we have a first amendment. not one of its primary purposes is to protect criticism of government officials had exercised their responsibilities. i am a government official. i have a responsibility and i ought to be subject to criticism. i guess i was, i must pay with that. that is just the nature of the process and that is the way it should be. >> [talking over each other] >> i take this two ways. you get this in high-profile cases. there are a hundred experts on

the commerce clause, and i am like, if you gave me three days to sit down and cried out in answer to what has just been shot at me by nine very aggressive justices, maybe everything -- it is real easy to sit at home and come to your senses. i think it was such a liberal echo chamber in terms of how strong the government's argument was, that this was really a case of killing the messenger. i think the case was much more difficult to grapple with how than the liberal intelligentsia is giving it credit for. when there were a perfectly satisfactory answers and some of the justices were skeptical, instead of rethinking your position, they attack the messenger. i don't want to get into the nonsense about it, but i want to make the points that the guys are always going to get a disproportionate amount of

temporary shows shot at them and 99% of the time, it is completely unfair. >> i like to attack the criticism. i think he made some good arguments, some bad arguments, but i was on the charlie rose show the night before the argument. jeff was in his swaggering best style, and all the rest of this stuff. it seems like the man was slightly crazed, which, in fact, he was. my view is that the government should have lost cold because the correct thing was to overrule what had no constitutional foundations whatsoever. but then, the next day comes around and all of a sudden, he is embarrassed about it and takes it out.

what is interesting about everyone of these guys that said he made a wrong argument, they proceeded to make arguments that were so incompetent himself that it was almost unreasonable. explaining why insurance markets must necessarily fail, he is supposed to know some economics. it turns out that they put this mandate in question. there is a long history in the health insurance debate. the difference between social insurance and insurance. social insurance is not a subset of insurance, it is a completely different beast. the transfer as from those people that are less risky or more affluent, and no voluntary market will ever create an uncompensated transfer.

if you are a high-risk person at the market is working well, your insurance has to reflect your risk. they didn't want to do it, they wanted to socialize the risks. you have to use some degree of coercion. to say insurance markets will always felt this to say that markets -- when they start talking about the fairness of the private markets, he forgot to talk about the difference between these forms of insurance. the reason the case is so difficult under these circumstances is that it made two arguments simultaneously. of these young folks are freeloaders on the system. then you have to require them to buy market rate insurance against losses. but it requires them to subsidize everyone by eliminating the difference between the top at the bottom. it is not an easy thing to say that you have to inconsistent purposes.

we are doing both, but it is a hard argument to make. if you put too much weight on one and ignore the other, it will sound very wrong. the scheme as designed by the administration is the epitome of incompetence. require a waiting times before pre-existing conditions chicken, and when you buy insurance, keep it for at least a year to allow the insurance company to put a penalty on it. the difficulty of the administration is that when they put this thing together, there is not a single market oriented economist that anyone was prepared to talk to. a piece of economic gibberish that puts itself in the name of an insurance situation.

it is a terrible piece of substantive legislation. when you watch the way this thing works, it will be the rocky road were show. >> raise your hand high. >> this is a question -- i am of the competitive enterprise institute. it is good to see you again. i was wondering if you could discuss the possibility of a discriminatory effect in the provision of the arizona law that was upheld. will people who look like they might be illegals more likely to be pulled over for going to miles over the speed limit? >> my general view about most public officials is that they have been schooled in the dangers of discrimination with respect to enforcement that they bend over backwards to try to avoid these kinds of situations. it turned out the guy was in the master of teaching people how to avoid these problems.

the correct answer is to presume the legitimacy of government action given this background until you confide some serious deviation from the standard rule. in a state like arizona where there are so many people of hispanic origin, this would be a very reckless policy to undertake. i think that there is always a risk, but the other risk is that people will bend over backwards to avoid this kind of conflict. don't try to upset a scheme on the grounds of potential abuse until it is in operation nbc some evidence of that abuse. i don't think anybody arguing on either side of the case has said that the arizona public officials have misbehaved in any systematic fashion. >> anyone else want to comment? we will take the next question right here. >> i am an attorney that filed

when of the briefs in the fisher case. i wanted to ask the panel, in light of justice roberts opinion in the affordable care case, do you see any reasonable limit at all on the government's authority to occurs you to do something by imposing a tax? if you don't, could the government say that you must divide general motors or chrysler cars. if you buy any, there is a 10% tax because we have a stake in gm and chrysler. >> i don't perceive any serious limits on that. they can call it a mandate. you will buy a gm car and pursuant to the interpretation that was engaged, it is just and forth like a civil penalty so we will call it a tax. can'tt know why they

require you -- to buy a gm car tomorrow. you have just alluded to some limits. one was that you can invoke 10% of your annual income. by the way, we have abandoned this analysis, so all of these cases are no longer block. i did not come around with a warm and fuzzy feeling. i think it will be the political check of not wanting taxes raised. i think there will be more about if the efficacy of eating broccoli is a good thing and not whether you call a penalty or a tax. >> we do have mayor bloomberg, the obesity situation. a and this would be my reaction on the political front. it is a complete howler of a decision. it is almost a painful.

it is exactly the same kind of question that the tax is wrong. the definition of what counts as public use, it expanded so far that any kind of ridiculous this that you wanted to put into place is perfectly ok. but states tightened up their rules and the level of condemnation has gone down and not up. i think that if anybody tries to introduce the kind of statute that you put into place now, it will be harder to get to it politically than before this case. it will be more difficult to keep this thing underneath the radar. in fact, my hope is that i might be involved in one such case. if you look at the way in which the government runs its various programs, these are all domains which are sovereign unto themselves.

nobody cares about what they say, they say if you don't like it, sue us. and if you sue us, you will delay your application. i think that after the medicaid expansion, there will be more attacks on the way or the government propagates itself. while that may be the line, there is nothing in the roberts opinion that helps anything, but i think there is a great deal in the publicity to let people sufficiently uncomfortable about the whole situation, the political price going forward will be hard. >> the civil lighting is that now is taxed, you do not need a super majority to appeal it. >> since this was a hypothetical question, you get a free opinion here. >> discussing limits, i think

they speak for themselves. >> in the next question. raise your hand high, please. >> i was curious what you guys think about the leaks that appeared to be coming out of the court over the last week, the leaks that have been coming out of the court? what you think about them and if this is going to be a continuing problem, if this is good or bad for the public's understanding. >> the question has to do with the leaks coming out of the court recently. >> since i have no connection, i don't like the the leaks coming out. one of the things i tried to do is to concentrate on the academic issues had not of the personalities associated. in the end, they make the justices seemed all too human. the effect on the overall

performance and the prestige will have to be negative. i wished they would not take place. if they don't like each other, that is fine, let them do it in private. i wish the journalists would back off on that kind of thing. it is easy to destroy the credibility of a public institution. it is extremely difficult to build it back up after it has been torn down. >> questions or comments? >> i will endorse all that. i am usually the one making the controversial comments at these things. [laughter] [talking over each other] >> i got nothing to say. >> any comment? >> i am sure you understand it

would not be appropriate to comment on the speculation involved in that issue. >> a question we will leave to the second panel, those at the members of the news media that can react to richard's suggestion. over here. >> i understand the need for the solicitor general's office to rescind existing federal law, but why did the obama administration enter the fisher vs. university of texas case on the side of the university in in the administration's position, are there any limits at all on the use of race in admissions? >> i was not at the department when the decision was made the file. if i was, i would not be able to answer your question anyway because it would be subject to deliver to of privilege that the justice department guards very zealously. -- deliberative privelege that

the justice department guards very zealously. >> i take strong exemptions to what the supreme court said in that case. the government does two things and there ought to be two standards applicable to each behavior. one is that it enforces laws and beat people up. under that situation, the constitution is not only plausible, but completely required. the government runs all sorts of things it should not run, including public schools and public universities. if these were private, they could have whatever racial policy they want.

