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OBAMACARE WAS BAD POLICY
YESTERDAY AND IT'S BAD POLICY
TODAY.
>> Bret: SUPREME COURT IN A
RULING THAT SHOCKED MANY TODAY
UPHELD PRESIDENT OBAMA'S
HEALTHCARE LAW, THE CENTER
PIECE OF THAT LAW, THE
INDIVIDUAL MANDATE UPHELD AS A
TAX.
CHIEF JUSTICE ROBERTS WROTE
THE MAJORITY OPINION AND WROTE
THE AFFORDABLE CARE ACT
REQUIREMENT THAT CERTAIN
INDIVIDUALS PAY PENALTY FOR
NOT OBTAINING HEALTH INSURANCE
MAY REASONABLY BE
CHARACTERIZED AS A TAX,
BECAUSE THE CONSTITUTION
PERMITS SUCH A TAX.
IT'S NOT OUR ROLE TO FORBID IT
OR PASS OPINION WISDOM OR
FAIRNESS.
IN DISSENT READ BY JUSTICE
KENNEDY BELIEVED TO BE THE
SWING VOTE AND HERE HE SIDED
WITH THE DISSENT IN A JOINT
DISSENT.
TO SAY THAT THE INDIVIDUAL
MANDATE MERELY IMPOSES A TAX
IS NOT TO INTERPRET THE
STATUTE BUT REWRITE IT.
HE SAYS THE JUDICIAL TAX
WRITING IS PARTICULARLY
TROUBLING.
LET'S BRING IN THE EXPANDED
PANEL TONIGHT.
JUDGE ANDREW NAPOLITANO, FOX
NEWS SENIOR JUDICIAL ANALYST.
JEFF ZELNEY FOR "NEW YORK
TIMES."
A.B. STODDARD OF THE HILL.
AND SYNDICATED COLUMNIST
CHARLES KRAUTHAMMER.
OKAY, JUDGE, YOUR THOUGHTS.
>> THIS IS THE DRIVING A CAMEL
THROUGH THE EYE OF A NEEDLE.
CIRCUITOUS ROUTE FOR WHICH THE
MAJORITY TOOK THE LAW TO
JUSTIFY IT.
IN THE VERY PHRASE IN WHICH
THE MAJORITY CALLS IT A TAX,
IT REFERS TO IT AS A PENALTY.
THE CONSTITUTION START ON THE
HOUSE OF REPRESENTATIVES, THIS
DIDN'T.
THE CONSTITUTION SAYS THIS IS
USED TO GENERATE REVENUE.
THIS IS USED TO TO WIN THE
WAR, BUT HE WON THE BATTLE
TODAY.
>> Bret: CHARLES, WHY CHIEF
JUSTICE JOHN ROBERTS WROTE THE
MAJORITY AND SIGNED 5-4 WITH
THE LIBERAL WING OF THIS
COURT.
YOU HAVE SOME SENSE ABOUT WHY
THAT HAPPENED.
>> I THINK IT WAS THE JUDGE
SAYS RESULT-ORIENTED.
THE RESULT HE WANTED WAS THIS.
ROBERTS DID NOT WANT TO UPHOLD
THE LIBERAL ARGUMENT IN
SUPPORT OF OBAMACARE WHICH WAS
THAT YOU CAN IMPOSE THE
MANDATE, BECAUSE IT WOULD BE
OKAY UNDER THE COMMERCE
CLAUSE, AS ROBERTS WROTE THAT
CLAUSE ALLOWS A GOVERNMENT TO
REGULATE COMMERCE.
BUT IT SURELY DOESN'T ALLOW
YOU TO IMPALE OR COMPEL
COMMERCE, WHICH IS WHAT IT
WOULD DO.
COMPEL YOU TO BUY HEALTH
INSURANCE.
HE DIDN'T WANT TO ACCEPT THAT.
HE DIDN'T WANT TO OVERTURN THE
LAW.
HE FEELS CUSTODIAN OVER THE
STATURE OF THE COURT.
HE FEELS THE COURT SUFFERED
DECISION IN 2004 AS GORE AND
BUSH.
SEEN AS PARTISAN COURT.
WENT 5-4 ALONG IDEOLOGICAL
LINES.
HE WAS AFRAID IF THAT HAPPENED
ON OBAMACARE IT WOULD DIMINISH
THE STANDING OF THE COURT, HE
THINK HE IS IS RESPONSIBLE
KEEPING IT UP.
HE CONCOCTED THAT FINESS,
ALLOWS HIM TO CALL A MANDATE A
TAX, WHICH IT'S NOT.
AND ALLOW HIM TO UPHOLD A LAW
AND STRIKE IT DOWN.
>> Bret: WHAT ABOUT THE
EXPANDED MEDICAID PORTION NOT
UPHELD?
>> THAT IS A 7-2 VOTE.
THAT IS SAYING THAT THE
FEDERAL GOVERNMENT CANNOT
COERCE THE STATES IN DOING
SOMETHING THEY OTHERWISE WOULD
DO.
IT CAN INVITE THEM AND INTYCE
THEM AND COMPENSATE THEM BUT
IT CAN'T COERCE THEM.
COERCION WAS SEVERE.
IT SAID IF YOU DON'T SET UP
THE INSURANCE EXCHANGES BY
EXPANDING MEDICAID TO THOSE
WHO CAN'T OVERWISE ACQUIRE
HEALTH INSURANCE YOU WILL LOSE
ALL OF YOUR MEDICAID
REIMBURSEMENT.
NOT JUST THE MEDICAID
REIMBURSEMENT WE WILL GIVE YOU
TO ASSIST IN SETTING UP
EXCHANGE BUT ALL OF IT.
>> Bret: THOSE ARE THE
STRINGS THAT CONGRESS TIED.
>> HEAVY BURDEN THAT MAJORITY
FELT, 7, 2 IT AMOUNT TO
COERCION.
COERCE BY THE STATE BY THE
FEDERAL GOVERNMENT HAS BEEN
OUTLAWED FOR YEARS.
>> YOU READ THIS A COUPLE OF
TIMES NOW.
QUICK QUESTION, WE TALKED
ABOUT IT WITH JONATHAN TURLEY
AND PAUL ROSSSTEIN.
WHAT ABOUT A PRECEDENT-SETTING
ASPECT TO THIS THAT THE
MANDATE IS NOT
CONSTITUTIONABLE THROUGH THE
COMMERCE CLAUSE BUT A TAX SO
COULDN'T THE FEDERAL
GOVERNMENT THEN SAY YOU HAVE
TO BUY SOMETHING.
AND IF YOU DON'T, TAX THEM.
>> THAT'S WHY CHARLES IS
RIGHT.
I THINK THAT THE CHIEF JUSTICE
WITTINGLY OR UNWITTINGLY HAVE
CREATED FOR CONGRESS A FAST
NEW AREA OF UNLIMITED POWER.
TO REGULATE PRIVATE INDIVIDUAL
BEHAVIOR BY TALKING THE