Obama's Health Care Law: Past, Present And Future

Tomorrow morning the Supreme Court begins a three-may marathon of oral arguments challenging President Obama's landmark health care law, the Affordable Care Act. Weekends on All Things Considered guest host Laura Sullivan previews the arguments with NPR legal affairs correspondent Nina Totenberg. She also speaks to Mark Gross, owner of a professional line standing service, who is poised to have a lucrative week, and Jeff Rother of the National Coalition on Health Care walks us back through health reform's tempestuous path to the Supreme Court.

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LAURA SULLIVAN, HOST:

It's WEEKENDS on ALL THINGS CONSIDERED from NPR News. I'm Laura Sullivan, in for Guy Raz.

Our cover story today: Starting tomorrow, the Supreme Court kicks off an unprecedented six hours of oral arguments over three days on constitutional challenges to President Obama's landmark health care reform, the Affordable Care Act.

It's a huge case and one that will be decided later this year, smack in the middle of the presidential election. And it's why the past few weeks have been very, very busy for Mark Gross. What have the last few weeks been like?

MARK GROSS: Well, whenever Congress is in session, we get a - oops.

(SOUNDBITE OF PHONE RINGING)

SULLIVAN: Mark's a businessman from Bethesda, Maryland. He reaches into one pocket...

GROSS: OK.

(SOUNDBITE OF PHONE RINGING)

UNIDENTIFIED WOMAN #1: Let's take it.

SULLIVAN: ...and then into another.

GROSS: I have to turn these things off. I apologize.

SULLIVAN: Oh, my goodness. You have two phones.

GROSS: Yeah. I...

SULLIVAN: Why do you have two?

GROSS: Because sometimes one of them doesn't work, and I want to be reachable all the time.

SULLIVAN: This week, both of those phones have been ringing off the hook. Mark Gross runs a business called Linestanding.com. Wealthy clients, lobbyists, policy ones, high-ranking government officials can call him up and hire someone to stand in line at a rate of $36 an hour outside of congressional hearings or Senate testimonies, usually a few hours before they start. But this week's Supreme Court case is different. Mark Gross started hearing from clients months ago.

GROSS: You know, this isn't a situation where we could just put somebody in the line for a couple of hours and they're going to get in. There's very few spots, and the interest in this case is incredible.

SULLIVAN: We'll take you to the line in a moment. But first, let's take a look at how an effort to overhaul the nation's health care system became one of the most contentious issues in American politics.

(SOUNDBITE OF CHEERING)

PRESIDENT BARACK OBAMA: We can control costs by focusing on...

SULLIVAN: It started February 10, 2007 when then-Senator Barack Obama announced his candidacy for president.

OBAMA: Let's be the generation that says right here, right now, we will have universal health care in America by the end of the next president's first term. We can do that.

(SOUNDBITE OF CHEERING)

SULLIVAN: John Rother is president of the National Coalition on Health Care. He's a big supporter of the health care law. He says at the time, health care reform is a political gold mine.

JOHN ROTHER: Not only because of the number of people who can't get insurance, but the current system doesn't work well for people who are ill. They are charged higher rates. They have trouble getting access to doctors and hospitals sometimes. So I think it's a widespread feeling that we should have a better health system than we have.

SULLIVAN: And public support for health care reform remained high well through the general election. But then in July of 2009, halfway through the president's first year in office...

(SOUNDBITE OF RADIO PROGRAM, "THE FRED THOMPSON SHOW")

FRED THOMPSON: Joining us now is Betsy McCaughey. Betsy is...

SULLIVAN: This moment on Republican Fred Thompson's radio program with guest Betsy McCaughey, the former New York lieutenant governor.

(SOUNDBITE OF RADIO PROGRAM, "THE FRED THOMPSON SHOW")

BETSY MCCAUGHEY: You're quite welcome. I'm glad to be on because I have just finished reading the new House bill for health care, what they call reform.

SULLIVAN: McCaughey was the first person to suggest that the health care bill called for death panels.

(SOUNDBITE OF RADIO PROGRAM, "THE FRED THOMPSON SHOW")

MCCAUGHEY: The Congress would make it mandatory, absolutely require, that every five years, people in Medicare have a required counseling session that will tell them how to end their life sooner.

SULLIVAN: Again, John Rother.

ROTHER: And so focusing on what the bill would actually do was an attempt to characterize the intent of the bill in very scary terms and not really set the tone for the debate from then on.

(SOUNDBITE OF RADIO PROGRAM, "THE FRED THOMPSON SHOW")

THOMPSON: And can you imagine the response of the American people...

MCCAUGHEY: Yes.

THOMPSON: ...when they find this out?

MCCAUGHEY: Well, I hope they do find it out...

SULLIVAN: By August...

(SOUNDBITE OF MUSIC)

ROTHER: The intensity of the opposition really ramped up.

(SOUNDBITE OF TV PROGRAM, "THE O'REILLY FACTOR")

LAURA INGRAHAM: When Sarah Palin went on her Facebook page last weekend worrying that the Democrat's health reform plan would include death panels, she kicked up a storm that no one saw coming.

(SOUNDBITE OF TV PROGRAM, "THE SEAN HANNITY SHOW")

SEAN HANNITY: A town hall event held Thursday in Tampa, Florida, quickly became a mob scene when citizens were forcibly kept out.

UNIDENTIFIED WOMAN #2: Get off of me.

UNIDENTIFIED MAN #1: Everybody, back up.

ROTHER: You had meetings back home with members of Congress, with people screaming at them and yelling.

(SOUNDBITE OF TV PROGRAM)

UNIDENTIFIED MAN #2: That mob goes crazy. Crazy. And they should, shouldn't they?

