The U.S. Supreme Court upheld the 2010 Affordable Care Act. The decision is considered to be a major victory for President Barack Obama because it validates his signature legislative achievement. It is also one of the most important Supreme Court rulings in decades. Chief Justice John Roberts wrote the majority opinion, saying the law was a valid exercise of Congress’s power to tax. Today’s decision will still require the health care industry and the government to address rising health care costs. And with Republicans vowing to continue to fight to repeal the law, health care will be front and center in the 2012 presidential and congressional elections. Diane and her guests discuss the legal, political and practical implications of the Supreme Court’s ruling on the Affordable Care Act.


  • Jeffrey Rosen Professor of law at The George Washington University; legal affairs editor at The New Republic.
  • Susan Dentzer Editor-in-chief of Health Affairs, and an on-air analyst on health issues for The PBS NewsHour
  • Susan Page Washington bureau chief for USA Today.

Supreme Court Decision On Health Care Reform

The full text of the Supreme Court opinion in National Federation of Independent Business et al. vs. Sebelius, Secretary of Health and Human Services et al.:


  • 11:06:54

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. We'll continue our discussion on the Supreme Court decision to uphold President Obama's health care law. Joining me in the studio to talk about what it all means, Susan Dentzer of Health Affairs and the NewsHour, Jeffrey Rosen of George Washington University School of Law and Susan Page of USA Today.

  • 11:07:26

    MS. DIANE REHMWe have a great many calls carried over from the last hour. If you'd like to join us, call 800-433-8850. Send us your email to This email will start off our second hour on this. It's from Jack in Columbia, Mo. He says, "Since this decision is so nuanced, are there any implications for other future legislation attempting to require citizens to pay for health care or other services? Is the decision so specific to this law that it sets no future precedent for future laws?" Jeffrey?

  • 11:08:24

    PROF. JEFFREY ROSENWell, we certainly know beyond all doubt that Congress cannot require people to buy broccoli. That was what everyone was all concerned about. And Chief Justice Roberts does make clear in the commerce clause section of his opinion that Congress can only regulate economic activity and not economic inactivity. And he says that allowing people to regulate individuals because they're doing nothing would open a new and potentially vast domain to Congressional authority.

  • 11:08:54

    PROF. JEFFREY ROSENSo to the degree that Congress wanted to force you to buy broccoli or health insurance or gym memberships and that couldn't be justified as a tax, that would be impermissible. Of course, Congress is never going to do that. So the fear that -- the specter of unlimited federal power was going to reign free is not persuasive.

  • 11:09:13

    REHMBut we heard during the break on the NPR news that House Republicans are going to continue to fight to overturn this law. Susan?

  • 11:09:27

    MS. SUSAN PAGEAnd if Mitt Romney is elected in November and Democrats maintain their majority in the House and build a bigger majority in the Senate, they will have some possibility of taking action that repeals, probably not. They could repeal the whole law, but to repeal parts of the law. This doesn't settle this for all time. The fact that it is constitutional doesn't mean that the law can't be changed. Of course, it can. Congress passed it. Congress can change it.

  • 11:09:55

    REHMAnd we've just been told that the president will speak today at 12:15. We'll all be tuning in for that. And let's go now to the phones, Gray in Winston- N.C. Winston-Salem has been waiting a long time. Good morning to you.

  • 11:10:18

    GRAYGood morning. Let me just say that I've had a bit of reverse schadenfreude. I'm not happy with the decision, but to hear the lightness of your tones and how happy you guys are, it does make me feel a little bit better. I just had a quick question. Can anybody ever recall a liberal justice, such as Justice Ginsburg, deciding a case on the conservative side being called courageous?

  • 11:10:49

    GRAYI just -- I don't think I'm alone as a conservative. It just rippled us a little bit when -- conservatives are good and courageous when they make liberal decisions, but if a liberal steps out of line, I don't usually hear those echo calls.

  • 11:11:04

    MS. SUSAN DENTZERWell let's be clear here. Jeffrey can speak to himself because he was the one who used the word courageous, but what happened here was that the chief justice found another avenue to say that the federal government was within its rights to do what it did, that is to say that the Congress was. So courageous or not, whatever the case, basically Justice Roberts said, you can't do this.

  • 11:11:31

    MS. SUSAN DENTZERYou cannot make people buy broccoli. You cannot make people buy health insurance if you're going to say that this happens -- can happen within the scope of the commerce clause. That's wrong. What you can do is look at the taxing power that our founding fathers gave the Congress in the Constitution and say that the federal government does have the power to do this.

  • 11:11:55

    MS. SUSAN DENTZERSo however you want to characterize that, he found an avenue for where he said this was a legitimate exercise of Congressional power.

  • 11:12:03


  • 11:12:03

    ROSENI think it's a very fair question and an important question. I can think of plenty of decisions where Justice Ginsburg and other liberals have joined the conservatives to avoid a divisive ruling and made it unanimous. And I and others have praised them for that.