everybody would wish of the brown people would disappear from the face of the universe so people can run their affirmative-action programs without any kind of interference. that is a bit of an extreme position, but the correct position is that if you are running one of these complicated organizations, the business judgment rule to apply to the way in which you decide how to organize your resources. what is the test? i was the dean at the university of chicago. i said i think the constitution requires everyone be color blind. i think we are abolishing all affirmative action programs. that is not my position. my view is that i can run these things better than the federal government. i think that when you have public universities, they have to be given at least some of the discretion he would give to

the direct private competitors. the basic level but i would want to apply there is that the university of texas should be free to organize its internal programs the same way as any private university. this is fairly different from the current situation where you have this completely stupid situation in texas where you have the direct coalition against affirmative action programs that you can organize. what you do is take the top 10%, and you get an inferior student body when you do if he ran the policies in the opposite direction. no one is going to be happy on the question of how much affirmative action hewed to and you do not have. anyone who thinks there is a universal solution thinks you can solve the middle eastern problem tomorrow by reasoning with a few people. you have to have decentralized

and decisions. let each particular campus go its own way, and these judgments will outperform coercive judgments whether it is the one side saying you have got to do it or the other side saying that you can't do it. you need to figure out how to get into the immediate positions from you can't get substantive positions unless you have experimentation and can't have experimentation if you're going to have a government monopoly positions coming one way or the other. it is one of the reasons why you have anti-discrimination laws, because they have such rigidities into have these flip-flops' that make it extremely difficult to do long- term planning because you never know if you have a republican or democrat in office and the winds in washington that will be blowing.

>> other people that want to comment? >> isn't it wonderful to represent no clients? that is what you learn that. >> down here. >> this question -- at the outset of the program, you described the president's statements and criticisms as being an unprecedented. i was wondering if you could expand on that. given fdr's court packing plant, it doesn't seem in the same ballpark. >> what ever fdr did, he did not criticize the court while there was a matter in front of the court. he did not see george bush question the patriotism of judges if they rule against him in that unprecedented way, striking down a law that was passed with bipartisan majority.

you did not see a sustained media solving with the conservatives to uphold the bush detainee and congressional enactments in that area. i think it is unquestionable that he created an atmosphere where it was a sustained attempt by a senator right here on the floor of the white house and by the allies to try to intimidate the court. one of the unfortunate aspect of the leaks is that it gives real credence to the notion that this kind of attack worked. the relatively simple thing for the government act like other litigants. they make their arguments through the solicitor general and a reason to stay out of it. i don't think it does anybody any good to engage in this kind of lobbying campaign, particularly since it will cheapen a question any victory

you get with the court like this one is going to be subject to questioning for a long time. i don't know what good it gets out of you, and presumably, that is why we did justices life tenure so that they don't have to pay attention to this kind of nonsense. >> the state of the union address takes after citizens united with the sitting justices their, and they can't talk back at justice aledo whispering that is not true, that is a stupid thing for any sitting president of the united states to do. he had his views on citizens united, he set up the time, and i am happy to do it. that is not the issue, the question was that particular form. if in the light of that particular unprecedented move, i think the second part that has to be made, i was alive and remember the arguments on brown

vs. the board of education. maybe there was a banner headline in the paper. the amount of coverage on this case and the amount of pressure during that time was probably a thousand fold. let's keep things in perspective. the individual mandate with respect of desegregation of the south, we know that this question is more important. we would hate for someone to say, plessy and ferguson has been on the books for 70 years -- if you are in litigation on a point, you don't speak outside of your designated representative. >> obviously, these are political points being made. i will say that, with respect to this, generally, the right

course is to assume that everybody involved is acting with integrity. i do believe that to be the case. >> i think we will adjourn this part of the panel. we will be replaced in a moment by representatives of the journalistic community. please join me in thanking this panel. [applause] >> thank you all for coming, and thank you listeners and viewers on tv. i want to thank the communications department that sponsors the event at heritage.

the it is a pleasure to work with rachel. i asked her to give me a brief introduction because the squad said that they are much more -- that last part isn't true. i will stick to their wishes. the first speaker will be mark sherman that has worked for seven years on the supreme court. he worked for 20 years before that, reporting on health care, national politics, and justice department issues. he began his professional career as a foreign service officer. later on, you can regale us with insight to the legal world.

howard vassman was an appellate lawyer in his day job. he is our new media representative on this panel. he is the founder and editor of the how appealing appellate blog. it is one of the essential blogs for those of following appellate legal matters. and since 2004 legal intelligence, a daily news cable for lawyers. -- newspaper for lawyers. howard has spoken at this program before. he always brings heritage audience is bad luck, i don't agree with that. reporting for the supreme court

for 25 years, you have many years ago to catch up as the dean at of the entire court. he works out of the washington, d.c. bureau. and for the chicago tribune as well. he is the author of the book "turning right." published in 1992. perhaps we can get him to tell us where reagan, and the george bushes went wrong. if it is not as much a right wing court as some of us hope. i will turn it over to mark. [applause] i will ask the panels to try to pull the mic close to you.

>> i wanted to start by talking a little bit about how i spent most of my spring. like most of my colleagues, i was looking for any sort of side or indication of how the court was going to rule in the health-care case. we practice the body language theory, trying to figure out. it was only in retrospect that i found an undeniable clue. that was on june 15 of this year, justice ginsberg gave a talk about the term. she'll described the cases that have already been decided and not hint at what's to come. she said, "this term has been more than usually taxing." i thought right that in there, it was a giveaway. i asked her about that and she

was not intending to foreshadow the outcome of all. i think it is the case that many of us thought that the body language as the supreme court went on would suggest that the liberal side of the court was going to prevail even before the dissent in the arizona case. a couple of words about the outcome of the health care case. i want to get into the details away the last panel did. it was only the second time the chief justice had provided the fifth vote for the liberal outcome. the other time was his first term in a case called jones v. flowers, about proper notice of a tax sale. it is the only other example we have so far. there has been a lot of talk

about the markers laid down regaring fees, and regarding the commerce clause and spending clause. whether those markers are brought to bear is largely dependent on the future composition and direction of the court. that will depend almost entirely on who, as president, gets to make the game changing appointment. it shows the public is more evenly divided since the ruling that it was previously. i think we would have expected of the president and the democrats to try to use the court and the conservative majority as a campaign issue to rile up their base. but i think the single biggest thing that the chief justice did in the political realm by casting the deciding vote is to take away from the republicans a fairly devastating line of

attack. one that mitt romney would have used. what does the president have to show for what he had built as the biggest domestic issue of his presidency? the answer would have been nothing. that we don't know what role it will play in the campaign, but it is worth noting that that might have been very effective as a line of attack. i want to talk about the immigration case that i think one could argue was the most surprising outcome of the term. that was a case that once the court decided to hear the case, based on the argument, we expected a mixed outcome that we got.

