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Health Care Ruling: Examining Dissent


This is MORNING EDITION from NPR News. I'm Renee Montagne.


And I'm Linda Wertheimer. In a momentous and long-anticipated ruling, the Supreme Court has decided to uphold President Obama's health care law. The decision is a major victory for the president.

MONTAGNE: His challenger, Republican presidential candidate Mitt Romney, will offer his own response in a few moments. For their part, House Republicans have vowed to repeal the law.

WERTHEIMER: For more on the court's decision, we're joined by NPR's Ari Shapiro and Carrie Johnson. Julie Rovner is also with us. And we also have lawyer Tom Goldstein, who's argued many cases before the Supreme Court. He's the founder of SCOTUS Blog, which has been analyzing the court's decision this morning, and he joins us from the court.

Now, Tom, we have Chief Justice Roberts in the majority and Justice Kennedy writing the dissent. These are not the places we expected those two justices to be.

TOM GOLDSTEIN: That's exactly right. Justice Kennedy is our traditional swing vote on this court, which tends to have ideological lines in big cases like this. And the fact that the Chief Justice provided the fifth vote with the four more liberal members of the court is very significant.

WERTHEIMER: Significant how?

GOLDSTEIN: Well, on a couple of levels. The first is it really probably gives the country greater confidence in the decision, that this isn't just a partisan issue, that it's not just a political power play. It's really important for the court itself. He's the chief justice, after all. He not only joined the majority but said I'm going to write the majority opinion, and that his opinion is based on the idea that the job of the Supreme Court is to uphold laws passed by the legislature if it can find a way.

And so the main argument of the Obama administration, that this was a regulation of commerce, he rejected that, but he said I will go with their backup argument, that the penalty here for not buying health insurance is just a tax, and Congress has very broad taxing authority. So the administration got what it wanted and it got it in an opinion from a renowned conservative.

WERTHEIMER: Carrie Johnson, tell us about the dissent in particular. We haven't heard much about that this morning.

CARRIE JOHNSON, BYLINE: Right. It was really fascinating, Renee, because there were a lot of fighting words. There was a lot of tough talk in the dissent. The four dissenting justices - Anthony Kennedy, Antonin Scalia, Clarence Thomas and Samuel Alito - clearly had a problem with the majority calling this a tax for one purpose and not a tax for another purpose.

In other words, Congress, in passing the Affordable Care Act, avoided the word tax, probably for political reasons, but this law survived by five votes because Chief Justice Roberts and the majority thought it was within Congress's taxing power. That really bothered the dissenters, who in some ways called this feeble, flimsy, fly-by-night, and in one respect, which really surprised me, they criticized the majority for engaging in verbal wizardry and sophistry, which, you know, is a lot of tough talk from this court.

WERTHEIMER: And a lot of tough talk - a lot of tough things to say about your colleagues on the court and sort of the comity that the court always likes to claim it has. Tom, what surprised you most in this ruling?

GOLDSTEIN: I suppose that it was the way that the court was able to come together despite the fact that there were competing theories, that we actually do know the rule. The fact that it's the tax theory versus the commerce theory doesn't matter in the end. But this was obviously incredibly hard fought. The administration lost the court's center vote in Justice Kennedy and they still pulled it out. I think that it's going to leave a great legacy for the Supreme Court, but I don't know that many of us saw an alignment where Chief Justice Roberts alone saved the signature accomplishment of the Obama administration.

WERTHEIMER: I think you're right. That is extraordinary. The individual mandate was upheld under the taxing authority. Julie Rovner, is there any way to see how many people will actually be paying that tax because they decided not to buy health insurance and had to pay a penalty?

JULIE ROVNER, BYLINE: Well, you know, this is still the big worry of the insurance industry. When this law passed, they said from the beginning that this penalty is too small, that the people that they really need to get into the insurance pool are the young healthy people and that the penalty is so small - it's only a couple of hundred dollars to begin with - and the cheapest insurance policy will be at least a couple of thousand, that it will be so much easier just to pay the penalty rather than get insurance, that you'll end up with these young healthy people still not having insurance - they'd rather pay the penalty - and you'll end up with only sick people buying insurance and that will run up the cost of insurance. And they're still very worried about that.

Congress was so concerned, not just about - as Carrie said, not calling it a tax - they were really concerned about not making it too onerous. But the insurance industry is worried that they didn't make it onerous enough to make people really need to buy insurance.