  • 11:12:19

    ROSENThe reason it's hard to think in recent years of one liberal casting a tie-breaking vote on a conservative side is because, of course, it's been a conservative court for a while. But the reason I use the word courageous for Roberts and will absolutely use it again is because he made the vote not on the basis of his political inclinations, but his vision of the role of the court in American society.

  • 11:12:39

    ROSENHe did not want the court to be like Congress and the president, all of whom are at each other's throats. He thought it's important for the judges to act like judges and not to divide along party lines. And it was courageous because there's huge pressure not to do that from the blogosphere, from the political system. Sure, he has life tenure, but he will get criticized by some for having taken that vote and he did it because of his vision of his role as chief and I think he deserves great credit for that.

  • 11:13:02

    PAGEDiane, you had asked earlier if the House will go ahead with a vote and now we have an announcement from Eric Cantor's office, the leader of House Republicans. They've set a repeal vote for July 11th. So not only will they vote, they'll vote pretty fast.

  • 11:13:17

    REHMBut Senate Majority Leader Harry Reid has said our Supreme Court has spoken. The matter is settled. No question mark at the end of that, Susan.

  • 11:13:29

    PAGESo this is a political vote, not a vote to actually change legislation at this point, the House vote?

  • 11:13:37

    DENTZERWell, now we know what the next big contest is. It's the national election in November that will ultimately -- we know squarely where Mitt Romney stands. We know squarely where President Obama stands. We will see how that plays out.

  • 11:13:51

    PAGEAnd we know the president will speak from the East Room at 12:15. That's the same place that he signed The Affordable Care Act several years ago, the big signature achievement of his administration. And we'll hear from Mitt Romney also at midday. He's in Washington today. He's also going to come out and talk to reporters about this decision.

  • 11:14:07

    REHMAll right, to Cincinnati, Ohio. Good morning, John.

  • 11:14:11

    JOHNGood morning. Thanks for having me on the show.

  • 11:14:14


  • 11:14:16

    JOHNI'm a medical student here and we have heard a lot of different scenarios. You know, we've heard the doom and gloom scenario where since it is going to be taxed, Medicare reimbursement (unintelligible) and that our salaries are going to go down. We've heard it in the middle where there's not gonna be much change. We've heard, you know, the good things that this is going to really expand the insurance to many Americans. So my question boils down to, how will this affect the future practice of medicine from a physician's side?

  • 11:14:42

    REHMWhat do you think, Susan Dentzer?

  • 11:14:44

    DENTZERThere are several issues at play here, some of which, frankly, don't have anything to do with The Affordable Care Act. For example, under Medicare, physicians' fees have been under pressure for quite some time and will continue to be because of the fiscal realities that the nation faces.

  • 11:14:59

    DENTZERIn terms of what will happen probably under The Affordable Care Act, assuming it does go forward, is we're going to see a lot of change. We're going to see change in insurance markets. We're going to see -- we already are seeing changes in the way health care organizations are organized. We're going to see more physician practices being owned by hospitals.

  • 11:15:20

    DENTZERWe're seeing more combinations between hospitals and insurers to deliver new models of care. So I think we're in for a whole lot of care, some of which will be very much related to The Affordable Care Act and some of which, frankly, will be due to pressures that have been building up in the system for change for quite some time.

  • 11:15:37

    PAGEAnd we know that a lot of states have been doing experimentation on health care, on expanding health care coverage, on trying to control health care costs. Utah is one of them. Vermont has been moving toward a single payer kind of system. And I wonder, Susan Dentzer, you know more about this topic than I do. Will these kinds of state experiments be able to go forward with this decision?

  • 11:15:56

    DENTZERThe, Vermont is going to need a waiver from the federal government for, to proceed with its reforms under The Affordable Care Act. And it is likely that if they do continue down the road that they're going that they will ask for a specific waiver. If the president is in office, they'll probably get it. We'll see what happens if the White House changes hands.

  • 11:16:17

    REHMAll right, to Little Rock, Ark. Hi there, Carol.

  • 11:16:21

    CAROLGood morning. I'm calling to express the concerns of our family and many others who have family with profound cognitive developmental disabilities, about a little-known provision in The Affordable Care Act called the community first-choice plan option. Under the Act, states will be offered a 6 percentage point increase in their federal medical assistant percentage if they will offer services to persons who qualify for an institutional level of care outside of facility-based care.

  • 11:17:04

    CAROLAnd this general financial incentive should be viewed in the context of the tremendous pressure on states to downsize and close congregate care facilities for persons with profound cognitive and developmental disabilities. So at the time of the debate on The Affordable Care Act, there was no opportunity for a hearing, no opportunity to raise questions about the cost of this program or the unintended consequence.

  • 11:17:41

    REHMSusan, can you speak to this?

  • 11:17:42

    DENTZERWell, that particular provision, I think, in part was enacted because there has been a trend to people wanting, when possible, not to be institutionalized and to be cared for at home, but still receive substantial financial support to care for their family members or others who have those disabilities you mentioned.

