captioning sponsored by macneil/lehrer productions >> ifill: good evening. i'm gwen ifill. in a flurry of public debate and private negotiation today, the senate moved toward action on the start nuclear arms reduction treaty with russia. >> brown: and i'm jeffrey brown. on the newshour tonight, the movement on start comes after a weekend of votes on capitol hill. we recap what happened, and assess where things stand. >> ifill: judy woodruff examines the challenges ahead as the u.s. military prepares to allow gays and lesbians to serve openly in the military for the first time.

>> brown: ray suarez begins a series of reports from havana. tonight, the push for economic reform in cuba. >> suarez: in advance of next spring's communist party congress, the country is buzzing about what shape reform might take. what will the next cuba look like? >> ifill: and we talk to white house health reform director nancy-ann deparle and virginia attorney general ken cuccinelli on whether americans can be forced to pay for health coverage. that's all ahead on tonight's newshour. major funding for the pbs newshour has been provided by: >> this was me-- best ribs in nelson county. but i wasn't winning any ribbons managing my diabetes. it was so complicated. there was a lot of information out there, but it was frustrating trying to get the answers i needed. then my company partnered with united healthcare. they provided on-site screenings, healthy cooking tips. that's a recipe i'm keeping. >> turning complex data into easy tools.

we're 78,000 people looking out for 70 million americans. that's health in numbers. united healthcare. >> opportunity can start anywhere and go everywhere. to help revitalize a neighborhood in massachusetts; restore a historic landmark in harlem; fund a local business in chicago; expand green energy initiatives in seattle. because when you're giving, lending and investing in more communities across the country, more opportunities happen. >> chevron bnsf railway. >> and by the bill and melinda gates foundation. dedicated to the idea that all people deserve the chance to live a healthy, productive life.

and with the ongoing support of these institutions and foundations. and... this program was made possible by the corporation for public broadcasting. and by contributions to your pbs station from viewers like you. thank you. >> ifill: the countdown to christmas was on today in washington, as the senate labored to finish work on a challenging wish list. topping the agenda: a nuclear arms treaty with russia. the white house was supposed to have been quiet for the holidays by now. instead president obama's family left for their hawaiian vacation without him. and he remained behind to try to get the new start treaty passed. >> look, obviously the president and the vice president continue to communicate with senators in order to ensure that they have the most updated information.

>> ifill: white house spokesman robert gibbs predicted the president's telephone lobbying will be successful but the congressional clock is ticking. >> the white house believes that before congress leaves town that the senate will ratify the new start treaty. >> ifill: the treaty, signed in april by mr. obama and russian president medvedev, would reduce the maximum size of deployed nuclear arsenals in each country by roughly a third. assuming solid support from democrats, the administration still needs at least nine republican votes to get to the 67 needed for ratification. one key prospect senator lindsey graham of south carolina said sunday he would vote no. >> the idea that you can have a meaningful debate on the start treaty when you've had one amendment after weeks of special interest politics and you have unresolved the difference between the russian's view of missile defense and ours makes it a hurdle you can't overcome in the lame duck. >> reporter: the president tried to address some of those

concerns in a letter to party leaders on saturday promising to move ahead with missile defense. but minority leader mitch mcconnell said today the senate needs more time. >> no senator should be forced to make decisions like this so we can tick off another item on someone's political checklist before the end of the year. >> ifill: democrats have long complained that the new start treaty would have been ratified by now if not for republican delays but they conceded this week's vote count will be tough. >> i think we will get them. it's going to take... it will be a real slog, you know, sort of house-by-house combat, if you will. >> ifill: the key test could come tomorrow when treaty supporters try to cut off debate. if they win, a final vote might come by thuray. that would give the president another major victory. on the heels of saturday's repeal of don't ask don't tell. >> the yeahs are 65. the nays had 31. >> ifill: the senate's action opened the way for gays and

lesbians to serve openly in the military for the first time. it came after 17 years of enforcement and heated debate. >> if you care about national security, if you care about our military readiness, then you will repeal this corrosive policy. >> the existing don't ask don't tell policy is in my opinion inconsistent with basic american values. >> i hope that when we pass this legislation that we will understand that we are doing great damage. >> should it be done at some point in time? maybe so. but in the middle of a military conflict is not the time to do it. >> ifill: in the end the president's position carried if day fulfilling a 2008 campaign promise. he's expected to sign the repeal bill on wednesday. at the same time another of his priorities, a so-called dream act, fell short of the number of votes it needed to cut off debate. it would have given children of illegal immigrants a path to legal status if they enroll

