How Questioning "Obamacare's" Constitutionality Went Mainstream: Transcript

Friday, March 30, 2012

BOB GARFIELD:  From WNYC in New York, this is On the Media. I’m Bob Garfield.

BROOKE GLADSTONE:  And I’m Brooke Gladstone. This week, it began.

CHIEF JUSTICE ROBERTS:  We will hear argument this morning in Case Number 11-398, Department of Health and Human Services v. Florida.

BROOKE GLADSTONE:  What followed could determine the fate of “Obamacare,” a once derisive term that the President’s reelection website has now embraced, beginning with an “I Like Obamacare” campaign. Meanwhile, it was the subject of six hours of oral arguments over three days in the Supreme Court, the most time devoted to a single law in 46 years.


Two years ago, in an interview with Fox’s Greta Van Susteren, Harvard law professor and former Solicitor General Charles Fried said that if people didn’t like the Obama health care legislation, repeal it or amend it, but don’t ask the courts to do the job for you because they won’t. Van Susteren asked him if it was at all possible he could be wrong.


CHARLES FRIED:  I suppose I could. But I’ll tell you what, I’d be happy to come on this program and eat a hat, which I bought in Australia last month –


-made of kangaroo skin.


BROOKE GLADSTONE:  Josh Gerstein, who covers the courts for Politico, says that in the last two years since the passage of Obamacare, the constitutional argument against it went from a zany fringe idea to a mainstream debate. Josh, welcome to On the Media.

JOSH GERSTEIN:  Great to be here.

BROOKE GLADSTONE:  Here’s Nancy Pelosi in 2009.


NEWS REPORTER:  Where, where specifically does the, the Constitution grant Congress the authority to enact an individual health insurance mandate?

NANCY PELOSI: Are you serious?


NANCY PELOSI:  Are you serious?



BROOKE GLADSTONE:  Why did it seem so unserious?

JOSH GERSTEIN:  Congress has been regulating things related to health insurance for decades. We’ve had Medicare on the books a half a century or so now. And the insurance that most people get through their employers has been heavily regulated by the federal government for decades, as well. And so, it seemed to the proponents of the Health Care Reform Law that it was obvious Congress had the power to require individuals to get insurance.

BROOKE GLADSTONE:  The proponents - that makes sense. What did the opponents of the bill think about its constitutionality?

JOSH GERSTEIN:  There were a lot of arguments presented about why this legislation’s a bad idea, the notion that it was gonna be too expensive or too unworkable. And it was a fairly minor argument raised only very late in the process that maybe the federal government didn’t even have the authority to be operating in this area.


I think some indication of the fact that Republicans were not too worried about this was that you had several Republican senators negotiating with the Democrats, and they weren’t saying, you know, if you drop the individual mandate, I’ll sign on.

BROOKE GLADSTONE:  Okay, but now the challengers may actually be coming within striking distance of knocking out the President’s signature legislative achievement. How did it get from the fringe to the mainstream?

JOSH GERSTEIN:  It began with a couple of Op Ed pieces that were written in The Washington Post and in The Wall Street Journal in the end of 2009 by David Rivkin and Lee Casey, two lawyers who have worked in Republican Justice Departments. And they argued that there’s no authority in the Constitution for this. They eventually got some support from a Georgetown law professor by the name of Randy Barnett, who wrote a paper arguing that the legislation was unconstitutional.


What’s interesting though is he wrote that paper for the Heritage Foundation, along with a couple of other people. Just a couple of decades ago, the idea of the individual mandate was first promoted by the Heritage Foundation.

BROOKE GLADSTONE:  But surely, these two extremely conservative legal scholars and this paper weren’t enough to provide media momentum on their own.

JOSH GERSTEIN:  Well, you have to remember what the political atmosphere was like towards the end of 2009 and the beginning of 2010 – angry debates in Town Hall meetings, the rise of the Tea Party movement. And the arguments that were being made by the conservative lawyers really dovetailed with the philosophy of the Tea Party movement that government was too big, and that really injected this argument into the mainstream of political discourse around 2010.

BROOKE GLADSTONE:  So two years ago this month, President Obama signed the bill into law. Immediately, the lawsuits started coming. At the end of 2010, a U.S. district court in Richmond became the first one to rule that the mandate was unconstitutional.

JOSH GERSTEIN:  Ultimately, two district courts said that Obamacare was unconstitutional. And it got huge attention. It got front page play in a lot of major newspapers. It was all over cable television. But what many people don’t realize is that there were a couple dozen lawsuits filed all over the country. And most of them, in fact, were rejected by judges. But those early decisions saying the law was unconstitutional really grabbed the headlines.

BROOKE GLADSTONE:  “Is this a clear display of the mainstream media’s right wing bias,” she says waggishly.

JOSH GERSTEIN:  I don’t think it’s really a matter of right wing bias, in this instance. It reminds me a little bit of a – you know, the discussion we often have in newsrooms about, you know, plane crashes and how we cover the planes that crash but not all the ones that land safely. Likewise, when it comes to the courts, if they rule a landmark federal law unconstitutional, that’s a huge headline. If a judge says it’s not unconstitutional, that’s a brief that you tuck into the National section somewhere.

BROOKE GLADSTONE:  Did the media change the nature of the debate?

JOSH GERSTEIN:  On TV and to some extent in print, you end up with a binary display where you have one person saying it’s constitutional and another person is saying it’s unconstitutional.


I think it’s possible that the media did make these arguments seem more legitimate and really pulled these arguments into the mainstream. Legal reporters would tell you that the vast majority of legal experts and law professors believe that the Obamacare legislation is constitutional. Even conservative thinkers early on said they didn’t think this had much of a chance. They thought it was gonna fail in the Supreme Court by something like an eight to one margin.


What took place during the oral arguments doesn’t look like an eight to one case. It looks like it could be closer than that. And, and the big question we’re all left with is, is that because of what the law dictates or is there something of a self-fulfilling prophesy here?

BROOKE GLADSTONE:  Josh, thank you very much.

JOSH GERSTEIN:  Thank you, Brooke.

BROOKE GLADSTONE:  Josh Gerstein coves the courts for Politico.


Josh Gerstein

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Brooke Gladstone