transcript

Jun
29
2012

GWEN IFILL: The health care ruling that rocked all three branches of government, what it means for Washington and what it means for you, tonight, on "Washington Week."

PRESIDENT BARACK OBAMA: (From videotape.) If you're one of the more than 250 million Americans who already have health insurance, you will keep your health insurance.

MS. IFILL: A huge day for the Supreme Court yields a big reprieve for the Obama administration. The surprise man in the middle: Chief Justice John Roberts. But is his the last word?

HOUSE MAJORITY LEADER ERIC CANTOR (R-VA): (From videotape.) When we return the week of July 9th, I've scheduled a vote for total repeal of the Obamacare bill to occur on Wednesday, July 11th.

FORMER MASSACHUSETTS GOVERNOR MITT ROMNEY (R) (Republican Presidential Candidate): (From videotape.) Our mission is clear. If we want to get rid of Obamacare, we're going to have to replace President Obama.

MS. IFILL: A week full of hot-button action includes a critical immigration ruling and a vote to find the attorney general in contempt of Congress.

REPRESENTATIVE DARRELL ISSA (R-CA): (From videotape.) In fact, what they're doing is covering up their own false statements.

REPRESENTATIVE STENY HOYER (D-MD): (From videotape.) Shame on you. Shame on you.

MS. IFILL: High drama in Washington. Covering the week:, Joan Biskupic of Reuters, Pete Williams of NBC News, John Dickerson of Slate Magazine and CBS News, and Naftali Bendavid of the Wall Street Journal.

ANNOUNCER: Award winning reporting and analysis, covering history as it happens, live from our nation's capital, this is "Washington Week with Gwen Ifill," produced in association with National Journal.

(Station announcements.)

ANNOUNCER: Once again, live from Washington, moderator Gwen Ifill.

MS. IFILL: Good evening. A remarkable week in Washington, and we'll get right to it. There is almost no underselling the scope of the victory the Obama administration scored at the Supreme Court this week. The man they have to thank, not perennial swing voter Anthony Kennedy, but Chief Justice John Roberts.

Consider the contours of the court's two five-to-four votes to uphold the Affordable Care Act. A majority actually rejected the administration's central argument that the mandate to purchase health insurance is permitted under the Constitution's Commerce Clause. On that point, Roberts sided with the conservative majority. But the chief justice swung the other way on a narrower matter: voting to redefine the mandate as a tax, which he and the court's four liberals said is constitutional.

Right off the bat, the first question, Joan, is: what's the difference?

JOAN BISKUPIC: Well, you have to look at this through two lenses. First, for the law itself, it's upheld. Who care how it's upheld? It's upheld. It stands. It's the centerpiece of Barack Obama's domestic agenda. He goes forward with it. It's a very big deal that way.

In terms of a little rationale, I think the most important thing you can say is what does this say about John Roberts? Here's the chief justice who had never been the key fifth vote with the liberals on a major case and where does it come in this big matter. And it shows him trying to bridge ideological differences there and that's what he did. He just decided he'd go with the liberals on the Obama administration's secondary argument, on the taxing power.

Now, it didn't get a lot of play when we were presenting this back in March, but it was always in the case so it was always there for him to pluck if he wanted to pluck it. And he did.

MS. IFILL: In the end, Pete, though, how surprised were you about John Roberts being the key linchpin here?

PETE WILLIAMS: Well, I think I was more surprised that it was upheld on the basis of the taxing power than I was that it was John Roberts. And I have to say before we go any further that the last time Joan and I were on here, she predicted that the Supreme Court would uphold it. I predicted that it wouldn't. Clearly, someone changed their vote. (Laughter.)

MS. BISKUPIC: (Inaudible.)

MR. WILLIAMS: But I don't think anyone came out of the arguments thinking, man, they're going to uphold this on the taxing authority. And this is why the Roberts opinion is so interesting because he both gives the liberals this victory on the law, but gives the conservatives this huge vote of support for what had been the central argument all along that the Congress' commerce power does not extend to somebody who isn't doing anything. If you don't have insurance, you're not in commerce, you can't be regulated. And Roberts has a very forceful opinion agreeing with that.

