stick around for "the daily rundown" with chuck todd. today the final day in court for the president's health care plan and tuesday's arguments did not go well for supporters of the plan. the question, can the government save the mandate? we will argue it over whether the ruling against the mandate would overturn the entire law. despite a rough time in court, the obama campaign is waking up to good news. the polls show the president's numbers rising and romney's falling in key swing states. speaking of waking up to good news, fellow dodger fans, the long baseball nightmare may be over thanks to magic johnson and friends. a $2 billion solution? wow. it's wednesday, march 28th, 2012. i'm chuck todd and let's get to the first reads of the morning. the health insurance mandate is

found unconstitutional. can the rest of the health care law survive. that's the question they take up in less than an hour. by all accounts, the challengers of the law had the upper hand. the health care mandate is in trouble. sandra day o'connor said you have to be able to count to five. prognostication based on oral arguments is not a science. the number five sounded skeptical of the government's argument beginning with the justice who may be key, anthony kennedy. >> when you were changing the relation in a unique way, do you not have a heavy burden of justification to show authorization under the constitution? >> it was clear from the out set the other two who might have a

broader power, the justices were not convinced with an analogy of a slippery slope analogy. if congress can make everybody buy insurance, is there an end to what else it could do? >> can the government require you to buy a cell phone because that facilitates responding when you need emergency services. >> everyone has to buy food and therefore everyone is in the market and you can make people buy broccoli. >> solicitor general arguing for the government was struggling and some of the more liberal justices jumped in and tried to bail them out. >> it's different because of the nature of the health care service. you are entitled to health care when you go to an emergency room, when you go to a doctor, even if you can't pay for it. >> the obama administration saw

a glimmer of hope to this late statement by the swing vote kennedy suggesting that his vote may be in play and he wondered because the cost of treating people without insurance is shifted to those who do. health care may be unique. >> the young person who is uninsured is uniquely proximateimately very close to affecting the rates and the cost of providing medical care in something that is not true in other industries. >> they are hanging their hat on that. pete williams joins me from the supreme court and let me ask about today and being the issue whether you can serf the mandate from the law. is that an opportunity for the government to basically reargue the mandate and come back with better counters? >> i doubt it.

this is a what if question and you have to take the what if as a given. that is to say if the court were to strike the mandate down. the argument for the government will be that whether or not the individual mandate, the requirement to buy insurance is so bound with the rest of the law that you can't pull it apart. they said this is like a watch. if you take the mandate out, the rest falls apart. the second question is what would congress have wanted? would they want the other things if they didn't have the mandate. one other thing, the court will look at the constitutionality of the other big requirement that is on the states to expand the coverage of the medicate program. it would greatly expand the coverage to single people under 65 who are at or below 133% of

the poverty level. they can't afford health insurance. that's a constitutional question that comes this afternoon. >> so the government basically is arguing that you have to overturn that for the mandate? >> the government will try to save as much as it can. they will try to say that other parts are important. they can coexist without each other. let me try that again. the two can exist without each other because many provisions are already in effect. two years before the insurance mandate kicks in. they will sigh look, it obviously works. we are doing it now. these are things like the fact that insurance companies have to cover young people until they are 26 under their parents's plans. you can't turn down people because of preexisting conditions. tax benefits for employers who

give penalties. all those things. limits on coverage and all those things are in effect or kicking in before the mandate. the government will say the evidence is right in front of you and it can work without the mandate. >> they have to get into the supreme court and thank you very much. mitt romney may be 3,000 miles from the action, but he couldn't escape questions on health care even on a late night talk show. the questions came from our good friend here, tonight show host jay leno. >> seems like children and people with preexisting conditions should be covered. >> as long as you have been continuously insured. >> what about those who don't? >> if they are 45 and they want insurance because they have heart disease, we can't play the game like that. >> hey, guy, we can't play the game like that. >> how do you get healthy people

into the insurance market? we have to figure out how to answer that. obama responded to the russian president who said romney's line on the open mike smells of hollywood and romney should look at his watch. we are in 2012 and not the mid 70s. romney's response. >> they are turning into us. they have kentucky fried chicken and mcdonald's and love cars. they are more like us than people perceive. >> i don't want to call the russian czar someone like us exactly. they are people like us, but you have vladimir putin and they are continuing to support iran. they stand up for the world's worst actors. >> when handed an opportunity, romney decided to stay above the fray and he is making excuses for him. >> one breath, the same day he

