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Webcast Replay: Deconstructing The Supreme Court's Historic Health Law Arguments

Mar 29, 2012

After six hours of historic arguments on the health law, the Supreme Court now begins its deliberations.  What were the key moments in the debate, and how might they affect the outcome?

Our panel includes KHN Senior Correspondent Mary Agnes Carey, who is joined by Stuart Taylor, attorney, author and KHN legal analyst; Tom Goldstein, Goldstein & Russell, P.C., and publisher of SCOTUSblog; and Julie Rovner, health policy correspondent, NPR.

Here's a transcript of the webcast:

MARY AGNES CAREY: Good day and welcome to "Health Reform and the Court," I'm Mary Agnes Carey. After six hours of historic arguments on the health care law, the Supreme Court now begins its deliberations. What were the key moments in the debate and how might they affect the outcome? Will the Court decide to strike the law's requirement that most Americans have coverage or pay a fine? And if the individual mandate is declared unconstitutional, what happens next? Will the Medicaid expansion remain? With us today to discuss these issues and answer your questions are Stuart Taylor, a lawyer, author and contributor to many publications including the National Journal and Kaiser Health News; Tom Goldstein, of the law firm Goldstein & Russell, and publisher of SCOTUSblog; and Julie Rovner, health policy correspondent for NPR.

Thanks to all of you for being here. I’d like to pose a question to all of you first, but have Stuart start. What surprised you the most over the last three days? What didn’t you anticipate? What played out differently than you thought it would?

STUART TAYLOR: What struck me most was the energy with which the four more conservative members of the court – well, three – Justice Thomas, being a known quantity, was silent – tore into the government’s positions in defense of the health care law in their questions and so forth. Scalia, who some thought might be in play, was clearly a vote to strike everything down. Alito sounded like a vote to strike everything down. Roberts, who was thought to be in play, was more ambiguous, but he tore into the government's positions over and over again with energy. He said things like: "All bets are off if we uphold this," meaning the government's power would be unlimited.

And Justice Kennedy, a little more mixed, but he said, for example, in challenging the individual mandate argument. He said, "That changes the relationship of the federal government to the individual in a very fundamental way." Then when he was arguing to the other side, he seemed to qualify that. So, I actually am not betting that they’ll strike anything down, but I think it’s a whole lot bigger possibility than I did before I went in.

MARY AGNES CAREY: Julie? Tom?

JULIE ROVNER: I sat through the Medicaid arguments yesterday - most people were surprised they even took this argument. This is the argument the states are making that the Medicaid expansion is coercive, even though the federal government is paying the vast majority of this Medicaid expansion, and they’re arguing that their having to expand Medicaid somehow puts them at risk for losing the rest of their Medicaid money. Even the judge in Florida that struck down the entire law didn’t buy the Medicaid argument. No judge has actually said that expanding Medicaid is somehow coercive to the states. And yet, the conservative justices seemed to accept the possibility that this might be coercive to the states. So that really surprised me.

TOM GOLDSTEIN: I agree with all that. The thing that surprised me, and pleasantly so, was the level of public interest, sincere public interest in the cases. And in the really complicated area where people who aren’t trained as lawyers can find it very difficult to understand what’s going on – that had been dominated in the past by real bumper-sticker messages that don’t have a lot of depth to them – people cared a lot. Fantastic programs like this one, real interest across the entire ideological spectrum and people who aren’t ideological at all. I think, even if the law gets struck down, and the Supreme Court, in that respect, has to be an anti-democratic institution, because they’re not elected, but it is a great illustration of the process working and the public engaging.

MARY AGNES CAREY: I want to go back to a point that Stuart mentioned. Before the Supreme Court arguments began, conventional wisdom was that the law would be upheld. It seemed to be the debate was all about, "By what margin?" That feels very different now.

STUART TAYLOR: It does. And I think there was an evolution in that. Bear in mind that the vast majority of constitutional law professors and scholars are liberal. So, the conventional wisdom is colored by that. But notwithstanding, a couple of years ago when these lawsuits started, there was a very broad sense that, you know, "This is not a close call, of course the Supreme Court is going to uphold this." Then lower courts started striking it down, and it got a little more ambiguous. But even in the last few days before the arguments, some conservatives who want the court to strike it down, would privately say, "Well, it doesn't look like we're going to get that far, but we're going to give it a good go." Now the conservatives who want it struck down are feeling triumphant. I’m not sure they’re right to feel triumphant, but they certainly got a lot of comfort from the way the arguments went.

