The U.S. Supreme Court ruled earlier this morning that the federal government may continue to provide tax subsidies to lower income individual and families who signed up for health insurance on federally run health exchanges. The plaintiffs in the case, King versus Burwell, had argued these subsidies were illegal per IRS tax code. The decision leaves intact the Affordable Care Act, a signature, but much challenged, achievement of the Obama administration. Join us for an update on the decision and its implications

Guests

  • Jeffrey Rosen President and CEO, The National Constitution Center; professor, George Washington University Law School; legal affairs editor, The New Republic; author of "The Supreme Court: The Personalities and Rivalries that Defined America" and co-editor, "Constitution 3.0."
  • Susan Dentzer Senior policy adviser, The Robert Wood Johnson Foundation, and on-air analyst on health issues, PBS NewsHour.
  • Norman Ornstein Resident scholar, American Enterprise Institute; co-author of "It's Even Worse Than It Looks: How the American Constitutional System Collided With the New Politics of Extremism."

Transcript

  • 11:06:53

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. The U.S. Supreme Court today upheld one of the main elements of President Obama's healthcare law. In a 6 to 3 decision, the court affirmed that federal subsidies can be provided to help millions of Americans buy health insurance. Here in the studio to talk about the court's ruling on the Affordable Care Act and what it means, Norm Ornstein of the American Enterprise Institute.

  • 11:07:26

    MS. DIANE REHMJoining us from a studio in Philadelphia, Jeffrey Rosen of the National Constitution Center, by phone from Chicago, Susan Dentzer of the Robert Wood Johnson Foundation. We'll take your calls, your email throughout the hour and it's good to see you here, Norm Ornstein.

  • 11:07:45

    MR. NORMAN ORNSTEINIt's great to be with you, Diane.

  • 11:07:47

    REHMAnd Jeffrey Rosen, I'll start with you. The decision was handed down just about an hour ago. What can you tell us about the ruling in King v. Burwell?

  • 11:08:01

    MR. JEFFREY ROSENWell, it's an extremely significant reaffirmation of the Supreme Court's willingness to decide these cases involving the Affordable Care Act on the basis of law and not politics. It's hugely significant that it's written by Chief Justice Roberts and really not surprising because Chief Justice Roberts is not a textualist. He's not a justice like the three dissenters in this case, Justices, Alito, Scalia and Thomas, who want to evaluate a law based purely on its words.

  • 11:08:35

    MR. JEFFREY ROSENHe has long believed that the purposes of the law are just as important and understanding its meaning. And it's so interesting that in the 6 to 3 decision, Chief Justice Roberts begins by reviewing the history of the Affordable Care Act and says that the very purpose of it was to avoid the economic death spiral that lead people, before the act was passed, to wait until they get sick to buy insurance. And based on that history, he concluded that Congress clearly intended to make tax subsidies available both to people who bought exchanges that were established by states and also established by the federal government.

  • 11:09:13

    MR. JEFFREY ROSENHe rejected the narrow and rather wooden textualist argument that four words in the statute, namely the words "established by a state" meant that federally created exchanges were not eligible for tax subsidies because, as Chief Justice Roberts said, that would've gutted the act, left millions of people uninsured and clearly clashed with Congress' intentions. It was very significant that Justice Scalia, in his very aggressive dissent, said, this is the second time the court has done this.

  • 11:09:49

    MR. JEFFREY ROSENPreviously, the court, obviously referring to Chief Justice Roberts, twisted the act to save it by claiming that it was justified under Congress' taxing power. Justice Scalia said that this should be considered a SCOTUS law, rather than the Affordable Care Act because the Supreme Court was usurping the ability of the legislature to make these decisions. And it's just -- I think it's really significant that Chief Justice Roberts, not a textualist, Justice Kennedy who's concerned about the federalism implications of forcing states to create their own exchanges or losing their tax subsidies, joined the liberal justices with a strong reaffirmation of Congress' purposes in passing the Affordable Care Act.

  • 11:10:29

    REHMAnd to you, Susan Dentzer, in practical terms, what does this mean for the millions of Americans who have insurance under the Affordable Care Act?

  • 11:10:44

    MS. SUSAN DENTZERThis means that the status quo, as of today, becomes the status quo going forward in that all those who are purchasing coverage at any exchange, whether it's through the federally facilitated marketplace or through the state exchanges can do so now with subsidies. And since we know that almost 90 percent of those who have bought coverage on all the exchanges did so with subsidies, this means that their coverage in intact.

  • 11:11:13

    MS. SUSAN DENTZERMore broadly, of course, it means that to the degree that insurance markets have been made more functional as a consequence of the changes in the Affordable Care Act, those can continue to work themselves out and that we're not going to see the kind of instability. Not only will we not see people losing coverage, 'cause their subsidies get yanked away, we're not going to see the massive distortions that people feared would materialize now within insurance markets, both, in particular, at the state level as people were forced to drop out of coverage.