said you were the worst possible guy to run against obama and the same day he said i would be his vice president. >> you are on all the time when you are running for office. everything you say is followed by a small camera of some kind. you don't always get every word just right. you have to give people a little bit of slack, i think. in this case rick santorum is a good guy and running a good campaign. i'm happy with him saying he wants to be part of the administration with me. nothing wrong with that. >> there were no questions about the story that hit the world from politico about the plans for one of mitt romney's houses. mitt romney has a two-word and three-word phrase problem. in this case elevator. as bad of a day as the obama campaign may have had on health care, this provides the white

house with good news to close the health care wounds. an abc news poll, mitt romney is viewed unfavorable by half of all adults. only 34% have positive impressions of him compared to 53% that view the president positively. the general election is seven months away. the bad news is it's just seven months away and romney's numbers are following a trajectory like four years ago. no one has won the white house since 1960 without carrying florida, ohio, or pennsylvania. this is where obama teamed up more good news in the swing states. a new poll showed the president leading romney in all three states. surprisingly closer in pennsylvania than the other two states. why? check out this. a gender gap. the president is beating romney

with women with double-digits and six points ahead in pennsylvania as well. good news for romney this morning in the pennsylvania primary. according to a franklin and marshall role, santorum leads, but by a narrow margin. now just up two points. what may be the do-or-die moment, wisconsin holding the primary tuesday. he is outspending by about a 5-1 margin. that came down from earlier in the week. romney holds a single digit lead according to a poll from the law school. in that poll, gingrich sits at 5%. weigh learned this. strategy has caught up to the stating in the polls. the campaign is laying off a third of the staff and lightening the travel schedule. his travel schedule is going to

be so light at times, the question will be asked is he an active candidate or closer to being a candidate that decides to suspend the operation. he is acting as if he is in between at this point. it's been a busy week here in washington, but there is a big story going on in this hemisphere. pope benedict xvi is closing out a three-day-trip to cuba with a mass in the revolution plaza. the highlight may be later. a scheduled meeting with fidel castro. something he blogged about last night. he blogs now. andrea mitchell has been in cuba all week. fidel hacking at his keyboard and giving us his facebook status and meeting with the pope later today. >> it's all different and new. there has been change and more religious freedom, but the one remark the pope did make at the

meeting with raul castro is a 40-minute meeting last night was that good friday is another week from now. the friday before easter. that be made an official government holiday. christmas has been made a holiday and the catholic church had no standing for decades, but after pope john paul ii's visit starting in the 90s, but in 1998, 14 years ago, it was changed. the church more influence two years ago. raul castro met in havana and did negotiate for the release of the prisoners. there has been a lot more influence. the pope wants specifically, the one request is that good friday be made an official holiday. he is not expected to raise

individual cases. we do not think he is going to raise them and the u.s. aid contractor. cuban officials said they made an offer to the u.s. government for some sort of negotiations and have not heart back from the white house. that's the political status. >> i want to follow-up because it's surprising to me on the plane ride over, the pope was talking a tough game about cuba and really has done none of that while on the ground. has he not? >> none of that on the ground. he talked about the aspirations of freedom and said he holds the freedom of all people in his heart. that has been a decision for sometime. he has not talked about the political freedom and you don't expect he will do it in any

other way. for the church to continue to have influence with the regime, the former regime made a number of steps politically and economically to advance. the church doesn't feel they have the power to go too far. it's a balancing act. some expression of political freedom. it's not as explicitly as it was. there is a lot of excitement. the big sideliner of the day as we learned is that they have been banning booze sales for the day. the pope is here and we will be leaving this afternoon. >> we know people tried to buy liquor today.

we will leave it at that. >> more second. there pope visors with the pope. >> a lot of souvenirs. all right. andrea mitchell in havana. our week long effort to jump-start an initiative called hiring our heroes, veterans returning from the war are facing finding a job. we will talk to two more congress men involved in helping the fight to get unemployed veterans back to work. mitt romney sizes up vice presidential options with jay leno and told him what special positions rick santorum would have. first the look ahead at the president's schedule. it's a day of rest after that horrible jet lag time zone issue you get when you come back from asia. no public events today. you are watching "the daily rundown" on msnbc. what's with you?