what was surprising was the tone of justice kennedy's opinion for the court, which was almost a complete victory for the administration in spite of the fact that section 2 was not printed at this point. more surprising than that was the fact that the chief justice joined in that opinion and so did the liberal members of the court. including justice sotomayor that said not a word about the so-called "show me your papers" provision of the law. you capture the magnitude of how big a win this was for the administration. i think at this point, i would like to say a quick word in defense of and in praise of what people call the mainstream media, which i call, the media.

we have heard a lot, obviously, about what happened at a couple of the cable news network's. i want to point out that the associated press, bloomberg news, dow jones, reuters, we were fast of of the mark and we were also entirely accurate. that has been of little bit lost with what happened on that day. lastly, i will say a couple of words about a set of criminal cases because it turned out not to be a bad term for criminal defendants. we had the cory mabel's case, the alabama death row inmate that was essentially abandoned by his legal team. the court ruled him a new hearing to fight of his death sentence.

there were cases when the court extended the claims to plea- bargain. a case in which the court ruled a legislative effort to reduce the disparity between crack and powder cocaine crimes should apply to people whose crimes were committed before. and also the case involving the mandatory life without parole sentences for juvenile. all of those were 5-4 cases and all three were sort of the usual alignment with justice kennedy siding with the liberal side of the court and the chief justice in descent along with the other conservative justices. my final last word is just in quick comment to what the professor said.

it was presented as a case of big government versus the little guy and very effectively presented that way. while it wasn't part of the record, it was the case that they had received word from the biologist that they had hired that their land was -- it contained wetlands. a slightly interesting fact i wanted to point out. thank you. [applause] >> howard? >> good morning, thank you for having me here today. this term was certainly a memorable one. the of the 10 years i have been running blog, this is perhaps the second time where it became the event to view, for the super bowl of constitutional law. the only day that you know which cases are going to come

out is the last day of the term. tens or hundreds of thousands of people were turned into a news networks and news outlets trying to figure out what the ruling was going to be. the court's own web site was so inundated with visitors that the court could not oppose the decision as promptly as it ordinarily pose decisions. i could not access it until 30 minutes after it was released in the press office. i was glad to get ahold of it because i was heading to the phillies game that afternoon and i was hoping to post a link before i headed out the door. the case dominated the news for one new cycle until tom cruise

and katey holmes announced that they were getting a divorce and then it was removed from the main intention. people will be mulling it over for years and years. i would like to focus on three important but somewhat lower profile cases. two of which arise from the criminal law category. and one that involves taxes, but not the health care case. in the case that is called williams against illinois, the court confronted a criminal defendant the was found guilty based on a dna match. evidence left at the scene included samples of bodily fluids and from a dna lab. later, a second technician ran that dna profile against the

entire database of other dna profiles and found that that dna profile was the dna profile of the defendant charged with the crime. the question was whether the criminal defendant had a confrontation clause to cross- examine the person that tested the original sample. the only person that testified was the technician that ran the test. they said the one produced was the one in the system. but the person that ran the original test involving the evidence was not at trial and did not testify. we're in an age where jurors expect a scsi-type evidence and many do not have that. this one did.

for richard honor circumstances of this case -- the defendant did not have direct to cross- examine the person who runs the original trust. whether the world applauded, these its second case involves someone who was strip searched arrested./

x. you may be held past the time you are in the jail system. in this case, an individual was put into the justice system in new jersey. in the course of being imprisoned in jail, he was forced to undergo a strip search to check for contraband. the court by a 5-4 vote, in an opinion by justice kennedy, held that the strip search was lawful in the cases of misdemeanor arrest these. the chief justice and justice alito sought to limit the applicability of the holding. the four more liberal justices dissented. the third case i will touch on briefly -- one of the few cases

where we came into a buzz saw oral arguments. this was a case titled armour vs. city of annette -- indianapolis. in this case, the petitioner was seeking to obtain a refund of taxes paid for real estate assessments involving sewer hookups. what happened is that taxpayers had an option of paying the entire assessment up front, $9,000, or pain just $30 a month for 30 years if you prefer to do that. what indianapolis decided to do, one year after the land owners pay the full amount, it did away with this particular tax. the folks who pay the full thing said that we are entitled under the equal protection clause to get a refund of the amount we pay because we pay the full amount. we will pay $3,000 of the $9,000.

but the court said -- the court held, in that case, by 6-3, equal protection clause did not give the people who pay the full amount of the tax the right to get a refund because the city had given reasons why it was rational not to give them a refund. that was a case where justice thomas and justice kennedy joined with the others -- three others. justice roberts wrote a strong dissenting opinion joined by the two other justices. the lesson we saw was that the way things go in oral arguments to not necessarily tell you the outcome of the case. in that case, he did win, even though many susa the oral arguments that he would not. thank you so much for having me today. [applause] >> it is good to be here. i said to todd earlier, i think

it is a mistake to invite me to these. not because i'm a distinctly doll speaker, but i have been in a few times before. i am always here at the terms were the liberals win the big cases, conservatives lose, and the audience is very glum. i apologize. i do not think it is my fault. as a journalist, there is nothing quite as much fun as to have a big store with a surprise ending. this term really lived up to that on both parts of it. i did think that there were a lot of surprising developments in this term. some of them got very little attention. one that mark alluded to was that the criminal defendants won the major criminal law cases this year. antoine jones, a drug dealer, selling drugs in the washington area, his drug -- case comes up. his complaint was that they tracked him with a gps device. the law was that the government

can track you on the road. a policeman can follow you. you do not have the right to privacy. he won a 9-0. two different opinions. justice scalia said attaching the gps device to his car violated the fourth amendment. they said, you do have the right to privacy. the government cannot track you indefinitely with a softened. i would not have guessed that outcome. i think it will have a impact in the future. the plea bargain case was the same way. i would not guess that these people voluntarily pled guilty, they got sentenced, but the supreme court reversed in two different cases. one fellow had shot his girlfriend. his claim was, i did not intend to kill her. i shot her in the leg. i try to shooter in the leg. he went to her -- he went to trial. the attorney said he would not

be convicted of murder. he was convicted of murder. he ended up winning. the court said he had ineffective counsel. their four or five along those lines. i do not think this is a court where criminals are always in good shape, but returned at to be that with this year. the real surprise is what came at the end. the last week. the two big decisions. the administration -- the obama administration 1 on both. the health-care case was of a type and magnitude that i had not covered in the 25 years i had been doing this job. when you think about it, this is a situation where a big regulatory law is passed by democrats in the house, democrats in the senate, opposed by all the republicans, signed by a democratic president, and

the day it is signed, a group of republican attorney general's go into court and say that this law should be struck down as unconstitutional. it became 26 republican attorney general's. -- attorneys general. the law was that -- their position was that it should be struck down entirely. do not revise it. the case comes to the supreme court two years later. for all of us who write about the court, you are always interested in this question about what is law and what is politics. the supreme court is a little bit of both. if there is a right legal answer to any question, you do not need the supreme court. all the lawyers would read the law and see that there was only one action. the supreme court is always in that mixture of law and politics. you know what happened. the four associate justices who are democratic appointees

