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"Health Care on Trial"; The Politics Of Health Care Reform; Supreme Court Gets To Key Issue
Aired March 27, 2012 - 12:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
WOLF BLITZER, CNN ANCHOR: The United States Supreme Court gets down to the heart of the matter in one of the biggest cases in more than a decade. The court is deciding the fate of the sweeping health care reform law and the future of your medical care.
I'm Wolf Blitzer in Washington, Suzanne Malveaux is on assignment.
ASHLEIGH BANFIELD, CNN ANCHOR: And I'm Ashleigh Banfield in New York.
And welcome to CNN's special coverage, "Health Care on Trial". We're bringing you the very latest developments in what is sure to be a landmark case. We're also explaining what it all means for you.
BLITZER: It's a huge day here in Washington, Ashleigh. Our viewers are looking at live pictures from outside the Supreme Court where the justices have just finished listening to two hours of arguments. The focus today is on the main issue of the case, the individual mandate as it call -- as it's called. It requires almost all Americans to have health insurance scheduled to take effect in 2014 and it imposes a financial penalty for not having health insurance.
BANFIELD: CNN has the resources to cover this story like no one else can. We've got two reporters who are inside the courtroom at the Supreme Court for today's arguments. And they'll join us just as soon as they can get out of the arguments and get themselves in front of a camera.
But not only that, Gloria Borger has the big picture on all of the political implications and there are many.
Also, Jessica Yellin on what this means for the president.
As well as Jim Acosta on what it means for the Republican presidential candidates.
Dana Bash is covering a protest rally on Capitol Hill.
Dr. Sanjay Gupta is answering your questions about this health care reform law.
And Elizabeth Cohen has the story of a little girl who has suffered hundreds of life threatening seizures and what this particular law means for her and her family.
BLITZER: A great team standing by, Ashleigh.
President Obama fought hard to get health care reform passed through the House and the Senate, signed into law. Two years after he signed that legislation, he now faces the possibility, it's a real possibility, that the United States Supreme Court potentially at least could overturn parts or even all of the law.
It's one of the most politically charged issues in the presidential race as well. The president's Republican rivals all promising to repeal the law if they are elected.
Our chief political analyst Gloria Borger is joining us, along with Jessica Yellin, our chief White House correspondent. She's over at the White House.
Jessica, the president and top Democrats spent a huge amount of political capital on health care reform. How big of a blow would it be if, if the court were to throw out all or part of the law?
JESSICA YELLIN, CNN CHIEF WHITE HOUSE CORRESPONDENT: It would be a massive blow, Wolf, because this is the president's signature domestic policy achievement. As you point out, he spent an enormous amount of political capital on this issue. And it was the issue around which the Tea Party coalesced against the president.
There would be a way that they could message for the campaign in response to defeat in the Supreme Court, but it would be a big blow. I should say, Wolf, they are confident at the White House that they will not lose on this issue, and that is because two conservative lower court judges, sort of stalwarts in the conservative judicial bench, upheld the mandate. So, they think they will prevail at the Supreme Court.
But, you know, who knows? So, we'll wait and see, Wolf.
BLITZER: Yes. Stand by for a moment. We're going to get back to you, Jessica. I want to bring Gloria into this conversation.
Gloria, our brand new CNN/ORC International poll showed that 23 percent of Americans say the Supreme Court should leave the health care law as it is, 43 percent, though, want the court to overturn at least some provisions. Thirty percent want them to overturn the entire law.
The country is really pretty divided when it comes to this health care law, isn't it?
GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: Sure. The country's very divided on it. If you ask a question, overall, do you like mandates -- which is at the heart of the argument before the Supreme Court -- a majority of the country says they don't like these mandates.
The problem, Wolf, for people to judge this is that first of all, the mandates haven't taken effect. They don't take effect until 2014. So, what they are hearing are the political arguments on both sides about the mandates.
And let me be a little counterintuitive on this. I think that you could make the political case that whoever loses could get a good political argument to take to the voters in the fall.
I agree with Jessica that the president doesn't want to lose on the mandate issue before the Supreme Court. But let's say he does. He can then use it to rally his base around him and say this is why I need to be able to appoint some more justices to the Supreme Court.
And if Mitt Romney is the nominee and if this issue were to go against him, he could say, this is why we need more Republicans in the Congress, you know.
Losing tends to mobilize people. So while the White House clearly doesn't want to lose, if they did lose this case, it wouldn't be the end of their political argument -- would just be the start of another political argument.
BLITZER: And, Jessica, why hasn't the president, the vice president, other top administration officials, Kathleen Sebelius, the secretary of Health and Human Services, why haven't they been flooding the airwaves over these past weeks on the second anniversary of this law, trying to explain why it's so beneficial to the American public from their perspective? They have been pretty silent.
YELLIN: They have been remarkably silent, Wolf, and they have left it all to the campaign. The Obama campaign has itself been doing the messaging on this with a new effort to reframe Obamacare as a positive with these t-shirts that say "Obama cares", et cetera.
I would point out in response to what Gloria said they will no doubt if they lose, try to, you know, position this as an argument that this court is far too political and this is a reason why the Obama team needs to be re-elected. But it would be cold comfort for the president because, Wolf, it would go to the Republicans' credibility argument and that this is a president who spent so much political capital, constitutional scholar who couldn't even determine the constitutionality of his own chief domestic policy achievement.