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looking at live pictures and the uss intrepid and joining forces in a new mission called hiring our heros that culminates with a jobs fair. when the 1500 veterans and military families are expected, congress earned multiple bills in the works that are funding the programs or encouraging business to step up. two of the men working on behalf of the bills, the republican member of the house and served

in iraq and gentlemen, the veteran job core idea. why are you making the case for this? what makes it the way to go? >> the universe for these, they have not done a better job for catching up to it. what we want to do, there a lot of jobs that can be done. this is perfect when something is punching. we need to get a lot more to get these folks to these jobs that will be opening. i think that this is a good plan. there is a billion that will be

set aside in the president's and democratic budget. it's money that will be well-spent. we have not had anything for them. whether they are homeless or without a job. health care is a big part of this as well. i hope you have questions about that. >> you are not fully in favor of this job core program, but in favor of some of the thing that is the veterans core would do. explain. >> i have my own bill and it says not everyone gets a traditional education and through the gi bill, some folks want to do things differently. i had a constituent say a lot of veterans want to come back and start a franchise. they want to start a dunkin

donuts or a starbucks or etc. there is a lot of them associated with the franchise programs, months and months with instances and can't use the gi bill for that sort of education. they have a bill that said look, we need to be more expansive and flexible in terms of nlding what education for a veteran is. my bill would allow them to use their gi bill to fund that franchise education. we had 66,000 veteran-owned franchises in this country that employ about 800,000 people. >> i want to get the congressman to react to something on our air yesterday. it had to do with concerns veterans themselves have when they are entering the jobs market. it is part of the storming of a hill lobbying team.

listen to what he said about things he didn't do in order to protect the job market. >> i think a large part of the problem was translating military skills to civilian terms. to be able to take things and say i was an infantry team leader or did this or this. put it on a resume so people who never have been there can understand. in addition i suffered ptsd. i was very reluctant to get the help i needed because i feared getting help and that sort of thing or having it on my record may limit prospects in the future. >> i know you have been working on this. he was afraid to get treatment of ptsd. that struck me because he thought it was going to hurt him. what's the answer on that? >> this is very true. there was a situation where you top the come forward.

many of the veterans near a roadside bomb or vehicles turned over, there is no blood or contusion, but there is damage to the brain. there is a concussion. they don't want to admit that because they feel that then they are not going to stay on duty. you have seen this in the situation with the soldier in afghanistan allegedly who killed 16 or 17 people there. independent people. we area allowing too many to fall through the cracks. this is serious. before you can get to a job and get to an opportunity for a job, you need to be within yourself. this is a family operation and an expensive operation. we are not doing enough to find out who need this is kind of help. >> what do you do about this specific issue? on the employer's side, they

don't hold this against veterans. the way you are doing this week, but back to the other point. this is an issue they are grappling with and soldiers members coming through. they want to make sure they get the treatment they need in the short time frame they interact with them and they are unable to get a full diagnosis. one of the problems i am seeing and i think this is in a lot of states, there so many resources available. they are not organized in a way where a veteran coming back would know where to go for a particular service.

the goal will be to put all the services whether it's nonprofit and government, what have you in one listing and try to make it easier for vets to know the folks that are out there to help him with resume skills or help him get that mental health they need. >> i have to leave it. we have been trying to show this week the efforts going on. it's clear both of you are big members of that. thank you both. i know you want to talk about health care. hiring our heroes continues tomorrow. tomorrow we will talk to jack reed. the first to graduate from best

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the news outlets reporting in floater and on the night of the shooting, the lead investigator actually recommended that george zimmerman be charged with at least manslaughter. nbc news is not independently confirming those supports, but clearly there is leaving going on like crazy in the police department. somebody needs to unplug all that was stuff. jet blue is trying to explain and not just on that side, but the trade too.

jet blue and investigators are trying to explain why passengers on board a flight had to restrain the captain of the plane. a quick thinking pilot locked the captain out after the captain started acting irradi l irradically. it landed safely in amarillo, texas. the dodgers have a new owner. a group of investors that includes magic johnson who agreed to buy the team for a record $2 billion. they filed for bankruptcy in june after a deep cash crisis. after the mccourt divorce, it coincides with the start of the official major league baseball season today. the mariners against the a's played in tokyo and it has been in extra innings. they forgot to say that the game is happening with the nfl opening day and opening night. opening bell just rang on wall streeto it's time for the market run down. what you got?

>> i didn't know about the opening day stuff going on there. you are right. no idea. we are looking at the opening bell. we are opening up relatively flat. what's happening with oil prices. off another couple of bucks and happening on stories that are out there and said just that france and britain and the united states are all talking about the will have a release and timed in the next fee weeks. the first newspaper that is reporting this today got traders nervous that you are seeing pressure for a second consecutive day and that does not take away from gas prices continuing to and reaching near $4 a gallon. that has more people concerned that are weaker than expected. we had durable -- and it looks

like we are flat. back over to you. >> the approximate president's health reform law, could it be in trouble? a lot of people on the left these days are blaming the government lawyer who apparently had a rough day in court. you heard from the judges and now you will hear from the attorneys arguing the case. that's next as the third and final day of argument gets under way. you are watching "the daily rundown" on msnbc. [ artis brown ] america is facing some tough challenges right now. two of the most important are energy security and economic growth. north america actually has one of the largest oil reserves in the world. a large part of that is oil sands. this resource has the ability to create hundreds of thousands of jobs.