MARY AGNES CAREY: But, you can’t base simply by the oral arguments, right? I mean, this is a much more complicated decision that would be made, so maybe to walk away from simply looking at the oral arguments and saying, "This is the way the court is going to go." That’s not a fair assumption, right?

TOM GOLDSTEIN: Well, that's true, and in particular, this is the kind of case that is harder for the government to argue than the plaintiffs to argue, because the plaintiffs basically say, "If you're right, the government can do whatever it wants," which is the illustration that Stuart gave from the chief justice saying, you know, "All bets are off." And so the argument is going to appear a little one-sided.  On the other hand, when you're the White House press secretary and your great defense of how it is you think you’re going to win is that oral arguments can be misleading, and you don’t have anything good to point to, you do know you’re in trouble.

MARY AGNES CAREY:  All right, let's turn to some questions from our viewers.  For Tom, here's a question about politics and the court. In this highly partisan era, facts may not have a lot of bearing on the final decision.  To what extent will this case be decided on its merits versus political ideology?

TOM GOLDSTEIN: Well, it just depends on what you mean by political ideology.  The justices, I believe, are ideological, but not partisan. What that mean is that there’s no right or wrong answer about how to interpret the Constitution. There’s real disagreement about that. And the more conservative justices have a different vision for the structure of the Constitution than the more liberal justices do. And this could be the first time in which the court, in its really modern era, puts a significant limit on Congress’ power in order to preserve the balance of power between the federal government and the states.  I think almost everybody agrees that the framers of the Constitution, when it was first written, couldn’t have imagined our government the way it is now, with Congress having so much power.  It just evolved over time with the Supreme Court's approval. This could be the first time that they really pull back on that since before the New Deal era.

MARY AGNES CAREY: Do you want to weigh in Stuart?

STUART TAYLOR:  Yes, I have an idiosyncratic view on this, but I believe it strongly.  I think that on a case like this there is no true constitutional truth.  There are good arguments for both sides.  [The Constitution] was written a very long time ago. How the framers would have dealt with it is unclear. Why we should care how they would have dealt with it is debatable. So I think it’s impossible to separate one’s legal instincts, if you’re sitting on the Supreme Court in a case like this, from one’s political instincts in terms of what’s good for the country.

I think that if I were sitting in this case, I would have two ways to resolve the arguments. I could toss a coin, or I could go with what I think is good for the country. And I kind of think that’s the way it works, even though that may not be the way they think it works.

MARY AGNES CAREY: I have a legal question for you, Stuart. Would it be considered unprecedented if the Supreme Court did find the health law unconstitutional?

STUART TAYLOR:  It would not be unprecedented. The court’s struck down a lot of major New Deal regulatory statutes in the early 1930s. But that stopped in 1936. From 1937 until now, the Supreme Court has never struck down a major regulatory law.  They’ve struck down a couple of little things. But they’ve never struck down a major regulatory law on the grounds that, hey, the federal government’s power just doesn’t reach that far. And so it would be unprecedented since 1936.

TOM GOLDSTEIN:  What the challengers would say, and I should say I filed a brief defending the statute on behalf of the AARP, but what the challengers would say is, 'yeah, in that sense, maybe it's unprecedented, but the statute is unprecedented.'  Their view is, 'Look, Congress has never done something like this before where they have a mandate that you have to purchase a product.’ And so this decision would be a reaction to Congress overreaching.   Everybody agrees there's got to be a limit. The Constitution gives a certain amount of power to the federal government, but not all the power. And the question is does this cross the line? Something's going to cross the line and the Supreme Court eventually is going to draw that line. And the question is, is this it?

MARY AGNES CAREY: Julie, I have a question for you about single payer. Our questioner calls the health law the "anything but single payer" plan.  If the mandate is ruled constitutional, is this the end for single payer?  And if it's ruled unconstitutional, will single payer be the obvious next solution?

JULIE ROVNER:  One of the things that actually struck me is how the conservative justices were so glibly saying, 'Gee, you could do single payer if you wanted to. That would clearly be constitutional.' And of course Medicare as we know is kind of single payer for the elderly population because it is funded by a tax, and that’s was one of the big parts of the argument - that Congress certainly has a taxing power. In fact, in the 30s, that’s finally how they got Social Security through. And Medicare is structured very much like Social Security.  So obviously, if this is struck down, then Congress could come back and do a Medicare-for-all, which would be single payer.