essentially voted to uphold the law passed by the democratic congress. the four associate justices who are republican appointees voted to strike down the law entirely. the entire 900-page law. and that was the official republican position. you had one justice, the chief justice, who came down in the middle. i thought this was a really fascinating -- i think princess a lot about the chief, the court, and it strikes me as a good thing for the law that it was not a 5-4 political boat. i know that not everybody would agree with that. the chief justice actually agreed with the conservative argument on the two big issues, that the commerce clause would not justify the mandate, and

that the medicaid expansion was unconstitutional. i have a couple homemade examples. i did a real program one month ago. i said i thought the court would surprise everybody by striking down remanded and upholding the tax penalty. my daughter asked me about that. it was like of congress passed a law that said that families are required to have children or pay tax penalty. i think he would say, the government cannot require you to have children. that would be clearly unconstitutional. but he said, if you do not have children, you'll pay higher pat -- taxes. a tax penalty. that is called -- sort of the way the law works now. that is where chief art -- chief justice robert scan down. he said, you cannot manage this, but the can impose a tax penalty. on the medicaid, if somebody said earlier -- richards said, i

thought this was a loser for the challengers. the government is paying the entire cost of the expansion. how can you complain about that? elena kagan said it was like a gift card. but then i realized they had a good argument. we are being forced to do this. if we do not go along with this expansion, we could lose all of our medicaid money. my homemade example -- these do not even rice to the level of hypothetical, unfortunately. the boss says to his secretary, how about we go out to dinner? i will pay the full cost. she says, no thank you. he says the next day, how about we go out to dinner, i will pay all the cost. she says no, i would rather do other things. the next day he says, i would like to go out to dinner with me, i would pay the full cost, and before you answer, i want to know that if you do not do it, you may want to think twice about coming to work tomorrow.

sounds pretty course of, doesn't it? if she brings a harassment klein, it would not be enough to say, i was one to pay the full cost. seven of nine justices agreed with that argument that the medicaid provision is course of, but chief justice roberts came up with the middle ground decision to say, ok, the states can opt out. the justices agreed that the states can opt out. one of the interesting things that is not commented on -- the four and justices on the rights near the back and said we are not going to go along with that. in other words, the roberts solution remedied the problem. states were not compelled to go along. but he sort of remedy the problem -- the four on the right said that the entire law has to go, including this provision. i think that some of the rigidity of the four on the right may explain to some degree while the chief justice

moved to the center. i had better stop there. and thank you. [applause] >> thank you. we now have a three-minute rebuttal round. why don't you start again. >> i do not have anything to rabat -- rebut. >> i would like to touch briefly on the issue of leaks coming from the court. there has been a focus on two different types of leaks. one has been possible leaks before the decision was released. and the issue of reporters after the decision describing what was going on behind the scenes. i do not put any stock and to the fact that the deliberations of the court were revealed what they were under way. i think that it was entirely predictable that the chief justice's boats and justice kennedy's votes would have been in play in the case. if somebody had strongly

predicted that clarence thomas was going to vote to uphold the mandate and he did, then i might put some stock into the fact that something had leaked. but i do not think richard come as any surprise to the chief justice's vote would be in play. the post-decision leaks, which have come through in two reports from cbs news -- who does have a reliable sources in the courts, you cannot deny it. this leaks will reflect poorly on the people on whose behalf they seem to have been made. when you are on a course like this, it is a very collegial court. the justices have to make decisions. whether they like each other or not. i come from pennsylvania. that is a state that knows about what is like for judges not to agree with one another. at one point, a justice on the supreme court of pennsylvania accused a colleague of having tried to run him over with a car.

they would sit looking away from each other or with their backs turned to one another. and yet the court would still come up with decisions. this court will continue to issue decisions in the future as well. in terms of trying to buy credibility for the future, the theory that have -- has been assigned to achieve justice roberts would rule this winnow to immunize itself from future criticism -- i do not find that credible at all. it just speaking to the press -- it was an excellent example of that in this past term involving former justice john paul stevens, who on january 19, 2012, appeared on the comedy central program "the colbert report." it is an incredible performance such as the justice stevens has a wonderful sense of humor. the lesson is that once you are a former justice, you can show off your wit for attribution.

>> i do not have any rebuttal for howard or mark. >> any additional remarks? >> i had a lot of time. i was impressed by the alvarez decision in the last week of the term. we did not get a chance to discuss that as you alluded to earlier. i am part of the first amendment fraternity. you are supposed to be in favor of all first amendment decisions. i did not know the the first amendment included a right to tell lies in public. if i had a lot of time here, i was going to tell you about my career planning for the lakers in the 1980's. [laughter] i have a lot of good magic johnson stories. i thought that was another pitch -- you could make the argument that i have a first amendment right to lie about something that is not a political

statement. this fellow said, i won the medal of honor. he said at a public hearing. he ended up winning in the supreme court. it term full of surprises.

[captions copyright national cable satellite corp. 2012] [captioning performed by national captioning institute] i don't have good surgical outcomes unless i have a good patient to begin with. i can measure to see what are the drivers for better care? we have been working with c.m.s. really, i applaud those efforts. we had to start somewhere and we start with measures that areless than perfect. it moved us all.

data is a drug. we're addicted to it. we can't get enough data. we want meaningful data. we partnered with c.m.s. to show them how what they have doesn't get them the answers they want and we're showing them more meaningful data. how we expand the infrastructure. how do we link this beyond surgery across the patient continue yume. it is about how well the 18 months of critical cancer care drove the best outcome for that reality. we're closer than we were. there are a lot of things we need to do. we need to build the business mod sbools it so everyone is aligned. we all have shared incentives. we're looking forward to taking that next step.

>> i don't think there is a single payment solution across all sperkts because there is unique differences. the issue for primary care is about treatment for chronic illness. the treatment time might be five, 10, 15 years. my goal is to avoid them being on dialysis now. what is your blood sugar control. have you had your feet checked? your diabetic eye examination? then you get into a debate about are the proxy measures the right measures? to dr. hoven's point about developing good measures. the things we should be measuring and working to improve to get those eventually

outcomes. -- eventual outcomes. [inaudible] >> i don't know if your microphone is on. >> is that better? >> yeah. >> ok. great. you were talking about equality and outcomes and one of the things in the affordable care act is moving to this value-based mod fire system. when you look at some of the estimates waste due to unnecessary tests and procedures. haven't we proven that we can deliver better care at lower costs and now it is just about

figuring out how to implement that system so that people are, as you were saying, incentivized to do the right thing, opposed to -- >> i can jump in on this if i might. this is a first step. what we have to do is look at the methodology. be sure it is appropriate for what we want to get accomplished. i do think it is a good first step. we're in the process of reviewing all of that. it just came out in the new rule. i believe it is a good first step. >> let me make a couple of comments. that is about the value base. i personally am very worried about the way it is structured. it plans to use pqrs measures as well as look at costs that is regional. i have to tell you that what people said today is you need