  • 11:11:46

    MS. SUSAN DENTZERSo it means, as I say, the status quo, as of today, continues going forward until if and when we see further changes in the Affordable Care Act.

  • 11:11:55

    REHMAnd to you, Norman Ornstein, how big a blow is this for opponents of the Affordable Care Act?

  • 11:12:05

    ORNSTEINFor those who've really wanted to blow up the act, Diane, this was their best hope and they were ecstatic at this prospect, a belief that even though this wouldn't completely eviscerate the law, per se, that it would force action and they believed, many of them, that this would force President Obama in trying to keep the subsidies to agree to other changes in the law that would, in effect, blow up the whole thing.

  • 11:12:35

    ORNSTEINSo for opponents who really went into this confident that they would win, which was a little strange in a lot of ways, given some of the larger issues that we can talk about, including not just the four words that Jeff Rosen mentioned, but if you look at Scalia's record as a textualist, it's not just a few words, it's the entire act itself. So, you know, I think, in looking at just the four words, my first thought was this is textual misconduct on this part.

  • 11:13:07

    ORNSTEINBut they thought they would win on that basis. And now, basically, there are very few places, except through guerilla warfare with Medicaid expansion and maybe some other attempts to defund portions of the act, for the opponents to prevail at least until 2017 and, frankly, they don't have much hope then.

  • 11:13:28

    REHMSo what you're saying is that President Obama's healthcare law is almost completely safe, but not quite?

  • 11:13:39

    ORNSTEINThere will still be some gaps and some damage. Of course, the irony here, which was part of the irony if the King forces had prevailed, is that the damage is much deeper in red states, which are resisting fully implementing the law. But, you know, I'll take you back when we had the threats of shutting down the government, Ted Cruz basically made the case for it by saying, we have to stop this before it's actually enacted and implemented because once it is, we won't be able to do that.

  • 11:14:11

    ORNSTEINAnd now, despite all of these efforts, I think his forecast proves accurate. It's there and there are so many people who are benefitting from this that it would be dramatically disruptive to try and blow it up, despite what many presidential candidates will say.

  • 11:14:27

    REHMNorman Ornstein of American Enterprise Institute. You are welcome to join the conversation, 800-433-8850. Send us your email to drshow@wamu.org. Follow us on Facebook or send us a tweet. Susan Dentzer, what does this now mean for states that are running their own exchanges?

  • 11:15:03

    DENTZERMost of the states that are running their own exchanges, probably for at least the near future will continue to do so. There are issues for a lot of those states. One is how they're going to afford to pay for those exchanges over time. Not all of them have been shown to be financially sustainable. And as of course we know, a number of them continue to have some problems with just the underlying technology of how the exchanges function.

  • 11:15:29

    DENTZERI think a lot of states, moving forward, are probably going to look to move now to working, in some way, with the federally facilitated marketplace and they will do so now with a sense of safety and security that this isn't going to unnecessarily cause people to lose their subsidies. Now...

  • 11:15:47

    REHMHow difficult will that be for those states to now move to the federal subsidies?

  • 11:15:56

    DENTZERReally not hard at all. And I think, for many states, you know, for some states consider this a point of pride that they are -- need to run their own exchanges. They want to be responsive to the factors in their local marketplace, the insurance policies in their local marketplace, as well as the needs of people within their marketplaces. You have a state like California, a huge state with lots of people in the exchange. They'll probably keep running theirs.

  • 11:16:23

    DENTZEROn the other hand, you have small states like Rhode Island where the exchange -- the officials themselves will say, do we really have any business running this tiny exchange. There have been some theory that maybe some of the states would get together and run a regional exchange. When you have a federal marketplace that is functioning as well now as the federal marketplace is, and, of course, it's not functioning perfectly, but it's a lot better than it was, just for economic reasons, as much as anything, it may make sense so some states now to disband their state-based exchange and move to the federal exchange.

  • 11:16:58

    DENTZERAnd as I say, the big sense of security now is they can do that and not lose -- not have those who bought coverage through the federal exchange lose their subsidies.

  • 11:17:08

    REHMWhat do you think, Norm?

  • 11:17:10

    ORNSTEINI think Susan's exactly right and I think there's a broader point here. You know, one of the planks of the Republican platform has been to allow people to buy insurance across state lines. And, you know, we fit this into a federalist framework state by state, but it would be a whole lot more efficient and create a better risk pool if you had a national exchange and it didn't matter where people got their insurance.

  • 11:17:34

    ORNSTEINNow, you know, so many people in one place, work in another, it's kind of crazy to have this done by the states. And if you have a federal government that can establish national standards, one of the problems in the past was some states have very low standards for what insurance plans have to have. But if you can establish reasonable standards and eventually end up with a national marketplace, it would be a better and more efficient way to run the health system.