  • 11:18:03

    DENTZERIt is always the case that when any program like that is put into place, there are unintended consequences and these programs are going to be watched very, very closely over the next few years as they roll out to see whether people in homes really do get the services and supports they need to be able to be there.

  • 11:18:22

    REHMSusan Dentzer of Health Affairs and the NewsHour, Jeffrey Rosen of George Washington University, Susan Page of USA Today, we'll take a short break, hear more of your calls, questions, comments when we come back.

  • 11:20:04

    REHMAnd welcome back. We are of course talking about the decision from the of the United States ruling that the Obama Affordable Health Care Law is constitutional as a tax and not as a mandate so that if individuals choose not to have health care insurance, they will be a graduated tax that is paid over time. We also talked in the last hour about what happens if an individual without an insurance ends up in a hospital. And, Susan Dentzer, explain what you said.

  • 11:21:01

    DENTZERWell, under federal law, if you present, as they say, at a hospital in an emergent situation or if you're a woman in labor, the hospital has to take you in, has to care for you in the emergency room and has to stabilize you before you can be transferred to another facility. That's existing federal law. What hospitals have done now in the instance of individuals who have shown up at hospitals who are uninsured is they have met the terms of the law, often stabilized those individuals, cared for them.

  • 11:21:36

    DENTZERAnd when possible, they often do try to transfer them once they're stable to other public facilities so that the hospitals themselves, if they're private in particular, don't incur a lot of uncompensated care debt.

  • 11:21:48

    REHMOf course the number of public hospitals in this country is declining.

  • 11:21:53

    DENTZERWell, and there had been many of them under serious financial strain for some time.

  • 11:21:56


  • 11:21:57

    DENTZERWhat we don't know is in the future how hospitals will react if an individual could afford to buy coverage, shows up and is uninsured. Again, if they are in an emergency situation, the hospitals have to care for them. If they're not, we will see how hospitals respond. They will clearly be within their rights to say, go away and come back when you have health coverage.

  • 11:22:21

    REHMAll right. Let's go to Ogdensburg, PA. Good morning, Jesse.

  • 11:22:26

    JESSEHi. Thank you for taking my call.

  • 11:22:28


  • 11:22:29

    JESSEI'm curious about -- well, I'm confused. The mandate was upheld under the taxing clause rather than the commerce clause. And so if this is a tax that under the tax Anti-Injunction Act, it actually can't be brought up in some of the courts until after the tax is levied. So Justice Roberts is actually just issuing a sort of de facto approval of the patient protection and Affordable Care Act while actually allowing it to be brought up again later after the tigers lobby.

  • 11:22:51


  • 11:22:51

    ROSENExcellent question. And Roberts held, like the U.S. government, taking the solicitor general selection that it is a tax for the purpose of being authorized by the Constitution, but it's not a tax for the purpose of the Anti-Injunction Act. It says that the Anti-Injunction Act has to take account of the fact that Congress didn't intend it to be treated as a tax for those purposes. It's described as a penalty and not a tax.

  • 11:23:16

    ROSENThat label matters when you're trying to figure out whether or not you can sue now or have to wait until 2014. But when you're making a decision under the Constitution, the label doesn't matter, and it's important to look to pragmatic special considerations like whether or not this is a criminal penalty or an incentive and things like that. So, it's complicated but this is exactly what Solicitor General Donald Verrilli argued. And he, let's take some moment also to give him some credit.

  • 11:23:41

    REHMHe got such criticism when he appeared before the court.

  • 11:23:47

    ROSENHe was hammered. He was unfairly handled by conservatives. Those blogs that had videos of him sipping water…

  • 11:23:53


  • 11:23:54

    ROSENStumbling and say that Obamacare a tough sell. But he also got very harsh criticism from liberals too. Now I have to say, I was among those who criticized him for not emphasizing these textuous arguments that Roberts ended up buying. And it's true that Justice Ginsburg in her partial dissent, which I've just grabbed, where she rejects Roberts' crap, reading into power and said it would take us back to the horse and buggy age.

  • 11:24:19

    ROSENShe emphasizes that the framers of the Constitution wanted Congress to be able to regulate in areas where the states where incompetent. Those were the more historical arguments that Verilli chose not to emphasize. But he did. His central strategic goal, which was mitigated here, was to really hammer the tax argument but to say that it was preemptive under the Anti-Injunction Act. And that argument carried the day.

  • 11:24:40

    REHMJesse, I hope that answers it.

  • 11:24:44

    JESSEYes, it does. Thank you very much.

  • 11:24:45

    REHMAll right. And thank you. Susan?

  • 11:24:47

    DENTZERDiane, I just wanted to add one thing...

  • 11:24:49


  • 11:24:49

    DENTZER...on the Anti-Injunction Act. We will note that the dissent from Scalia, Kennedy, Thomas and Alito really laid into Roberts on this and said that the notion that the penalty could be considered a tax for the purposes of it being allowed under the taxing power but not a tax for the purposes of the Anti-Injunction Act, this is clearly looks like language that was written by Scalia, quote, "That carries verbal wizardly too far, deep into the forbidden land of the sophists."