It would be a blow to his leadership claims and, you know, they want to be able to tout the fact they expanded coverage to 2.5 million Americans, expanded preventative care, et cetera.
So, again, it would be a major blow to them and they are watching this case intently today, Wolf.
BLITZER: Yes. And they certainly have a case to make. But I've been surprised over these past weeks that they really haven't made a major effort to go out there and sell it to make the case.
But we'll have more on this coming up. I want both of you to stand by, Jessica and Gloria.
Ashleigh, I must say that I've covered a lot of Supreme Court decisions, certainly since Bush versus Gore, or Gore versus Bush, back in 2000 -- maybe Citizens United which allowed these super PACs to raise these unlimited sums. This is the most important issue before the court right now. There is so much at stake.
BANFIELD: And, you know, I asked an expert earlier. Actually, the author of SCOTUSBlog.com, just where he puts this in the array of significance, and he said, take Bush v. Gore 200, add Watergate, add it all up, still bigger.
So, Wolf, obviously, we have a lot more to come on this story and we also have a rundown of what's going to come up shortly.
But, first, let me get to Jeffrey Toobin, who is our chief justice correspondent, who has luckily been able to get out of the Supreme Court hearings, get to a camera position to talk to us. He's live on the steps of the Supreme Court building.
Jeffrey, can you hear me? If you can, go right to it. Tell me everything.
JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: I hear you fine, Ashleigh.
BANFIELD: Tell me everything.
TOOBIN: This was a train wreck for the Obama administration. This law looks like it's going to be struck down. I'm telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong.
Justice Kennedy, the swing vote, was enormously skeptical. Justice Alito, Justice Scalia, were constantly skeptical. Justice Thomas didn't say anything but we know his position on the issue.
The only conservative justice who looked like he might uphold the law was Chief Justice Roberts who asked hard questions of both sides.
All four liberal justices tried as hard as they could to make the arguments in favor of the law, but they were -- they did not meet with their success with their colleagues.
Most surprising to me perhaps, Donald Verrilli, the solicitor general, did a simply awful job defending the law. He was nervous, he was not well-spoken. The argument got of to a very bad start for the administration. And it was really the liberal justice who is carried the argument much more than the lawyer.
The argument that seemed to give Justice Kennedy the most trouble and he is, of course, as we know the swing vote in so many issues. Justice Kennedy, practically, his first question out of the box was -- we know that Congress can regulate commerce. But can Congress create commerce?
Can -- and Donald Verrilli had a great deal of trouble answering that question. He said, no, but we're not creating commerce here.
There was a lot of discussion of the issue, the liberal justices kept making the point that we discussed here many times, that people who refuse to buy health insurance are in fact part of the health insurance market. They are in fact imposing costs on the taxpayer.
And Paul Clement, who was representing the 26 states challenging the law, responded that if you believe that not acting is commerce, there's no limiting principle to that. And certainly the conservative justices were very responsive to that argument.
Paul Clement I thought did a really excellent job attacking the law. And if I had to bet today I would bet that this court is going to strike down the individual mandate. The only possibility I saw was --
BANFIELD: Jeffrey, this was not -- this is not at all what I expected that you were going to be saying, not at all. But I want to ask you this -- this is a mammoth task for one man.
TOOBIN: That's why we cover the news. Let's see what happens.
BANFIELD: No kidding. This is a mammoth task for the solicitor general. Many people watching this process, saying going into three days, two hours a day oral arguments is huge for one person. Is this a factor of not having the right material, not having a good argument, or not being prepared and just having a bad day?
TOOBIN: I think -- you know, I can't answer that. I don't know why he had a bad day. I mean, he's a good lawyer, he's done -- he was a perfectly fine lawyer in the really sort of tangential argument yesterday.
He was not simply ready with good answers for the conservative justices today. I mean, I don't want to overstate the importance of oral arguments. These justices, they know this law very well.
BANFIELD: Sure.
TOOBIN: They are not going to be persuaded in the vast majority of cases. But certainly, it does affect the dynamic in the courtroom. And you know, it was 15 minutes before a liberal justice even spoke.
Justice Scalia was, you know, asking Donald Verrilli a question that, you know, has been part of the pop culture, which is you know, if this law is constitutional, could Congress pass a law to require everybody to eat broccoli because that affects the health market? And Donald Verrilli said no in a rather halting way.
But -- I mean, those were the arguments. Justice Alito asked, you know, could the government require burial insurance to be purchased by everyone because after all everyone's going to die. And Justice Breyer, who was one of the most outspoken defenders of the law, said, of course, they could require them to buy burial insurance if Congress thought it was a national problem.
And, you know, this was a fight among the justices. I mean, you had Breyer, Ginsburg, Sotomayor, Kagan -- in all different kinds of ways trying to justify the law. Alito and Scalia attacking it at every opportunity. Kennedy didn't speak that much but every comment Kennedy made -- at least that I heard -- was skeptical of the law.
The wild card in this argument was Chief Justice Roberts. Chief Justice Roberts actually asked a lot of hard questions of Paul Clement and seemed interested in the argument that, look, this is a national problem of uninsured people that imposes costs on the national economy. Couldn't Congress choose to regulate that problem?
Roberts seemed like a much more likely vote to uphold the law than Kennedy was.
BLITZER: You know, Jeff, it's Wolf. This is really huge.
What you're saying and you're an authority on the U.S. Supreme Court. You have written the major book on the current Supreme Court, "The Nine." So you fully understand.
