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as we all know the US Supreme Court has
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recently heard arguments both for and
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against President Obama's healthcare
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reform initiative known as the
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Affordable Care Act um one of the key
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Provisions at the of the court case is
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what's known as the individual mandate
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so could you talk to us a little bit
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about I mean what are your views on the
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individual mandate in its current form
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would you say you're for it or against
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it I think the individual mandate was as
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good a solution politically to getting
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the law passed as they could have come
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up with if it was possible to start with
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a clean sheet of paper I wouldn't have
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used the individual mandate but the
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individual mandate and I know you've
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talked to Professor Paulie about this
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was a republican idea uh and as part of
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President Obama's and his um the
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proponents of the laws compromise they
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reached across the aisle took a
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republican idea came from the Heritage
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Foundation initially was endorsed early
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on by n Gingrich was adopted in
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Massachusetts and in Romney care um I
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think they thought that was a big step
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towards the compromise that had to be
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necessary to get a universal healthc
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care law passed um so given the
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political realities I think the Mandate
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was a decently good way to go about it
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uh it turns out now that doing it that
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way exposes the law to some very
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significant constitutional challenge uh
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which seems everybody
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underestimated while the law was being
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considered when it was first being
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passed after it was first passed uh I
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don't think anybody felt that the legal
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challenges were going to be taken as
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seriously as they are
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um but the Mandate may bring the whole
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law down may very well bring the whole
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law down like I said if I started from a
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clean sheet of paper I would do it
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differently I would do it as a tax which
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probably makes it clearly constitutional
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Beyond challenge uh and a voucher system
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everybody in the country would have to
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um have money deducted from their
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paycheck just like they do for Social
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Security just like they do for Medicare
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and in return for that you get a voucher
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that would enable you to go out and buy
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healthc care um maybe you could buy it
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from a governmental entity like Medicare
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but I think this being America you'd be
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able to buy it from private vendors and
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if it was structured that way I don't
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think there'd been any constitutional
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infirmity to it now I mean this is a
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very complicated multi-part law overall
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so can you talk to me a little bit about
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I mean overall I mean what are your
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views on the different provisions of the
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Affordable Care Act our Health Care
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system in this country is so complex and
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is
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so distorted in the way it's set up that
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it requires reform from top to bottom me
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more people who go into medicine go into
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a high-priced um surgical Subs
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Specialties and other subs Specialties
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than primary care that needs to be
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changed uh the health insurance
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Provisions where people with
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pre-existing conditions aren't allowed
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to buy insurance or where your rates go
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up astronomically uh if you use Health
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Care um these are these are very bad
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things so it requires a toz reform and
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the law got to be 2700 pages in Bill
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form they they keep talking about the
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law being over 2,000 Pages the law I
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think actually only comes out to 975
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pages but the bill was 2700 pages and if
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you look at that bill there's only a few
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paragraphs that deal with the
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Mandate notwithstanding that the Mandate
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is the centerpiece of legislation
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uh and there are many other things
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particularly all of the health insurance
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reforms that are um one could well argue
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inextricably intertwined with it uh on
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the insurance industry side what the
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health insurers gave up was the right to
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exclude people who look like they' need
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too much health care or the right to
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kick people out of their policies if
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they use too much health care uh the
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insurance companies accepted Community
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rating so that they couldn't charge you
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an exorbitant premium if you needed more
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Health Care um those are all difficult
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pills for the insurance industry to
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swallow and what they insisted on in
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return was an individual mandate or some
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kind of mandate so that everybody would
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get into the game otherwise they said
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they'd be eaten alive by adverse
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selection people who considered
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themselves healthy would stay out until
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they needed health care and then they
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would come in and they would be able to
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insist because of the provisions of the
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law that they'd be insured at that point
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it would be like
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a homeowner coming running into
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a homeowner's insurance company saying
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sign me up quick my house is on fire um
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and so the Mandate was put in as the
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quid pro quo the negotiated
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um deal to get those other patient
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protections so I mean if the court
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strikes down the individual mandate or
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even the whole Affordable Care Act I
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mean what does this mean for healthcare
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going
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forward well before I answer that
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question let me deal with the first part
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of what you said if the court strikes
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down the Mandate which I sat in on the
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arguments I listened to the judges
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questions and I've read a lot of
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analyses since then I think there's a
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pretty good chance they'll strike down
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the Mandate the other question then that
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becomes very important is well they
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strike down the whole law um there is a
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long-standing constitutional
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principle in favor of constitutionality
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presumption of
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constitutionality the court has to show
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allegiance to the Constitution so if
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Congress puts something in a law that's
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unconstitutional the court has no CH
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choice but to take that out but
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everything else in the law that's
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constitutional they should leave in as a
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part of the separation of powers the
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respect of a democratic majority I don't
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mean Democrat versus Republican I mean
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representative of democracy um so
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there's so much else in the law that
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they could keep in place but they would
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have to be able to decide what stays and
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what goes and in the one and a half
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hours of oral argument over separability
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um the justi has made it clear that they
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didn't have much of a clue where to
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begin and deciding what stays and what
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goes uh justice Scalia
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and this is a little bit of a
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mischaracterization
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but other justices U I guess it was