meaningful, credible data, in order to do any judgment -- adjustment for what the outcome, what the cost should be. i lived in seattle. when i moved to detroit, i had never seen a population like this before. they would never get adjusted for adequately with administrative data. you va population in which 25% of people graduate from high school. they are working just to stay live. you have people who have burned out their kidneys from long-standing hypertension when they are 30 years old. i had never seen that in seattle. they both have heart failure but they are very different kind s of people. taking crude measures trying to adjust severity and adjust payments would be a huge mistake in my mind. so the value, if you will, of

some of these specialty things is that people literally spend many, many hours trying to figure out what is going to be legitimate here when you do risk adjustment and what is not? they understand the disease. you have to be very careful. the other thing that the cardiologists have been using is appropriate use -- what these are is a panel gets together including a panel of payers and physicians and other experts and they look at a lot of conditions for which we really don't have solid guidelines there. the science isn't there. they say this seems to be reasonable knowing what we know. this is not reasonable. a year ago, we started providing feedback to the hospitals on the use of stenting. there was a portion of cases in which they were considered to be

unnecessary or inappropriate. we never expect that number to be zero because there are individual differences and so on, but you want to be pretty close to what the national benchmarks are for these numbers. we have seen since we started producing this, a decline in that number. in fact, if you look, there has been a decline in stenting procedures the last year or two years in the u.s. and it is predicted to go further. providing credible data, giving it back to those docs, will change the way they behave. >> i certainly believe in credible data. dr. stream can weigh in on this. when i think of spoke an, -- spokane, i think of a great place and the population is a good symbolism. i don't know that we're talking about healthier populations here

or healthier practices? i certainly think we have healthier practices in the northwest rewarding things that have driven down costs and produced better outcomes and frankly people in our region are very frustrated that we deliver care that way and get less reimbursement unless people want to go practice there and somebody can go practice somewhere else and run up the bill to the american taxpayer. my constituents will be happy with good data but just to assume they are healthier and some place else is sicker and we should just pay more is not going to work. i'm glad we're moving down the track and i guess we're just going to have to focus on what good data is. if you have any comment on that, dr. streerges and also what we need to -- stream, and also what we need to do to increase medical graduation, we have a big gap right now encouraging

primary care physicians and what do we need to do for graduate medical education to really get that workforce plugged in? >> several questions in there. certainly we need good data about all of these things. care practices. populations do differ. inner city has poorer health care. we need good data about both so if we are making risk adjustments they are true and accurate. i can speak to it as a concept that applies to primary care. we have to build a stronger primary care foundation if we are going to emprove the quality of our health care system. having a meaningful care management fee that does this care coordination and wellness

and the piece that gives to your question is that shared savings piece, if it is for performance, could include both quality measures and appropriate use, efficiency sort of criteria but that would be the third leg about payment. you're also right and i appreciate you taking it up about the workforce issue. i would emphasize that decisions made that influence specialty payments have a huge influence on specialty selection of our medical students and currently is a strong disincentive to choose primary care and we have to narrow that income gap between physicians and sub specialty. >> do we have the workforce to implement the strategy that we're talking about? >> absolutely not. >> thank you. >> if i could follow up on that, senator. the whole issue of medical

school education, graduate medical education, we at the a.m.a. have been looking at this critically. this is a problem which proceeded current issues surrounding payment and delivery. this is not new. looking at spots for medical education, changing curriculum in medical sools, making sure primary -- schools, making sure primary care -- expanding the values in which we can do the education. all of these things are on the table. it takes seven to 10 years to grow a doctor . we have to get those slots filled out. we have got to have more funding towards that as well. it is one of the imparities that is part of this discussion. >> thank you. mr. chairman ? >> thank you very much. when i first started law school,

one of the things that was impressed upon me was the difference between a profession and a business. it had to do with the client. you had to give your best to that client whether they could pay or not. i found it was true in spades in the medical profession. data is collected to provide information about averages, but every patient is an individual and i know that all of you are committed to treating every one of your patients as an individual. the rub comes when you're treating patient s that arepaid for by the united states government under a set formula of one kind or another. my question to you is in devising, and we recognize that the formulas, the pay scales, however they are going to become embedded in a replacement for

s.g.r., will need to be developed by the professions themselves, take into accounts individualized circumstances including regional circumstances in the country as senator cantwell was just pointing out. my question is -- is sufficient attention being given to the requirement that the care really be patient-centered? when the patient walks in the door, i have one obligation and one obligation only to take care of that patient to the best of my professional ability. at the end of the day, i have got to get paid but not to have the payment drive the care. then a second sort of related question is when we deal with this, because of our unique budget retirements here in the congress, we have to set a 10-year plan out. and it is very hard for us to

know whether the eighth and ninth and 109 year are going to -- 10th year are going to work with what you're recommending for us in your one, two and three and so on. do you have any suggestions for us? if you want the think about this and get the information to the chairman later. how would we devise something we think is going to work over a shorter period of time. we really don't know over a longer period of time. that was one of the problems with s.g.r. to begin with. >> thank you. senator kyle, thank you for the question. two responses to this in in mind. where we begun with performance measurement and value of services is still in the silos of care. it is not as patient sent rick as it could be. as we start to spread performance measurement across bundles and look at

population-based performance and how well we're taking care in a wont -- continue wum. we begin the measure, individual physicians and reward them, a hospital and reward pem them. we have grown over the last couple of years to start to understand some of the points made by my colleagues at this table and from input from all stake holders from the purchase groups if the private payers from patients who are helping us look at this and say well, this is a burt measure because it really is more -- better measure because it really is more meaningful to the patient and it doesn't necessarily fit within the payment sfrurs or silos of payment. we have to look at alternative pames. that's where we propose replacing the s.g. wrmbings the

update. let's pick a tact. we want to improve cardiac care this way. it is not just the cartologist. it is the primary care of the cardiologist. it is the surgeon, anesthesia, everyone who touches that patient will be involved in incentives that that is the target we want to get to so let's drive to that target. i think we're becoming more patient -centered. we're not quite there yet. does it get to eight to 10 years? i hope so. it may take us eight to 10 years to even get to that point. will it be something else 12 years from now? we're always evolving this. so i'm not going to say this is forever. it is a fascinating question. anyone else respond to that? >> i agree completely when a physician is in an examination

room with a patient, their best interest should be the highest priority. making sure that patient gets the treatment that they need, that will improve their health, improve their quality of life. but what we're finding that goes to senator cantwell's comment is we know that our system currently provides care that people don't benefit from. my responsibility is to make sure they get the care they need but they don't get care that doesn't enhance their health. that's where i think -- and it doesn't give an easy the solution the s.g.r. problem. it is the potential for cost savings. to eliminate care that does not contribute to people's health. that's where dr. weaver was mentioning stenting data. they want to get a-plus on their scores.

we need that going forward. >> thank you, senator. senator kyle, i think one of the answers to your question about why is this care not as patient-centric as it could be, in the silos of payment, we pay by areas of the country, so that areas, our area in west, new mexico and arizona, have lower payment rates for the same service. there is differentials in the sign of service. the same service in a different setting. a hospital, physician offices paid far differently. if we had the payment, or followed the patient, that would do a lot to go patient cren trick in terms of -- centric in terms of how we pay for that care. it will athousands are move patients from more expensive sites of service to less

expensive sites of service and make that a very valuable part for our health care. i'm also very concerned about the whole workforce issue. ology coling did a study -- oncology did a study. about 1/3 of cancer patients may never be able to see an oncologist because there are not enough of us. we are working hard to create new team work methods of care so we can get the expertise to those patients. i think the most expensive drug we give someone is one that doesn't work. we're hoping with permized medicine and good techniques of big figuring out what will work on a given patient's cancer, we will be able to say void a lot of those unmess practices. doctors are not fld doing that.