  • 11:25:21

    ROSENI'm glad it's forbidden.

  • 11:25:22


  • 11:25:23

    ROSENIt sounds kind of interesting actually.

  • 11:25:25

    REHMYou know, I'm going to ask about Justice Scalia because E.J. Dionne this morning wrote in his op-ed column that Justice Scalia is no longer behaving like a justice. What is your reaction to that, Jeffrey?

  • 11:25:51

    ROSENNo longer behaving like a justice may be stronger than I would go, but I do think there's a great difference between the kind of raw anger that he is displaying and the measured statesmanship of Roberts. It's an obvious contrast. Scalia seems to be taking it personally. He seems to be invested in the policy arguments rather than focusing mostly on the law. There was that remarkable passage in the citizenship case where he said we have to think of the human consequences.

  • 11:26:19

    ROSENBy which he meant people who are being threatened by illegal immigration, which didn't seem central to the case. I think it's just -- it's really interesting. And this is not just on the Supreme Court, but courts can polarize. And when trust breaks down, particular justices can begin acting in a less retrained and more sort of partisan way. And Scalia seems to have crossed that line and Roberts hasn't. So it's an interesting contrast.

  • 11:26:39

    REHMSusan, do you think there'll be any political reaction to Justice Scalia's comment to the effect that there will be an effort to get him to resign because of the public comments he's made?

  • 11:26:58

    DENTZERI don't believe there's any precedent for that. I'll turn to the constitutional lawyer on our panel. I mean, I think that one of the things you get to be when you're a Supreme Court justice is you get a lifetime of employment. He's a hero to those who agree with him and he's become the subject, of course, quite serious criticism from those who think he's gone too far.

  • 11:27:19

    REHMAll right. To Fort Lauderdale, FL. Good morning, Gary.

  • 11:27:23

    GARYHi, Diane.

  • 11:27:24


  • 11:27:25

    GARYI'm just speaking for myself, of course. But I would imagine that there's many people across this country that might share the same feelings that I have right now and basically that this is about to happiest and proudest that I've felt about our country and our government since the election day of 2008.

  • 11:27:43

    REHMInteresting comment. Susan Dentzer?

  • 11:27:46

    DENTZERWell, it goes back once again to this very polarized time that we are in and the fact that for reasons that go well beyond the letter of the law, the Affordable Care Act has just engender political divisions in this country or if not engendered them certainly built on them in a way that few other major acts have done. We will see going forward whether as the law is implemented, whether people become more accustomed to provisions of it, whether they begin to see the benefits of it or whether they don't.

  • 11:28:20

    DENTZERAnd of course, there are many people who believe, even with the individual mandate upheld, it is sufficiently unpopular that it probably will be wise for Congress to go back and look and see whether there were any alternatives. So, this story is not over and I think we'll have to see over time when everybody remembers that when Medicare was enacted there was a lot of opposition to it, certainly among the nation's physicians.

  • 11:28:46

    DENTZERAnd now nobody in his or her right mind would try to do anything to wreck Medicare. So we'll see how this all plays out over time.

  • 11:28:55

    PAGEHere's a question about what the consequence might be, which is this. President Obama, who pushed so hard for this, has not really focused on this as a political issue in his re-election campaign. He talks about it to partisan audiences and fundraisers. But in his kind of standard speak, this is not something he presents as a reason to be re-elected. And I wonder if the fact that has now been upheld by the court, the constitutional question settled will make it more of a political asset that he's willing to talk about.

  • 11:29:24

    PAGEBecause, of course, one effect of him not talking about it is that there isn't a pushback from those who criticize it so severely.

  • 11:29:32

    ROSENCan I just say -- I was so struck by the caller's statement that I haven't felt so happy and proud about the U.S. since the 2008 election. And I guess what he's getting at is, the idea that we all one country, we're coming together. We're not just dividing into polarized camps and there's something larger than the partisan preferences of people and that's the Rule of Law and that's a very eloquent way to express it. Thank you.

  • 11:29:53

    REHMThanks for calling, Gary. To Derwood, MD, good morning, Ryan.

  • 11:30:00

    RYANGood morning, Diane. My question as I've been listening to this whole program eagerly awaiting the decision and I would like to say I was pleasantly surprised. I thought it was going to be overturned. Now, my question is that since this has been ruled a tax, is it going to require subsequent legislation by the Congress to impose this tax or is the tax already being applied as part of this earlier decision that they've just made their judgment on?

  • 11:30:31

    REHMSusan Dentzer?

  • 11:30:32

    DENTZERThe tax in question here is the penalty that is in the Affordable Care Act. So...

  • 11:30:38

    REHMIt's already there.

  • 11:30:38

    DENTZERIt's already there. And, again, it will go into effect -- it will start in effect for calendar year 2014 so that in that calendar year, people will have to have health insurance. They'll have to submit proof that they have health insurance with their tax forms, so that when they file their tax forms the subsequent year of April 15th of 2015, if at that point they do not have health insurance, they would then be subject to the penalty unless they are exempt from the penalty for a number of reasons that are codified in the law and that will be further illuminated with regulations that will be coming down the line the next couple of years.