in college or join the military. >> this is the only country they have ever known, and all they're asking for is a chance to serve this nation. that is what the dream act is all about. >> this bill is a law that, at its fundamental core, is a reward for illegal activity. >> ifill: still to come on the senate's to do list is a final vote to fund the government through march 4. and new york lawmakers are still pushing for a $6.2 billion bill to provide health care for 9/11 first responders over ten years. if it passed, the bill would go back to the house for final approval. the house will also have to find time for final action on food safety legislation that cleared the senate over the weekend. joining us no assess this crowded

and eventful lame duck session of congress are cynthia tucker, a columnist for the "atlanta journal-constitution," and rich lowry, editor of the "national review." you've been following this start debate. where does it stand tonight as far as you can tell? >> i don't know, gwen. the people who are following it very closest and are closest to it don't know. so i don't know. i think it's a real jump ball. the clothe you're vote tomorrow will be very telling. if they get in the low 60s, it wouldn't surprise me if there's not an ultimate vote on ratification at all. if it's upper 60s, 70, that shows they probably have the votes and it will go to ratification. >> ifill: who are the moving parts, cynthia, about this issue in particular? then we'll move on to the larger issue. is it politics or policy in your opinion? >> it's the politics, gwen. it's the politics of pet lance. that's what we're seeing here. many republicans are annoyed that the president seems to be racking up so many victories in this lame duck session. the policy issues that were legitimate have largely been dealt with. republicans have been complaining for months that

there was not enough money to modernize our nuclear arsenal. the president is now committed tens of billions, far more than george w. bush did to modernize our nuclear arsenal. republicans have said they haven't had enough time to read the treaty. well, it's been signed since april. they've had six months to get into the details of the treaty. it has been endorsed by every living secretary of state. it seems that republicans keep moving the ball here in an effort not to give the president another political victory. but let's remember national security is also at stake here. without this treaty, we have no way to verify russia's nuclear arsenal. >> ifill: rich, is this politics of pet lance or is there some substantive objection to what we see playing out on the floor? >> i think republicans like jon kyl have been convinced it's a bad deal. it takes us down to 700 launchers. the fact is that's missiles,

bombers and the like. the russians are already below 700 launchers so they're not going to have to cut at all. we're the only ones that will have to cut. in exchange for us cutting, we're making concessions like linking missile defense to offensive weapons which is the language in the preamble the republicans are very concerneded about and trying to strip out. if it's true as the administration and supporters of the treaty say that that preamble is really meaningless and basically an ink blot it shouldn't be a problem removing it. the administration should support removing it. the russians should be fine removing it. the russians were saying they'll pose any change in the treaty whatsoever. on the issue of verification, this is a key thing. the verification regime under new start is much weaker than the old start treaty. basically it relies on what they call technical means, satellites and whatnot. you're going to be able to use those technical means whether you have this treaty or not. >> ifill: let's talk about some of the other things on this incredibly crowded plate.

don't ask don't tell was a victory for the administration this weekend but the dream act not reaching the threshold for the vote or the cut-off debate. that was a defeat for the administration. on balance when you look at these things, one up, one down, how is is it going? >> well, it was a defeat to the administration, gwen, but i look at it as beyond politics. it was also a defeat for the country. i pains me that in essence the u.s. senate turned its back on 800,000 to a million potential model citizens. these are young people who have been here for much of their lives, speak english, have committed no crime themselves. they were brought here by their parents. they would be put on a path to legal status if they served in the military or finished two years of college. we need the military... the military needs good recruits. president obama has said our economy depends on having more americans finish college. so these would have been good young folks for us to envelope

into american society. and, yes, it's a blow to the administration, it's a blow to their latino supporters, but i think it's also a blow to the country. >> ifill: what about don't ask don't tell, was that just going to happen or was there a mistake made this weekend, rich? >> well, as thomas jefferson said public opinion is the lord of the universe. our system ultimately runs on persuasion and over the last 17 years the repeal has made major inroads among the public. when that happens you'll see congress move. that's what happened. >> ifill: rich, are you surprised to see so many happening in a lame duck session? there's been so much discussion about whether the president is move to go the middle, the right or the left. what is your sense of that? >> i think much more consequential than any of the things we've been discussing-- no disrespect, gwen-- was the action thursday night when you had nancy pelosi's house and a big bipartisan vote ratifying

basically the bush tax cuts on all income levels for the next two years. a huge majority in the house. that still got through. that's extraordinary. you also saw the omnibus bill, the bill $1.1 trillion spending bill collapse in the senate and a defeat for appropriators of both sides. so that was really a sign of crumbling of the old spending order on capitol hill. and now we're going to have a big debate over how much to retrench, and that tax deal is a sign i believe that president obama realizes he needs to... as a liberal partisan that he's accrued over the last two years as possible by get to go the center. i would expect to see over the next year similar moves by him to scramble the partisan picture. >> ifill: cynthia? >> well, there has been much debate about whether the president is trying to move to the center. the fact of the matter is that there were some things that the president very much wanted that he could not get unless