So he falls back to the government's fallback and he says, but Congress can tax almost anything. He says, you know, at the founding of the republic, there was a head tax. You could just be taxed for standing there. So he basically says, Congress can't reach you for doing nothing, but you can be taxed for not buying insurance.

MS. IFILL: Go ahead.

NAFTALI BENDAVID: I mean, reading the opinion of John Roberts, you get the sense that he knew what he wanted to decide and then figured out how to get there. I wonder what you guys think about that because that's how it reads, like he knew the result, then the reasoning came second.

MS. BISKUPIC: But we see this all the time, to tell you the truth -- not so much that, but the reality that if they can decide something narrowly, and if they can find an act of Congress constitutional, they need to do that. And this was no mere --

MS. IFILL: He has said as much, has he?

MR. WILLIAMS: That's an old tradition.

MS. BISKUPIC: Yes, and they've always said that. It's an old tradition, yes, because theoretically all conservatives across the spectrum have said, you defer to the legislative branches. So here you have Congress having passed this thing so you're all going to have this natural deferring. And then also the idea, if it can be upheld on any constitutional grounds, go for it. So I actually didn't think it was so stunning. It's just that when you think of the politics that surrounded this thing, I think it's easy for people to see it that way.

MR. WILLIAMS: I will say, though, I think the decision is a little hard to understand because he says at one point -- and this is a quoting from his opinion -- "the law makes going without insurance just another thing the government taxes, like buying gasoline or earning income." And I think it's hard for people to think that not doing something is something that can be taxed. And especially when you consider that in part of the opinion, it says, you know, for purposes of another law, which says you can't sue about a tax until it goes into effect, it's not a tax, but it's OK under the taxing authority. That's awfully -- slicing it awfully thin.

MS. IFILL: You mentioned this debate about the taxing authority. And President Obama in 2009 gave an interview in which he said adamantly that was not the case; in fact, he bristled when ABC's George Stephanopoulos said the mandate was basically a tax.

PRESIDENT OBAMA: (From videotape.) That's not true, George. For us to say that you've got to take a responsibility to get health insurance is absolutely not a tax increase. What it's saying is, is that we're not going to have other people carrying your burdens for you any more than the fact that right now everybody in America just about has to get auto insurance. Nobody considers that a tax increase.

JOHN DICKERSON: Pete, what did the other justices, particularly John Roberts' conservative allies think about his tax argument?

MR. WILLIAMS: Well, I will just say this about what the president said. What the Supreme Court basically says, it doesn't matter what Congress called it. You look at how it functionally acts, and it's a tax. The IRS collects it. You report it on your tax form. It's stuck in the part of a federal law that's got the tax laws in it.

What the conservatives say is that basically -- that Congress deliberately rejected it as a tax. That's their claim. Now, you know, there's a contrary argument here that actually Congress debated whether it was a tax and said it was, but the conservatives say it's a penalty. It's clearly a penalty and that this is the court becoming a tax writer. And only taxes can arise in the House. They were just appalled by the majority decision.

MS. BISKUPIC: Right. And the dissenter said, you adopted this fly-by-night argument, kind of criticizing the fact that the administration hadn't highlighted.

But, Gwen, to your other question about does it become a tax because Chief Justice John Roberts has declared it one? He actually didn't declare it a tax for outside the marble building. He declared it a tax for just their purposes of the law saying, you know, it doesn't matter where it's labeled the way we're going to construe it.

MR. BENDAVID: But Republicans are jumping all over that.

MS. BISKUPIC: Yes. Saying it's not a tax.

MR. BENDAVID: Yes. They say, see, you were misled by the Obama administration. They said it wasn't a tax, but John Roberts himself is upholding it solely because it is a tax so he may not have intended it to go outside the marble building, but it's certainly being used.