  • 11:31:19

    REHMI hope that answers it, Ryan.

  • 11:31:21

    RYANIt does, thank you.

  • 11:31:22

    REHMAnd you. Let's go to Ann Arbor, MI. Good morning, Charles.

  • 11:31:28

    CHARLESGood morning. I have a question, a couple of things. One is how there are over 100 companies that were given waivers to participate in this and that seems to me the smack of something to do with the 14th Amendment and due process. And I, for one, will not participate. And I also believe that the Founding Fathers are rolling in their graves because I don't see it. I don't care how they voted for it. It still smacks of being unconstitutional regardless of what the vote was.

  • 11:32:03

    PAGEWell the waivers refer to specific provisions of the legislation involving what employers had to offer in their benefits packages or other aspects of the way health insurance is organized. So they weren't -- these companies were not exempted from complying with all provisions of the law. They were basically given a pass on some of these particular narrower measures. And really it was done not to overly disrupt the way people get health insurance coverage over this interim period where we're transitioning from one system to another system.

  • 11:32:40

    PAGESo, those waivers are very limited and they were done, I think, as I say, to really smooth out the process of moving from one system to another.

  • 11:32:49

    REHMSo, we just heard from two callers. First Gary who was overjoyed and now Charles who feels very, very much the opposite. And I think that's how it's going to remain. And you're listening to "The Diane Rehm Show." Jeffrey.

  • 11:33:10

    ROSENOne thing that might lessen the stress of the last caller is that the Medicaid expansion has been scaled back or at least made less coercive. Essentially Chief Justice Roberts, joined by two liberal justices, Breyer and Kagan, said the expansion does violate the Constitution by threatening states with a loss of existing Medicaid funding if they decline to comply with the expansion. And that constitutional difficulty is solved by forbidding the government from threatening to withdraw existing Medicaid funds for failure to comply with the requirements. So that makes it easier for states that do not want to accept the Medicaid expansion to do so without losing their existing funds.

  • 11:33:53

    REHMGood morning, Mike, in Dayton, OH. You're on the air.

  • 11:33:58

    MIKEHi. I just, first of all, thank you for taking my call.

  • 11:34:01


  • 11:34:02

    MIKEAnd I wanted to say how please I am with the Supreme Court's decision on this. I know a lot of people say that the individual mandate curtails their liberties and freedom. And a lot of this same people that I hear say this are people who think they just shouldn't have to have or be forced to buy health care coverage and they never think about the fact that at some point in their lifetime are going to purchase health care even if they end up going to the emergency room and didn't they get their health care the most expensive way that it can be paid for.

  • 11:34:42

    MIKEAnd they don't think about the fact that all the rest of us, including them with their tax money, end up paying for that. And so, I'm just glad to see that this ruling will see that more people have health care. And if you decide not to have health care, then you are going to end up contributing through a tax for that. And I happen to have a lot of faith in our political system or our legislative system lately, it feels like things don't seem to be getting done. And so I'm just absolutely ecstatic about the decision the Supreme Court has made and I hope that in the end it ends up becoming law and still taking effect in 2014. And that's all I wanted to say. Thank you very much.

  • 11:35:29

    REHMAnd thank you for calling. Here's an email from Scott in Orlando, FL who says: I currently have a job and a health coverage. If I lose my job and can no longer afford for health insurance, what would happen in this situation? Susan Dentzer.

  • 11:35:53

    DENTZERWell, effective 2014 when there are new health insurance exchanges...

  • 11:35:57

    REHMEighteen months from now.

  • 11:35:59

    DENTZERWhen there are new health insurance exchanges up and running presumably in many states, if not there will be a federal backup exchange to take of the states that are not ready yet. You would be able to go to that exchange, either the federal exchange or the one in your state and shop just the way you shop now, for example, on Travelocity for airfares or what have you. You punch in your name, your Social Security number, your income, what have you.

  • 11:36:27

    DENTZERYou would learn on that site whether you are eligible for federal subsidies to help pay for the cost of your coverage or not, depending on your income. You would be given a choice of coverage at varying different levels, all qualified health plans to compete in this exchange. You'd make a decision which one to purchase and that would be that.

  • 11:36:49

    REHMAnd that would be that not excluding preexisting conditions or age?

  • 11:36:59

    DENTZERWell, the rates will be able to vary according to age. You can't be excluded for age. You can be charged more. Elder -- older people will be able to be charged three times as much as younger people. In the current marketplace, they're typically charged five times or more as much. So the differential will narrow somewhat. That will mean that younger people, frankly, will probably pay more than they're paying now. But older people will probably pay less than they pay now. We'll have to see how all of this plays out.

  • 11:37:31

    REHMSusan Dentzer of Health Affairs and the News Hour. Short break. More of your calls when we come back. Stay with us.