But just because a justice is asking tough questions, let's say of the government lawyer, Mr. Verrilli in this case, that doesn't necessarily mean that that justice is going to come down on the other side. Isn't that right?
TOOBIN: It's true, but it's not very true, Wolf. I mean, you know, it used to be. When I started coming to Supreme Court arguments in the late 1980s, you would see justices sort of play devil's advocate and say, well, isn't it true this, isn't it true that, and that wasn't reflective of their own feelings.
Starting under Chief Justice Rehnquist and certainly continuing under Chief Justice Roberts, you don't see that much on the part of the justices. It's pretty much what you see is what you get. I mean, yes, it is true that sometimes we're surprised by the justices' votes after hearing their comments at oral argument.
But most of the time and it's not all the time, but certainly most of the time the questions that the justices ask at oral argument are very good predictors of how they are going to vote. And based on that, based on what we saw today, I think this law is in grave, grave trouble.
BLITZER: Well, let me just ask you one follow-up on that, Jeffrey. What if the four liberal justices all vote to uphold the law, and the Chief Justice Roberts agrees with them, because you were suggesting earlier that the questions he was asking of Clement and Verrilli seemed to suggest that he was open to that. It would be a 5- 4 decision in favor of upholding the law.
TOOBIN: That's exactly right. And I think that is what they are hoping for in the Obama administration. The people who heard that argument, and you know, I haven't spoken to any one else, I just rushed out here. But I am certain that they think their winning coalition if they had one, is Roberts plus the four liberals, not Kennedy plus the four liberals after listening to that argument.
Now, look, they could surprise us. They've done it before. I could be wrong in how I interpreted this argument.
But, I mean, certainly, there was no doubt that the four liberals supported the law. I mean, I -- you couldn't possibly -- it's inconceivable that any of those four liberals are going to vote that this is unconstitutional.
However, I don't know if they have a fifth vote. I think Kennedy is a lost cause after listening to his comments.
Roberts is to me, to what I heard, the only possibility. And that would certainly be a big surprise to see him joining with the liberals in such an important case. But based on the comments, I think that's the only hope for this law being upheld.
BLITZER: All right. Jeffrey, stand by. I know Kate Bolduan was inside. We're going to bring her in to this. Ashleigh is with us. We've got our reporters out. I think it's fair to say we're following breaking news out of the United States Supreme Court right now.
Much more coming up. History unfolding on this important day in Washington, D.C. We'll be right back.
(COMMERCIAL BREAK)
BLITZER: Welcome back. I'm Wolf Blitzer in Washington.
We're watching CNN's special coverage of the "Health Care on Trial".
BANFIELD: And I'm Ashleigh Banfield in New York.
The U.S. Supreme Court getting down to the central issue in an epic legal battle over health care reform in this country. Today, the court just wrapping up two hours of arguments over the law championed by President Obama. Focus today is on the so-called individual mandate. That's the thing that would require almost every American to have and purchase health insurance.
BLITZER: Our congressional correspondent Kate Bolduan has been inside for the past two hours, listening to the arguments, as well as our senior legal analyst Jeffrey Toobin. He was inside the Supreme Court as well.
Kate, we heard from Jeffrey. Give us your sense of first of all, the atmosphere in that chamber today.
KATE BOLDUAN, CNN CONGRESSIONAL CORRESPONDENT: I think I at least was surprised, I'm sure Jeff would agree, I was speaking with other reporters as we were leaving, just surprised how -- how unexpectedly partisan it seemed in there. They were sharply divided along ideological lines.
Some very clear suggestions from the more conservative justices that they believe that this law, the individual mandate especially, just went too far. The line of questioning from the conservatives, I mean, they came out of the gate so fast when the solicitor general was at the podium, just peppering him with questions.
Jeff probably even mentioned that the more liberal justices, they didn't ask a question until about 10 minutes in I believe or so. I mean, in the real line of questioning that I heard over and over again, they just kept returning to the question of where is the boundary, where is the limit? If this is allowed under the powers -- as a power of Congress under the Commerce Clause of the Constitution, where do -- where do they stop?
As Chief Justice Roberts said, "Once this allowed under the Commerce Clause this law, this individual mandate, all bets are off," he said in the courtroom.
And there are hypothetical after hypothetical which always shows that they are trying to test the limit, trying to test the line on where this -- where -- how far something will go, talking about can you force people to eat broccoli, can you force people to exercise, can you force people to buy a cell phone in the event that they need to call for emergency services? Just some of the hypotheticals they were throwing out of the courtroom.
Once the attorney Paul Clement stepped up to the podium representing the 26 states challenging this law, liberals came straight out of the gate, peppering him with questions, trying to make the case, it was clear to them, that the government here is not forcing someone to enter into the health care market, that it already exists, they are already in the health care market because every American at some point in their lifetime is going to need medical care, and that you can see they were trying to make the case.
I definitely noted that it seemed Justice Breyer made some very lengthy questions, they were actually statements in the form of questions, it almost seemed he was trying to speak with maybe Chief Justice Roberts, maybe trying to make the case to Justice Kennedy, in trying to make the case to pull them over to their side to try to get a fifth.
Will that happen? If I had to give my impression, I'm careful to try to not make a guess as soon as I walk out of the court, I would say that they may not be able to pull another -- the conservatives may have the majority in this one -- Wolf.
