MS. IFILL: Will the Supreme Court overturn the health care law; has Mitt Romney shut down the Republican race; and did the president say too much in South Korea, tonight, on Washington Week.
The court tackles the health care law.
RUTH BADER GINSBURG [Supreme Court Justice]: The more conservative approach would be salvage than rather throwing out everything.
ANTHONY KENNEDY [Supreme Court Justice]: (From tape.) If we lack the competence to even assess whether there’s a risk, then isn’t this an awesome exercise of judicial power?
MS. IFILL: Did Congress do it the right way or did it overreach? And can the president save it?
PRESIDENT BARACK OBAMA: Change is the health care reform that we passed after over a century of trying.
MS. IFILL: On the campaign trail, the Republican establishment closes ranks.
PRESIDENT GEORGE H. W. BUSH: I do think it’s time for the party to get behind Governor Romney. Time when to hold them and time when to fold them. Well, I think it is time for people to (go and ?) get behind this good man.
SENATOR MARCO RUBIO (R-FL): Mitt Romney, by the admission of his opponents, has won the primary and it’s time for us to get behind our nominee.
MS. IFILL: And traveling in South Korea, President Obama makes and accidental admission.
PRES. OBAMA: This is my last election. After my election I have more flexibility.
MS. IFILL: It seems everybody is looking for a little flexibility.
Covering the week: Joan Biskupic of Reuters, Pete Williams of NBC News, Jeff Zeleny of the New York Times, and Julianna Goldman of Bloomberg News.
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.
ANNOUNCER: Once again, live from Washington, moderator Gwen Ifill.
MS. IFILL: Good evening. It took three days of legal debate, street protests, and hours of arguments, and now the Supreme Court gets to explain why it will uphold, gut or completely overturn the nation’s landmark health care law. The justices and the lawyers took turns comparing the health insurance market to everything from broccoli to automobiles. But Chief Justice John Roberts wasn’t necessarily buying.
JOHN ROBERTS [Supreme Court Chief Justice]: The key to the government’s argument to the contrary is that everybody is in this market. Everybody is in this market so that makes it very different than the market for cars or the other hypotheticals that you came up with. And all they’re regulating is how you pay for it.
MS. IFILL: Justice Anthony Kennedy, once again a potential swing vote, apparently had the same problem.
MR. KENNEDY: The government felt that that’s because the insurance market is unique and in the next case it will say the next market is unique. But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets – stipulate two markets – the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That’s my concern in the case.
MS. IFILL: So did this debate, which was about taxes and mandates and severability and Medicaid – did it all boil down, Joan, to matters of degree?
MS. BISKUPIC: It will because the two justices that you just showed are probably going to decide this case. It will be a close call, don’t you think?
MR. WILLIAMS: Absolutely.
MS. BISKUPIC: And it will probably be in the hands of the chief justice of the United States and Anthony Kennedy. And the two clips that you showed actually, Gwen, were ones that would lead viewers, listeners, those of us in the courtroom to think that they might buy the government’s case. But at the same time there were enough comments that made it look like they could side with the challengers. And, as you know, they took a preliminary vote on Friday and there will be so much going on over the next couple of weeks where they’ll actually now start trying to argue among themselves. And the persuasion that we saw with lawyers at the lectern this week will now go on with justices trying to persuade each other.
MS. IFILL: Now, most of us are not Supreme Court watchers as closely as you two, but at the beginning of the week, it was generally considered that it would be unlikely that the court would overturn – at the least the White House was saying that it was unlikely that the court would overturn it. By the end of the week, the White House wasn’t as happy.
MR. WILLIAMS: Well, the government had to convince the court of two things: first of all, that this truly was something that was limited, that the health care market is somehow different, that if the court upholds this, you can’t say, well, Congress can make us buy anything. And, secondly, that the law regulates an existing market – that it’s not dragging into commerce to regulate but that you’re already there. Now, I think there was some optimism that the government might get Antonin Scalia because in the past he has written some decisions in which he endorses a very broad view of congressional power.
MS. IFILL: It sure didn’t sound like this time.
MS. BISKUPIC: No, no, no. It was a pipe dream. I think don’t think they should have ever thought that.
MR. WILLIAMS: Definitely. I mean, he made it very clear right out of the box that they totally didn’t have him. They I think had hoped for six or seven votes, so, certainly not Scalia. I think, in my view, Justice Alito also seemed very skeptical. I thought – I see this a little differently than Joan. I thought the chief justice seemed quite skeptical, too. And Justice Thomas, who didn’t say anything as is his usual pattern, obviously is going to say that the law was unconstitutional. So that leaves Kennedy. And in that clip that you just played, he says maybe the health care market is different from everything else.