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luckily, we've got kraft homestyle mac & cheese in the pantry. so mom can save the day. [ whispering ] dad really screwed this up. [ male announcer ] kraft macaroni & cheese. you know you love it. can it really come down to being all about communication? the obama administration is trying to make the case that the health care reform law is legal and constitutional. they came from the two men, donald virilli who was under pressure right away from justices who wanted to know where congress gets the power to

force people to buy insurance. >> we think this is regulation of people's participation in the health care market and all this minimum coverage provision does is say that instead of requiring insurance at the point of sale, that congress has the authority under the commerce power and the necessary power to ensure that people have insurance in advance of the point of sale because of the unique nature of this market. >> the unique nature of the market he argued is that virtually everyone is part of it. some of the conservative justices argued that by talking about other markets, they asked if everyone should be forced to pay ahead of time for their own burial and justice scalia talked about the broccoli argument. everyone needs food and everyone is in the market so why can't they force everyone to eat healthy food like brkly.

>> that's quite different. that's quite different. the food market while it shares that trait that everyone is in it, it is not where participation is often unpredictable and voluntary and where you don't know what you need before you go in. >> he got help on that from justice begins berg who tried to clarify. later the more liberal justices picked up the threat as they questioned the attorneys for the states. clement argued with the justice over the government's claim that everyone is part of the market and therefore part of the health insurance market as well. >> this statute operates on the health care insurance market. the government can't say that everybody is in that market. the problem is that everyone is not in that market. >> doesn't that seem a little bit you canning the bologna thin? i mean health insurance occurs

only for health care. they are interlinked. we don't get insurance to stare at the insurance certificate. we get it so that we can go and access health care. >> justice kennedy voiced that people who don't participate in the health insurance market make it more expensive for those who do. clement said that's not unique to health care. >> when i'm sitting in my house deciding i'm not going to buy a car, i am causing the labor market in detroit to go south. i am causing maybe somebody to lose their job and for everybody to have to pay for it under welfare. the cost shifting that the government tries to associate with this market is everywhere. >> that brings us to the third and final day of arguments. joining me now is the constitutional law at american university. they covered this report from the "wall street journal." the managing editor for politics

at the national journal. we will get into politics for this as well. we have to ask you, how did he do? is all of this wringing on the left basically a lot of people said he wasn't as quippy as clement was with a quick analogy about cars. >> clement was smoother and more polished and virilli had a hard sell and justices gave him a hard time. his job was to convince some conservatives that there was a limiting principal that this doesn't open up the universe. >> that seemed to be what they were concerned about. if we make this law, are we opening the door for more and do you ever feel like he considered that question ? >> you don't argue in sound bytes, but there were a couple of moments where a sound byte

would have hit it home more clearly. >> on the politics of this, i think now all of us are under the impression that it will be a 5-4 whether the mandate stays or whether it goes. no matter what, we will look at it. politically that will not be satisfying. >> it's traditional in the times and reflects the split of a country and what went on at the court reflects the continuing communication problem the obama white house had. >> they couldn't communicate it in court. they have been unable to do it. >> it is true. kaiser did a poll that shows if you tell people that the mandate doesn't apply to anyone with healing insurance through work. 61% approved the mandate and one of the commoners adopted why haven't they adopted that argument. >> 2% of the public may be under the mandate. >> right. with subsidies.

really what it's not as onerous as it sounds. >> you concerned that if we have another, kennedy sounded like this and there were times where you say oh, wow we will come out against it and at the end he said perhaps, health care is different. that's what the democrats are hanging their had on here. the supreme court, are they going to look like political actor who is happen to wear black? >> they hope they send a clearer and stronger message that helps diminish the opposition and the doubt and the uncertainty. if it's not there, it's not there. it will come out 5-4 and so be it. congress will take another whack at this. >> is this an opportunity to get

the mandate? >> i think that the government might want to try, but it's a different lawyer arguing that part of it. the club may not hear about the argue ams on this issue. >> the different democrats starting to spin fchl we lose, we still win. >> the president's signature achievement and in terms of sufferability, you got the obama campaign health plan that didn't have a mandate. they are raised to get around that and hopefully for him it survives. >> thank you all week. this has been terrific. i appreciate it. i say all week. it's only wednesday. this has been a long week. the hump day panel will be here next. first, the soup of the day. i'm not making this up. broccoli cheddar. you are watching "the daily rundown" only on msnbc. ♪