On the other hand, Congress is certainly not anywhere near wanting to do single payer. Certainly not this Congress, probably not any Congress in the future.  One of the things I was also struck by were the crowds in front of the Supreme Court who were extraordinarily civil. And I mean that in every definition of the word, and very well behaved.  But what the opponents of the law really feel very strongly, and I know there’s a lot of misunderstanding of this individual mandate and who will be affected, but a lot of people who would not be affected still think this is an overreach of power by the federal government. Well, you can imagine what single payer would do to those people.  If they think that being required to have private insurance is an overreach by the federal government, you can imagine what they would think of having a government-run system. 

It would certainly be constitutional to have single payer.  But it would be hard to imagine a Congress that would be ready to vote to have single payer.

MARY AGNES CAREY:  To what factor, if any, does this figure in on the judges' deliberations: 'Let's look at Capitol Hill. Nothing is going to happen if this goes down. There isn’t going to be a compromise. It’s doubtful it would even start until after the election.' Knowing that, do judges take that into their consideration? There was a line or two in the argument about, well, Congress could just get together and do something quickly. How much does that figure in, if at all?

STUART TAYLOR:  Actually, it figured in more than I have ever heard it figure in to what they said. Justice Scalia said, 'Look, there's Congressional inertia. You need 60 votes to get anything through the Senate, so if we strike part of it down and leave the rest of it standing, that’s the way it's going to be.  Because you’ll never get 60 votes to change it.'

One inference of that would be: Well, let well enough alone. Because, his inference is: 'So we need to sweep the whole thing aside and let them make a fresh start.' So it’s very much on their minds, and they’re more open about it than they usually are, as to how this plays out in the political system. Frankly, it would be irresponsible of them not to be thinking of that.

TOM GOLDSTEIN:  The other time that I thought it was really striking, their consciousness of this – I’ve been at a lot of Supreme Court arguments, I’ve never seen anything like this. At one point, Paul Clement  – who’s just a brilliant advocate, did an incredible job for the states – with respect to the periphery of the statute, (there are a bunch of things that just don't have anything to do with insurance: black lung disease, Indian health care, things like that) Paul Clement said, 'Well, just strike the whole thing down.  Congress can come along and just enact everything that it wants back in a couple of days.'  The entire court room burst into laughter.

MARY AGNES CAREY:  It was hysterics.

TOM GOLDSTEIN:  It was unbelievable, where the justices knew the argument was bad one based on the reaction of the crowd.  Just completely unheard of. 

STUART TAYLOR:  By the way, Clement said another thing very briefly. Justice Kagan – whose questions are always fun – on Medicaid, said: 'If you're right Mr. Clement, doesn't that mean that Medicaid is unconstitutional now? Meaning, has been for a long time?'

Now you expect the answer to that to be: 'no.' But Clement is a very smart man. He didn’t say no. He said, 'not necessarily.' I think that shows, wow! Wow! We’ve come a long way, baby, in terms of what gets considered as a constitutional possibility.

JULIE ROVNER:  Of course, Mr. Clement also said, when Justice Kagan asked, 'If I wanted to hire you and offered you $10 million,' he said, 'I'd need to know where the money was coming from.'  …

MARY AGNES CAREY:  That was interesting. I have a question [sent in by a reader], I thought was very interesting on the individual mandate. I want to open it up to the panel: "Even though we have an all-volunteer army and no draft, young men ages 18-25 are required to register with the Selective Service, and there are penalties for not doing so. Why would the mandate to obtain health coverage or pay a fine differ from this? Was this argument made?"

TOM GOLDSTEIN: The reason is that Article I of the Constitution gives Congress a variety of powers. It has the power to regulate interstate commerce. It has the power to tax. It has the power to raise an army.

The thing is that Congress in enacting the Affordable Care Act, clearly invoked its interstate commerce power, and maybe invoked its tax power. It blew hot and cold about it. The president blew a little hot and cold – mostly cold - about it. And so Congress' authority to do things depends on what's in the Constitution.  So, the Selective Service, the ability to create an army, the ability to do lots and lots of other things rests on – and so, for, example, Social Security, Medicaid, other taxes that give rise to health care or other social services come under the tax power. 

But Congress, for really political reasons – the inability to get conservative Democrats, much less Republicans, to vote for this bill when they needed every possible vote – did not say: 'By the way, this is a tax.' Even though you pay for it if you don’t comply with the mandate on your 1040 based in part on your income. It looks, walks, quacks a lot like a tax in many respects.

