ROBERT SIEGEL, HOST:
Well, now two prominent lawyers on opposite sides of this issue. John Suthers is the attorney general of Colorado. He's a Republican. He's one of the 26 state attorneys general who brought suit against the Affordable Care Act and he's been inside the court this week listening to the arguments. Welcome to the program.
JOHN SUTHERS: Glad to be with you.
SIEGEL: And Walter Dellinger, who's a senior Justice Department official, assistant attorney general and acting solicitor general during the Clinton administration. He filed a Friend of the Court brief in support of the act on behalf of Democratic leaders of Congress. Welcome to the program once again.
WALTER DELLINGER: Thank you. Glad to be here.
SIEGEL: First, briefly, I'd like to from both of you what - today, we heard Ari Shapiro mention the poll that was taken before arguments. Having heard arguments today, does it change your expectation of the outcome? John Suthers, are you heartened, disappointed, what would you say?
SUTHERS: I think myself and my attorney general colleagues are heartened. We filed this case two years ago last week. Took a lot of criticism, a lot of the legal community, the law professors, constitutional law professors said it was not a well founded case. We were asking very fundamental questions. And today, in the courtroom, we heard the justices zeroing in on those very questions. The clip indicated some of those.
Anthony Kennedy said: Can you create commerce in order to regulate it? The constitution gives you the power to regulate commerce, but can you force people to buy a product? He later said something we've said all along. If this is upheld, are we creating a precedent that fundamentally changes the relationship between the individual and the federal government?
SIEGEL: The federal government. Let me turn to Walter Dellinger. After the arguments, what's your sense of what happened today?
DELLINGER: Well, you know, I agree with John that I think more hostile questions were asked of the government overall than were asked of the challengers. But I came away from the argument not knowing what the outcome will be. And that's because, I think, Chief Justice Roberts and Justice Kennedy who sort of seemed to be in the balance of power seemed genuinely troubled by aspects of each side's case.
Obviously, they wanted to know what the government's limiting principle was, but I think they were concerned on the challenger's side that if you don't have this incentive for people to have insurance and make it part of this insurance reform that uses a private market, is the only option going to be to have a sort of single-payer national monolithic system.
So, I think they were troubled by that. They were troubled by the fact that the challengers seemed to think it was a matter of timing, that you could require insurance to be purchased when you have (unintelligible).
SIEGEL: (Unintelligible) pointed out earlier and somebody turns up at the hospital.
DELLINGER: And that's a hard line to defend.
SIEGEL: Well, I have some questions for each of you and then I'd like to hear what both of you say about the other's remarks. And first, Attorney General Suthers, Walter Dellinger referred to the prospect of a single-payer system. Just to be clear, do you agree with the attorney general of Virginia that if the Congress had passed a, you know, Medicare for all, single-payer system based on the power to tax, there's no constitutional problem with that. It's the mix of the insurance business here.
SUTHERS: I think if the Congress had the political will to do so, history indicates that that would be constitutional.
SIEGEL: I mean - and you wouldn't challenge its constitutionality in that case?
SIEGEL: On the state level, does the state have the ability to mandate that we buy health insurance or for that matter, that we buy broccoli? And is it evident to you, as a state's attorney general, where the bright line is between health insurance and broccoli?
SUTHERS: This case has been about federalism from the beginning for the AGs. And the fact of the matter is states are not burdened with the enumerated powers that the federal government is. And under their police power, they probably can require people to buy insurance, whether it's good public policy or not is another question.
SIEGEL: But the court was making - Solicitor General Verilli wrestled with this issue of where's the bright line. How do you define the limitation? What about you, what prevents you from having a law that makes people buy broccoli, if you can make people buy health insurance?
SIEGEL: That's it, really.
SUTHERS: In the state. I mean, let's face it. I think people would rebel if the state required them to do those sorts of things.
SIEGEL: I've never heard anyone argue that Congress can tell a supermarket to give away free food or a clothing store to give poor people free clothing. But an emergency room at a hospital, they can mandate that you'd better treat that person regardless of his or her ability to pay. Is that mandate an overreach?
SUTHERS: Well, Justice Alito had kind of an interesting comment about that, which is very true. The government has created that the cost burden, that burden-sharing requirement by saying if you get federal funds, you have to provide this kind of service. And they're kind of bootstrapping because of this problem we've created then we can force people to buy a product or a service.
DELLINGER: Can I respond to...
SIEGEL: Yes, Walter Dellinger.
DELLINGER: ...Robert? The government does require that emergency treatment be provided to people. And the challengers say, well, the government's created the problem. But, you know, we have a thousand-year tradition in the medical profession that goes back centuries, of treating people who are ill.
It's deeply ingrained in our culture. Even it's true in a number of the states who've brought the challenge, they require treatment. So, if people go without insurance, uniquely, they get a good or a service that other people are going to have to pay for.
SIEGEL: But can you answer the question that was put to the solicitor general today, quite often, which is: Can you draw the line between the mandate for health insurance and the mandate for everything from cell phones to health club membership to buying broccoli?
DELLINGER: Sure, I don't think that's a hard question because the issue is whether the power to regulate commerce includes the power to require commerce. And the government's position is that you can require commerce of people who are going to be inevitably engaged in the commerce for health care. When they do that they transfer the cost to others and it undermines a regulatory regime. That to me is a perfectly good limiting principle.
SIEGEL: Does it fundamentally alter the relationship between citizens and the federal government, for the government to say, you now must go buy something; you must take an affirmative step and purchase from among a limited number of competitors in the marketplace?
DELLINGER: You know, it doesn't. And that's because - and the government has been quite clear about this - if you choose not to have insurance, you're not violating the law. You simply have to pay a tax penalty that's substantially more modest than what you pay for Social Security. You pay 7.5 percent for Social Security. You pay 2.5 percent if you choose to go without insurance.
So, in the government's view, there's a real choice that is left to people there and not in that sense a mandate.
SIEGEL: John Suthers, I'd like you to respond to what Walter Dellinger has said, there's a real choice there.
SUTHERS: Well, I think one of the fundamental issues in this case if there's anything fundamentally different about the health insurance market than other markets. And, frankly, that's what the court zeroed-in on. I think, frankly, one of the weaknesses the federal government, in the lower courts and in the court today, unlike Walter, they had a very, very difficult time articulating a limiting principle that would assure Americans that this would be the end of it, as opposed - we got lots of national problems out there.
Every time we a national problem, can the government say we need you buy a product to solve it? That's the prospect that I think Justice Kennedy is saying, could this not alter the relationship between people and their government?
SIEGEL: The specter of the electric car mandate. Walter Dellinger, did the solicitor general have a rough day out there? Did Paul Clement, arguing against the law, have an especially good day before the justices?
DELLINGER: Well, Paul Clement always has an especially good day. I think the solicitor general, having to represent the government and defend this law, got a lot more questions. But I was heartened by the fact that the very last thing that Justice Kennedy said this morning was that a person who is uninsured - and this is a quote - "is uniquely proximately very close to affecting the rates of insurance and the cost of providing medical care in a way that is not true in other industries."
So, if he thinks there's a real distinction here, he can vote to uphold this without running down the parade of horribles.
SIEGEL: He's saying that inaction is awfully close to action, at least he suggested in that one remark. Well, thanks to both of you for talking with us about this, Walter Dellinger and Colorado Attorney General John Suthers.
DELLINGER: Thank you.
SUTHERS: Thank you, sir.
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