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at&t. ♪ mitt romney took heat from of all people, house speaker john boehner for criticizing president obama because boehner came to the president's defense yesterday after romney hit the president on russia. listen. >> well clearly the president is overseas and he's at a conference. while the president is overseas i think it's appropriate for people to not be critical of him or our country. >> "usa today's" washington bureau chief and the contributor and sarah, i have to start with you. this i heart from boehner's people a couple days ago and this was a consistent thing. he didn't like it when they did

this to your former boss. he wanted to show consistency and apparently he was not happy that romney did that. >> i think the speaker is appropriate, but the loser in this dialogue is president obama. when the russian leader is coming to the president's defense, particularly in a time of somewhat tense u.s. relations, that is not a good story for the president. >> that was sort of odd as they came to the president and they are going wait, wait. don't do that. >> it's interesting that boehner didn't put it in and kudos to him. they take the reflexive partisan position. he deserves praise for that. bring it on. it is elevating and makes him look like a president. is there a lobby in the electorate? i don't think so. >> here doubled down and put an op ed out there today hitting

the president even harder on this issue. it's like he was criticized for his response and saying wait a minute. they are not our number one foe. >> but they are not is the problem. he can try to explain it as much as he wants to. you can look at economics and ignore china and the foreign policy side and pakistan. all sorts of ways to look at it. to go back 20 years, i'm not sure how many people are paying that much attention. it looks like i don't know if they are an ally or a foe, but we are trying to spend a lot of time to massage. >> an interview with matt lauer, boehner was asked, what's the best selling point of mitt romney. boehner was not whole hearted, but he said i guess it's the ev. but yesterday i was struck that

politico piece about the who blueprints of his house leaked out. romney's in danger of a lot of two-word phrases. the president's got his issues, flexibility is a new one there where he's all of a sudden it opens up a narrative. >> yeah, i think it's very serious for romney, actually. i mean, we now know he's a rich guy who has a car elevator, or plans to build a car elevator. >> what is it? a lot of people not sure what that is. but that detail, one of those horrible details, like the $400 haircut. >> it's a challenge for him. and i think the challenge for the romney team moving forward is to figure out how to turn mitt romney's qualities, his personalities into an asset, and there's something they can work with there. he's an incredibly smart, successful guy, but we're getting lost in all of these political side bars. >> quickly, curious of your take in this, quinnipiac poll out

today, what's more concerning for you? the gender gap for romney or the favorable/unfavorable of the two parties where the republicans were under 40 in florida and ohio? >> i think the gender gap is long-term a bigger challenge. we're in this tough time in the republican primary. we will get past that, romney will get a bump. >> you think that gets fixed? >> i think that gets fixed largely. i think the gender challenge, you know, we spent way too much time on contraception. and democrats are driving that, not republicans. but -- >> who were they? thought you guys were going to be able to google this easily. we were looking for john marshall harlan and john marshall harlan ii. first served from 1911, the second is his grandson and he served to 1971.

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okay. indomitable -- >> paul ryan. >> paul ryan? uh, creative. >> nikki haley? >> energetic. >> donald trump? >> huge. >> huge. >> rick santorum? >> press secretary. >> all right. i have no idea what he meant. he was asked to give one-word answers. press secretary. >> former press secretary, that's like an insult. >> is that an insult? >> i think it had to be a little bit of a jab at santorum. >> a tiny pit. paul ryan, hesitated there. >> later he said he could see

santorum as his running mate. fagan will be running mate with mitt romney before -- >> i thought it was interesting because he seemed to defend santorum a little more than normal. he didn't pile on. >> this is romney trying to secure the base, trying to be the leader of the party and bring everybody together. >> shameless plug. >> go kansas in the final four. >> all right. that's a good one. jamal? >> tomorrow the naacp, urban league, labor, a bunch of groups going down to the organization to protest on some of these gun laws and how to get a program and things like that. >> great piece in the "weekly standard" by adam white. for those of us politico junkies who don't understand the court. >> that's it for this edition of the "daily rundown." we'll see you tomorrow. coming up next, chris jansing, bye-bye. on december 21, polar shifts will reverse the earth's gravitational pull and hurtle us all into space,

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