And so the question is: will he see it that way because of this fact? If you go to buy a car and you don’t have the money for it, it’s not true that you get it anyway and then all of the other people that have car insurance end up paying for your car. So the health care market is different. Is it going to be constitutionally enough different for him? I think that’s the key question.
MS. BISKUPIC: Yes. And he did seem to focus on the cost shifting, the fact that a lot of people are going to get the benefits from the health care system without paying insurance in. And that seemed to trouble him.
MR. ZELENY: There were so many arguments outside as well as inside, but so much protesting, so much attention on this. Does that matter now at this point? I mean, how much are legacies of the chief justice playing into this? How much are the outside dynamics playing into the ruling, if at all?
MS. BISKUPIC: Well, first of all, the last time most Americans saw the Supreme Court was in 2000 in a big way with Bush v. Gore. And Chief Justice John Roberts wasn’t even on the court at the time. So this is a major moment for the chief who’s been there now for seven years. And I think as much as this health care law will define the presidency under Barack Obama, this health care law will also define the Supreme Court under John Roberts. So I think he is mindful of that. But for the protests outside, that’s all a lot of noise.
MR. WILLIAMS: Most of the justices are completely unaware of it anyway. They don’t even see it. They come in on the other side. They drive in the back way. They never see it.
MS. BISKUPIC: Through an underground garage and go up through an elevator.
MS. IFILL: But doesn’t Justice Roberts in particular have a reputation for trying to split the difference and trying to let the court come across not as a divided five-four, left-right body, but to try to find some way to settle on a narrow decision?
MR. WILLIAMS: Yes and no. I mean, sometimes it does turn out that way. Sometimes it doesn’t. I would not want to put money on right now. If John Roberts feels strongly that this is unconstitutional, the question is would he then sort of swallow that and say, okay, if it’s only five votes, then forget what I think about this. I’m going to go join the majority and make it six. I’m not willing to put my money to say he would do that.
MS. BISKUPIC: And I think what’s going to happen though is he won’t get to that point. He will either feel that it’s unconstitutional or constitutional, and there were enough signals – again, I think it’s a really close call, but there were enough signals that he might not even have to get to the larger political sphere.
MS. GOLDMAN: Well, a lot of people are being taken into this world of the Supreme Court for the first time, something that you guys see all the time. Are the justices themselves, now are they acting, are they any different with this case?
MR. WILLIAMS: No. What you see is what we see all the time. And, by the way, that brings in mind something because there’s a lot of talk about how the lawyers perform and which of them were really good and which of them weren’t. The secret about oral argument is it’s not about the lawyers. It’s about the justices. Remember, it’s the first time they’ve ever been in the same room talking about the case. This is their first time to talk about it. They’re really in a conversation with each other, admittedly, through the lawyers. But that’s where the real action is, not at the lecterns.
MS. IFILL: They almost seem to be –
MS. BISKUPIC: They’re kind of arguing with each other.
MS. IFILL: Yes. They almost seem to be showing off for each other, especially with these hypotheticals.
MS. BISKUPIC: And also they’re planting the seeds of the arguments that they’ll then play out in their conference room and in their written drafts. They go through an elaborate conversation on paper. They talk to each other through written drafts that actually are still hand-delivered to their chambers, although most of them are getting them through computers, but they’re still physically hand delivered to the chambers and they constantly revise and change votes. You know, I think there will probably be some shifting.
MR. WILLIAMS: It bears saying it’s not only the first time that they’ll talk about the case together. It’s also the last time because, as Joan says, if you’re trying to get another justice to join your opinion, you send him or her a note. You don’t hang out in their office or chat on the phone.
MS. IFILL: You know, I want to ask you about the big argument that happened late in day on the third day about Medicaid – the expansion of Medicaid. That is one of those easily understood arguments because that’s where the bulk of the people would actually benefit under this health care plan, people who otherwise would not be able to afford their own insurance would be covered because of this Medicaid expansion. That’s something which would be lost if that was ruled against or if the mandate went away?
MS. BISKUPIC: Well, here’s the thing – and I wonder if Pete and I agree on this. I actually thought that the provision that was argued on Wednesday afternoon testing the expansion of Medicaid, which is the state-federal program for the poor, that would mean more people would be eligible for Medicaid and that the states are protesting because they feel like they’d pick up more of a burden, even though they’re voluntarily in it and the federal government still pays for most of it. I think – and tell me if you agree, Pete – that there was not a majority to strike down that provision.
