日期:2015-06-26 09:59


GWEN IFILL: Now to a momentous day at the Supreme Court.

We begin our coverage with the long-awaited ruling on the president's health care law.

Marcia Coyle of “The National Law Journal” was in court, as always, and she joins me now.

Marcia, 6-3, a pretty — a pretty definite ruling. What was the rationale for the court?

MARCIA COYLE, “The National Law Journal”: It was a very straightforward ruling, and done in only about 21 pages by the chief justice.

The challenge before the court was to examine the meaning of a provision in the Affordable Care Act that explains how subsidies are to be used. The provision says that subsidies are available to purchase on exchanges established by the state. The challengers here said established by the state means what it says, state exchanges, not subsidies available on the 34 federally created exchanges.

The chief justice said initially that when you look at established by the state, the words seemed pretty plain, but when you look at that phrase and how it's used in other parts of the act, along with other provisions in the act dealing with federal exchanges, it's not so clear. And since it's not so clear, you have got to examine the words in their context, as well as within the whole structure of the statute.

GWEN IFILL: So he was ruling on the intent of the law writers, as opposed to these specific words, which Justice Scalia said was turning the words on their head.

MARCIA COYLE: He examined the intent of what Congress did, but he also explained how the act operates, that these subsidies were an integral part of the act being workable.

Under the challengers' interpretation, he said, the act wouldn't work. In fact, it would send insurance markets into a death spiral. And that is not what Congress, he said, wanted to do here. He said they wanted to improve and save the health insurance markets, not destroy them, and the court has a responsibility to pay attention, to be sensitive to the legislative plan. And so it adopted the interpretation that it did because of that.

GWEN IFILL: Now, there are some observers, I guess we can call them, who were surprised at this and surprised at the chief justice's definitive language, especially because he also wrote the ruling upholding the last challenge to the health care law.


The chief justice didn't say much during the oral arguments in this case. He was considered possible vote to strike down the subsidies, but also to uphold them. And I think his very straightforward, clear opinion makes it very clear that he felt this was the best interpretation of the act.

Justice Kennedy joined him in the 6-3 majority. Justice Kennedy voted in 2012 to invalidate the entire act because of the individual coverage requirement. But even during the arguments in the current challenge, Justice Kennedy had some problems with what the challengers were saying. So, he was considered gettable as well.

GWEN IFILL: Justice Scalia used the opportunity today to read his very strongly worded dissent from the bench.

MARCIA COYLE: Yes, he did. He summarized it from the bench, which is always an indication that a justice feels very strongly.

And he said that the words established by the state couldn't be plainer. It means established by the state. And he said that the court was engaging in pure applesauce interpretation. He even said, interpretive jiggery-pokery.

GWEN IFILL: Wasn't that a “Harry Potter” phrase, I think?

MARCIA COYLE: It was actually — it actually has a Scottish derivation.


MARCIA COYLE: And J.K. Rowling tweeted about it, saying she stopped using that phrase something like 20 years ago.

But it was a very colorful dissent. But also he went step by step through the statute with his own interpretation of how the provisions worked, and obviously was very unhappy. He was joined by Justices Thomas and Justice Alito in his dissent.

GWEN IFILL: Well, I will tell you, it was an interesting, a big day, and we're going to talk about it some more. And we will get back to you on the next case in a moment.



So, is that the end of the fight?

For more on what happens next, I'm joined by two experts who helped shape the offense and the defense.

Neera Tanden is president of the Center for American Progress. She helped write the health care law. And Michael Cannon of the Cato Institute was a leading force behind its challenge.

Michael Cannon, you say the Supreme Court was intimidated by this.

MICHAEL CANNON, Cato Institute: Well, yes.

I think there are a couple of things that are important to keep in mind here. One of them is that it's not just subsidies that we're talking about. There are taxes that are tied to those subsidies that are being imposed on 70 million Americans in those states. And had the challengers won, those taxes would have disappeared, too. So they were actually challenging both the subsidies and these taxes as illegal.

Another important thing to keep in mind, I think, is that nine Supreme Court justices said, all nine of them said, you know what, the challengers have a case. The plain meaning of the statute here does do what they say. The plain meaning of the operative part of the statute does do what they say. It does mean established by the state.

But because they thought that the purpose of the statute wouldn't be served by the way Congress actually wrote it, they decided to rewrite it.

GWEN IFILL: Neera Tanden.

NEERA TANDEN, Center for American Progress: No, I don't see it that way at all.

I think that Justice Roberts and Justice Kennedy, as well as the other three justices — and I will just note two of those were appointed by conservative presidents — have a very strongly worded opinion which is very definitive.

They had an option here, which is to say they could have interpreted it in a way that would allow a future president to interpret differently. They could have used the Chevron defense, or a Chevron argument. They chose not to do that.

They made a very definitive statement about what this law was intended to do, what this language means in the statute, and found that the plaintiffs were wrong to bring this case, that it was — that they were wrong. And I think the best part about this is the nature of the decision makes it harder to bring future claims. And now my hope is that…

GWEN IFILL: Well, that's my next question, which is, is this the end of the road? We heard a lot, including John Boehner, almost every Republican candidate for president, came out today and said this is not the end of the road.