  • 11:17:58

    REHMNorman Ornstein of the American Enterprise Institute, Jeffrey Rosen of the National Constitution Center and Susan Dentzer of the Robert Wood Johnson Foundation all talking about Supreme Court 6-3 decision in favor of healthcare. Stay with us.

  • 11:20:01

    REHMAnd welcome back. We're talking about the Supreme Court Decision which came down a little more than an hour ago upholding one of the primary elements of President Obama's health care law. In a six to three decision, the Court affirmed that federal subsidies can be provided to help millions of Americans buy health insurance. I'm wondering, from your perspective, Jeffrey Rosen, about the role of the Supreme Court Chief Justice John Roberts. What is your thinking?

  • 11:20:51

    ROSENIt is so interesting. Chief Justice Roberts, when he first took office, said that he cared about the legitimacy of the Court. That he thought it was important in a polarized time for the Court to be above politics. And he pledged to try to make it his mission to avoid narrowly-decided five-to-four decisions, where it was five Republicans against four Democrats. And although some said that he had mixed success in that over the past couple of years, when it came time to confront the Affordable Care Act for the first time, he took that pledge seriously and he cast that tie-breaking vote to uphold the health-care mandate because he did not want the Court to appear partisan.

  • 11:21:30

    ROSENAnd I think it's so significant that, once again, he was faithful to that pledge in this case. And, here, it may have been easier for him than it was the first time because he's never been a hyper-textualist, he's never thought that words should be read out of context the way Justice Scalia did. But Chief Justice Roberts is always playing the long game. And what's also so significant here is he refuses to defer to the Internal Revenue Service here. He said, "Ordinarily we defer to agency interpretations when the law is ambiguous, as it is here. But the stakes are so high that Congress couldn't have intended for an agency to decide that. We, the Court, have to be the ultimate arbiters of what a statute means in the context."

  • 11:22:08

    ROSENJustice Scalia didn't like that. He said that this is aggrandizing the Court in a way that Alexander Hamilton would have been appalled by. But for Chief Justice Roberts and Justice Kennedy, who believes so centrally that the Court should be the ultimate arbiter of what the law is, both Roberts and Kennedy are really shoring up the Court's ability to make these statutory decisions in the long term, in a way that will not require them to defer to agencies whose results they may not like. But basically I just think, bravo for Chief Justice Roberts for really making a principled decision for fulfilling his pledge to lead a non-partisan Court and for frustrating all of those who thought that he would play gotcha and strike down the act that he had voted to uphold just a few years earlier.

  • 11:22:50

    REHMNorm.

  • 11:22:51

    ORNSTEINYou know, I agree with Jeff, although with a little caveat, which is, at the beginning, after the Chief Justice in his confirmation testimony had said that he would move the Court away from an aggressive partisan posture and decide things very narrowly, moved on to Citizens United which was the opposite of that. But I think what's happened is, Roberts has evolved in some ways because he's the chief justice, and now is worried about the historic reputation of the Roberts Court. And a series of rulings that would have been seen as partisan, especially causing chaos out there in the country, would have damaged his Court.

  • 11:23:31

    ORNSTEINThe fact that he decided to write this opinion, instead of letting Justice Kennedy do it and just joining in, and that Scalia's dissent was aimed right at the chief justice -- basically accusing him of chicanery of what he calls jiggery-pokery, among other things -- really shows that there's a different split now. And he's in a different place than the other three most conservative justices.

  • 11:23:57

    REHMAll right. Let me read you a few of the comments of some of the Republican presidential hopefuls. Here, from Rand Paul, who says, "This decision turns both the rule of law and common sense on its head. Obamacare raises taxes, harms patients and doctors and is the wrong fix for America's health care system." Carly Fiorina says, "It's outrageous that the Supreme Court once again rewrote Obamacare to save this deeply flawed law, despite the plain text and in the face of overwhelming evidence that the law is not working for the majority of Americans." Susan Dentzer, is that a fact?

  • 11:24:58

    DENTZERIs what a fact, particularly, Diane?

  • 11:25:01

    REHMIs the law not working for the majority of Americans?

  • 11:25:09

    DENTZERWell, you know, I think we would have to go out and ask the, first of all, the large group of Americans -- 10 million or so now -- who have coverage that's been purchased through exchanges, as I say, almost 90 percent of them with subsidies. Then you have to go ask the 15 million or so people who are now newly covered under the Medicaid expansion that has taken place in more than half the states and ask them if they think it's working for them. Then you have to ask people who are -- basically all of us -- all of us insured individuals who have seen our premiums rise less quickly over the last several years than was the case in the prior decade.