MR. WILLIAMS: Well, let me just say one other thing about how the law works and has always worked this way, even before the Supreme Court rule. If you don't buy insurance, the law says you have to pay this penalty. But, guess what? If you don't pay the penalty, zip. There's no punishment in the law. Now, the IRS can try to get your money. They can withhold it from your paycheck. They can take it out of your refund, but they can't prosecute you. And there's even this amusing thing in the government's brief that says, you know, if you don't pay this penalty, the IRS can call you or come to your house.

MS. IFILL: Let me ask you a little bit about the internal workings of the court, because Justice Kennedy in his dissent wrote in part that he thought -- I don't know if he was criticizing Justice Roberts directly, but he said this was a vast overreaching of government.

MS. BISKUPIC: Well, and he actually invoked a phrase that means something to us over there, the idea of judicial modesty.

MS. IFILL: Right.

MS. BISKUPIC: You're modest. No, you're modest. Or you're immodest. And he said, you're casting this as judicial modesty, but it's really immodesty and you're saying it's restraint, but it's really overreach.

MS. IFILL: That's almost like a smack down from where I stand.

MS. BISKUPIC: Yes. In our world it's a real fighting-words kind of thing. But, the truth is that what Anthony Kennedy, who we see as this centrist conservative, what he would have done is thrown out this entire law. So if he had prevailed as the usual man in the middle, we would have had a much different nation right now. But what he said was that -- he said it in this kind of muted tone in the courtroom. But the chief had prevailed, what are you going to do?

MS. IFILL: I want to get back to the health care for a moment, but I don't want to skip over another big decision that came out this week of the court and that was involving immigration, the Arizona tough immigration law in which they basically kind of gutted it.

MR. WILLIAMS: Well, they upheld one of the four sections that were being challenged. They said, OK. It's all right for the police in Arizona, after they arrest or detain someone, to check on their immigration status before they release them. And they struck down three others.

But in doing so, the opinion -- this one was written by Anthony Kennedy -- said, look, the states have a very limited role here. Immigration is really a federal responsibility. There are foreign policy considerations. It matters how we treat our foreign guests. And so go ahead, Arizona. We really don't know how you're going to enforce this because it hasn't gone into effect yet. Do your best, but we'll be watching. It's a very pro-federal responsibility.

MS. IFILL: Are there other states with this kind of law in the pipeline that we're waiting to see what's going to happen?

MS. BISKUPIC: Yes. We had five other states that followed the lead of Arizona and other states were waiting to see what was happening. But the signal from the Supreme Court -- and this is sort of a -- again, favoring the Obama administration was, don't go there. The federal government has broad powers in this area and it was this time again Kennedy saying, you know, for good reason. So I think it was a real strong warning shot to the states to cool it for now.

MS. IFILL: I want to go back to the political fallout from the health care debate because it turned out to be really an interesting week.

MR. ROMNEY: (From videotape.) Let's make clear that we understand what the court did and did not do. What the court did today was say that Obamacare does not violate the Constitution. What they did not do was say that Obamacare is good law or that it's good policy.

PRESIDENT OBAMA: (From videotape.) It should be pretty clear by now that I didn't do this because it was good politics. I did it because I believed it was good for the country. I did it because I believed it was good for the American people.

MS. IFILL: Both campaigns say they have raised millions of dollars since the court ruled and congressional Republicans have already scheduled a vote to repeal the law next week. So who was more shocked at the way it turned out: the Democrats or the Republicans, John?

MR. DICKERSON: Well, the Republican -- all the people I talked to in the Republican camps before kind of felt like it was not going to be upheld. They thought this was going to be a big loss for the president and there was a lot -- they were leaning a little bit forward into that answer.

But all sides had multiple answers prepared for all eventualities. The president had several statements he'd written. His aides say he only edited the one that was if it had been upheld, suggesting he was confident, but he got some early reports from news organizations that it had not upheld and in Chicago, where his --

MS. IFILL: In other words, he turned on the television and he saw this.