BANFIELD: So, Kate, I want you to wax a little more on that broccoli question, because that's getting a lot of traction, it seems to make a lot of sense for Americans. If the government can force me to buy something I don't want, health care, then can they go farther and can they force me to buy broccoli because it, too, is good for me?
Did you get any indication -- and I'm going to bring the idea that Jeff Toobin was just talking about -- did you get indication from Chief Justice John Roberts on the question of boundaries?
BOLDUAN: The only indication that we -- that I would say that I got is that he constantly was trying to ask for the boundary. Where is the limit here, where is the limit here? And every time that the question was brought up, another hypothetical was brought up. It seemed, it appeared that the conclusion was all bets are off.
I mean, that line from Chief Justice Roberts just really sticks in my head. Not only in the terms of the broccoli argument, if you will, but the exercise hypothetical is a really good one as well. I believe it was brought up by Justice Scalia who said, if you think -- if this is good for everyone to be part of the health care market, makes everyone -- it will improve everyone's health. If they already have health insurance, they will be able to also -- be able to afford it.
Why can't you force people to exercise, because exercise is directly linked with having better health? It would bring down premiums, it would lower the cost of health care across the board. Why can't the government compel people to exercise? And that was one of the hypotheticals thrown out there to Solicitor General Verrilli as well.
BLITZER: You know, Jeffrey, I don't understand -- you made a point earlier that the Solicitor General Donald Verrilli didn't do an excellent job answering these conservative justices' questions, as if he had not been prepared. But none of these arguments are new arguments, Jeff. We've been hearing these for months if not years, including the broccoli argument, and all of these arguments.
I don't understand how a solicitor general can go before these nine justices and not have the answers that would uphold this law. Why wasn't he better prepared?
TOOBIN: Well, it beats the heck out of me. I mean, you know, the solicitor general's office is a repeat player in the Supreme Court. Their lawyers argue frequently. They tend to be the best advocates.
The solicitor general is a political appointee, is not someone part of the career. Elena Kagan was the solicitor general before she was appointed to the court. Neal Katyal, professor at Georgetown University Law Center, was the acting for a while.
Donald Verrilli is actually pretty new to the job of solicitor general, although he's made certain arguments to the Supreme Court in the past. I think he was just nervous. I think, you know, it was a high stakes argument and he just didn't do well.
I mean, as you point out none of these questions were shockers out of left field given how much this case has been discussed. Even in the everyday world in which we operate, much less the very legally focused solicitor general's office. That's why it was such a surprise that he did so badly because none of these questions were so surprising to any one who followed this case.
BOLDUAN: Well, and also, Wolf --
(CROSSTALK)
BLITZER: Yes, we know that Paul Clement --
BOLDUAN: Sorry.
BLITZER: Go ahead. Finish your thought, Kate.
BOLDUAN: I was saying, this is -- this is entering into kind of a new area of legal territory, although you're talking about a conflict that's existed for a century or so, state's rights versus the federal authority, federal leverage, the federal government leverage. It did appear that the justices, especially the conservative justices, even suggested it in court that they said the burden of proof here is on the Obama administration.
They definitely didn't come in saying we're going to start with the assumption that this is what it is and Clement needs to prove it's unconstitutional. It definitely seemed apparent right out of the gate that they were -- they wanted to force Verrilli to prove his point that there is a limit, that this is constitutional and it is -- it is within the authority of the Commerce Clause.
BLITZER: Yes. Well, Jeffrey says that the liberal justices seem to have been doing a better job defending the law than the solicitor general was doing, you got a serious problem here before these justices.
All right. Everybody, stand by.
(CROSSTALK)
TOOBIN: And I have --
BLITZER: Yes, go ahead, Jeff.
TOOBIN: Well, I just wanted to say that Paul Clement who was solicitor general in the George W. Bush administration really did, I thought, a superb job in attacking the law. There were problems in his argument because there are substantive problems in his argument that he did his best to explain. But in terms of skill I thought he did a wonderful job.
BLITZER: Yes, Clement did a wonderful job. Verrilli not so much. That's a huge problem for the law right now.
We're not going to get a final decision probably until middle or end of June, but the stakes clearly are enormous.
Everyone stand by. We'll continue the breaking news coverage from the United States Supreme Court right after this.
(COMMERCIAL BREAK)
BLITZER: We're following the breaking news out of the United States Supreme Court, a critical moment in the nation's health care debate. If the U.S. Supreme Court decides that the so-called individual mandate requiring almost everyone to have health insurance is an unconstitutional extension of federal authority, the entire law starts falling apart.
So how does that play out politically for President Obama and Republican presidential candidates? Let's bring in our political panel. Democratic strategic, Jamal Simmons and joining us also is Crystal Wright, editor and blogger of conservativeblackchick.com.
Guys, thanks very much for coming in. Jamal, first to you, you heard Jeffrey Toobin say that the government solicitor general did apparently a pretty poor job defending the law.
Paul Clement who is arguing against the mandate did a very good job. How worried are you now that this Supreme Court, these nine justices, by a majority will overturn health care reform?
JAMAL SIMMONS, DEMOCRATIC STRATEGIST: Well, first of all, it's got to be tough to be the lawyer who argued the case and have everyone believe that you didn't -- though you may have had a good case you didn't present it well.
So you got to have sympathy for him in that level. And the political aspect of this, though, I think that this is something that you could argue either direction.