  • 11:25:55

    DENTZERYou know, so ask 300 million Americans who really understand the law, which of course is a big -- a big if -- because of course most Americans still do not really understand the components of the law. But put it to people who really understand the law and how it works and how they personally have benefited from it, either by being able to access coverage, having more essential benefits in those packages. Ask the people now who are guaranteed mental health benefits as a consequence of the essential benefits component of the law. You know, ask all of those folks.

  • 11:26:32

    DENTZERAsk, you know, my own son, who was diagnosed with leukemia in February, who now will not only never be subject to pre-existing condition restrictions, he won't blow through the cap -- a lifetime cap on our family insurance policy. You know, and he's just one of many, many, many...

  • 11:26:52

    REHMOf course.

  • 11:26:52

    DENTZER...tens of thousands of Americans who have these very serious illnesses, who will now not be subject to pre-existing condition restrictions. So you ask all those folks and I think they would tell you they have a pretty good sense the law is working for them.

  • 11:27:07

    REHMSusan, I'm so sorry to hear about your son. But that is good news as far as the insurance plans are concerned. Jeb Bush says, "This decision is not the end of the fight against Obamacare." What does that mean, Norm?

  • 11:27:29

    ORNSTEINYou know, if you could get a private poll of all these presidential hopefuls, I would guess they're thrilled with this outcome, for several reasons. One is they would have been left with an enormous dilemma if the Court had ruled the other way. You would have had millions of people in red states suddenly thrown into turmoil. And as Chief Justice Roberts' decision suggested, it would distort the risk pools and insurance for many millions more would go up. And they would have been under enormous pressure to do something about it, but the base would have been totally against it. We know the Koch brothers, Americans for Prosperity, Heritage Action and others were gearing up to make sure that nobody fixed the law.

  • 11:28:17

    ORNSTEINSo they're saved. Scott Walker, the governor who would have been in a big bind, is -- has got to be happy. But there's another part of this which is reflected in these statements. Now, they can attack the law and not have to worry about doing anything about it.

  • 11:28:31

    REHMFixing it. Yeah. Right.

  • 11:28:32

    ORNSTEINSo all of these comments, including, you know, Carly Fiorina's, which as Susan suggested is simply not accurate. But you can say those things with no consequence now to a primary electorate that wants to hear them.

  • 11:28:45

    REHMAnd Hillary Clinton's Tweet reaction, "Yes. SCOTUS affirms what we know is true in our hearts & under the law: Health insurance should be affordable & available to all." But, now, what happens now, Norm? Can some of those states where the federal program is not available stay that way?

  • 11:29:18

    ORNSTEINYou know, I think you're going to have in a lot of states, especially those that have not done a Medicaid expansion, facing increasing pressure to do something about it. And one of the things that we know is, that governors and state legislatures in the states that have refused to accept the Medicaid expansion are getting pushed very hard by community hospitals and other health care providers who are taking the hit as a consequence. And these are organizations whose boards are run by Republicans and donors and they're hurting tremendously. So for them, there's still a lot of pressure. And the dilemma remains.

  • 11:29:58

    ORNSTEINAnd that's true for many of the states which have governors who are running for president -- other than John Kasich in Ohio -- or former governors like Jeb Bush, running for president, given Florida, or Texas. In many of these cases, there's still a big problem that remains for those lawmakers and for those who come from the states.

  • 11:30:20

    REHMAll right. Let's open the phones now, hear what listeners have to say. First, to Albuquerque, N.M. Sid, you're on the air.

  • 11:30:33

    SIDThank you so much. First of all, great show. And thank you to the guests who are giving their opinions. It's very informative. I have just a couple points -- a question and a point. One is, Justice Roberts' statement. I think it is very telling and very powerful where he says, "Congress' intent was to make the insurance markets better, not destroy them." And I think if you -- you can talk about the plain meaning, but you also have to look to the intent of the legislature or Congress, in this case, and what they meant to do passing this act. And I think that is true with this particular act, notwithstanding the language.

  • 11:31:10

    SIDThe second point kind of goes to this, is that there was a story yesterday about a young lady in Texas -- a state that did not set up an exchange, by the way -- who got a bacteria in her eye. And she has lost her sight. And she has incurred $100,000 in medical bills. She has no insurance. She cannot continue getting treatment because she has no insurance. And she has debt that will follow her the rest of her life, likely, because of this. And I think this holding is important now, in that it's going to put pressure on states like Texas who have not set up exchanges to help people like this.

  • 11:31:43

    REHMAll right. And, Jeff Rosen, you might want to comment on Roberts.

  • 11:31:51

    ROSENYes. I think it's a very astute observation. And Chief Justice Roberts says, "Sometimes we can't read words according to their natural meaning." These provisions suggest the act may not always use the phrase 'established by the state' in its most natural sense." It can't be read out of context, precisely because of the fear that the caller suggests, that to read the words out of context would result in a catastrophic death spiral. And how, I mean, this is a very significant rejection by Roberts of wooden, acontextual textualism. He is attentive and explicit for the first time about the decade of political history that led up to this act, tracing the unsuccessful reform efforts in other states and then holding up Massachusetts as a paradigm.