So nobody made the selective service argument, because it’s clear that power exists. The fight that was in the Supreme Court, in part, was: Is this interstate commerce, in which case the fight is, is there any real commerce here? If you’re deciding not to buy health care, how is that commerce? That’s the lack of commerce. Can you create commerce in order to regulate it, Congress? Or is this a tax?  Because if it’s a tax, basically the law is: Congress can do whatever it wants. And so, I do think it’s true that if the Supreme Court strikes down the mandate, they’re going to say: 'Well, Congress could have admitted it was a tax and taken the political hit for it. But it didn’t, and it tried to use this narrower power over interstate commerce.'

MARY AGNES CAREY:  Julie, do you remember a little bit about the deliberations over tax vs. penalty. Them kind of dancing around this. Remember – we lived through the coverage together thinking that we knew what they were doing, but I’m just wondering if they really regret that now—the drafters.

JULIE ROVNER: No I don’t think they do regret it because I think if they’d called it a tax they wouldn’t have gotten all those Blue Dog Democrats. That’s one that they don’t regret. Do they regret not having a severability clause? They may come to. I don’t think they regret for a minute not calling it a tax, because it wouldn’t have passed. They needed all 60 Democrats in the Senate. Remember the difficulty getting Ben Nelson?

MARY AGNES CAREY: Yes!

JULIE ROVNER: And Mary Landrieu?

MARY AGNES CAREY: I was out in the hallway waiting for that one. Absolutely.

JULIE ROVNER: And the difficulty getting those last few Blue Dogs in the House, those conservative Democrats in the House? They could not call this a tax, even though it in every way, shape and form resembles a tax, they could not call it a tax.

STUART TAYLOR:  By the way, Chief Justice Roberts picked up on that. He asked Don Verrilli, the solicitor general, 'Why didn’t they call it a tax?' And Verrilli said, 'Well, you know they called it a penalty because maybe they thought that would be more clear or something.’ And Roberts basically said, 'Right.' (laughter). He didn’t say it that way, but that was the gist.

MARY AGNES CAREY: Here's a question about what would function if the entire law were struck down. What happened to provisions that have already been implemented?  For example, Medicare Part D enrollees—would they have to return those rebates they got in the doughnut hole? Would manufactures be entitled to recoup coverage gap discounts? What happens to all those adult children up to age 26 who are on their parents’ health insurance plan?

TOM GOLDSTEIN:  Well, the only phrase that comes to mind, and it’s not exactly a legal one, is: 'God only knows.' (laughter) The justices struggled tremendously in an hour and a half argument about severability with 'What in the world do we do here?' And there was just an array of views about the simpler questions of what parts of the statute survive, about ‘is it all of the statute that goes, just the mandate, also guaranteed issue, community rating, something more, the exchanges?’ But then the kind of retroactive piece of this wasn’t discussed at all. In the main, the law would generally support the idea that we would just stop on the day the decision came down, and nobody would have to give money back, because they got money under the laws that existed at the time. But it could generate a lot of litigation.

STUART TAYLOR: I have a daughter who’s under one of those provisions, and I’m wondering, gee, do I need to go out and buy provisional insurance in case she’s naked the day they strike everything down? I think not.

TOM GOLDSTEIN: There is one really good upside about this and that’s the prospect that a lot of lawyers will have a lot of work.

JULIE ROVNER:  Which is very important because I worry about them, as we all do.

TOM GOLDSTEIN: That’s tremendous. That’s another provision of the Constitution that gets overlooked a lot - full employment for lawyers.

MARY AGNES CAREY: But what is the legal basis for throwing out components of the bill that there’s no legal challenge to? That was some of the argument yesterday and previous days—what about these particular elements that no one’s objecting to? What’s the legal basis to toss them when they’re not being challenged?

STUART TAYLOR: The court agrees on what the reason is, but it’s very hard to apply it. The reason is: 'What would Congress want [to do with] all these other provisions, if it knew that the one we just struck down was going to be struck down? Are they so interrelated and interdependent and would some of them operate perversely if you didn’t have the others?' And that’s why they would say 'We don’t want to create a monster, cut off half of it and leave the other half to wreak havoc.' That's the theory.

In all previous cases I’m aware of, when they strike something down, they’re usually snipping off an appendage of statute, and the rest of it can be left standing without much harm. I can’t think of a previous case where if they strike down the individual mandate, you’re carving out the heart of this thing in a way, especially if you take down the guaranteed issue and so forth with it. And then you’ve got black lung benefits, Indian welfare, this and that, you’ve got thousands of other things that most of them haven’t read. And it’s very hard to figure out, well what do you do about all that?