MR. DICKERSON: He turned on the television. And in Chicago, where his campaign headquarters was, his top aides were watching TV and they said it was a gut punch because they thought it had not been upheld. And then, as they were trying to figure out what to do, a huge roar went up in Chicago because everybody out in the big area where there are no walls had received the subsequent information that it had been upheld. So they were thinking, why are they cheering when this horrible thing has happened? Now it's finally happened.

And in the Republican camp there was a very coordinated response. So what does it mean? We saw the president come out and say -- you know, he was clearly happy, hugging his aides. But one thing that was interesting in his remarks was he talked about all the people that had been helped by this law and that would continue to be helped. But then he really turned the corner and he said, we're not going back. And you talk to his aides and basically they think, A, he doesn't want to continue to have a fight about something he's been losing.

The Supreme Court upheld this. This is an unpopular law still. The president doesn't want to go and have that old fight that was unpopular. And he also feels like people have moved on. If you look at the most recent Pew poll, health care comes in third in terms of the things when you ask people what's your most important issue, the jobs and deficit are first.

MS. IFILL: But they don't sound like they've gotten that message on Capitol Hill, Naftali. I saw a lot of fury, especially from the tea party caucus in the House especially that they -- and anger at John Roberts in particular.

MR. BENDAVID: Well, there is a lot of anger at John Roberts because they really felt that he was one of them and he was -- one of their proudest accomplishments of the conservative movement was getting him on the court and now they feel like he betrayed them.

But it's true. The Republicans are saying, we're going to talk about this every day until the election. The debate has not ended. It's just starting. And the Democrats are saying, case closed. The Supreme Court has decided. It's time to move on.

So you see these very different approaches and it reflects different calculations about what the voters want to hear. The Republicans think this thing is unpopular, it will benefit us to keep talking about it. The Democrats think the voters want to talk about the economy and about jobs. They don't want to hear about this anymore.

MS. IFILL: I don't hear Mitt Romney saying it would benefit them to keep talking about it because he has that Massachusetts problem.

MR. DICKERSON: Well, both sides have a problem, which is the president talks about it and he narrow-casts it. For example, Hispanic voters, this is a big issue, the health care plan. But, more broadly, down ballot candidates, Senate Democrats and House Democrats in some of these states, they don't want to be talking about health care. When it was upheld, they were very muted.

Mitt Romney has a similar problem which is, as Naftali says, the congressional Republicans want to talk about it. Mitt Romney raised almost $5 million, more than $5 million on this. The tea party loves it.

MS. IFILL: Actually in the past 24, 36 hours.

MR. DICKERSON: Any conservative who was not already in line behind Mitt Romney, and they were getting there, they're now rushing to be in the front of the line because they know only by electing him will they overturn this law, but here's the problem for Mitt Romney. If he wants to get people who are not already on his side, swing voters, he's got to make this case about this law in detail.

The problem is he put forward the health care law in Massachusetts -- and we can talk about the tax in a minute -- but in that law, there was not only an individual mandate but a tax penalty if you didn't sign up for health insurance, and that's now what John Roberts has said to the president --

MR. WILLIAMS: So you're saying neither candidate wants to talk about it?

MS. IFILL: One at a time, people. One at a time. Joan, go ahead.

MS. BISKUPIC: I was going to say the idea of getting into the details though, I realize it's so hard, but hasn't that been the problem for the administration that it hasn't been able to quite sell all the benefits of this health care law and so you have all these polls showing that people don't like it, but yet when you ask him about specific provisions, they suddenly like that. But it sounds like you're saying they don't even want to make that effort. They'd rather just turn away from that.

MR. BENDAVID: I mean, they do see this as an opportunity to perhaps re-launch a messaging battle that they concede they lost. And you heard that a bit on the day the opinion came out. But I think first and foremost, they do want to turn the page, and you heard it in the conversations of almost all the Democrats. There's an interesting thing which is the week they come back from the 4th of July recess, the Republicans have a repeal measure that they're going to bring up. By the way, it's the 31st time that the House will vote to have repealed all or part of the bill so it's hardly the first time.

MS. IFILL: And the Senate just doesn't follow through with that.