  • 11:32:37

    ROSENAnd then saying, obviously, what Congress was trying to do was to duplicate what happened in Massachusetts and avoid this death spiral.

  • 11:32:43

    REHMHmm.

  • 11:32:44

    ROSENSo the -- both the pragmatism and contextualism of Roberts is hugely significant both for future cases involving the interpretation of statutes and also because it's such a brisk rejection of Justice Scalia's rejection of legislative history. Justice Scalia has waged war for more than a decade, for nearly two decades, against the idea that you should look at what Congress intended, about the purposes of laws. And he's tried to read them out of context. And Chief Justice Roberts, the Chief Justice of the United States, joined by Justice Kennedy, just definitively rejects that, which is -- has tremendous implications for future cases. I think it's very, very significant indeed.

  • 11:33:22

    REHMAnd you're listening to "The Diane Rehm Show." And, Susan Dentzer, if you would, talk about the young woman in Texas.

  • 11:33:34

    DENTZERWell, exactly. That's a very compelling story and a case in point here. And, too, to build on what Jeffrey has said, several times in his opinion, Justice Roberts uses the words, either interlocking or the phrase closely intertwined. He talks about the different provisions of the law that are intended to work together to get coverage to people: Tax credits, exchanges, so-called qualified health plans -- these are the health insurance plans that meet the standards in the law -- and then qualified individuals -- who's qualified to get a subsidy. And all of those things work together and they're talked about in different sections of the law. And if you strip any of those individual phrases out of context and don't take them together, they don't make any sense.

  • 11:34:24

    DENTZERSo, for example, when Justice Roberts writes, "We talk about qualified individuals in the law. If you read the plaintiffs' case very closely, it would imply that there is no such thing as a qualified individual if that person is buying coverage through a federal exchange. That would have meant that Congress meant that there are no qualified individuals at all who will ever buy coverage through an exchange."

  • 11:34:50

    REHMHmm.

  • 11:34:51

    DENTZERWell, clearly, that's not what Congress meant.

  • 11:34:52

    REHMYeah.

  • 11:34:53

    ROSENThe law doesn't work in the reading of the plaintiffs. And so, just the same way, back to the woman in Texas who probably, I'm guessing, doesn't have coverage because Medicaid wasn't expanding. That's another part of the law that, if you leave that out, then you're going to leave a lot of people outside of coverage.

  • 11:35:13

    REHMAll right. Let's go to Matt in Reston, Va. You're on the air.

  • 11:35:21

    MATTHi. Thanks for taking my call. And I hear these terms contextual and good intentions. And what's scary is, I think in the dissenting arguments, what they're saying is -- it's a bit scary to think that the Supreme Court will start to correctly rewrite these laws legally for what start out as completely, quickly passed, political animals. An example is it -- so it's almost like an embarrassment that they're not able to write the law correctly. And they pass them so quickly that the Supreme Court has to rewrite them to actually make them legal. So what you have is, like, I'll take another law and put it into, out of context. Everybody in the nation is required to buy a house. And if not, your taxes will be raised, is essentially what they've done.

  • 11:36:02

    MATTThey've said, hey, you have to buy health insurance. If you don't, you -- everyone's taxes will go up. And if you do, you get a tax credit. Nobody would argue with that. I mean, if you could pass, that's completely legal. But I think the other dissenting justices were saying, look, you can't have your cake and eat it too. You can't write it one way and then have a chief justice on the Supreme Court rewrite it the correct way.

  • 11:36:26

    REHMNorm.

  • 11:36:27

    ORNSTEINThere is a long history here of Supreme Court decisions doing statutory interpretation, where there is ambiguity or where words are inartfully written. I would say to Matt, one of the things you ought to do is read a wonderful by the Chief Judge of the Second Circuit Court of Appeals, Bob Katzmann, on interpreting statutes, which also lays out Scalia's interpretation. But, you know, the reality is there are always, in complicated statutes, words that are inartfully mentioned. One of the problems here is that, in the old days, when we didn't have this tribalized politics, you would have technical corrections bills passed to make sure the laws could work.

  • 11:37:12

    ORNSTEINWe did that, for example, with the Medicare Prescription Drug Bill, a George Bush initiative, that had all kinds of issues, as almost all laws do. But if you look at most statutory interpretation, which looks at all the words and interlocking parts of a statute, then this should have been a slam dunk and probably should have been a nine-zero decision.

  • 11:37:34

    REHMAll right. And we'll take a short break here. When we come back, more of your emails, your comments and questions. I look forward to hearing from you.