he agreed to extend the bush era tax cuts for the wealthiest americans. he wanted to extend unemployment benefits. he got that. he wanted tax cuts for the rest of americans, for middle class and working class americans. he got that. he got an expanse of the earned income tax credit. so what he managed to get out of this compromise is? effect a second stimulus. smaller than the original stimulus. but he never would have gotten anything with the name stimulus attached to it through a republican house next year. so there are reasons, i think, for both sides to celebrate as they have. whether it's a move to the center, that's something that we'll be debating for the next two years. >> ifill: quick answer for both of you. cynthia, we have to stop calling lame duck congresses lame after this. >> we might, gwen. this wasn't won hasn't been so lame after all. >> ifill: rich.

>> i would hope we would stop having lame duck congresses at all. i think it's an awful practice to have representatives rejected by the people deciding important questions like this. >> ifill: there you go. thank you both very much. >> thank you. >> brown: still to come on the news hur implementing the repeal of don't ask >> brown: still to come on the newshour, implementing the repeal of "don't ask, don't tell"; economic change in cuba; and the legal challenges ahead for the health care insurance mandate. but first, the other news of the day. here's hari sreenivasan in our newsroom. >> sreenivasan: iraq may finally be close to seating a new government, nine months after national elections. prime minister nouri al-maliki submitted a list of cabinet ministers today. parliament could approve the roster as early as tomorrow. for now, 13 of the 42 posts would be filled by acting ministers. that could give maliki time to work out disagreements with a key shiite faction. the parliament in afghanistan will convene a month from today more than four months after elections there. the voting was marred by fraud, and officials threw out nearly a quarter of all the ballots. meanwhile, fighting claimed another nato soldier, making at least 690 this year.

militants killed 14 afghan soldiers and policemen in separate attacks in kabul and to the north in kunduz. police enforced a crackdown on the opposition, after a disputed presidential election on sunday. president alexander lukashenko won a fourth term with nearly 80% of the vote. that sparked outrage sunday in minsk, where some 40,000 protesters charged the vote was rigged. riot police arrested hundreds of people, including most of the leading opposition figures. north korea backed away from threats to retaliate against south korea over military drills today. on yeonpyeong island in yellow sea, off border of north and south korea they took place off an island in the yellow sea where north korean shelling killed four people last month. the north's state-run news agency said today's exercises were "reckless," but "not worth a response." meanwhile, new mexico governor bill richardson left north korea after a four-day visit. he said the north agreed to let u.n. inspectors resume visiting its nuclear sites.

that brought this response in washington. >> we've seen a string of broken promises by north korea going back many, many years. as we've said all along, we'll be guided by what north korea does, not by what north korea says it might do under certain circumstances. >> sreenivasan: six nation talks on north korea's nuclear program have been stalled for two years. winter storms left british air and rail travel largely paralyzed today. thousands of people were still stranded at london's heathrow airport, as officials struggled to clear snow and ice from saturday. that, in turn, caused cancellations and delays around the world. meanwhile, record rainfall in california triggered flood warnings and fears of mudslides, and more rain was forecast this week. wall street has a quiet start to the christmas holiday week. the dow jones industrial average lost more than 13 points to close at 11,478. the nasdaq rose 6 points to close at 2649. those are some of the day's major stories. now, back to jeff. >> brown: and we return to one of those big senate actions over the weekend. judy woodruff looks at what the repeal of "don't ask, don't

tell" will mean for the military. >> woodruff: once president obama signs the repeal legislation on monday, it will be up to the defense department to implement the changes. for more on how that will happen, we turn to bernard rostker, who has held several high-level pentagon personnel posts in the carter and clinton administrations, including undersecretary for manpower. he is a senior fellow at the rand corporation, which has prepared reports for the pentagon on "don't ask, don't tell." and tammy schultz, the director of national security and joint warfare at the u.s. marine corps war college. thank you both for being with us. professor schwartz, let me start with you. what is it that the pentagon is going to do now, starting now to implement this plan? >> well starting now there's basically going to be a review to see what sorts of procedures, laws, codes that need to be basically changed. immediately after that there will be a certification

process by the chairman, the secretary of defense and the president that will basically certify the unit cohesion and readiness will not be affected by the implementation. >> woodruff: my apologies. i called you swartz. it's professor shultz. >> not at all. >> woodruff: bernie rostker, will this be done in phases? i mean, how do we look for this to unfold. >> i think there will be three additional efforts. one is to prepare a code of conduct that would be implemented woud regard to sexual orientation to all service members. the service members throughout the military will have to be told what is expected of them in terms of their behavior. and then leaders will have to be trained. it may take several months, but it certainly could be done within a six-month period. >> woodruff: we're talking about different training for officers than for enlisted members. >> senior enlisted and officers who manage small units will receive, i believe, some additional training. >> woodruff: and professor