MR. BENDAVID: And the Senate's going to ignore it. So, I mean, it's not something that's going to accomplish anything but it's going to make a point. Now, that same week, Senate Democrats are going to bring up a jobs bill. And I think that shows you exactly where both parties want to go in this.

MR. WILLIAMS: I just want to say Joan asked my question. So I'll ask another one. Does the fact that the chief justice wrote this decision in any way defang the politics of it or do people just not care about the makeup of the Supreme Court?

MR. BENDAVID: I actually think we can answer that -- I think there's this -- that's actually a very important but somewhat subtle result of this whole thing, which is one of the big arguments against Obama by the tea party folks and others is either that he is incompetent, he's sort of in over his head -- that whole argument -- or that he's some kind of radical left winger.

And I think to have the chief justice, a man who is really somebody who was part of the conservative movement -- he worked in the Reagan White House, it was a big deal when he was named chief justice -- to have him sign on to an opinion that says, now this is actually within the bounds at least of American law, I think is going to have -- Obama looked like a winner this week. And I think that is --

MS. IFILL: It's been a while since that happened.

MR. BENDAVID: Absolutely.

MR. DICKERSON: Seventy-six percent of Americans in the latest CBS poll thought that this court was going to make a political judgment, a political decision not based on the law but politics. And in that -- if that's your frame of mind, then you think, of course John Roberts is going to rule against the president. He's a conservative.

The president's a Democrat, quasi-liberal, of course he's going to rule against him. So the fact that he helped the president sort of affixes the Betty Crocker seal of approval a little more on this bill.

MS. IFILL: But doesn't this debate about taxation hurt, because if that's the third rail of politics that you don't want to be called a tax raiser and you have this same guy who was helpful on the one hand say on the other hand, oh, but this is a tax, can't the Republicans use that?

MR. DICKERSON: People haven't been confused about the tax on the law part where it works only for the purposes of being in the building, but then it expires when you get out there? Well, this is the White House's view. They couldn't have been happier with John Roberts for upholding it on the basis of a tax, but they don't want to get stuck with a tax and so you had Jay Carney, the spokesman, going around and around saying it's not a tax, it's a penalty. And so you start to get in these word games.

But the word games get more exciting, because Mitt Romney now, if he's to sign on to the Republican view, which is -- and Mitch McConnell was very smart today. He said, what John Roberts has shown us is that the president slipped in a tax we didn't even know about. And that that's this enormous health care plan is a tax. And that sounds like a pretty good argument from people who don't like taxes.

But, again, we have the Mitt Romney Massachusetts problem. In Massachusetts, they did call it a tax. And it's of a similar model to what is in this bill. And so Mitt Romney, if he wants to jump onto that anti-tax argument, he has in his past a big problem.

MS. IFILL: You talk about word games. I was listening also to Mitt Romney when he came out and he talked about this. And one of the things he said is that he would act -- his first day as president, act to repeal this law. Act to repeal and repealing it -- it's kind of like I will act to close Guantanamo. We know what happened there.

MR. BENDAVID: Yes. That's one of the big questions. Republicans are saying, OK, now that the court has decided this, the only opportunity to get rid of this law we hate is the November election. But there's a real question about even if they win the November election -- that is to say they win the presidency and retake the Senate, what can they really do? It takes 60 votes in the Senate to do almost anything. There's a reconciliation process that only takes 51 votes, but that only applies to budget and revenue measures. Part of the law does include those kinds of measures, part of it doesn't. So it's really not clear that even if the Republicans win the next election, they can actually take this back.

MR. WILLIAMS: If the Congress were to repeal this, if the Republicans got enough votes to do it, is there any interest at all in coming up with a replacement or would that be years down the road?

MR. DICKERSON: No. They would have to do a replacement bill right after the repeal, because they know that these issues are still -- the president didn't give people something they didn't want. People want a health care bill. He just gave them a version of the health care bill that they don't like. But the support is still very much there from people to want something to fix the health care bill.