MARY AGNES CAREY: Absolutely. Let’s all talk a little bit about—there’s been a lot of looking at the mandate that people have to have auto insurance in the states and then the federal-- the mandate in the health law, the individual mandate. Both are products that taxpayers are required to purchase if they participate in the auto marketplace or, if the law is upheld, in the health care marketplace. Explore those similarities, differences. That seems to be an argument that’s made a lot.

TOM GOLDSTEIN:  Sure, the simplest version of that argument is hey, Massachusetts has this, why can’t the federal government? And the reason is the one we’ve been talking about what’s a federal power and a congressional power, and what’s a state power? So Congress is only allowed to do things the Constitution says that Congress can do, and all the other powers are reserved to the states and the individuals. So states have a general police power. They can help the public in a gazillion different ways that the federal government can’t. 

The question is, is there a federal authority to do something here that parallels what we know a state can do?  Lots of times there is.  So we know that the states can enact, under their general police power, a health care law.  The question is, with respect to this interstate commerce power: Is the individual mandate a form of regulation of interstate commerce? Same thing—buy auto insurance, right?  The states don’t need an intrastate commerce power.  They have their general powers over their citizens in their state.  They can require you to go get a driver’s license, they can require you to get insurance to drive a car.  There are some federal parallels.  So, for example, if you drive a truck in interstate commerce, then the federal government can require you to get a special trucking license, and that’s the question: Is this the kind of interstate thing that qualifies for federal regulation or is it more of an intrastate thing that qualifies only for state regulation?

JULIE ROVNER:  If I could just say a word about Massachusetts.

MARY AGNES CAREY: Sure.

JULIE ROVNER: There is actually some lingering legal question about whether Massachusetts is doing what it’s doing legally under the ERISA law, under the federal ERISA law.  But the fact is that nobody’s challenged Massachusetts because it seems to be working pretty well.

STUART TAYLOR:  I think one thing that makes it hard to sort it out for a lot of people is the fundamental impulse. ‘Hey they can’t make me buy insurance that I don’t want’ is a libertarian impulse. ‘What business does the government have telling me I can do that?’ To which the answer is well everybody agrees that Massachusetts can do it so we’re really just talking about the Commerce Clause.  So take your libertarian concerns, they’re not relevant.  But they are relevant, I think, because at the base, the limitations, the notion that the federal government is one of limited powers was thought of by the framers, and we tend to lose sight of it as a fundamental protection of liberty.

MARY AGNES CAREY: Julie, I want to talk to you a little about does the White House have a Plan B here?  If the law is struck down, if the mandate is struck down, what’s their next move?

JULIE ROVNER:  Well the White House insists that it doesn’t have a Plan B because it doesn’t need a Plan B because it’s going to prevail.  That is the party line, we’ve asked many times, and that is what they say.  Now we’re starting to hear a couple of little inklings from Capitol Hill that they’re thinking about Plan Bs.  We know that there actually are Plan Bs if they just strike down the mandate and presumably the community rating and guaranteed issue. These would be the least popular aspect of the law and the most popular aspect of the law, being the provision that you can’t discriminate against people because they have preexisting conditions. 

And there are other ways to work this. You could have people if they don’t sign up when they’re first eligible, you could say that it would be more expensive if you did it later or you would have to forgo any coverage of your preexisting conditions for a certain number of years.  There are other ways to do this without a mandate.  We know that they exist and in fact, President Obama, I think everybody now knows that when he was candidate Obama in 2008 he didn’t support the mandate for just that reason—he was worried about this libertarian backlash.  They’re not as efficient, they wouldn’t work as well, but they would indeed work plausibly.  But again, then we run into this problem of Congress is not in a mood to fix this.  It all depends what happens in the election.

MARY AGNES CAREY: These are things that HHS can’t do administratively, right? You’ve got to go back into that law and open it up?

JULIE ROVNER:  Yes, you would definitely have to go back into the law.

TOM GOLDSTEIN:  It is going to create a real dilemma when on June 28th or so the Supreme Court comes down with this decision and we are going to be really in the throes of the election.  And getting Congress to adapt what it is the Supreme Court is going to do, is going to be a real problem if things are invalidated.

JULIE ROVNER: I think you can assume that it won’t happen this Congress.

MARY AGNES CAREY: No.

JULIE ROVNER: The other thing that you need to keep in mind is that we are looking at a legislative train wreck at the end of this year. 