MR. WILLIAMS: I think, again, it’s close. I think it’s stunning that it even was close because the government I think was especially gobsmacked about it because the government’s position is, you know, so new. This is the way Medicaid’s been working for decades. It put new conditions on it and the states can take it or leave it. The states are saying – it’s to the point that it’s not a real choice. They can’t really get out of it. But I think the fact that the court was even entertaining the thought that this new demand on the states of Medicaid might be unconstitutional was stunning.
And just to answer your question, in my view of it, it would be separate from the mandate. In other words, it’s theoretically possible that they would uphold the mandate but strike down Medicaid or vice versa. They don’t depend on each other. Would you agree?
MS. IFILL: Well, here’s what’s tricky – well, go ahead.
MS. BISKUPIC: Right. And what I was going to say is no lower court has bought the states’ argument.
MR. WILLIAMS: They got more traction here than it did anywhere else.
MS. IFILL: Well, here’s what’s tricky about this mandate. There’s a lot in this health care law that isn’t about health care, that isn’t actually about health insurance coverage, including things which if they’d knock down the entire law, they’d knock down a lot of other worthwhile – that Congress deemed to be worthwhile – elements.
MS. BISKUPIC: Exactly. And the chief justice made that point, Gwen, is that you’ve got more than 2,000 pages of some things that were reauthorizations of different programs, all sorts of intricate pieces. And at one point, Justice Scalia, who – to refer to your question about whether they were acting up, he’s always acting up. And at one point, he referred to the Eighth Amendment. We’re like, why are you referring to the Eighth Amendment, which is the prohibition on cruel and unusual punishment. And he referred to it in light of would we all have to actually read this whole thing and figure out what falls and what doesn’t. So there are plenty of provisions that frankly would be taken out.
MS. IFILL: He also told a Jack Benny joke which wasn’t – didn’t go over so well.
MR. WILLIAMS: It’s clear that the health care bill was a train that was going to leave the station. And a lot of cargo got tossed in as it was on the way out. So the question is: would that go down too if they toss out the individual mandate? And I think one of the things that’s so interesting about this is, if you look at the polls, the individual mandate, the requirement to buy insurance is very unpopular. But if that goes down, the first thing it would undoubtedly drag with it is the part of this which is the most popular, which is the requirement that insurance companies cannot deny coverage for preexisting conditions.
MS. IFILL: And would not – that children or adult children of people who are covered would be able to be covered under this as well, which is currently actually in practice. A lot of this law hasn’t actually taken effect.
MS. BISKUPIC: Right. A lot hasn’t taken effect, but so many provisions have. So then the question is: if it all goes down, what happens to the provisions that have taken effect? Where does the money go that might have been paid in to people? I actually think that the justices, as they were dealing with the question, as you say, of severability, they realized how complicated it could be if they had to take it all down.
MS. IFILL: And they also suggested that maybe Congress isn’t the best place to put it all together again.
MS. BISKUPIC: Right.
MS. IFILL: Election year and all of that.
MS. BISKUPIC: Yes.
MS. IFILL: Well, let’s talk about the election year. The frontrunner in the GOP presidential race is signaling that the race is over, even if the other three guys just won’t quit. But to drive his point home, Mitt Romney is rolling out endorsements and focusing his fire almost exclusively on President Obama.
FORMER MASSACHUSETTS GOVERNOR MITT ROMNEY (R) [GOP Presidential Candidate]: I think it’s important for us to select a nominee and to get on with a campaign which will focus on two very different visions for America, the one presented by President Obama, another that would be presented by me if I become the nominee.
MS. IFILL: Now, he was sitting there next to George H.W. Bush and Barbara Bush as they endorsed him yesterday. Is he finally going to get that clear running field with those kinds of endorsements?
MR. ZELENY: He certainly hopes so. And we’ve thought all along the way here that he’s been very close. Well, now he actually is, not necessarily because he has won over all Republicans from the Atlantic to the Pacific, but because time is sort of running out. It’s the end of March here; 29 states, all the territories have voted. But he’s still only not even quite halfway there in terms of delegates. That’s not necessarily his fault. It’s because the rules are different this time with the winner-take-all versus proportional. But he’s getting very close to this.
The Wisconsin primary next Tuesday is probably the place where Rick Santorum will make one of his last stands. He’ll go on to Pennsylvania, his home state on April 24th, even if he loses there, but Wisconsin is the place where the oxygen is going to leave the race for him. And Mitt Romney, as we saw in the clip there, is rolling out every endorsement. The fact is he already had the endorsement from President Bush.
MS. IFILL: He did.