shultz, what kind of training are we talking about? >> well, as bernie mentioned, it's not necessarily that... special treatment is not what we're talking about here. we're talking about equal treatment. frankly a lot of the laws and regulations that are already in place will be what the officers are trained on. for instance, no dating within the chain of command, for instance. they'll be given basically a tool kit to able to deal with any of the issues that arise so they'll be adequately trained and prepared to do so. >> woodruff: are the... is it going to be different depending on the branch of the military? i mean, you serve at the marine car college. will it be different for the marines than it is say for the army and the navy? >> i have not seen the details of the implementation report other than what was released generally with the 87 pages for the pentagon. however, one of the things i do recommend is basically service-specific tailored to the culture of that service. for instance, the marine corps has honor, courage and commitment as core values. linking the repeal of don't

ask don't tell to those values will help the marine corps better understand how it helps them serve their mission. >> woodruff: speaking of the marines, bernie rostker, much of the attention around this issue, at least the criticism of it, was in part because the marines were the service who were supposedly the most opposed. is it expected there will be more difficulty? >> there may be, but i think the big surprise will be in units that have a negative attitude towards this. gay men and women, lesbians, will not come out. so this will be a non-problem. it has been a non-problem in every country that has implemented this. >> woodruff: when you say will not come out, just to be clear. this new law doesn't require individuals.... >> that's correct. >> woodruff:... who have a different sexual orientation who are gay or lesbian. >> we serve a large number of serving gay members.

what they indicated in their surveys were most of them will be very circumspect in who they reveal their sexual orientation to. a large number have told us they will not change. they will not come out. >> woodruff: what is the guidance they'll be given? >> right now basically they're being advised not to come out and certainly not to come out even once the certification takes place. there's a 60-day waiting period in effect. right now service members should not come out. but one thing to sort of add, leadership is to critical here. just on sunday when the commandant of the marine corps said fidelity is what the marine corps is all about, always faithful searcher fi. it means not only will it not be a problem because frankly the service anthems won't be replaced with the ymca bugle or anything like that but that the leadership plays a distinct role in making sure that the implementation goes

through very smoothly and without ill effects for the troops. >> this is not about changing attitudes. it's about adherence of behavior to the highest professional standard. we did focus groups throughout the military. and the one thing that came clear in the focus groups that if they are ordered to as a matter of pride as professionals, they will make this work. >> woodruff: one of the other reservations that was... that was public about this has to do with members of the service who are serving now on the front lines, whether it's afghanistan or somewhere else. is it... i mean, is there going to be a special training for those individuals? >> that's particularly where it wasn't... people will not come out. but we looked at this issue of cohesion. we looked at it in terms of combat units. what's important in these units is people who can get their job done. they have a lot more important things to worry about than the sexual orientation of members of their unit.

they will support anyone in their unit that they have to rely on that can get the job done. >> woodruff: professor shultz, what about those who have left the military, either voluntarily of their own accord or because they were kicked out because of their sexual orientation, will they be now allowed to rejoin, to reenter? >> the report does a great job of addressing that question. it essential allegation says that, yes, they can reapply. assuming that all the other conditions are met-- you know, physical tests, et cetera, et cetera-- they should be allowed to rejoin which i think was the right choice. >> woodruff: even if there was a dishonorable connected to this? >> that's a different story. but that goes to the reason they were separated. if they were separated just because of their sexual orientation, they will be given the opportunity to rejoin the military. >> there were the critics who said this is just going to be a much more complicated than anyone expects. then the proponents were

saying, oh, no, it will be very simple. where do you see it on that spectrum? >> i can only tell you what the foreign countries we vis ited... visited experience, what was experienced by police and fire departments in this country. in australia they called it the y-2-k of personnel policies. in britain which was much more negative.... >> woodruff: meaning it didn't materialize. >> it didn't materialize. in britain which was much more negative after six months the reporter who was charged with reporting on this said no problems. after two years stopped reporting. >> on the numbers for desegregation were much much worse. all the service chiefs were against it and the joint chiefs of staff. >> woodruff: back in the '50s. >> back in the '50s. everyone would look at our military today and say we have a stronger military because we desegregated as well as allowing women to serve. today the numbers that the

report points to are much stronger. frankly i think we have the most professional force in the world. i think they can handle this. >> in the '50s it was actually because of the korean war that forced people together to work in combat situations that we ultimately had desegregation. >> woodruff: we want to thank you both. bernie rostker and professor tammy shultz. thank you. >> thank you. >> thank you. >> ifill: now to cuba, and its changing economy. this weekend, president raul castro told parliament that carrying out his reform agenda is essential, both for economic growth and to preserve socialism. in the first of three reports for our global health unit, ray suarez is just back from cuba to report on how that's working. >> suarez: is cuba ready for big economic change? like everything about this country, it depends on who you ask and where you ask.