  • 11:40:00

    REHMAnd welcome back as we have further discussion from Susan Dentzer, a senior policy adviser for The Robert Wood Johnson Foundation and on-air analyst on health issues for the PBS NewsHour. Jeffrey Rosen is president at The National Constitution Center, and he is professor at the George Washington University. Norman Ornstein is resident scholar at the American Enterprise Institute. And Jeffrey Rosen, this goes back to something you were getting to, an email from Charles in Houston, Texas. Is it unusual or out of keeping with Supreme Court precedence to put more weight on Congress' intent versus the letter of the laws that they write when deciding cases?

  • 11:41:13

    ROSENIt is a great question, and the answer is no, it is not unusual. Norm Ornstein cited exactly the right book that everyone should read if they want to understand the history of the way the court has approached these questions, and that is Chief Judge Robert Katzmann's book on statutory interpretation. And Katzmann shows that throughout history, the court has looked to Congress' broader purposes. And the most interesting thing she shows is that this is what Congress actually intends. Members on both sides of the aisle, Republicans and Democrats, have repeatedly said that they expect the court to look at their statements, their purposes, their legislative history so that they can actually make their will clear when they're enacting laws.

  • 11:41:55

    ROSENIt was only recently, Katzmann shows, when Justice Scalia and other scholars introduced this notion that you should read laws out of context and only focus on the text that laws began to be interpreted in ways that sometimes clashed with Congress' fairly clear intentions. And the fact that Chief Justice Roberts and Justice Kennedy have repudiated that vision really returns them to a much more collaborative approach to interpretation, which makes the court a partner of Congress and the president rather than its adversary.

  • 11:42:25

    REHMAll right, let's go to Karen in Plainfield, New Hampshire. You're on the air.

  • 11:42:29

    KARENHi, Diane, appreciate your show every day.

  • 11:42:33

    REHMThank you.

  • 11:42:36

    KARENI am so pleased with this ruling. Obamacare isn't perfect, but I fundamentally believe that health care should be a right for everyone, so it's a start. But I have to say I'm also completely outraged when I think about the time and energy that has been spent from day one, tearing this thing down when we should have been spending that time and energy making it better. And what is it going to take for us as a country to move forward?

  • 11:43:04

    REHMNorm?

  • 11:43:06

    ORNSTEINIt's -- I wish I could give an optimistic answer to this. The process that Congress went through in discussing, debating, of sorts, and then passing this law was dismaying itself. You know, there's a sort of truism that Obama and the Democrats jammed this through. If you go back and recall, we actually had months and months with a so-called Gang of Six in the Senate, led by Max Baucus, then the chairman of the Finance Committee, and Charles Grassley, his counterpart on the Republican side, Mike Enzi of Wyoming, that started with a Republican framework, the Grassley framework from 1993.

  • 11:43:46

    ORNSTEINThe idea was to build bipartisan support. And the fact is Republicans, if they had decided they wanted to negotiate, could've improved this law in a whole host of ways, in the malpractice area, you know, reducing defensive medicine, bringing markets a little bit more into it.

  • 11:44:01

    REHMSo why didn't they?

  • 11:44:04

    ORNSTEINYou know, I'll go back to my own book with Tom Mann, "It's Even Worse than It Looks." This was a ruthlessly pragmatic set of decisions to oppose everything and gin up a base, and it worked like a charm in the midterm elections, but it left us in a position where instead of taking a law and then working to improve it and then focusing on how you could actually get better care at lower prices for people and use markets, instead this has become this gigantic political football, and that's not going to change now, although the fact is the law's not going away, and adjustments in the future are going to have to start with the basics and the structure of this law, almost certainly, as we try to move forward.

  • 11:44:51

    REHMAll right, to James in Jacksonville, Florida. It's your turn.

  • 11:44:57

    JAMESThank you, good morning, Diane. I want to thank you for taking my -- I have a comment and a question.

  • 11:45:03

    REHMSure.

  • 11:45:04

    JAMESSo first the comment. I'm one of those folks, excuse me, me and my family are one of those group of people that were harmed by the ruling -- not the ruling but by the Affordable Care Act. We had our own health care policy. We had a high deductible. We had an HSA. Just round numbers, we may be paid roughly about $5,000 annually in our insurance costs, health care, up to the deductible, was out of pocket. It wasn't, you know, $5,000, but let's just say it was at $10,000. Because it no longer fit per the act, we lost that policy. We have to get a new one, now paying $20,000. The difference -- actually the difference is actually more than $10,000, but I used round numbers, $10,000.

  • 11:45:49

    JAMESNow, most people do not have $10,000 just laying around in their budget, and we had to make tough choices. So it does bother me that the Affordable Care Act -- this ruling doesn't bother me, it is what it is. What does bother me, though, and I would ask the panelists, and I would encourage others, though, we need to be talking about free markets. I think free markets is the solution, not the government is the solution. Maybe the government can maybe push that, but the reason why we have all these additional costs, the reason why I'm bearing additional costs, is there's more rules and regulations, and that adds.