If the president loses this battle he gets to take his case to the country and say we've got to fight to preserve what we can preserve and go back at it and all those things.
If he wins he says we were right. I'd rather be on the winning side than the losing side and I think the White House probably feels the same way.
BLITZER: You would rather -- of course, you'd be on the winning side. Crystal, why don't you weigh in?
SIMMONS: Politically, obviously, it would be better to win this argument. But I think you can try to salvage a political position if you lose. It's just not a good position to be in.
BLITZER: Yes, that sounds like a stretch a little, but what do you think, Crystal?
CRYSTAL WRIGHT, EDITOR AND BLOGGER, CONSERVATIVEBLACKCHICK.COM: You know, I think Jamal is trying to put lipstick on a pig there because as we heard, the conservative justices aren't buying this argument that the federal government has the constitutional authority to force Americans to buy anything. You know, force us to go on a diet, force us to buy broccoli, and for Barack Obama this was his trophy initiative.
If this, you know, if he loses this thing and the Supreme Court strikes down the individual mandate it's going to be a boon, I think, for Republicans going into the presidential election, I mean, into the race.
And what we know is, in 2008, Barack Obama was blasting Hillary Clinton for promoting an individual mandate and penalties if Americans didn't sign up for health insurance. So it's going to be great for us, it's looking brighter and brighter by the day.
BLITZER: And you remember Jamal, because all of us remember that as a senator, as a candidate, President Obama was against the individual mandate before as president, he started to support it and made sure it was part of the law. So that's potentially an embarrassment for him.
WRIGHT: A disaster.
SIMMONS: You are absolutely right. It is potentially an embarrassment for the president. The problem for the Republicans is that their nominee is probably going to be Mitt Romney.
And he has the misfortune of having implemented a mandate in Massachusetts for their health plan so it makes him an imperfect messenger to try to prosecute this case. Rick Santorum would obviously have a better political position.
BLITZER: Hold on, Crystal. I want to play a clip of Mitt Romney yesterday talking to me about health care reform and the mandate. Listen to this.
(BEGIN VIDEO CLIP)
MITT ROMNEY (R), PRESIDENTIAL CANDIDATE: I will repeal Obama care and I'll stop it in its tracks on day one, I believe it's unconstitutional. I believe the court will find it unconstitutional and one more thing I'll tell you about it. We can't afford trillions of dollars of new federal spending.
(END VIDEO CLIP)
BLITZER: The president's top adviser says Mitt Romney is actually the god father of the individual required mandates because he supported it as governor of Massachusetts and now he's backing away from. Crystal, how is he going the deal with that if this is an issue, if he's the Republican nominee?
WRIGHT: The way he's dealing with it now by talking about the huge cost of Obamacare and how it's a disastrous and unconstitutional. And I think that what he's also you're going to see Mitt do is he's going to reflect back on Romneycare and say, you know, I think we're going to have to see him come out unequivocally and say it was the wrong choice for Massachusetts.
Now that I've had time away from it, it was wrong and the fact that the Supreme Court has knocked down the individual mandate you know, it's even clearer to me in my mind that Romneycare was the wrong choice. I think we're going to see Mitt Romney say that.
But he's saying the right thing, you know, and I don't see it being a liability for him. Only 6 percent of Republicans even rank the Obamacare as high on their list of who they are going to vote for nominee. So he's going into this strengthened.
BLITZER: You may think, Crystal, that Romney if in fact he's the nominee is going to back away, going to repudiate mandates that he supported in Massachusetts.
I would be very surprised. He had numerous opportunities over the past year or so to do so, he's defended what he did in Massachusetts. He maintains it's OK for a state to have these individual mandates, but it's totally different for the federal government.
WRIGHT: But I think going in -- right. But if the Supreme Court comes down and finds the individual mandate unconstitutional, I think we're going to see Mitt Romney have an even tougher stance on Romneycare and I think we'll see him repudiate it. I really believe that because going in as the nominee against Barack Obama that's what he's going to have to do.
BLITZER: All right, well, we'll see.
SIMMONS: I'm not sure he can make.
BLITZER: All right, guys, standby. Stand by. I want to go back to Ashleigh. Ashleigh, you can see not only the stakes for every American as far as health insurance are enormous, but the political stakes are pretty significant as well.
BANFIELD: Yes, significant with this upcoming election without question. I want to get back to the Supreme Court where our Jeffrey Toobin is standing by alongside with Michael Carvin, who is one of the lawyers representing the National Federation of Independent Business, a party to the lawsuit.
Mr. Carvin, I want to ask you right away, Jeff Toobin immediately came out from hearing the arguments today and said this was a train wreck for the Obama administration. That must be music to your ears.
MICHAEL CARVIN, ATTORNEY OPPOSING INDIVIDUAL MANDATE: Well, I don't want to either confirm or deny what Jeff said. I don't make predictions how the court's going to vote. I think they did hone in on the relevant issues.
And of course, I'm biased. I think we got a lot of good answers and I think the solicitor general was unable to coherently articulate a limiting principle, which could explain why if they compel you to buy this product. They can't compel you to buy any product.
BANFIELD: Well, you know, Mr. Carvin, we say this over and over, it's not as though these arguments have not been out there. These arguments have not only been talked about for years, but they've been litigated already.
I just want to draw your attention to the U.S. Court of Appeals District of Columbia, the highly conservative leaning court that found that this was a constitutional law.