in havana, rafael hernandez is a political scientist and writer. >> the leadership is realizing that this is a key moment. we cannot postpone these changes. i think that the government is very clear and knowledgeable about that. >> suarez: in miami cuban-born carlos is co-chair of the cuba study group. >> i think the cuban economy is in a free fall. unless the reforms that are made are significant enough, deep enough, structural enough, they're not going to work. we've seen them... we saw them in the soviet union. we saw them in many other places. when you try to tinker, tinker doesn't work. >> suarez: whatever numbers you use, there's wide agreement all the way from cuban president raul castro to a tiny locksmith shop in old

havana that times are tough and with eight out of ten people working for the government, change is needed. but is change coming? cubans have heard it before. in previous decades, the government opened the door a crack to the development of a small business sector. only to pull back the reforms by refusing to issue more new licenses. a tiny private sector remains from the '90s. now there's a national debate about making that sector bigger. a rare communist party congress is set for the spring to discuss change. self-employment looms large in cuba's future. the government has already announced the coming firings of half a million workers. start the transition over 100 different occupations will be opened for self-employment. jose works for himself but complains the rent he pays for his tine owe shop is too high.

about $45 u.s. a month while he charges less than a $1 for a haircut. he'd like to buy the space outright but fears the government would set the price too high. >> yes, i'm really hoping that during the congress they will talk about changing this policy because it's really abusive. if they keep on raising the rent i will have to go home. there is no way i can hold on paying this much money. >> suarez: i asked if he'd say the same if raul castro were in his chair. the man said he would and he charged president more for the haircut to cover the rising rent. at 52 this man is as old as the revolution. he pays a little over $8 a month to the cuban government for the 40 or so square feet where he spends most of his day. the self-employed locksmith says people are still getting used to the idea of shrinking government employment. but they will adjust and be better off.

>> something has to happen. it will take time for society to get used to it but i think in a few years we will win in terms of quality offering cubans better work and better services from self-employed people. >> suarez: thomas used to be a brigade leader at a sugar factory. now he sells books from a stall in the historic district. >> being self-employed doesn't guarantee a steady amount of money but, yes, i make more money here than when i worked for the government. >> suarez: after the soviet union collapsed and heavy subsidys to the sugar industry disappeared, tourism climbed the charts to become a leading source of income for cuba. it's easy to see why. the country is chalk full of historic plazas and is world famous for its music and offers the visitor gorgeous scenery. and a unique question... cuisine. the tourist economy runs on

hard currency. workers in the hospitality industry have hard or convertible pesos to spend so do cubans with relatives in the u.s. or europe who send remittances. other cubans have to make due in the much more restricted world of the national pace owe. costs are low, but so are wages. a ticket to a baseball game costs the equivalent of a nickel, but people only make 20 or so dollars a month in cuban pesos so is cuba impoverished? the u.s. government statistics put cuba somewhere in the middle of the deck in annual income per person. at $4900, a little behind colombia and slightly ahead of the nearby dominican republic. food and other commodities are rationed. staples like cooking oil, rice and meat are in short supply at controlled prices and unaffordable in the hard currency stores.

john park wright says it doesn't have to be that way. >> we had three of the best ranches in the world here in cuba in the eastern part of the island. >> suarez: wright's family owns some of the biggest ranches in cuba for more than a century. he travels from florida to cuba under special agricultural licenses. he's shipped a thousand head of cattle here and wishes he could send a lot more, he says, to benefit both countries. >> we'd want to come right back in business and raise cattle here. we take an investment professional cattlemen from florida and texas. just kind of getting back on the range here. there's no beef in the country to speak of. we're talking about putting meat on the table and plus they have some of the best cattlemen in the country. cowboys here are good people. >> suarez: wright laments the decline of the cuban cattle and dairy industries but says trade and american expertise can make the island more

self-sufficient and better fed. for wright step one is ending the trade sanctions. what americans call the embargo and cubans know as the blockade. cuban-americans' support for the embargo has fallen as it's gotten easier to visit family on the island. he came to the u.s. as a 12-year-old refugee right after the revolution. he's afraid that if the promised reforms do move ahead sanctions meant to hurt the government could end up hurting the cuban people even more. >> there are two provisions in the u.s. embargo that could be deadly to a transition in cuban-economy. one is the prohibition of credits and the other is the prohibition of participating in international monetary organizations like the imf and the world bank and the inter-american development banning and so forth. so it's going to be very difficult for a cuban economy to implement market reforms if they are not permitted to participate in this international financial