-- interested in doing that. >> in any earlier life i was a medical liability defense lawyer. we used to tell doctors, you need to overdo everything. you need to make sure that history of that patient shows you went way beyond the standard of flak community so if you ever did -- practice in the community so if you ever did get sued it would show you went way beyond, which the overpblg doctor would do. in the process, -- we all want necessary defensive medicine but unnecessary defensive medicine is extremely costly, yet if i was a doctor today, i would be doing exactly what my advice was 37 years ago.

really doing everything i possibly can. i don't expect you to opine on what it is costing the health care profession just for a necessary medicine. it is a whopping amount of money. a lot more than the c.b.o. said. they said $10 billion a year but i think it is approaching $200 billion or $300 billion a year. a lot of that is is because we just can't seem, the congress, to resolve this issue so that doctors -- so the dock doris handle it. now i would like each of you to give this so much thought. i have enjoyed your comments here today. i would like each of you to give some some thought and you can accepted it in writing to us. what we might do. democrats who don't want to

defend their personal injury lawyers. republicans who don't think there is a reason to sue for medical liability. you have two extremes in other words. it would be wonderful, especially for the a.m.a., but from each of your groups, what you sympathy unnecessarily costing our society because of medical liability concerns. i would like to have you take the time and send that to me, if you will, and certainly to the committee. let me just ask one other question because we're -- about the death of the private practice today. many expert who is track the health sector have raised concerns about the acquisitions of private practices and this is for any of you who care to answer it. do you believe it is occurring at a greater rate and if so,

what is causing the trend and is it likely to continue and what are the implications for the cost of care in the medicare programs? >> senator hatch, i think you hit the nail right on the head. i know that in 2010, about 1/4 of oncology practices sold to the hospital. part of that is the economics turned physician fee schedule were -- under the physician fee schedule were paid about 2/3 of those turned hospital payment system. they can be paid significantly more for the same service. i think that we will discover in our workforce study, we also look at the volume of patient care given by hospital employees versus a small business private practice physician. it was about 60% at a time when

we have a shortage, i'm not sure we can afford that. i'm not sure we can afford to pay for for the same service. i think we need to look at efficient mechanisms to rearrange how we deliver that care and go for the most cost-effective site of service. >> if i could jump in on that as well. i think we have to be careful, though, because hospitals along with physicians, if they are collaborating together to do improved outcomes, cut the cost. if what they have got in place is working, we have to look at that side of the coin as well. i think this must be a balanced discussion going forward. we have great concerns about this and i would with there mcaneny. i think there are some systems working to make it better for physicians and hospitals and

patients most importantly to get the job done. >> i just add to what my colleagues said here. there has been a major change in cardiology. it is not everywhere, but in indiana, 95% of the cardiologists work for some health system or hospital. and there has been a great move and as best we can measure, a lot of it is due to the uncertainty right now in finances, you know? if you have a practice and these are small businesses, what are you going to do at the end of the year if there is a huge change in physician payments? i saw people in the detroit area, some physician practices, for instance, when we get a delay in kicking s.g.r. down the

road and there was nothing coming from medicare, it was like they were worried about paying their staff. they didn't want to lay their staff off, whose husbands already may not have a job and that sort of thing. they went bare for weeks. that uncertainty says maybe i should do something with a little more security to it and be part of a larger health care system. if you want to integrate us all, that is great way to do it. just create a lot of uncertainty. on the other hand, as dr. hoven points out, is that when you have doctors and hospitals working closer together, now you signed the alignment problem, they will align and try to create better value. >> we got an s.g.r. problem, basically. it is not very far off, we have a -- -- to extend it.

do we just extend it another year? if we don't, what changes to you suggest? these are all great ideas. it is very stimulating, this discussion, but we have a practical question. what do we do about all of this? short-term versus long-term. to me, a colleague asked an interesting question about more individualized treatment. medicine, all this fancy stuff you read about in the papers, genome sequencing. there was a very interesting article a few days ago about a lady who got very specialized treatment. she died two weeks later. then there is stem cell

reform.coms that have occurred over time. things are just changing quickly. what should we do in short-term and what shoiled we do long-term? we deal with the practical problem of extending s.g.r.. >> mr. chairman, we have included in our testimony, the first bit, the foundational elements of our thoughts about replacing the s.g.r. and in terms of how to pay for it, i can't go there. >> unfortunately we have to go there. >> yes, sir, but that is a higher authority than i can. so when i look at this, though, what are we replaced as? we're all moving from the volume world to the value world. we think that is the replacement. we think it is a party-centered approach that should be taken.

we think you set the updates by setting targets based on value. did we achieve this value? it is a patient-centered target. what do we need to do in the 10-15- 20, 100 measures that we have in surgical care. what do we need to focus on for those patients as targets that then drive an update. those have to have downside and upside. what do we do in chronic and prevention care that we want to drive improvement with my colleagues in primary care. we have hundreds of measures today and if you look at the national quality forum library, there is over 800 measures if there. which ones are critical? which ones are going to be meaningful and actionable and are meaningful enough to you as targets that this is better

quality care, safer care and more affordable care. let's set those out as targets. let's make it a patient centric target. that's our proposal. we're building the alliances across the specialties of medicine to do this and how do we roll it out and phase it in? we have a four to five-year phase-in plan that we think can be implemented with some roll your sleeve up work. >> is this for surgeons or other specialties as well? >> for the patients. it is across all patients. >> all patients and all care. >> it includes rural programs, chronic care prevention programs, instead of being surgery-related, it is patient centered. what is the day jestive disease program we need to improve?

what are cancer programs? not just oncology but radiation kathy: and surgery and primary care. you can't get away from primary care. it is tied to everyone of us. we can go out to community at large and say we have a country in this problem in this area and we're going to set a target to improve it. >> there weaver? >> just a couple of comments. what you have heard from all of us, these improvements are going to take time and are not going to be there on january 1. i'll give you an example, though, of something that did happen on january 1 of this year in southeast michigan. that is the larger employers changed patient deductibles from very modest numbers to $3,000 or $4,000 per person. i can tell you the amount of health care tease people are getting dropped dramatically.

their co-pace went up. they don't come to see the doctor. they decide when they are going to see the doctor and unfortunately, it reduces costs a lot. reduces utilization a lot but patients don't have the ability to know what is valued and what is not valued in their care. so they put off prevention. they put off things that ultimately are going to cost us all a lot more. increasing co-pays and deductibles will change the amount of health care dollars that is spent immediately. >> you mentioned personalized medicine and we have this fascination in america with high-tech. one of the most important of people's health and wellness is having a personal physician. they get their acute care needs taken care of, their chronic illness care. the way that we're going to save money in the long vun investing if in patient care.