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Justice Kagan uh
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equipped that it would be too difficult
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for justice scalia's law clerks to have
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to go through the whole 2700 pages of
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the bill and figure out what stays and
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what goes they probably throw it all out
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well if the court is supposed to keep as
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much of the law as it can and they throw
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it all out that would throw it back to
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Congress to say if you want all these
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other Provisions let me tell you what
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some of the other Provisions are things
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that have nothing to do with the Mandate
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like nutritional label you go into
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McDonald's it tells you how much a Big
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Mac U has by way of calories um other
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things loan forgiveness for people's
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medical school loans if they go into
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primary care or go to work in an
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underserved area has nothing to do with
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the individual mandate funding for black
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lung disease for Research into cancer
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and things of that nature those things
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don't have to go just because the
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Mandate goes but for the Supreme Court
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to sit down there and try to figure out
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provision by provision with hundreds of
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Provisions what is tied and what isn't
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tied what Congress would have intended
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to have if it didn't have the Mandate
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that's pretty much a legislative
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function and so the court can say we
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don't want to Wade too far into the
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congress's legislative function which is
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which is respecting Congress more uh to
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say we're going to leave as much of your
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work intact we're going to take it all
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out or on the other side saying we the
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court are going to try to decide what
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you wanted to leave in and what you
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wanted to take out both of them are an
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encroachment upon Congressional
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legislative domain and which is the
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greater one of the justices asked that
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question now but do you feel like I mean
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can without the individual mandate I
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mean can what would have to H if that's
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if that is thrown out I mean what would
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have to happen in order to sort of keep
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some of the intents of the law intact I
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mean do you think the majority of it can
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move forward or are there certain things
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that the Administration or Congress
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would have to go back and do and if so
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what what would they have to do or what
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would you advise they do let's imagine
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another an alternative Universe where
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the Congress is bipartisan or
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nonpartisan and functional um and the
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court took out an important piece of
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their legislation and there were many
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other pieces that were unconnected the
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day after the court did that Congress
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could meet in session and say let's put
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back these 200 Provisions or 300
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provisions and so forth
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the concept that our Congress at this
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point in time given how fractious and
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divided they are would do that is
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ridiculous so at one point in the in the
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argument in the Supreme Court one of the
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attorneys for the government was talking
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about the Court's um job being to
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ascertain the will of Congress what
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would Congress want us to do in terms of
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keeping the rest of the law intact and
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Justice Kennedy who's really going to be
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the decider here because you got the
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four liberal justi and the four
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conservative justices and CED swing
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Justice I predict what happens with the
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Mandate by the way will happen with a 5
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to four vote very dangerous to make a
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prediction I shouldn't do it but I do it
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anyway what Kennedy said was
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um is that the real Congress or a
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hypothetical
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Congress because a a hypothetical
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Congress the day after the court struck
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down the whole law would meet and they'd
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put back in all the parts that weren't
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controversial
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but every part's controversial now
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because politics makes everything
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controversial that's a very very
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long-winded way of saying I can't answer
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your question yeah that that is actually
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very helpful I mean so that I mean given
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that environment and I think most people
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would agree that you were correct in
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characterizing that environment I mean
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what would you say is sort of one thing
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that should be done to help tackle all
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the problems with the American Health
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Care system I mean is there one I mean
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can you I know there's probably a lot of
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things but can you think of one thing
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that if in the Hy in that hypothetical
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Cong or if there was a hypothetically
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could get done right away that would
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make a big help what would you say it
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would
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be replace all the congressman Congress
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people excuse me I don't I don't know um
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I don't think it's likely to happen at
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this point in time I'm not sure it'll
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happen in my lifetime but one of the
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things that could happen is that the
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American public realizing the need for
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Universal Health Care and realizing that
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we've gone down a a dysfunctional Road
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in relying to the extent that we have on
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for-profit Healthcare uh will'll say
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okay let's just wipe it all out start
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with a clean sheet of paper and come up
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with something like governmental health
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care like France has or like Italy has
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or like Britain has thing is that none
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of those countries are just sailing
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along happily now uh with aging
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populations advancing technology sagging
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economies all of the countries that have
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universal healthcare in Europe and
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elsewhere are struggling to maintain
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that National commitment I think it's I
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think it's a a shame an embarrassment
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that our country is the only major
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Nation on the face of the planet that
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hasn't made a national commitment to
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Universal Health Care and there are a
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lot of reasons why we haven't I don't
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think it's because Americans are
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inherently selfish or greedy or whatever
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but we've kind of let the system evolve
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piece by piece by peace over generations
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and we've essentially painted ourselves
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into a corner and when you ask me what
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should we
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have I'm not sure how we can get from
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where we are to where we need to be when
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this law was being debated in Congress
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you may remember a lot of people who
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were against the law made a big point
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out of the fact that it was over 2,000
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pages and why should it be that long um
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why should it be so long that most of
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the Congress people say we haven't read
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it our staffs have read it peac meal the
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thing is that we've got a very complex
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system or non-system some would say and
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almost every piece of it has to be
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changed in some way um you can't do that
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with a 50-page law or 100 page law and
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whether we can get there from where we
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are now it's anybody's guess
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