organizations. >> suarez: this man was imprisoned by the communist regime. he was only freed when his health declined. he's experienced the heights and depths of revolutionary cuba. in a tiny apartment, he shows me his soap allowance for the month, his ration card. as a representative of the cuban government in eastern europe, he watched communism collapse in other countries and lost faith in the system's future. >> it's a process. you think, you analyze what's going on in your country. then you see the mistakes or the wrongdoings. for example, right now we fliv a moment of complete frustration and most of the cuban people are feeling that way. the revolution is going backwards. it's now taken the country back to a point that is worse than it was before 1959. our dreams have become a nightmare. >> suarez: after yell

hernandez is much more optimistic. we took a quick tour of havana's historic core powered by a former accountant who now makes more money as much as $8 to $10 a day peddling cubans around. hernandez says his country is moving away from state control but not toward capitalism. >> we are investing. more for jobs in the private sector. the state has to be downsized. the state is too large. too heavy. and the private sector has to be expanded. but what is interesting is what is in the middle. which is the government. that is a socialist idea. >> suarez: here's the risky part. cubans are proud of their accomplishments in education and health care yet well aware of the material comfort enjoyed by common people in other countries. this person is a college professor currently researching and writing about cuban social issues.

she says cubans are caught between hope and fear about what is coming next. >> remember, this is a country that has basically given its citizens a cradle-to-grave security blanket, right? whether it's, you know, good or bad is a different story. but people have had the basics from, you know, education to work to health care to the bare minimum of food, a roof over their head taken care of. yes, the policy of all of this has... the quality of all of this has been going down severely in last 20 years since the economic crisis, but now, you know, with all of these new announcements of potential unemployment and that you have to kind of fend for yourself and, you know, that is scary to people because psychologically this is something completely new. >> suarez: cuba is an island in more ways than one.

it's tried to remain isolated from the jaw-dropping changes in the rest of the world during the last 50 years. while the cuban government has made a virtue out of sticking with its old ideas, 11 million cubans are wondering how to change, how to let the world come in without risking everything. >> ifill: tomorrow ray looks at that time crucial role preventive medicine plays in the cuban health care system. >> brown: next, new legal challenges for the landmark health reform law, as this past week marked a major moment in the battle between the obama administration and a number of states. ( applause ) >> brown: one of the most important and controversial pieces of the health reform law signed by president obama last march is the so-called individual insurance mandate. under which individuals must

buy health insurance beginning in 2014 or pay a penalty. the fines would be phased in starting at $95 per person that first year and increasing to $695 in 2016. for a family the maximum amount that could be charged in 2016 is $2,085. the penalty would rise over time with the cost of living. >> how are you doing today? are you feeling pretty good? >> i'm so happy my last scans were clean. >> brown: the health care law faced legal challenges from the outset. last week federal judge henry hudson ruled in virginia that the mandate was unconstitutional saying it could not be levied as an economic activity under the commerce clause of the constitution. hudson wrote, neither the supreme court nor any federal circuit court of appeals has extended commerce clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market. in the meantime, 20 other

states are challenging the law in federal court in pensacola, florida. at a hearing last week, judge roger vincent signaled that he too thought the government might be overreaching. separately two other federal judges in michigan and virginia have already ruled that the mandate is constitutional in cases brought by private institutions. all told there are some 24 lawsuits pending on the health care question around the country. we hear from two key players now about the legal challenges to the health reform law. first, the reaction from the obama administration. nancy ann deparle is the director of the white house's office of health reform. i spoke with her earlier today. nancy ann deparle, welcome. how big a blow was last week's ruling. how do you assess it? >> as you pointed out there are about two dozen of these lawsuits across the country. last week a decision by judge hudson was one of three that have gone to the merits and the other two ruled that the

personal responsibility or individual responsibility requirement was in fact constitutional. this is one where the judge ruled it was not constitutional. these cases are just proceeding through the system. 14 of them have already been dismissed. >> brown: what is the constitutional argument that you think will overcome objections? the florida judge, for example, has not ruled but he did compare allowing the government to force people to buy insurance to forcing people to eat broccoli. >> well, he did. i think the lawyer representing the government pointed out that we're not talking about broccoli here. we're not talking about shoes. what we're talking about is ensuring that every american can purchase affordable insurance. if we want to be able to do that and to prohibit insurance companies from banning people who have pre-existing conditions, you know, who have been sick and making sure that everyone can get insurance, then we have to get everyone in the system. what we're talking about is a requirement that if you can afford to buy insurance, you

need to maintain insurance. that's all we're talking about here. >> brown: how important is the mandate to the rest of the health reform law? >> well, we've already been implementing, as you know, for about nine months now and we've implementeded a number of important provisions such as patients bill of rights, requirements that plans allow adult children to stay on their plans until they're 26. banning rescissions so that you can't lose your insurance plans just because you've made a mistake. we've made lot of changes already. it's a critical point that the individual responsibility requirement relates to is banning pre-existing conditions so if we want to have a system based on the private sector and private plans where people can get a plan even if they've had a disease or cancer or illness before, then we have to have a requirement that everybody get in the system if they can afford it. that's what this is all about. >> brown: but what about the judge in virginia we cited? the argument is that this does