we need to align our payment system to do that. we don't have enough primary care physicians and so we need to invest in our workforce, reforming our medical education system. we're seeing this play out in the private sector with private health plans. the patient primary care collaborative is a national organization. patient stake holder groups are documenting tremendous success in this direction. >> mr. chairman, you asked the key question that we asked these people to come here and advise us on. are you ready to present to us as the experts, a process, a medology for payment, that -- methodology for payment that we could institute on january 1, with some insurance that the cost would be within a range and meet the government and meet the objectives that we all agree on

here or if you're not going to be ready to do that then, what would you recommend we do? would you recommend we do an update, a positive update of 1% or 2% with some reporting retirements and phased-in pimet programs and so on during that year -- pilot programs and so on during that year so on january 1 or later, we go make decisions about specific payment medologies that would go across the board? we're going to have to make a decision in six months. what do we do? >> there mcaneny? >> thank you, very important question. i don't think any of us are prepared to answer that quickly. it is 1/7 of the economy, health care. i don't think we're going to be able to fix it by january 2013.

i think many hospitals will be put out of business. i don't think that is the intention of any of this. i think that again, we're going to need another positive update. a.m.a. data has shown they are currently being paid at 2004 levels. the light bill is not at 2004 levels at my practice. i think we need some time and stability where we can do some pilot practice. the things that work in my clinic in the heart of the navajo nation are not going to work in my albuquerque clinic or my hospital-based silver city clinic. they are different mechanisms that will be there. the innovation system was thousands of doctors wanting to give ideas about how we can save money and give care. we would like to know we had

some-degree of a period of stability. so we could work with virs pilot products that are specific or integrated across multiple specialties to be able to do that. i hope it will prove to you that we can take a bundle of payments, take care of patients through the continuum of care. it is going to take time to be able to rearrange this health care system. >> very, very important question. updates in stabilization. you have heard several now speak to that. i think the question of stabilization for practices is a huge and key issue going forward. there is a huge amount of work out there already underway,

senator kyl, on the models, the way we deliver care and how care will be paid for. they are going to be multiple this type. not one size fitting all. these practices cannot endure that because they are different based on the practice, the location the patient serves so we have go got to be willing to -- there is probably going to be more than one delivery system. more than one payment system to follow that delivery system as well. we don't know until we do that. one of the things which you all could do now would be to allow practices to roll into a model of whatever they choose to do when they are ready to do it so there is not a limited window of time. right now the window opens and then it closes and nobody can get in there to get the work done to get ready for the infrastructure changes that happen. in primary care practices in part s of this country, getting the funding out there to help them get the infrastructure is a key issue.

it has got to take place in order for them to be participants, but we cannot expect them to change overnight, but we can get them enrolled in these programs if we provide them with wherewithal to do it and the timing allotment to do it. the other thing we have to do fairly quick sli the medicare data system. you have heard repeatedly today we have got to have the data we need in order to do the quality work. physicians want to participate in the quality programs. in some of the earlier discussions, the relevance of the measures, the whole issue of the mechanics of the way these programs work, they don't work particularly well for physicians and then again, another opportunity here is what we refer to as the deeming opportunity which was in our written statement which allows physicians who are already participating like dr. mcaneny's program. let that count towards this

entire issue of physician participation. so those are some fairly straurd things that could be done on -- straightforward things that could be done on the short-term. >> what is the medicare data from which many of you are referring to? >> an example that i can use my own practice. we participated in the pqrs from the beginning. we have been paperless since 2002. last year we filled in all the pqrs. i can prove that i have the documents for each one of those. yet when i turned it into medicare, we didn't get any updates. they said your data is incomplete. said i have my data.

they said nope, ours says you didn't do it. that is just one small example of some of the flaws in the medicare system in terms of rapid turnaround for data. if we're going to manage a population of patience in the medical home, we have to have realtime very good data, where our patients are. what are their complications? who are their other doctors? we have to have that data practically realtimed if we are going to be able to say this is a money. if you get data from medicare, you get it from a year, a year and a half later. we need it now. we really need medicare. c.m.s. as a partner to work with the sfgses to be able to -- >> what does that say? we don't have the money to update our systems? what is their response? >> they are working with us. >> is there a legitimate reason? >> the current structure, mr. chairman, that the way the data

is pulled in, and then analyzed, it is, for example, 2012, we're looking at 2010 data. and so how does that become actionable and meaningful when you get your report? it is really just tied to an update in finances and not the clinical care. we want it tied to clinical care so we can make actual statements about patients. that is the problem using claims data that then has to being a gated when that year is -- aggregated when that year is closed out. that's why we're looking at other data systems that will get to the target you're asking us to get to and if question have these other -- access to these other data systems, they are realtime. that allows us to say that happened last month. we need to put an action plan in place to correct that. that is part of the big disconnect. it is not for lack of trying.

it is just the wrong data that drives the goal that we're trying to reach. >> the other place you can help us is the private insurance. their data is much more rapid, but they are not very transparent with their data. >> that's true. >> and for us to manage ideally, you know, we should have the data of the patients that we are trying to manage in order to do it best. it allows us to look at claims and clinical data at the same time. we're prepared to do that but it is almost like it is proprietary. they don't want to share it with you yet they are spending millions of dollars. >> an insurance company told me all of this gee whiz technology they have. >> what about outcomes?

they were a little hesitant on that. do you share that with your hospitals and your practices? the answer is well, if i pay for it. >> the challenge for the practice is you might have 10% of your population. and then you got your medicare data. they use the claims data because it is what they have. as we make the transition to -- more broadly in our practices, we need to move to claims data. >> it is a question i asked, what do we do? short-term, long-term? we have to be consistent, flexible. different parts of the country. >> are i think we have some understanding of all of that. we do need some ideas. >> i mentioned in my omitting remarks. i would encourage your consideration of its provisions. you have heard from some of us

about preparing stability. the recurring annual and sometimes multiple times per year potential cliff and payment is a huge stifling factor. this bill has the repeal. it has a positive update and then it has declines in fee for service payments in the later years. once we have these new models to take the place of pure fee for service. >> to the specifics of senator kyl's question, can we have something ready for january? it would be a really big push for us to push our model to that point. we're trying score this and show you the ability this has to reduce costs and improve quality tame. so in short, i think we're going

to need a bridge, but also we could use help from the innovation center as to how we're looking at data and how we actually get that data in a meaningful point and get to adequate scoring in the w-based update model that we're proposing, so there is an opportunity for us to work more closely with the center for medicare and medicare 3. get the score and modeling so that we can give you a more complete package. we think it is inalignment with our entire conversation about value and patient centeredness. we do believe we can do that and we're ready to ol our sleeves up on it but we could use some help getting access and partnering with the knowledgeable side of the innovation center and what they can do. >> one of the other things i would throw in on this and i agree with what dr. opelka has said is the whole issue around care coordination and transition of care.

the new codes need to be in place. payment for this, there is going to be some upfront expenditures. the care coordination is extremely important. you heard that earlier in our discussions today. it will result in long-term savings, but we have got to get the ball rolling and make it meaningful. we could talk for hours about how folks fall through the cracks that is not patient-centered. we try but we need help in that particular area as well. >> thank you, mr. chairman, thank you all for your insight. i know most of you represent more populated areas in the country or work in those areas, but i wanted to just raise an example of some of the challenges that we're facing in rural parts of the country when we talk about s.g.r. reform and financial stability for our health care providers. in south dakota, it shouldn't be

a surprise that most of our providers are dependent on government services. a population of 2300 people. a payer mix about 40% medicare, 20% medicaid, 20% i.h.s. and 20% price of insurance. you have 80% tied to federally unstable payment systems. they are struggling to keep up with upgrades and nursing recruitment and all of those things. the other point i want to make about that is it is very hard to recruit and retain providers physicians in some of these rural areas. i'm curious to know -- let me give you another example. in south dakota, we have an estimate that 27% of our population resides in areas that lack sufficient family practice, internal medicine or ob/gyn which is 48th in the nation.