WERTHEIMER: Good luck with that. The other thing, though, that's interesting is that there are sort of three kinds of people in this world of this bill. There are the people who already have health insurance. That's a very large number of people. People who can't possibly afford to have health insurance. They fall into the Medicaid section of this bill. And then those people in the middle who could buy it but choose not to buy it.

ROVNER: That's right. And this is obviously intended to give a big push to those people who could buy it but choose not to. But, you know, there's also a big misunderstanding. There's a lot of people who think because of the way it's framed, you know, this mandate, that everyone has to buy insurance. There's people who have insurance through their jobs who think that starting in 2014, they'll have to drop it and go out and buy their own. And there have actually been some polling questions about this. And that's not the case. If you have insurance through your job nothing changes, assuming your, you know, your employer doesn't drop their insurance, which there are also provisions in this bill to discourage them from doing. So both - it's really only those people who don't have it who will be affected by this.

WERTHEIMER: Only those people who don't have it and could conceivably buy it.

ROVNER: That's correct.

WERTHEIMER: Those are the only people that are affected.

MONTAGNE: I mean, the other thing that this ruling does, though, is give time, obviously, for the health care law itself to pan out. But Julie, there's a lot of misunderstanding or maybe you could say just ignorance, people don't know exactly what's in this health care law. What is, is this a moment now where that sort of information you think will get disseminated?

ROVNER: Well, there's been an enormous amount of criticism of the Obama administration for not doing a very good job on the messaging, as we call it, for, you know, getting the law passed and then pivoting to the economy, to jobs, to talking about other things. And what happened was there's been so much more money spent by the opponents of this law than by the supporters of the law. And, of course, then you have the problems of you have a lot of Democrats or liberal Democrats who didn't like the law, they wanted a single-payer, a more publicly funded type of law. And so, this was not everybody's first choice. So you have sort of a small sliver of popularity for this type of law anyway and I think that was part of the problem. But, yeah, this does give another chance to come out and tell people what's in the law, how is it going to work. But, you know, as Ari has been saying, this comes in the middle of a, you know, a bitterly fought presidential campaign where the Republicans are going to be as one saying repeal, repeal, repeal.

MONTAGNE: Well, we've just heard about some of the language that the dissenters in the court used in their dissent. I mean, there was some powerful emotion there along with the legal arguments that were being made.

Ari, talk to us about the sorts of things that are being said now by those who oppose the law. The political people, and by the way, we are waiting for Mitt Romney to speak. He's supposed to be any minute now so we may have to break in...

ARI SHAPIRO, BYLINE: I was going to say, we may not have to talk about them. We may hear them from Mitt Romney's mouth in just a moment. He has a lectern set up on a balcony overlooking the capital with a sign that says: Obamacare Repeal and Replace, and the American flag behind him. The House Republicans are scheduled to vote the week of July 9th to repeal this bill. Senator Mitch McConnell, the head of the Senate Republicans, has said this bill is passed under false pretenses. They told us it was not a tax. Now we know it is a tax. And so, slightly different messaging now that we've gotten the ruling from the Supreme Court saying that this mandate is basically a tax. But also the same messaging as we've had all along from Republicans that this is a bad law that needs to go.

ROVNER: And, in fact, not quite so often that politicians actually borrow phrases from the court but they might borrow this one from the dissent: In upholding the Affordable Care Act, the court today decides to save a statute that Congress did not write.

MONTAGNE: And we will be continuing this conversation. We will hear from Mitt Romney moments from now, but thank you very much Carrie Johnson, Julie Rovner, Ari Shapiro. And there at the Supreme Court, thank you very much, Tom Goldstein. You have been listening to coverage from NPR News. You are listening to MORNING EDITION on NPR News. Transcript provided by NPR, Copyright NPR.

As NPR's senior national correspondent, Linda Wertheimer travels the country and the globe for NPR News, bringing her unique insights and wealth of experience to bear on the day's top news stories.
Renee Montagne
Renee Montagne, one of the best-known names in public radio, is a special correspondent and host for NPR News.
Ari Shapiro has been one of the hosts of All Things Considered, NPR's award-winning afternoon newsmagazine, since 2015. During his first two years on the program, listenership to All Things Considered grew at an unprecedented rate, with more people tuning in during a typical quarter-hour than any other program on the radio.
Carrie Johnson is a justice correspondent for the Washington Desk.
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