not fit under the commerce law of the constitution. how do you overcome that part of it? >> well, as you pointed out two federal judges who were at the same level as judge hudson have said that in fact it is constitutional. that's the argument. the congress has regulated many swaths of the economy under the commerce clause which allows congress to set rules for things that travel on inter-state commerce or that affect inter-state commerce. we believe that health insurance is one of those things. the health part of the economy is very inter-dependent. you know, trillions of dollars flowing and still millions of americans can't get insurance, can't afford it. this is a part of just getting that... getting everyone into the system so that it works. >> brown: are you concerned though that the loss in virginia and if it comes in florida, that it has a kind of psychological impact on any popular support for the law overall? i mean after all, the public has been divided on this and

especially on the mandate question, there's been a fair amount of opposition. so, are you worried about the impact of political and public support? >> well, i'll tell you what. this law since the president signed last march, as i said, it's been delivering benefits to the american people. it's set new rules of the road for insurance companies. it's banned pre-existing conditions, exclusions for kids. there are many many things in this law that are popular and that people know are benefit for them. and despite that hundreds of millions of dollars have been spent by those who oppose the law. that has politicized it. so, you know, that's something that we're mindful of but i believe as the american people begin to see the benefits of the law that their support for it will grow. >> brown: are you working on a plan-b alternative if the mandate is struck down? >> no, we're confident that the courts will recognize the constitutionality of the mandate. in fact last week we had 44 states and the dris trikt of

columbia here in washington working with the department of health and human services on setting up the exchanges the new marketplaces where americans and small businesses will be able to purchase affordable insurance starting in 2014. remember that these things don't start until 2014. there's plenty of time to get this all resolved. >> brown: you do have opponents of this who want to get to the supreme court as quickly as they can to kind of expedite the process. what do you think should happen? >> well, this process is already moving really quickly. we already have district court rulings. we won in the sixth circuit in a case in michigan. and that case has been appealed to is sixth circuit. this case, the justice department, judge hudson's decision they have said they will appeal that to the fourth circuit. it's moving through the federal courts. all this will be resolved well before the new requirements begin to kick in in 2014. >> brown: let me ask you briefly. you look ahead to january. you have house republicans coming in now, taking over.

then who have talked about not so much getting rid of the whole law but finding ways to slow it down, not fund it. what are you looking at come january? >> well, you know, we've worked effectively with many leaders of the house republican caucus in the past. i'm looking forward to trying to do that as we go forward because i really think when you talk about things like closing the donut hole for seniors, providing new... january 1 new preventive benefits go into effect for all seniors and medicare i don't think they're going to want to roll those benefits back. i don't think they'll want to go back to a world where insurance companies can deny people, you know, their coverage because they made an inadvertent mistake on their application. i'm looking forward to working with them and really making sure that we we deliver the benefits of this law to the american people. >> brown: nancy ann deparle from the white house, thank you very much. >> thank you. >> brown: a short time later, i talked with ken cuccinelli, the republican attorney general of

virginia. he filed the lawsuit against the mandate there in which the judge ruled it unconstitutional. welcome to you. now we heard nancy ann deparle say that last week's ruling wasn't such a big blow in her view. how do you assess it? >> well, obviously the first win against the federal government is always the biggest because it can be the break in the dam. i'm cautiously optimistic that the florida case with the other 20 states is going to end very much like virginia's did with the finding that the individual mandate is unconstitutional, that congress doesn't have the power to order us to buy health insurance or any other product. which is their big hurdle there. i think they're going to struggle to get over with the supreme court. of course you heard mrs. deparle say how confident they were that they would win at the supreme court. but they're not so confident that we want to get there any time soon. >> brown: what is the... explain the constitutional argument from your end. you heard her say that health care is different in a way.

health care is part of commerce. and the argument from that end, she feels, can overcome what the virginia judge said. as she pointed out several judges have sided with her. >> the judges that have sided with the federal government have essentially adopted their rationale. their rationale is that the decision not to buy a product is the equivalent engaging in commerce. now think about that. doing nothing is the equivalent of participating in commerce because not doing something, not buying health insurance has economic impacts. that rationale has never been employed before, never before has the federal government ordered the american people to buy a product just because they're living and breathing under the commerce clause, under the power to regulate commerce. this is a completely unprecedented exercise of power. even judges who are somewhat favorable to their position, because no judge has ruled completely for the federal