ROTHER: Deep, deep opposition.

SULLIVAN: Mm-hmm.

ROTHER: And so that shook up a lot of members of Congress.

OBAMA: What you can't do - or you can, but you shouldn't do - is start saying things like, we want to set up death panels to pull the plug on grandma. I mean, come on.

SULLIVAN: All of this was happening before the Affordable Care Act was even signed into law. Back then, according to polling done by the Kaiser Family Foundation, 40 percent of people supported it, 40 percent disliked it, and that hasn't changed in two years.

John Rother says that's partially because most of the big reforms, like the requirement that everyone have health insurance, don't kick in for a couple years. And he adds...

ROTHER: I think to a very large extent, the debate over the Affordable Care Act is simply a proxy, if you will, for how people feel about the role of government, and those attitudes don't really change very much. And it's not about what the law will do for you, what benefits it will provide. It seems to be about the role of government.

SULLIVAN: John Rother of the National Coalition on Health Care. Three days of oral arguments start tomorrow at the Supreme Court on the Affordable Care Act, but the most important day will be day two, Tuesday. So I asked NPR legal affairs correspondent Nina Totenberg, why Tuesday?

NINA TOTENBERG, BYLINE: Well, that's the so-called individual mandate. I keep saying so-called because the words individual mandate do not appear in the health care law. The issue is whether Congress can require people to have health care. Now, for anybody who already has it by employer-provided health care, Medicare, Medicaid, that's fine. But if you - after that, you still don't have health care, the law requires that by 2014, you have it. And the challengers say that's unconstitutional, that it's the first time that the federal government has required anybody to buy a commercial product that they may not want.

SULLIVAN: So what about the other two days?

TOTENBERG: Well, tomorrow is the, frankly, most boring day.

(SOUNDBITE OF LAUGHTER)

TOTENBERG: Although it'll be such a zoo there that nothing will be boring. And the issue is whether - since the law has not actually gone into effect, particularly those provisions that impose a penalty - whether there is even an issue for the court to look at yet. I won't go into the details, but it's a lot of very arcane tax law. And there'll be a lot of discussion of Section 2000AA and Section 2000AB.

SULLIVAN: Wow.

TOTENBERG: And you can imagine how riveting that's going to be. There is, of course, the possibility that we'll get some hints from the justices about how they feel about some of the other issues.

SULLIVAN: And on Wednesday, the third day of the arguments?

TOTENBERG: Well, in the morning, the argument will be about what happens if this mandate is unconstitutional. Does the entire law fall? Only certain sections or only the mandate provision? That's what that's going to be about. In the afternoon, they'll be hearing argument about the Medicaid expansion part of this law, expanded the number of poor people who will be eligible for Medicaid coverage in the states.

Now, the federal government picks up almost all of the tab, at least for the first 10 years. But the states say that is an unconstitutional coercion on them to add a program that will cause them, eventually, some money.

SULLIVAN: So, Nina, who's going to win?

(SOUNDBITE OF LAUGHTER)

TOTENBERG: You know, you are only the 85th person to ask me that in the last few days, and I am studiously saying I don't know who's going to win because I actually don't. What we do know is whose votes likely are in play. The four so-called liberal justices - Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Stephen Breyer - have pretty established judicial records about believing in a broad role for Congress to legislate in this area.

I think we can be fairly certain that Justice Clarence Thomas, on the other side, will be opposed to the law. Everybody else's votes are at least technically in play. Justice Scalia has written, interestingly, very broadly about Congress' power to legislate under the Commerce Clause, but he has also said that the congressional power to do that is much more limited. Justice Samuel Alito is also possibly in play. The swing justice most of the time in these cases is Justice Anthony Kennedy and likely will be again.

And Chief Justice John Roberts, in his role as chief Justice, is viewed, I think quite widely, as a potential vote to uphold the law if there are five votes to uphold the law, that he might not want to see the court split five to four, that that wouldn't be good for the court as an institution of the country. But we don't really know. The truth is there are something like 150 friend of the court briefs, plus I don't know how many others. And I would suspect that more than usual, the justices have really decided what they think by now.

SULLIVAN: NPR legal affairs correspondent Nina Totenberg. So just how big a deal are these oral arguments tomorrow? Remember Mark Gross, the guy who runs the professional line standing business? When we talked to him midweek, he thought the line outside the Supreme Court would start maybe Sunday or possibly on Saturday. Well, on Friday, he gave us a call.

(SOUNDBITE OF BEEP)

GROSS: This is Mark Gross calling. And we've actually got a person in line at this hour, 12:30 p.m. We got a phone call from an investment banker in New York who told us to get in line. He's number one. OK? So I just wanted to let you know...

BRENT BAUGHMAN, BYLINE: One, two. One, two.

SULLIVAN: And, of course, we had to see for ourselves. We sent our producer Brent Baughman...

OLIVER GAULT: Hey.

BAUGHMAN: Oliver.

GAULT: Yes.

BAUGHMAN: Hey.

SULLIVAN: ...to meet Oliver Gault(ph), the guy in charge of holding that first spot in line. Well, it turns out he's actually fourth in line. A few other guys in front of him, who didn't want to talk on the radio, showed up even earlier Friday morning.

GAULT: But, you know, it turns out we're not exactly number one, but as far as representing line standing, we're number one in line.

BAUGHMAN: So how long is someone going to be over there in that spot?

GAULT: I believer - most of the people are not interested in this Monday thing that's going on, and so we're here till Tuesday and Wednesday.

SULLIVAN: Multiple standers do this in shifts, of course. The cost by, say, Wednesday at 9 a.m. at a going rate of 36 bucks an hour: $4,194.

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