MR. ZELENY: He got that last fall. But they just wanted to remind people just in case they weren’t paying attention.
MS. BISKUPIC: That’s funny with Congressman Ryan. Will that make a difference? What are you expecting to see in Wisconsin? Do you think that can be an end point?
MR. ZELENY: I think the endorsement from Congressman Paul Ryan actually is important, as much as any endorsements matter, of course, it’s an open question. But in this case, he’s not piling on when it looks like Romney is the nominee. The voters of his district actually are going to vote. And some of them in Southern Wisconsin, a very working class district, are not quite sure about Mitt Romney. So I think Congressman Ryan, the chairman of the Budget Committee, has him giving his blessing to Mitt Romney I think is very helpful for the primary.
MS. IFILL: Well, also he’s a tea party favorite nationally.
MR. ZELENY: No question. And he’s a true conservative.
MS. IFILL: But I have to say, Jeff, he came out today in his endorsement and he said something like, I am excited. I’m encouraged. I’m enthused. That wasn’t Mr. I’m So – it didn’t sound like I’m so excited Pointer Sisters talk style, you know what I’m saying? (Laughter.)
MR. ZELENY: And I think he is representative of a lot of people, a lot of Republicans. Senator Marco Rubio the other day said, well, he wasn’t perhaps the best choice of all the Republicans who are running but just basically who is left. So it’s just kind of how it is. And Mitt Romney would not be the first nominee who the party is not completely in love with. But the time – the fact is people’s patience are really beginning to wear out here, I think.
MR. WILLIAMS: Can I come back to the health care law for a moment? Tell us how you think it would play out in the campaign if the court either upholds it or strikes it down.
MR. ZELENY: Boy, it’s sure interesting. I mean, this is the signature achievement of President Obama’s first term. So in the immediate aftermath of a strike down, if that would happen, it would amplify the argument from conservatives that this is de-legitimate president. He has not – all the Democrats were in –
MR. WILLIAMS: But is Mitt Romney the guy to make that argument?
MR. ZELENY: Well, that’s the thing. Mitt Romney is not necessarily the person to make the argument, but it wouldn’t – in the early days, it wouldn’t necessarily matter. Now, there are some Democrats who argue that, look, this would rally the party behind the president. I think if that’s their strategy overall, he’s in trouble a little bit here. But Mitt Romney is not the perfect vessel for this. So the politics of it are as uncertain as the ruling. Any predictions right now – I wouldn’t put any money on it either. We don’t know. But it’s going to have an effect on the final five months of the campaign.
MS. GOLDMAN: What are some of the steps the Obama campaign is taking right now to try and I guess create any harm that this might cause to this campaign?
MR. ZELENY: I think one thing on health care the Obama campaign is trying to raise all of the things, as Pete mentioned earlier, the popular things about the health care bill. They’re trying to say, hey, look, if this goes away, all the preexisting conditions, you know, your kids up to age 26 would lose their insurance.
But overall, what the Obama campaign is doing is really interesting. They have been just waiting for Mitt Romney for a long time and look for them to pounce very quickly through television ads and other things. This race is going to begin I think really soon. It already has, of course, but the president obsessed by his race to come with Mitt Romney.
MS. IFILL: Now, we know that Mitt Romney would rather talk about Barack Obama, but it seems that Newt Gingrich is still in the race and Rick Santorum is still in the race. You had a little dust-up with him this week. We’ll tell you about it in the webcast. Just watch. And also, Ron Paul is still in the race. Now, it turns out Newt Gingrich met privately with Romney and that Santorum is telling people, well, if he asks me to be his vice president, I wouldn’t mind. It doesn’t feel like a real race anymore?
MR. ZELENY: It doesn’t, but the voters have to make that decision.
MS. IFILL: Yes.
MR. ZELENY: If the voters of Wisconsin decide that, you know, we’re not quite finished with this, it is going to keep going on. And mathematically, it’s going to go on anyway because Mitt Romney, even after the contest in Wisconsin, in Maryland, and the District of Columbia on Tuesday, he is still going to be several hundred delegates shy of the magic number of 1,144. So the race is going to go on, but it looks not as likely to go on all the way until to the end to California.
But the open question here is: what is Senator Santorum’s end game? He is probably leaving this process, if he does, in a much more elevated fashion than he entered it. He is thinking of his future here. So it’s not over by any means. But the only person who can probably stop Mitt Romney from becoming the nominee is Mitt Romney himself.
MS. IFILL: Well, and then there’s Pennsylvania that’s still out there. Maybe he can bounce back and do better than he did last time he was on the ballot statewide in Pennsylvania. I’m talking about Santorum, of course.