recruiting and retaining quality positions has traditionally been a challenge in hospitals and rural communities. i'm wondering what your thoughts are about the lack of an inability rural settings to cost shift. most people in more urban settings cost shift your more private payers because the margins are so thin with the government reimbursements to physicians particularly in the primary care area. how much of that is impacting the ability of rural areas to recruit and retain physicians? you got this high amount of the pair mix, government sources. the cost shifting that many areas can do isn't available, at least not in the same level in some of these rural areas but it strikes pe that is really impacting our ability to be able to get people to come out and practice. again, come back to the whole point of payment reform and what we can do to incentivize

physicians to work in these areas. just curious if any of you have observations about that? i guess the scenes doctor. -- answer is doctor. i currently practicing in a small metro area but my first was a community of 2700 in central washington, 12 miles from the nearest hospital. i understand the problem that you're referring to. it is largely primary care physicians who are in those rural areas. in most practices, even in primary care, only 25% of their practice is medicare and a small medicaid portion. it is the measures that you describe. what we have to do is again, realign payments so it supports primary care and use the innovations that we have seen in commercial market, which is unfortunately for many of your folks, a smaller piece of oirbaze but in the medical home

pilots conducted ashed around the country and coordinator -- around the country and coordinated with employers and insurers to the patient's center of primary care collaborative and others showing huge improvements in health care quality measures but also cost efficiencies and it is reason that we need the federal payers to be involved if that. it is why the primary care initiative is such a unique, potentially game-changer program for primary care including in rural yars because it is a collaborative between c.m.s. and the private payers in the market to blend this private payment model to support that transformation. we know not are those practices more efficient and better care, but the people who work there are happier and that is an important factor in recruiting to a rural area.

>> thank you for that question. i come from new mexico. we're rural and frontier. i can relate. in the small town where i provide oncology services, one is in the navajo nation and another is in the part of the state where the primary care doctors ask us to please pay those services because patients were little bitting to stay home and die rather than drive hours to get cancer care, which is just too sad in this country. one of the things is it costs more to recruit doctors, nurses, physical therapists, radiation areas than it does an urban area. in an urban area, a doctor who shows up with find a job. in a rural area, one cannot. we have to work harder and pay more under rural areas.

yesterday the medicare system penalizes those of us who have been in rural areas who recollects have kept costs down so when we try to recruit people, we are paid less for someone who cost us more. one thing that congress could do is to take a very strong look at the geographic price cost indicators that adjust all of our payments for these rural areas. and look at whether or not they truly still reflect the cost of providing care. i'm an colings. if i have to have -- an oncologist. i advertise nationally for people to come to new mexico. it is not easy. and we strugglele with that. we set up our own training programs inside the practice to train nurses, to pay them more to become oncology certified. this is what we're taking on. your description of the payer mix is exactly mine maybe not

quite as good as what you described i'm struggling in a private practice to keep it alive. if the payments were higher for rural and underserved areas, and populations with severe health disparities to reflect the work it takes to tear care of people who are socially disadvantaged then you would be able to move some of the doctors and nurses and others from the more urban areas into these rural areas and we desperately need your help with that. >> do the rest of you agree with dr. mcaneny, paying more to those who practice in rural areas? >> i would not say it is just to rural areas. i would say many inner cities have the same problem. >> equal pay for equal work. right? >> what about loan forgiveness? area i think that is effective. >> yes, we do it in kentucky. >> there is good state and

federal programs for that that are very successful. >> the other point to this question is well, is empowering those practices not just with payments but empowering them to be engaged in the whole delivery reform process and that is going to be a challenge. the advanced payment programs so they can get their i.t. health information technology up to speed is var important one. the other thing is working on mechanisms for them to be able to connect to specialists, it is not just within their primary care world but the specialist, it needs to help them imagine their parties. i think we can do manage their patients. they can provide the care they really want and are able to do. >> how much e.m.r. inner opera

sblet there with facilities -- it is a huge issue. >> it is more like -- there is no -- >> that was one of the things that we were addressing and getting better at, i mean, we have people come in, experts come in and testify that is not happening. what they are saying and what we're seeing is just completely opposed. even within the same veppeder where there is a vender who version 1.1 and then this institution over here is version 2.2. they don't talk. even within the same vender. so there is a major barrier there. >> how do we incent them to work better together? >> i think there is a lot going on from o.m.c. in this effort to try to set data standards and

try to move more consistent data across all of these areas. again, the initial move of getting the e.h.r.'s out there was let's get everybody digit tal. now we have to get digital communication and the meaningful movement of data. o.m.c. is at the data for data movement. how do we get the meaningful data? we need to have the o.m.c. standards go out there and say we'll get you movement of data and we can front-end load that with context and that will give us actionable data. >> the other area you can help us with is i mentioned before criteria for appropriate use of testing and that sort of thing which could decrease utilization. that is down on the side now. it needs to be in work flow and in e.m.r.'s. the e.m.r. venders are not

stepping up to incorporate that kind of thing. that's where we'll see changes occur, when we don't have to pay extra to collect the data and distribute it versus having it part of the e.m.r.. >> maybe we'll see other venders here. >> maybe. >> might help. >> we actually had a meeting with them two days ago over at the i.o.m.. the very first step in how we get there. any direction you can give o.m.c. to get us there would move us that much faster. one of the issues, the intermediary that gives out that information, there are some successful and not so successful once around the country and a lot of the issue is what is the business model or payment model that supports them and they often looked to the physicians to subscribe to a sst that is going to exchange information but it is the system that benefit from that information.

i think we need to promode a payment model for that. it is not asking small practices to contribute in order to get information exchanged. >> mr. chairman -- >> go ahead. go ahead. >> i was just going to comment very quickly to the senator's comments about the rural issue. we don't have a solution in surgery but we're very concerned. there is decreasing access to surgical care and when that happens, you got problems with trauma and acute surgical needs and transporting patients and i really can't want to support what dr. hoven said about creating partnerships and new ways of delivering care into the rural environments. partnerships from these delivery systems that are forming that create some new connectivity out to the specialty areas so sthrs earlier intervention and prevention of patient events.

it is deeply troubling in surgical care what we're seeing in the absence of it in rural america. it is something we're tracking but i don't know if we have a solution for it. if we were to have a solution, what might it tend to be? >> creating the kind of partnerships we need, getting the right surgeon to the right environment at the right time, matching the surgical needs. there could be a sense of how we actually create etionalizeation of key parts. surgery, some of that may be loan forgiveness. some of that is going to be recruiting into the medical schools themselves as a person of in louisiana, rural state with a medical education, we find when we pull in students from the rural areas, there is a good chance they will go back to the rural areas. we're looking for them to come in from the rural areas and we're giving them incentives to come into medical school. it begins very early in the