MARY AGNES CAREY: The lame duck (session)?

JULIE ROVNER: Yes, the lame duck.

MARY AGNES CAREY: The mammoth lame duck.

JULIE ROVNER: We are looking at the expiration of the Bush tax cuts, we’re looking at a Medicare doctor fee problem, we’re looking at the debt ceiling again. We’re just going to have this enormous pulling together of all of these things at once that Congress is going to have to deal with, aside from anything it might have to deal with on a health care law.

MARY AGNES CAREY: Christmas will be ruined once again.

JULIE ROVNER: Christmas will be ruined once again for a lot of reporters and Congress.

MARY AGNES CAREY: For Stuart and Tom, if the court does strike down the mandate, did they signal if the law, the rest of the law, would go down with it? I know this was a pivotal point of the argument.  Can you read the tea leaves?

STUART TAYLOR:  Tom’s got this down so I’ll listen to his answer and then I’ll add something.

TOM GOLDSTEIN:  The oral argument was not clear. They had a separate argument on this question. This is the severability question that Stuart was explaining the framework for: What would Congress want? What would Congress do if the individual mandate were struck down?

The government’s proposal is that the two closest related provisions – guaranteed issue and community ratings – would go down with it, because they are inextricably intertwined and we need that insurance pool in order to finance those sorts of things. The states seem to be getting somewhere with Justice Kennedy, Justice Alito, Justice Scalia, certainly, who would take the whole statute down, on it being broader than that, that it would include the exchanges and some other provisions. There didn’t seem to be much appetite for taking down the entire act including the peripheral things we’ve talked about, except as a question of kind of administrative convenience. And we just have to look at the fact that: It’s the end of March now so they have through April, through May, through June. They have three months to come up with all their opinions, get everything done, and issue a decision, because by tradition they are done by the end of June. That is not a lot of time.

And so I do think they are going to do something in the end relatively simple -- that they are going to go in one direction or another. They just – there was pretty much a frank admission by the court that as much as it hates to say it -- they just don’t have the time and the resources to break this down, kind of subtitle by subtitle. It just would be impracticable.

If you were to ask me, I think the most likely outcome is that community rating and guaranteed issue are for sure – and then probably the exchanges and one or two other things – if the individual mandate is struck down. This is all on the assumption that the individual mandate goes down – which I think government is still kind of 60-40 to win on. But, I do think that there had better be a plan B and there had better be a plan C, and people had better be serious about doing something. In this political environment, I don’t know that that is possible. 

MARY AGNES CAREY: What do you think, Stuart?

STUART TAYLOR: I think that there is a case to be made that unelected justices should defer to the political branches on things like this. I’m not sure that will win on the individual mandate, but when they get to deciding what do we do with the other 2,700 pages, I think the path of least resistance might be to do what the administration suggests they could do – which is pretty much what Tom just described – take down the guaranteed issue and community rating, because it won’t work without them. If the government is telling you it won’t work without them it’s kind of hard to say: Oh no, we think it will work.

And then the more restrained path, at least in terms of appearances, would be to let everything else stand, because the government says that all the other things will work okay. Now, of course, the Wall Street Journal editorial page says that the judicially-restrained thing to do would be just to strike the whole thing down, which takes some explaining.  

MARY AGNES CAREY: I’d like to close – just to build upon the thought that Tom mentioned – if this law does go down, when do you think a health overhaul measure of this scope and size would be debated again. Julie, I’ll start with you. 

JULIE ROVNER:  Well, I can tell you that when the Clinton plan went down it was 1993. And it took until 2008, so do the math. Things move a little bit faster, but I think it would be a long time. And, you know, bearing in mind that you’ve got 78 million baby boomers who are getting ready to go on Medicare, and health costs are eating up the rest of the federal budget, I’m not sure that would necessarily be a good thing for the country.

MARY AGNES CAREY: Any closing thoughts on that Stuart?

STUART TAYLOR:  I’d just like to ask Julie what percent of the GDP will be going to health care by the time they get back to this if it’s struck down?

JULIE ROVNER:  Were at about, what 17, now?  I’m sure it will be probably 20-25. 

MARY AGNES CAREY: On that happy note, I’d like to thank all of you for a fantastic discussion. Thanks again Stuart Taylor, legal analyst for Kaiser Health News, Julie Rovner of National Public Radio, and Tom Goldstein of SCOTUSblog. And thank you. I’m Mary Agnes Carey with Kaiser Health News.

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