Why were the arguments any different today in those hallowed halls than they were in the District of Columbia court?
CARVIN: Well, the D.C. Circuit arguments the government could articulate a limiting principle either for some strange reason that didn't bother Judge Silverman.
I think it's going to bother a lot of the justices because the basic premise of our system is that the federal government has limits on its power. If you can't even rationally articulate those limits then we know your analysis has to be wrong.
BANFIELD: So then I want to take you to the 11th Circuit out of Atlanta where the opposite happened, were the argument different then, was anyone better or worse prepared because that court struck it down.
CARVIN: Right. I argued in the 11th circuit along with Paul Clement. And no, I think look, every judge and justice that's been involved in this case understands the stakes, understands the issues, everyone's taking it very seriously.
And the questions are largely along the lines of, where does the government get the power to compel to you buy product A, and if they have that power here why don't they have it everywhere.
I think the strength of our case is that we explain why they don't have the power and the government can't explain why they wouldn't have the power in other circumstances.
BANFIELD: And are you arguing tomorrow?
CARVIN: I am going to sit next to Paul Clement and root him on.
BANFIELD: So let me talk about --
CARVIN: No, I'm not.
BANFIELD: You won't be, but you'll be there for moral support. What about day three? Does that give an opportunity at all for a save for the solicitor general or do you move on to the next issue and this one's done?
CARVIN: Well, the next issue is very, very important, which is, if you strike down the individual mandate what happens to the rest of the act?
Paul will clearly articulate if you cut out the heart of the act, really the rest has got to go or producing a result that Congress never intended.
The Justice Department, the solicitor general would agree, the strike down actor parts of the act, which is a very unusual position for the government to take. So I think tomorrow will be almost as interesting as it was today. BANFIELD: Jeff Toobin, I wonder is it going to be as interesting or is it going to be absolutely God stopping because if there is an opportunity at any point to do save some work on what happened today, will the solicitor general try to edge that in or does he have to move on and take his lumps?
JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Well, I think certainly the solicitor general -- they are going to go back to their offices licking their wounds and try to figure out how to salvage something.
But it is true that the court is really moving on to a different subject tomorrow. They are disciplined about when they say they are going to discuss subject A that's what they talk about.
Yesterday, they talked about the issue of is this case premature and the issue of the merits really did not come up at all. Tomorrow's case is somewhat more related to the issue of is the law constitutional.
So it will be closer to the merits and will have a better sense of the justices' viewpoints. But you know, this was two hours of argument today. That's double the normal case. So it wasn't like there wasn't time to make a lot of important cases -- points today.
Today, was the day to defend the constitutionality of the law, and I don't think the Obama administration did a very good job. Again, the oral arguments don't always determine or don't often determine the outcome, but it's better to have a good day than a bad day. The solicitor general had a bad day.
BANFIELD: And this was not the day to not bring your best game. Gentlemen, if you wouldn't mind sticking around for just a moment. We've been talking about arcane terms whether it's constitutionality of a very complex law, whether it's burden of proof or whether it's the commerce clause.
There are a lot of things that affect you directly and we can make this a whole lot more simple for you. That's where our Dr. Sanjay Gupta comes in and coming up after the break. He's going to answer your questions. So stick around.
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BLITZER: Thirty percent of Americans want the U.S. Supreme Court to overturn President Obama's entire health care law, but it seems an even larger number simply don't even understand how the law works. How does the law really impact you?
Our chief medical correspondent, the author of the former White House fellow, Dr. Sanjay Gupta is joining us now from Atlanta with some answers.
We've got a lot of people who are confused and you've been hearing our reporting on what happened today, the dramatic news out of the Supreme Court. It looks at least according to Jeffrey Toobin like there is a real possibility, Sanjay, that the justices could overturn the law.
That would mean a lot. But let's get to some specific questions. Viewers have submitted and they would love to you answer. Here's one we got via Twitter. Realistically how will the individual mandate work with so many people unemployed? How would it control costs? -- Sanjay.
DR. SANJAY GUPTA, CNN CHIEF MEDICAL CORRESPONDENT: Well, there are a couple of questions there, Wolf. One thing I add on to what you were saying earlier beside what Jeffrey was saying, the next question I think people are going to ask is can they sever this individual mandate from the rest of the bill?
If they sever it, the mandate goes away, the bill may stay intact although very hard to fund, which is something that comes up a lot. But with regard to this question --
BLITZER: Follow-up, before that you make a good point. So let's discuss it for a moment. Without the mandates, and all of the younger healthier people that would have to buy health insurance, it would be prohibitively costly to continue this entire health care reform law, wouldn't it?
GUPTA: Yes. That's the sort of nuts and bolts of it is that, you know, younger, healthier people will pay into the system, and the additional money will offset the cost of adding people who are sicker, who have had -- been denied coverage for various reasons. That's how it sort of works.
There is this potential still for severability, meaning you sever the individual mandate, you leave some of the things such as no discrimination for pre-existing conditions, for children, still as part of the law. So I don't know. It would be hard to pay for, as I said, but that's still sort of an option I think that's out there.
BLITZER: Yes. So let's answer the question from this person about, realistically, how will the individual mandate work with so many people unemployed. How would it control costs?
GUPTA: I think there are two questions in there. On is if you are unemployed right now, people are used to employer-based health care, getting your health insurance through your employer. You don't have that right now. So you have to buy insurance on the open market, which is -- can be very, very expensive. That's one of the big criticisms and concerns.