Well, last week, Romney’s campaign ran into trouble when a top adviser suggested his primary season promises could be wiped clean like an Etch-a-Sketch come fall. This week, it was President Obama’s turn to get ahead of himself politically, stepping on his own foreign policy story by confiding to the Russian president at a meeting in South Korea that he might be ready to compromise on arms control issues in his second term. The trouble is he said it in front of an open microphone. Hate when that happens. And this was his explanation the next day.
PRES. OBAMA: What I said yesterday, Ben, is I think something that everybody in this room understands. Arms control is extraordinarily complex, very technical. And the only way it gets done is if you can consult and build a strong basis of understanding both between countries as well as within countries.
MS. IFILL: He was answering Ben Feller from the Associated Press’ question there. But was the damage already done, Julianna?
MS. GOLDMAN: Yes. And if you’re Mitt Romney’s campaign, the answer is yes, because they are latching on to this. They’re going to continue to use it as a way to try to undercut one of the president’s key strengths, which is foreign policy, to show him that he’s naïve when it comes to talks with leaders on the world stage. And even White House officials will admit that the president should not have been having this conversation when reporters were walking into the room.
But they’re also not that worried because, why? Mitt Romney went a little too far in trying to push back against this and in an interview with CNN went out and said that Russia is the number one geopolitical foe of the United States. And then the next day you have Dmitry Medvedev essentially dressing Romney down on the world stage saying, hey, look at your watch. It’s not 1970. Al Qaeda – you’re likening al Qaeda to Russia? You say we should have been invading Moscow this whole time?
MS. IFILL: How bizarre – you get on a plane, you travel halfway across the world, Julianna, to talk with the president –
MS. GOLDMAN: Have a whiff of Hollywood.
MS. IFILL: At a nuclear summit and instead we have this spectacle of the Russian president involved in a U.S. domestic political fight.
MS. GOLDMAN: Yes. And what was even more bizarre is that this was a topic of conversation among world leaders at the nuclear security summit. It’s my understanding that the president found out about Mitt Romney’s comments from Dmitry Medvedev himself. And so here you have Russia and the U.S. leading a summit on reducing nuclear arsenals around the world. And world leaders are kind of scratching their head saying, what’s going on back in the U.S.?
MR. ZELENY: The world is flat. But what headlines were overlooked because of the mike incident? I mean, was there actual progress there or what did you report in addition to that?
MS. GOLDMAN: So there was some progress, questionable exactly how much progress there was in terms of reducing nuclear arsenals around the world. But there were some announcements made with the Ukraine and the cleanup of a former test – cleaning up their highly-enriched uranium stockpiles. Also an announcement that – the cleanup of a nuclear testing site in Kazakhstan had been completed. Also some talks with China and some progress that the administration thinks was made in terms of North Korea as well.
MS. BISKUPIC: Well, that was the other visual I was thinking or the other iconic moment was the president looking through the orange-rimmed binoculars toward North Korea, correct?
MS. GOLDMAN: Yes.
MS. BISKUPIC: And you said that there was seemingly some progress in his effort to at least send a message that way.
MS. GOLDMAN: Right. So one of the other goals of the White House was to go to Seoul to have that imagery of the president looking and peering into this world of North Korea, and also sending a very strong message to North Korea that its actions will have consequences.
MS. IFILL: You know, I went to North Korea, one of these summits, with Bill Clinton in the 1990s. And I seem to remember the same photograph and the same stern messages.
MS. GOLDMAN: And you’re still likely to still see North Korea next month going ahead with its planned satellite launch. But the point was for the White House to send that strong message to the Chinese also that they needed to exert some of its influence on North Korea and for the president to say – send the signal that if they go ahead with this planned launch, that their food aid program will be rescinded.
MR. WILLIAMS: May I go back to the microphone incident for a moment?
MS. IFILL: Quickly. We have very little time.
MR. WILLIAMS: How quickly did the White House try to clean up after him? Was it before he said something?
MS. GOLDMAN: The moment that they saw world leaders starting to talk about this, they knew that the president had to address it.
MS. IFILL: Okay. And they did clean it up but we will see whether it comes back again. I bet it does. I’m just guessing.
Thank you everyone. We have to go for now but the conversation continues online in our “Washington Week Webcast Extra.” We’ll take you behind the scenes on the campaign trail when Rick Santorum yelled at Jeff Zeleny, and at the Supreme Court. You can find it and links to the reporting of all of our panelists at pbs.org/washingtonweek. Keep up with daily developments on air and online at the PBS NewsHour. And we’ll see you right here next week on Washington Week. Goodnight.