Week In Politics: On Supreme Court And Health Care

Robert Siegel speaks with our regular political commentators, E.J. Dionne of the Washington Post and Brookings Institution and David Brooks of the New York Times. They discuss the latest in politics including this week's health care arguments at the Supreme Court.

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ROBERT SIEGEL, HOST:

E.J. Dionne of the Washington Post and David Brooks of the New York Times are here and are just ready to talk about health care. Good to see you both.

E.J. DIONNE: Good to see you.

DAVID BROOKS: Good to see you.

SIEGEL: This could be the last time we talk about health care until the end of June you realize. So...

DIONNE: I doubt it.

(SOUNDBITE OF LAUGHTER)

SIEGEL: You've both written a lot over the years about liberalism and conservatism. I'm just wondering, what was this about at the Supreme Court - a very conservative court hearing arguments about a plan that is what, David Brooks? Isn't this what Republicans said health care reform should be 10 or 15 years ago?

BROOKS: Well, there was a fight about that. But it's a difficult constitutional issue. But essentially what the bill does is it forces people to enter into a contract that's really against their self-interest so you can use their money to subsidize other people entering the same contract. That compelling people to do something that they wouldn't ordinarily do is bound to be a controversial constitutional issue. And some people are saying, oh, it's hyper-political. But that is naturally a tough constitutional issue, a close call. I think it's absolutely legitimate to discuss it the way the court did.

SIEGEL: E.J., let's listen to how Justice Anthony Kennedy put it during the arguments. He is considered the most likely member of the court - it's a five-man conservative majority - to join the four liberals. And he said this: The tradition of law is that we don't require people to take an affirmative act. It might be virtuous to rescue someone who's in danger. We don't have a duty under the law to do that. And he drew that contrast to the Affordable Care Act.

ANTHONY KENNEDY: Here the government is saying that the federal government has a duty to tell the individual citizen that it must act. And that is different from what we have in previous cases. That changes the relationship with the federal government to the individual in a very fundamental way.

SIEGEL: Fundamental change.

DIONNE: Absolutely not. And - excuse me - this is not about whether we have to buy broccoli - the justice seemed obsessed with broccoli or cell phones. It's about the fact that we already think everybody should get health care. There's a law that says if you walk into an emergency room you get care whether you are insured or not. And then we need to rationalize this health care market.

And this is not a hard question. Judges Jeffrey Sutton and Lawrence Silverman are two of the most conservative judges on the bench, and they said it would be outrageous overreach if the court struck this down. Charles Free, Ronald Reagan's solicitor general, said he was shocked that he heard Tea Party arguments coming from these justices.

I think there will be a big price to pay, not necessarily electorally in the short term. But if they just throw this out five-to-four after the two other decisions - Bush v. Gore and Citizens United - we're going to have a big fight on the future of the court.

SIEGEL: And, David, are those Tea Party arguments or are they traditional conservative objections?

BROOKS: They're traditional, believe me. This argument has been going around the conservative circles for decades over the mandate. Because about 15 years ago, a lot of Republicans and conservatives were for it, a lot were against it. These are well-rehearsed arguments. We've been sort of blindsided by it because we don't cover parts of the conservative movement. But, believe me, they are old arguments.

There's not really an argument whether there's a moral obligation to help people. Of course, we have a moral obligation. The question - and this is the constitutional question - the federal government's role in society. Can you coerce, really compel people to enter into contracts. There are many other ways to get the universal coverage. You can use tax dollars to do it. You can use tax incentives to do it. Using the mandate, something Obama opposed in the campaign for very understandable reasons - it was hard to enforce all the other reasons - is what they settled on, but it's that mandate part that makes it constitutional rather than moral.

DIONNE: Ironically, the mandate exists - individual mandate exists so that we won't go to a government-oriented single-payer system. And if a conservative court throws out the individual mandate, we are eventually going to move to much more government-heavy system. And I think a lot - that's why conservatives back the mandate...

SIEGEL: Well, at least in term of the arguments lodged this time, the attorney general of Colorado said here; earlier, the attorney general of Virginia said: The only constitutional objection is compelling people to buy something from a selected number of contractors. Single-payer, Medicare for all - no constitutional objection at all. Do you buy that or is it just a technical opposition to (unintelligible)?

BROOKS: Yeah, no. I absolutely do buy that. I mean, if you use tax dollars, if you make it a national system, that's not government compelling. The other way to do it, by the way, might be a Swiss system or frankly what Paul Ryan has recommended, where you give people tremendous tax incentive to have insurance and they do it because it's so much in their interests.

The problem with the mandate, according to the Congressional Budget Office, you get 25 million, 20 to 20 million people uncovered even after 10 years of Obamacare. If you give people sufficient incentive, then you'll get much higher universal coverage rates.

SIEGEL: You both hear Ari Shapiro's report about the idea that the Supreme Court could be a campaign issue. Usually, I find at some point in the presidential election cycle, somebody says it will be, it typically never is. Can you really imagine, E.J., the court, the Roberts court being a bugbear that the Democrats go after?

DIONNE: Well, we have seen in the past, courts be a serious issue. It's long been - the makeup of the Supreme Court has long been a big issue for conservatives. And it goes back to the Warren court and then to Roe v. Wade. And I think with this trio of conservative decisions, if this goes the other way and just incidentally, I'm not sure the court is going to throw this out.

SIEGEL: Yeah, we don't know, of course.

DIONNE: There were some indications that Justice Kennedy might actually have trouble exercising this much judicial power. And then Roberts might go along with Kennedy. But, yes, I think that for liberals it's been building up since Bush v. Gore and Citizens United. So I think it could become a real issue on the liberal side, for a change, as it was under FDR, as it was in Theodore Roosevelt's day.

SIEGEL: David?

BROOKS: Roe v. Wade was certainly a big issue, which reshaped our politics. My own view may be perverse, which it'll help Obama. The Republicans are beginning to lose the economy as an issue, so they want to wage a big...

SIEGEL: Maybe because the economy is improving a little bit.

BROOKS: Right. Big government versus small government, and health care was their exhibit A. If health care goes away - an unpopular law, by the way - then they've lost exhibit A, they've lost a lot of the anger people have as Obama as sort of a big government liberal.

SIEGEL: What about that, E.J., it's going to be all about the stimulus and Dodd-Franks, if the...

(SOUNDBITE OF LAUGHTER)

DIONNE: I wish I could agree with David on that. And I think he has point. I think there would be some political benefit. But to have the president's biggest domestic achievement for which he bled and gave up so much go down right now in the middle of a campaign, I still can't see how it helps the president.

SIEGEL: Well, thanks to both of you for talking about the health care reform. We'll put it on the file for the end of June. We'll talk about this once again, and perhaps not before then. David Brooks of The New York Times, E.J. Dionne of The Washington Post and the Brookings Institution, thanks to both of you.

DIONNE: Good to be with you.

BROOKS: Good to be with you.

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