  • 11:40:04

    REHMAnd we're back in our second hour of discussing the Supreme Court's decision to uphold the Obama Affordable Care Act. I must apologize to our listeners and Ann has sent in a posting on Facebook. She said, "I was in tears when I heard you say that the law had been overturned." Then she says, "I was in tears when I heard you say otherwise."

  • 11:40:39

    REHMI really do apologize because at the start of our ten o'clock hour, the news was coming out erroneously that, in fact, the Supreme Court had handed down a verdict overturning the law. And then within probably 60 seconds, we got precisely the opposite message. So I do apologize. We will repeat again the Supreme Court has upheld President Obama's healthcare law using the tax law provision as opposed to a mandate. Let's go now to James in Falls Church, Va. I know you've been waiting for quite a while. You're on the air.

  • 11:41:36

    JAMESWell, thank you, good morning. Thank you for taking the call.

  • 11:41:38


  • 11:41:39

    JAMESActually I just have a question. There was much talk about the Court losing legitimacy. Its popularity was down, things like that. Then there was this, oh, the five-four ruling and, of course, the ones, you know, when you thought it was, I guess it was -- when we thought it was a six-three ruling was just ecstatic. And now it's five-four again. I got to be honest. I think the chief justice is saying oh, this is a tax when the administration said it wasn't, looks more like a political hack than he does a judge.

  • 11:42:05

    JAMESSo I'm wondering, projecting it out, what do you -- I mean, I think it is way premature to say this is the coming together of the country. It looks like the chief justice protected more the institution, if he did. And I'm wondering what you think the long term implications for the legitimacy of the court may be. I don't think this is -- and in general, Hosannas I'm hearing for the chief justice seems to be way over stated. Thanks. I'll take my call off the air.

  • 11:42:30

    REHMAll right. Thanks for calling.

  • 11:42:32

    ROSENIt's a good challenge and it's certainly true that the chief justice was trying to protect the institutional legitimacy of the court and not to side with Obama or against him. Now he did embrace the administration's position, not reject it that the mandate was a tax for the purpose of the constitution, but not the anti-injunction act. But you ask a very good question. What's the effect of this going to be on the court's legitimacy?

  • 11:42:55

    ROSENOn the one hand the court tends to be most popular when it does things that most people agree with. So to the degree that the mandate is unpopular and the court has upheld it, then maybe its legitimacy won't rise. On the other hand, the court is also most legitimate when people perceive it to be moving in accordance with their own partisan direction. So republicans like the court when they think it's conservative and liberals like it when they think it's liberal.

  • 11:43:19

    ROSENThat means after this decision liberals are going to be happy and conservatives unhappy. Maybe that effect will cancel each other out. But Roberts's broader hope is that over time this is the last factor in legitimacy. There's a very interesting piece in The Nation by Barry Friedman about this recently. When people perceive the court to be deciding based on law rather than politics then they have the most trust in it. And in that sense this should increase the court's legitimacy.

  • 11:43:43

    REHMHere's an specific question from Peggy in Charlotte, N.C. "How does this decision affect the birth control controversy in the Roman Catholic Church?" Susan Dentzer.

  • 11:43:57

    DENTZERIt doesn't affect it at all directly because the whole debate over what kinds of benefits had to be offered in essential benefits packages and whether contraception had to be included is not addressed in the law per say. That's a consequence of regulations and other interpretations that have come forward after the law. So we will still have this philosophical divide over whether, in fact, religious institutions should be held -- it should be held necessary that they provide contraception and other benefits. We know that the administration has tried to work out a solution to that. It's an uncomfortable one -- remains an uncomfortable one for many in the Catholic Church. But this ruling, per se, has no impact on it.

  • 11:44:46


  • 11:44:47

    PAGEYou know, in thinking about the feeling of legitimacy of the court the court took kind of a hit with Bush v. Gore in 2000, that five-four decision that settled a presidential race. But people who supported Vice President Gore generally thought the court had the right to -- you know, they accepted the decision and we by and large moved on as a country. And we'll see in this case if there's a similar reaction from people who are at odds with this five-four decision.

  • 11:45:13

    PAGEOf course, republicans and opponents of the law could continue to oppose the law even if it's constitutional. They could say it's bad policy despite -- even though it's seen as constitutional. But it'll be interesting to see the reaction from that part of the American political spectrum.

  • 11:45:27

    REHMSusan, here's a question from Jonathan in Washington, D.C. He says, "With this decision, who wins the health insurance companies? Who loses? And what about unintended consequences your panel could be worried about?

  • 11:45:46

    PAGEThis -- you know, I think there will be a lot of unintended consequences. And I think it's important to realize that while this is a very important decision it does not settle once and for all the debate about what to do about healthcare in this country. We're going to have a house vote next month on repealing the law. We're going to have a fevered debate about this. We know that Mitt Romney's announced that he's going to come out at 11:45 and talk about the law.

  • 11:46:10

    PAGEThey've put a sign in front of the podium at the place where he's speaking here in Washington, D.C. that says repeal and replace Obamacare. So part of this law's been settled. The constitutionality of the law's been settled. There are a lot of other questions that are going to continue to be debated.