In 2014, what would happen is that there -- this individual mandate, if this goes through, again, the individual mandate would be in place, people would be forced to buy health care, they could buy it on the open market on one of these exchanges.
If it's so expensive, they would get subsidies at that point, Wolf, to try and offset those costs. So the unemployed would have this option that could be subsidized under the plan.
BLITZER: Yes. Under the new law that went into effect a couple years ago, pre-existing conditions would no longer be a barrier to being able to get health insurance. Here is a question from a viewer. Would my pregnancy be considered a pre-existing condition?
GUPTA: So this is interesting. Again, sort of two points to this. Pregnancy, there have been these awful stories, Wolf. You may have heard some of them, where pregnancy was deemed a pre-existing condition by an insurance company and therefore the care, cost of care was denied.
In 2014, all pre-existing conditions can no longer be discriminated against. What has happened now, Wolf, is that there is no discrimination -- preexisting conditions -- when it comes to children. And so technically we're talking about the baby here, in terms of the baby's care, so there wouldn't be discrimination against the baby's care at this point, either, Wolf.
BLITZER: All right. Here is another question from -- we got by e-mail. I had the flu last week and couldn't get in to my family doctor. I ended up going to the E.R., the emergency room. How does the new law help fix this problem? Because we know that's really the most expensive way to get routine medical help, they have to go to the emergency room.
GUPTA: And it happens a lot. I mean, you know, for seemingly -- problems that could otherwise be dealt with in the doctor's office, people go to the emergency rooms. And I don't know there is a really good answer to this person's question, Wolf. I mean, you need more primary care doctors, as things stand now.
We are expected to have a shortfall of over 20,000 primary care doctors in the next couple of years. Now imagine you're adding more and more patients to the system, because they are newly insured. Obviously they want their health care, they should get their health care, but there's not enough doctors.
So I think there is a big push to try and train more primary care doctors, there's also a push to create a new model of community centers, for example, where people could get more basic health care versus going to big hospital ERs.
BLITZER: Sanjay Gupta, as always, helping us. Don't go too far away. Sanjay, by the way, congratulations, your new book, a novel, and it's a great one, a "New York Times" bestseller right now. How excited are you about that?
GUPTA: No one was more surprised than me, Wolf. Writing a novel is sort of a vulnerable thing. So you know, to have people read your stories like that and like it, it's a nice thing. But you know, it was still a bit surprising for me.
BLITZER: Maybe a novel and it's a great read, but I learned a great deal about our health care system, the hospitals, Monday mornings, in hospitals. You are doing a great job for all of us, Sanjay. Don't go too far away. We've got more to discuss, more viewers sending questions in to you right now. You can always tweet Sanjay @SanjayGupta. I think it's just @SanjayGupta, that's it. All right. CNN -- @SanjayGuptaCNN. That's place to tweet him if you have some specific questions as well.
All right. We've got a lot more to cover. The breaking news out of the United States Supreme Court, the justices, all nine of them, they heard arguments this morning.
According to Jeffrey Toobin, our senior legal analyst, the government did not do a very good job defending the law, the opposition representing more than half of the states, they did do a good job. We're going to continue our breaking news coverage right after this.
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BANFIELD: We are covering a landmark day at the Supreme Court. It is day two of three grueling days of arguments before the nine justices.
And our Jeffrey Toobin has described today as a train wreck for the Obama administration, meaning that the solicitor general, the government's lawyer, essentially, did not perhaps do the job that he may have needed to do to convince these nine justices to let this individual mandate get through.
And, of course, there is so much that hinges on that particular argument. But I want to get to Tom Goldstein, who has argued 24 cases before the Supreme Court. He's also the founder and publisher of SCOTUSblog .com.
Also just want to make sure everyone's -- everybody is aware, Tom, that you have filed a brief for the AARP regarding this legislation and arguing for the law's constitutionality. So now that the politics are out there on the table, I want to ask you right off the bat, when Jeff Toobin says this was a train wreck for the administration, is there any way for a lawyer to save this?
Or does it actually happen frequently that justices are rough on those attorneys, and then come out with a majority opinion that really surprises?
TOM GOLDSTEIN, FOUNDER, SCOTUSBLOG: It happens. Oral arguments do tend to give you a good sense of what troubles the justices and generally where they are at. In the case like this one, where it's clear that the government has four votes on its side, but is searching for the fifth one, it's a little bit more of a dangerous game.
So five of the conservatives clearly troubled by the mandate, clearly troubled by the scope of the administration's argument, clearly searching for a limiting principle. And when all five of them express doubts, you come out of that courtroom and you think, gosh, the mandate is on life support.
And that might be an overreading, but certainly the plaintiffs, the challengers here, Michael Carvin, who you had on, have to believe they had as good a day as was possible. BANFIELD: So where is the burden here? I mean, if we're talking about the mandate being on life support, who has the burden of proof here and what is that burden? How large is it and where's the spectrum?
GOLDSTEIN: Well, it depends on how you look at the case. On the one hand, laws passed by Congress are clearly presumed to be constitutional.
But on the other hand, Justice Kennedy, who's the center vote in the Supreme Court, asked the solicitor general today, when you have a law that is so unusual, that does something that hasn't been done before, don't you, the government, bear a special burden of justifying it? So there's no right or wrong answer to who has the burden here.