  • 11:46:30

    REHMAll right, Susan Dentzer, you want to comment?

  • 11:46:34

    DENTZERWell, to give the caller an honest answer about his current policy versus the policy he and his family had previously, we'd have to sit down and look at all the details.

  • 11:46:44

    REHMYou bet.

  • 11:46:45

    DENTZERThe devil is always in the details.

  • 11:46:46

    REHMYeah.

  • 11:46:47

    DENTZERWhat were you actually covered for before? Was your coverage as generous as what you have to have now under the Affordable Care Act? Really, what -- and frankly, what a lot of people disregard is, if you got -- had a serious illness, as we know under the Affordable Care Act, your out-of-pocket costs are limited now. Your lifetime caps on coverage disappear. Annual limits on coverage disappear. So you have to really look at all of those factors to really decide whether the coverage that you have now under the Affordable Care Act really is worse or that you really would pay more, for example, if you had a serious illness, and those are complicated questions.

  • 11:47:27

    REHMAll right, to Wayne in Harbinger, North Carolina. You're on the air.

  • 11:47:34

    WAYNEThank you, Diane. I have two questions, please. It was suggested that the future costs would really take effect in '16, and it would have a tremendous impact. No one's commented on that. I'd appreciate it if you would. Secondly, don't you think there is any danger, where a line might be crossed, when a court starts to decide an issue based on purpose or political advisability? Do you think there might be a point, just like with unions, where they have good reason to exist, but when they cross the line, it destroys the system itself?

  • 11:48:11

    REHMAll right, thanks for your call. What about those future costs, Susan Dentzer?

  • 11:48:19

    DENTZERWell, as we know from the Congressional Budget Office assessment, repealing the Affordable Care Act at this point would have driven up the deficit. So the many, many, many provisions of the law were put in place to essentially constrain the rate of growth of health spending over time, and a lot of the things that were unleashed by the Affordable Care Act that are now in the hands of, for example, not just the federal government but the states, a lot of the states have adopted state innovation models, a lot of the states have begun to experiment in different ways to redo the way they deliver health care and constrain the costs.

  • 11:48:58

    DENTZERSo I don't think there's any serious analyst of this law who looks at it and says that the costs are going to explode as over and against what we were expecting to happen anywhere as a consequence of the ongoing growth in health care spending.

  • 11:49:15

    REHMAnd what about a line being crossed with this decision, Norm?

  • 11:49:19

    ORNSTEINIt's a good question, and I think you could answer it in a couple of ways. One is, was there a political component in the decision? My guess is that Chief Justice Roberts looked at what the consequences would've been for the reputation of the Roberts court and for red states, and that factored in. But the idea that this was throwing out the words of the statute and just relying on a sense of what Congress wanted I think is inaccurate.

  • 11:49:45

    ORNSTEINAs we were talking about earlier, if you look at it as a textualist, not at four isolated words but at all the other provisions of the statute, which is just what Roberts did in a very careful way, as we have discussed earlier, the interlocking parts of the statute and whether these four words basically would blow everything up, a textualist would say yes, you keep the law. It's four inartful words but that don't in the context of the law's words make any sense.

  • 11:50:19

    REHMAll right, and the president has just concluded a brief statement. In it, he said this was a good day for America, let's get back to work. He also said, after multiple challenges before the Supreme Court, the Affordable Care Act is here to stay. Is he right, Norm?

  • 11:50:48

    ORNSTEINI think this really does cement a core part of the Obama legacy. President Obama, the last year, has had plenty of bad weeks. This was a great week for him, and we've got more to come. But when you consider his come-from-behind victory on trade, which is a very important thing for him, even though a lot of Democrats are upset about it, and this decision now, it is -- it enables him, I think, to look ahead to his own legacy and feel pretty good.

  • 11:51:16

    REHMJeffrey Rosen, does this decision herald any future decision in terms of same-sex marriage?

  • 11:51:31

    ROSENSuch an interesting question. For what it's worth, I predicted in The Atlantic a few months ago that Chief Justice Roberts would join a six-to-three decision upholding the Affordable Care Act but that he would be in dissent in a five-to-four decision by Justice Kennedy recognizing same-sex marriage, and I think that's because it's wrong to view Chief Justice Roberts as deciding these cases in fundamentally political terms. He will not join a decision he fundamentally disagrees with, and as a decision just last week suggests, he is not sympathetic to the idea that there's a broad, fundamental right to marriage.