  • 11:46:25

    REHMAll right. To Dallas, Texas, good morning, Mike.

  • 11:46:30

    MIKEYes, good morning. Can you hear me?

  • 11:46:34

    REHMYes, go right ahead, please.

  • 11:46:36

    MIKEYeah, I think the issue people are missing here is that medical care and medical costs are just too high. It's insane what they're charging out there. It's kind of like they're throwing water or they think they're throwing water on a fire when actually they're throwing gasoline on the fire instead of putting it out to begin with.

  • 11:46:56

    MIKEI, myself, experienced a car accident. I wasn't injured, but just being in there for two and half hours and getting checked with x-rays, CAT scans and other things it came up to $11,000. We're talking about $12 aspirins, et cetera, et cetera. If people will address high medical costs instead of trying to put a band-aid on a severed artery, I think we can get this situation remedied a little bit better.

  • 11:47:21

    REHMThat would be helpful, Susan.

  • 11:47:23

    DENTZERWell, this country has been looking for ways to restrain the rate of growth of health spending for about a century. And that pressure does not go off because of a Supreme Court decision on this law. We know we have the highest prices in the world for an array of medical goods and services. And we're slowly devising ways to come to grips with that as a nation. But you're right. It's going to be a work for the long term as far as the eye can see.

  • 11:47:54

    REHMHere's a specific question will undocumented immigrants be permitted to buy health insurance, Susan Dentzer?

  • 11:48:06

    DENTZERNot through the insurance exchanges. The law specifically does not allow them to purchase coverage through the exchanges.

  • 11:48:13

    REHMSo what do they do?

  • 11:48:14

    DENTZERWell, this is the great unfinished business of the Affordable Care Act. At best we have -- we envision -- we now have about 50 million people in this country uninsured. At best the Affordable Care Act will probably get coverage to about 30 million of them. That will leave about 20 million people left in this country without coverage, many of whom will, in all likelihood, be undocumented immigrants.

  • 11:48:38

    DENTZERSo we clearly have to solve our immigration problem and decide whether we're going to give these people a path to citizenship or not. If they -- If we do give them a path to citizenship they'll become citizens. They'll have the rights to buy coverage through exchanges that all Americans will have. If we don't we're going to have to devise another way to take care of them or, as many have said, ship them back.

  • 11:49:00


  • 11:49:00

    ROSENAnd there's another practical effect of the law that I guess I'd like my colleagues reaction to. Won't the ruling on the Medicaid expansion make it harder to enforce those provisions in practice? And as a result leave a lot of poor people uninsured?

  • 11:49:12

    DENTZEREnforce what provision?

  • 11:49:14

    ROSENThe Medicaid expansion.

  • 11:49:15

    DENTZERNo, from the looks of things the Medicaid expansion goes forward now unless some specific states decide not to do it. But undocumented immigrants would not be qualified for Medicaid in the first place. So they would not be affected even by the expansion.

  • 11:49:31

    REHMHere's an interesting email from Andrew in Atlanta, Ga. who points out, "The Constitution does not give lifetime tenure to justices. The Constitution provides that judges quote, 'Shall hold their officers during good behavior,' unquote. Does Justice Scalia's behavior constitute bad behavior? Who decides?"

  • 11:50:03

    ROSENCongress decides and Congress can impeach whomever it likes. But I do think that there was a lot of rhetoric, especially on the progressive side, leading up to this decision calling for the impeachment of Justice Scalia. Saying that the entire nature of the Supreme Court should be restructured, lifetime tenure should be abandoned. A constitutional amendment should allow Congress to overturn the court's decision. That was a vision of what the, kind of, court stripping reactions that might have gained force if the court had, in fact, struck down the mandate five to four.

  • 11:50:33

    ROSENNow that it hasn't I think we need to take a deep breath and cool down and say you can disagree with the justices' positions and people are entitled to express their criticisms vigorously, but talk of impeaching a justice just because you disagree with his or her rulings is really not part of the American tradition.

  • 11:50:48

    REHMNo, I don't think that's -- I don't think that's the point at which people would say he needs to be impeached, but, rather, his own expressions, his outbursts, Susan.

  • 11:51:03

    PAGEHas there been a case where a Supreme Court justice has been impeached?

  • 11:51:06

    ROSENThere has, indeed. It's right on point. The impeachment of Samuel Chase. Samuel Chase was a federalist, a supporter of President John Adams and he would go on harangues from the bench against the Jeffersonians. And he'd get drunk and denounce them. And basically he was impeached for doing kind of what Scalia was doing. There were no blogs in those days, but I'm sure he would have blogged if the, you know, ancient colonial New York had an internet.

  • 11:51:29

    ROSENAnd he was impeached by the House and acquitted narrowly by the Senate. And the precedent that that came to stand for was the idea that even if you get a little tipsy and you're intemperate and you're kind of a blow hard and sound like Rush Limbaugh from the bench, impeachment should be reserved for actual crimes, which some judges have been impeached for for corruption or something like that. But intemperance, lack of judicial temperament and, certainly, disagreement with the substance of a decision has not traditionally been grounds for impeachment.