government, are... even they acknowledge the unprecedented nature of this power. >> brown: if the mandate is found unconstitutional, how do you see that impacting the larger law? or do you care? i mean, would you like to see the larger law go down as well with it? >> certainly i care a great deal. we need health reform in this country. i really wish both sides honestly had focused a lot more on things where they might find agreement things like buying health insurance across state lines, something i tried to get us the ability to do here in virginia before i was an attorney general when i was in the state senate to help our citizens access more types of coverage. but that hasn't happened. this law is actually getting in the way of that. i would say that mrs. deparle talked about the things people might like in this law. in a 2700-page bill i would think there's something in there that anyone might like. problem is they have stood it

up on this unconstitutional foundation, and every law has to first be constitutional. if the individual mandate continues to be found unconstitutional as the judge did in virginia last week, well then even the federal government has admitted in their briefs a thaul of the insurance pieces fall with the individual mandate. that's the minimum that happens. virginia's asking that the entire law be stricken because it never would have passed without the individual mandate. and the federal government calld this the lynch pin of the legislation. that's their word not mine. and without that it's just inconceiveable that this law would have been passed. >> brown: of course the judge in virginia did not go as far as you just said you wanted him to go. now one of the arguments if the mandate is taken out is that inevitably insurance premiums go up because how else can insurance companies afford to pay for many of

these things that are in the law? and some of which beings as we've just said, are popular. nancy ann deparle made that case. they are very popular with people. >> yes, and i note that some of them are. i mean benefits to people who get them are always popular. i understand that. and it's interesting to hear the department of justice and the white house lead in a discussion about constitutionality with sort of the emotional pitch to popularity. i understand it's something we look at but not when you're determining whether something should be constitutional or not. the case, the litigation really isn't about health insurance. it's about liberty. because if the federal government can order us to buy this product because we need it, then they can order us to buy any product. the power for the federal government is limitless under this theory of the constitution. and the only limit left is majorities in congress. and if it was just going to be majority rule, why have a

constitution in the first place? >> brown: what is the... you talked about trying to expedite it. one question is what's the rush? you know, if it doesn't go into effect until 2014, things are moving along fairly quickly as she pointed out in various courts. why not let the process work to get to the supreme court eventually? i mean one question the skeptics have of what you're doing is are you worried that the longer it plays out, gives more people time to see it and actually like more of snit. >> actually the evidence as the speaker said now that the bill is passed we can see what's in it. the evidence has been quite contrary to what mrs. deparle said and what the president himself said. once we pass it i'll get out there and sell it the president said. the more people learned about it, the less they liked it. not the more. this whole thing is going to rise or fall on whether or not congress has the power to order americans to buy a private product. that's what this case is going to rise or fall on. and the problem with waiting

or delay as we view it is that the state of virginia, the commonwealth of virginia, has an enormous amount of work to do to get ready. well, if the insurance pieces or the medicare medicaid or the whole bill is going to be struck down, we're going to have wasted tens of millions of dollars trying to scramble to get ready. mrs. deparle's comment made it sound like you could snap your fingers and be ready on january 1, 2014. there's an awful lot of work that will go into being ready on time and none of it may be left standing when the supreme court hears it. >> brown: the attorney general of virginia, thanks very much, ken cuccinelli. >> glad to be with you. >> ifill: again, the major developments of the day. the senate moved toward a showdown vote on a nuclear arms treaty with russia. and the prime minister of iraq submitted a lineup of cabinet ministers for a new government, nine months after national

elections. belarus forced a crackdown on the opposition after charges of fraud in sunday's presidential election. and to hari sreenivasan in our newsroom, for what's on the newshour online. hari? >> sreenivasan: health correspondent betty ann bowser has filed a blog post on how some states are handling implementation of the health reform law as court battles over the measure continue. find that on the rundown news blog. there's more from ray suarez on his reporting trip to cuba. and voices from cuban people who reflect on the biggest misconception about life in the country. plus, in the skies of north america and elsewhere tonight, there will be the first total eclipse of the moon in two years. our science unit has more on the details. all that and more is on our web site, newshour.pbs.org. gwen? >> ifill: and that's the newshour for tonight. on tuesday, we'll look at new census numbers and what they tell us about the nation.

i'm gwen ifill. >> brown: and i'm jeffrey brown, we'll see you online, and again here tomorrow evening. thank you, and good night. major funding for the pbs newshour has been provided by: >> they're the ones that help drive growth. >> like electricians. >> mechanics. >> carpenters. >> they strengthen our community. >> every year chevron spends billions with small businesses. that goes right to the heart of local communities providing jobs, keeping people at work. they depend on us. >> the economy depends on us. >> we depend on them. >> this was me, best ribs in nelson county >> this was me-- best ribs in nelson county. but i wasn't winning any ribbons managing my diabetes. it was so complicated. there was a lot of information out there, but it was frustrating trying to get the answers i needed.

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