  • 11:52:06

    ROSENHe believes in deference to the democratic process, which he said repeatedly and which he emphasized in his Affordable Care Act decision. So, you know, predictions are worth beans, but I think his focus on the legitimacy of the court means that he will avoid polarizing decisions when he can embrace legal arguments that he actually agrees with. But I don't think that that means that he will embrace those he doesn't agree with, and I would not be surprised if either tomorrow or next week, we have a decision recognizing same-sex marriage where Chief Justice Roberts is in dissent.

  • 11:52:37

    REHMDo you agree?

  • 11:52:39

    ORNSTEINI do, and I tweeted five days ago that I thought this would be six-three on the Affordable Care Act.

  • 11:52:44

    REHMSo you and Jeffrey were in agreement.

  • 11:52:46

    ORNSTEINJeff and I were on the same page there, and that it would be Roberts and Kennedy joining the four liberals. I think one thing about this decision that may herald exactly what Jeff said on same-sex marriage is Justice Kennedy's concern about disruption in the states. And we know that he has taken a pretty strong stand in favor of rights for gay and lesbian and transgendered individuals, but also a ruling against same-sex marriage now would cause such a crazy quilt in the states and disruption for people who have already been married that I think it comes out five-four in favor of it.

  • 11:53:24

    REHMAnd you're listening to the Diane Rehm Show. Let's go now to Joe in Bridgeport, Connecticut. You're on the air.

  • 11:53:33

    JOEYeah, I had a question about, as far as Scalia, you guys are saying he goes by the text. I don't think that's true because if you look at the Second Amendment case in 2008, well-regulated militia, he didn't go by the text. He went with individual ownership of arms. So, I mean, he goes by his -- you know, he's the same as any other justice.

  • 11:53:52

    REHMAll right, Jeff Rosen?

  • 11:53:53

    ROSENVery interesting point. Justice Scalia says he only sticks with the text when the text is unambiguous. When it's ambiguous, he is willing to look at both legislative history and the original understanding of the amendment. So the Second Amendment case...

  • 11:54:09

    REHMWell, if anything was ambiguous, these four words...

  • 11:54:12

    ROSENI'm just stating the theory. But in the Second Amendment case, he said we can't be sure what those well-regulated militia language meant. We've got to look at the states. And some of them initially thought it did mean an individual right. And then he actually went up to the Reconstruction Era to support that point. So I think it's a fair question about when justices on both sides are consistent in applying their philosophies of textualism. Both, as the caller suggests, are willing to look at history and purpose when they think the text is not clear. But who decides when the text is clear is basically the entire ballgame.

  • 11:54:41

    REHMAll right, to Joe in Pittsboro, North Carolina. You're on the air.

  • 11:54:45

    JOEHello, Diane, thank you so much for taking my call. This is my first chance to be online, and I certainly do appreciate your show.

  • 11:54:55

    REHMThank you. We've got very little time, Joe, so if you'll make your comment.

  • 11:55:00

    JOEYeah, I'm a senior on very limited resources, in retirement, and I'm just wondering if the terrible increases that I saw for my supplemental plans and all my co-pays is likely to continue because of what's been transpiring here.

  • 11:55:18

    REHMAll right, Susan Dentzer?

  • 11:55:20

    DENTZERWell, if you're speaking about supplemental coverage in Medicare, which I gather is what you are as a senior.

  • 11:55:29

    JOEYes.

  • 11:55:29

    DENTZERJust keep in mind that that was not at all addressed in the Affordable Care Act. So that's a separate issue. Whether in fact...

  • 11:55:36

    JOEIt is affected because I think we're -- seniors are taking the hit. I can't tell you how much they went up. It was astronomical.

  • 11:55:45

    DENTZERRight, but keep in mind that that's a separate program. Medicare is a separate program. It was not specifically dealt with in the Affordable Care Act. There is no question that health care costs and health care spending continue to rise and that everybody in this nation is affected by it and particularly in terms of those who are nearing the end of life, potentially incurring very high spending -- costly diseases, et cetera, and lots of expenditures. And it costs a lot of money.

  • 11:56:15

    DENTZERWe are not finished with this effort in the country to come to grips with health care spending, even with the Affordable Care Act decision now behind us.

  • 11:56:22

    REHMQuickly, Norm.

  • 11:56:23

    ORNSTEINYeah, and part of this guerrilla warfare that we were talking about earlier is many Republicans in Congress want to take out things that would look at comparative effectiveness, that would show where different treatments work and where different costs are different in different parts of the country, which is one of the most significant ways that the act should be able to keep those costs under control and let the markets work. It's another bizarre way in which the act is being undermined.

  • 11:56:51

    REHMAll right, I want to thank you all so much for being with us at the last moment when this decision came down, shortly after 10 o'clock. Our guests came in to be with us, to give you, our listeners, an immediate reaction. Thank you all so much, Norman Ornstein, Jeffrey Rosen and Susan Dentzer, and thanks, all, for listening. I'm Diane Rehm.

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