MICHAEL CANNON: Well, I don't think it's the end of the road for the opposition to this law, because the majority or plurality of the public still opposes it, after six years, as they have for six years.

And this law doesn't — or this decision doesn't eliminate the law's high cost. It just hides them. And that's why the administration fought this case so vigorously. But I think it's important to note…

GWEN IFILL: But is there another way in, other than outright repeal, after this kind of ruling?

MICHAEL CANNON: Well, there are a couple of cases that are making their way through the courts right now. The House of Representatives has filed a suit whose impact would be very similar to a ruling for the challengers in King vs. Burwell. But they're going to have a difficult time establishing standing. But, if they do so, I think the issues are even clearer than they are in this case.

GWEN IFILL: Neera Tanden.

NEERA TANDEN: And some cases — I mean, some cases are getting dismissed. There was a case today that got dismissed.

Look, my view of this is that this is the second time the Supreme Court has found in favor of the government, and, you know, we are now spending a lot of resources, federal resources to keep relitigating this issue. People had to defend this case.

At some point, I think the vast majority of Americans would like to move on from this debate. This isn't about improving the law or making fixes. This effort is really just to undo the law, and, at some point, we have to move on.

GWEN IFILL: But there are a lot of governors who are still resistant to this and who were fighting Medicaid expansion, fighting all kind of bits of this law. How can you say that move on when the debate is still going on?

NEERA TANDEN: Actually, you know, what has been interesting, I mean, I — people should debate the law.

But what's interesting about the last couple of years is, we have seen Republican governors in states like Michigan, et cetera, Ohio. John Kasich is running for president, and he's actually talking about his Medicaid expansion.

GWEN IFILL: But not in Florida or Indiana or 30 other states.

NEERA TANDEN: I mean, there's the debate. There are governors who are trying to push in states like Indiana. Discussions are happening in conservative states.

I think it's definitely — that is on the Medicaid expansion itself, not on the exchanges. But I think you will see — you see in polling today the vast majority of Americans would like to see how we can improve upon the law, but not get engaged in these legal maneuverings.

GWEN IFILL: Well, it's very confusing for people. You just said that most Americans want this law rolled back.

And you just said most Americans want this law fixed.

Is there a fix? Is there a middle ground? Is there a common ground?

MICHAEL CANNON: Well, I think that what the American people want is, they want health care that is better and more affordable and more secure.

The problem is that I think that the centerpiece of this law, which are the — what we call the guaranteed issue of community rating provisions, or the preexisting condition provisions, perversely, they actually make health care less secure for the people we care about the most, which are the sickest Americans.

The problem is that you can't make health care more secure for them until you get rid of that centerpiece of this law, so I think this debate is going to go on for a long time.

NEERA TANDEN: That's just — I just disagree with that.

And Justice Roberts recognized this. You can have preexisting conditions requirements, making sure that people no longer face just — you know, face the situation where they can't get health insurance because of preexisting conditions. You can do that, but you have to ensure that everyone has health insurance.

Justice Roberts articulated how we work together, how all these sections work together, why the subsidies were so important to that. And that's a center part of this decision and the law itself.

GWEN IFILL: I have cost questions for both of you.

Health care continues to rise at a lower rate, and premiums continue to go up.

So, for you, I want to know, how do you speak to people who feel like this law is costing them more?

And in your case, I'm curious, how do you tell people, we're going to take something away from you that you have already had now for a couple of years?

And I will start with you.

MICHAEL CANNON: Well, clearly, there is going to be political resistance to that.

I think that the easiest way to reduce premiums for people is to get rid of the preexisting condition provisions and all sorts of other regulations in the ACA that increase the cost of care. If you repeal…

GWEN IFILL: Isn't that the most popular part of the ACA?


MICHAEL CANNON: Well, only if you ask about the benefits.

If you ask people about the cost, including how it erodes the quality of care for the sickest people, then the support for that flips to 5-1 opposition.

GWEN IFILL: Neera Tanden.

NEERA TANDEN: So, on the issue of rising costs, we have a challenge, which is employers have been shifting costs to employees.

That was before the ACA. That's been a long-term trend. Deductibles are going up, et cetera. It has nothing to do with the ACA, and it's hitting people who have never been in the insurance market in the ACA itself. That's a problem that we should deal with, and we should make it clearer, more transparent what's happening.

I believe that question will be the next generation of health care ideas, reforms, debates, in the presidential context and outside — and elsewhere, because I think people are concerned about that.

But I hope that we can — now that we have had two Supreme Court cases, 50 attempts in the House, we can actually move on to a debate about health care costs writ large.

GWEN IFILL: Neera Tanden of the Center for American Progress, and Michael Cannon of the Cato Institute, thank you both very much.

NEERA TANDEN: Thank you.

MICHAEL CANNON: Thanks for having me.