MS. IFILL: I think we can all agree that this was one of those rare and genuine surprises in Washington, not only at the Supreme Court but also on Capitol Hill and as we discovered because the president had the television on mute at the White House.

But there was another history-making move this week: House Republicans joined by a number of Democrats voted to hold Attorney General Eric Holder in contempt of Congress for refusing to hand over documents related to a failed Justice Department gun-walking operation along the Mexico border. Was this for show or was there more at work here, Pete?

MR. WILLIAMS: Well, look. I think both sides have some problems here. The Justice Department initially told Congress some information that wasn't true. They said that none of these guns walked in a letter they sent up there and then they had to walk that back. The House investigation has genuinely come up with some interesting questions.

Now, after that, things start to go off the rails a little bit. And you ultimately have this showdown, not over actually what happened. And the reason it's such a big deal is that some of these walked guns ended up at the scene where a border patrol agent was fatally shot.

So now -- they have the documents about that. What they want is documents from last year about how the Justice Department responded to congressional inquiries. So it's one step removed from the thing itself.

MS. IFILL: But even at its height of this debate, I never hear anyone saying that Eric Holder knew about this operation until this border agent --

MR. WILLIAMS: And the chairman of the committee that's behind this, Darrell Issa, even said last weekend that he's satisfied that Eric Holder initially wasn't covering anything up.

MS. IFILL: So considering the fact, John, that today the Justice Department said -- shock -- they will not be investigating this, they will not be pursuing this --

MR. DICKERSON: Prosecuting.

MS. IFILL: -- prosecuting this contempt of Congress citation, was this just politics? I mean, what was this --

MR. DICKERSON: It was politics, of course. But, as Pete said, there was some smoke here in the initial part of it. And so the politics --

MS. IFILL: I mean, just the contempt citation, taking it this far.

MR. DICKERSON: Yes. Yes. I mean, that was -- that is a very popular item among conservatives. And so taking it that far -- but what Republicans say is that the danger, of course, when you go too far in pleasing your base is that people in the middle say this is just politics and it's kind of over the line.

But they feel -- Republicans in talking to them on the Hill, feel that basically what Pete outlined which is the underlying nuttiness of this case and the fact that there are legitimate things to look into here, give them a little bit of cover and it doesn't look as much like a witch hunt. But I think now that it's done, we're not going to be --

MR. WILLIAMS: But this latest development was inevitable because every -- Republicans and Democrats both running the Justice Department have taken the same position: if Congress finds contempt and sends it to the Justice Department, the Justice Department, under a memo written by Ted Olson when he was in the Reagan administration said, look, we're not going to prosecute anyone who is protected by executive privilege. And secondly, a separate of powers thing -- since when does Congress get to tell us who to prosecute. So you knew nothing was going to happen.

MS. BISKUPIC: It was very pro forma. And when did it happen? Right in the middle of the whole Supreme Court thing. That's when they decided to give a show.

MS. IFILL: I wonder if that was part of the plan, Naftali, that they would bring this up while most attention was elsewhere.

MR. BENDAVID: Well, that's been asked by a few people, but as I understand it the scheduling actually happened before we knew exactly when the Supreme Court decision was going to come out so it's hard to say that that's why.

You know, this kind of back and forth happens in every administration now. There's a point at which whoever is in the opposition asks for documents of some kind from the administration and the administration at some point says no. And then we have some kind of back and forth that usually involves executive privilege and/or contempt and the sense of being a blowup. And so I guess this is where the Obama administration turned back.

MS. IFILL: This was -- this week was this blowup. I wish we had another hour and a half to talk about the rest of this because it was a fascinating week. Thank you all. We'll talk more about the court's immigration decision online tonight in a special web town hall. Our partners at Arizona Public Media in Tucson and KPBS in San Diego, part of the Fronteras Changing America Desk, will join in. You can too on a live stream beginning at 8:45 p.m. eastern or when we post it online at pbs.org/washingtonweek. Wherever you are this weekend, stay cool. Have a wonderful fourth. We'll see you next week on "Washington Week." Good night.