I would say that, after this oral argument, probably, the government has the burden here to articulate the limiting principle and the -- a majority of the Supreme Court didn't seem today at least to be persuaded it was there. We'll see what happens when they have to write an opinion after they go back and vote and the like, but it was a discouraging day for the government for sure.
BANFIELD: So, look, everyone has a bad day and maybe that's the case for the solicitor general in this particular day of arguments.
But it does seem odd to the lay person that those lower appellate court rulings could go so differently -- and some of them went very well for the government -- and you bring these same arguments to the exalted nine, and you can have a disastrous day. Why is that? You have done it 24 times. Tell me how tough it is.
GOLDSTEIN: Sure. Well, it is a very intense experience. I don't know that Jeff Toobin is saying that Don really did a bad job as a lawyer, other -- rather than that he faced a very tough court.
Just like the lower courts are divided, the Supreme Court justices are divided. You have conservatives, you have liberals, you have different ways of looking at this problem. The lower courts couldn't agree on it, and clearly the U.S. Supreme Court's not going to agree on it.
The best you can imagine is that this will be maybe 6-3 for the government, and the worst the government will face is 5-4 against. But there is a realistic prospect for sure that the Supreme Court will strike down the mandate, which is not what people were predicting.
BANFIELD: Again, what you're saying, 5-4, you know, clearly at this point, Anthony Kennedy would have been someone to watch very carefully on this, and Jeffrey Toobin said he was extremely skeptical of the government's attorney in this case, but that John Roberts surprisingly is the wild card.
What do you think the chances, Tom, are of John Roberts, the chief justice who was appointed by a conservative, of actually siding with the four liberals on this panel? GOLDSTEIN: It's a real possibility. It would probably be something like the chief justice and Justice Alito, maybe with Justice Kennedy. Remember that this is really a question about the scope of federal power, and those justices haven't yet taken a very narrow view of federal power.
Now there's a lot of discussion today about how the individual mandate is different, that it's a law that makes people do things, which is not something the Supreme Court has faced before. So which way they'll go, they certainly were more skeptical than they were favoring of the individual mandate today. But you would never say it couldn't happen.
BANFIELD: All right, Tom, well, while the arguments are tricky they certainly do affect all of us. Thanks so much for your perspective on this. We appreciate it.
GOLDSTEIN: Thanks for having me.
BANFIELD: Tom Goldstein joining us, the founder and publisher of SCOTUSblog.com. So clearly that statement I just made, Wolf, it really affects all of us. And we can't -- you know, we can't say strongly enough how important it is for people to understand what's happening at the Supreme Court level.
BLITZER: Sometimes people's eyes glaze over. They hear about Band-Aids, health insurance, Tom Goldstein obviously a very smart guy, he understands what's going on.
But Ashleigh, I have to tell you, a lot of families out there simply can't imagine what life would be like without health care reform, the law as it stands right now. Before it passed, insurance companies could put a cap on the benefits -- yes -- you could get in your lifetime, $5 million, for instance.
That sounds like a lot, but with a serious life threatening illness, the money goes very quickly. Our senior medical correspondent, Elizabeth Cohen, spoke to one family in this situation.
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COHEN (voice-over): These nine Supreme Court justices will forever affect the life of 3-year-old Violet McManus.
COHEN: Are you worried about what the Supreme Court might do?
WALTERS: I'm really scared, very scared, like I can't sleep scared.
COHEN (voice-over): Violet's mother, Julie, knows if the justices overturn health care reform, Violet will lose her health insurance.
COHEN: Tell me why it's scary for you.
WALTERS: Our daughter could die and there's nothing we could do about it.
COHEN (voice-over): Violet was born healthy. Then when she was 11 months old, she had her first seizure.
WALTERS: Our daughter was completely blue in her crib and shaking.
COHEN (voice-over): It was epilepsy. When seizures strike, Violet stops breathing, as many as 30 times a day.
COHEN: So she's -- she has three drugs, and she has an alarm system and she has oxygen.
WALTERS: Yes.
COHEN: I mean, this all gets expensive.
COHEN (voice-over): Violet has health insurance through her dad, Matt's, work.
MATT MCMANUS, VIOLET'S DAD: Great job.
COHEN (voice-over): It's paid for her care, including several long, expensive hospitalizations. And that's why the McManus family will be watching the Supreme Court decision so closely.
If the court gets rid of health care reform, their insurance company could stop paying for Violet's care in as soon as two years, because she will have met her lifetime limit on benefits.
COHEN: If you could channel your thoughts and wishes to the Supreme Court justices, what would you tell them?
MCMANUS: If I could say anything to them, I would say, just imagine it happening to your daughter, because it can happen to anyone, so you never -- you never know. Life changes.
(END VIDEO CLIP)
BLITZER: Now Elizabeth Cohen is joining us. Now, Elizabeth, before the law was passed two years ago, more than 100 million Americans had these lifetime limits. Could these limits come back if the justices throw out what's called the Affordable Care Act?
COHEN: Right. Wolf, I think almost certainly these limits would come back, because insurance companies aren't charities. I mean, why would you want to insure a girl like Violet McManus if you don't have to? Her care runs into the millions upon millions of dollars. If you put a cap on it, as a company you make more money, and that's what companies are supposed to do, Wolf.
BLITZER: Elizabeth Cohen, what a story. All right. Thanks very much. The stakes clearly are enormous.
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