  • 11:51:56

    REHMAll right to Manchester, N.H., good morning, John.

  • 11:52:01

    JOHNHey, guys, thank you for taking my call.

  • 11:52:02


  • 11:52:03

    JOHNWell, my question is if this is a tax rather than being constitutional, and it's a tax on basically inactivity. Does this open the door -- I mean the implication outside of healthcare -- does this open the door to a whole variety of other, sort of, social engineering taxes like -- could the Congress choose to tax you for not joining the army and not, you know, appreciating national greatness enough or tax you for not going to college and not contributing to the GDP and hurting everybody that way?

  • 11:52:26


  • 11:52:27

    DENTZERProbably not. I mean, again, let's go back to what the justices said. Justice Roberts said that if this was all about the government commanding you to buy health insurance the government does not have the power to do that under the commerce clause. Congress did not have the authority to enact that provision under the commerce clause of the Constitution. Now several of the liberal justices dissented and they said that, yes, in fact, the government did.

  • 11:52:52

    DENTZERWhat Justice Roberts said was this is a power that Congress could engage in under the taxing power accorded it to the -- under the Constitution. All right, so we will have to see how that particular interpretation is applicable now in future cases to other provisions that relate very much to penalties that Congress might impose for various reasons. But it looks as if, certainly, the majority opinion here held that you can't make -- government can't willy nilly make people do things. And that when it does do that it's going to get very heightened scrutiny by the court.

  • 11:53:29

    REHMAnd you're listening to "The Diane Rehm Show." Here's an email from Robin. "Please comment on the possible conflict of interest Justice Thomas has with ruling on the Affordable Healthcare Act. Isn't it true his wife works on behalf of insurers and that they would have gained had the law been struck down? We don't hear much about this. I'd be very interested." Jeffrey.

  • 11:54:00

    ROSENThere was an extensive debate about whether Justice Thomas should recuse himself because of his wife's activities. There were similar calls on the right for Justice Kagan to recuse herself because she had participated in some indirect way in the litigation when she was U.S. solicitor general. What was interesting is that the justices of the Supreme Court, including those on the left, sort of, rose up and defended Justice Thomas and Justice Kagan. They essentially said we're the ones who decide whether we recuse ourselves.

  • 11:54:25


  • 11:54:26

    ROSENBecause we are the Supreme Court and for better or for worse that's the way that -- I would say for better that particular dispute was resolved that way.

  • 11:54:33

    REHMAnd Mitt Romney is speaking now promising to kill the Act on his first day as president. And finally to Moses Lake, Wash., good morning, Jeff. Jeff, are you there? Sorry, we must have lost him.

  • 11:54:58

    JEFFOh, I'm...

  • 11:54:58

    REHMWell, there you were. Sorry, I missed you. Gideon in Indianapolis, go right ahead.

  • 11:55:08

    GIDEONAll right, thanks, Diane, for taking my call.

  • 11:55:10


  • 11:55:11

    GIDEONI had a question.

  • 11:55:12

    REHMVery quickly, please.

  • 11:55:13

    GIDEONWhy don't the so-called Tea Party conservatives who are so vehemently bent on repealing the Affordable Care why don't they just invest a fraction of the effort to make it better?

  • 11:55:33

    DENTZERWell, we will see if Congress...

  • 11:55:35


  • 11:55:35

    DENTZER...decides to pursue that course of action.

  • 11:55:38

    REHMAnd finally from Benjamin who probably represents a good many people out there. He says, "I would love to have health insurance, but I cannot afford it. How am I going to afford an added tax? Having to pay for something because I can't afford to pay for something else doesn't make sense to me." Susan.

  • 11:56:06

    PAGEWell, two things are possible. If he meets income requirements, he could go onto Medicaid. That'd be one option. Also, if you're -- you make too much for Medicaid, but not enough to afford a health care policy, there's an exemption for you in this law. Now, that leaves you with health insurance, but it means you would not be subject to the fine.

  • 11:56:23

    ROSENAnd, of course, the Supreme Court hasn't changed the law by changing the label under which it was upheld. The fact that Justice Roberts called it a tax doesn't mean that those exemptions have changed. And in that sense we understand why the President didn't want to call it a tax initially. But the Supreme Court has left the law in tact just as it passed, which is a great thing.

  • 11:56:42

    REHMAnd one last word from Mitt Romney who says Obamacare was bad policy yesterday and it's bad policy today, the view from presidential candidate Mitt Romney. Of course, finally, the Supreme Court has ruled on the Affordable Care Act upholding it as constitutional. I want to thank you all so much for devoting two hours this morning. Susan Page of USA Today, Jeffrey Rosen of George Washington University, Susan Dentzer of the PBS News Hour and Health Affairs. Thank you all so much. Thanks for listening. I'm Diane Rehm.

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