JOURNAL EDITORIAL REPORT

What happens if the individual mandate is overturned?

Political implications of Supreme Court's decision

 

This is a rush transcript from "Journal Editorial Report," March 31, 2012. This copy may not be in its final form and may be updated.

PAUL GIGOT, HOST: This week on the "Journal Editorial Report," the waiting game begins as the Supreme Court justices decide the fate of Obama- care. We have all the highlights from this week's historic oral argument.

Plus, the political implications if the individual mandate falls, and what it would mean for America's health care system?

All of that, and the phenomenon of the "Hunger Games." It's a box office smash. But should your kids be seeing it?

Welcome to the "Journal Editorial Report." I'm Paul Gigot.

After a historic three days of oral argument, the fate of President Obama's signature legislative achievement, the Patient Protection and Affordable Care Act is now in the hands of the nine Supreme Court justices.

Here with a look at the highs and lows of the week's proceedings, Wall Street Journal columnist and deputy editor, Dan Henninger, editorial board member, Joe Rago; and opinionjournal.com editor, James Taranto.

So, momentous week at the court, fascinating week. Before the week, the conventional wisdom in the legal establishment was, this is an easy call, the law is going to be upheld. At the end of the week, you could almost feel the shift during the course of the week and, at the end, even the left was saying, you know, there's a very good chance that part or all of this law could go down.

JAMES TARANTO, OPINIONJOURNAL.COM EDITOR: Yes, and the big news was Justice Anthony Kennedy. Unlike the liberal justices, who left no doubt where they stood, or Justice Scalia, who was also comically injudicious. He was comically injudicious. Look how many times it says "laughter" in the transcript. Justice Kennedy did not signal how he would vote. But he made it very clear he's taking seriously the arguments of the states, who are the plaintiffs in the case. Both the argument that the individual mandate, that you have to buy insurance, is unconstitutional, it exceeds Congress's legitimate power, and the argument that if the individual mandate falls, the best remedy is to strike down the entire law.

GIGOT: Let's here the first, on the individual mandate, an exert from Justice Kennedy.

(BEGIN VIDEO CLIP)

ANTHONY KENNEDY, U.S. SUPREME COURT JUSTICE. He the government is saying that the federal government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases --

UNIDENTIFIED MALE: Well.

KENNEDY: -- that changes the relationship with the federal government to the individual, in a very fundamental way.

(END VIDEO CLIP)

GIGOT: Dan, the core principle in Anthony Kennedy's jurisprudence is liberty. That is individual liberty. You've seen it in gay rights cases, but you also see in this tension -- he talks about the separation of powers. If one part of government, the federal government, doesn't get too large or too powerful, you protect individual liberty with a tension between state power and federal power. That's really a central issue in this case, isn't it?

DAN HENNINGER, COLUMNIST & DEPUTY EDITOR: Well, there's no question about it. And the government's case denies that it involves any of that sort of thing, which is one of the reasons they were having such difficulty making their argument. As Chief Justice Roberts pointed out at one point, there are -- the federal government has enumerated powers. Which is to say, they are listed. We know what they are. And they are limited. And the -- the question that they kept putting to the government's lawyers is, in what way is this extension of the Commerce Clause not exceeding those enumerated powers. And because they deny that it has anything to do with any sort of extraordinary extension of the Commerce Clause, he was unable to talk about that subject. And I think that's the reason he sort of looked foolish throughout the day's argument.

GIGOT: You mean the solicitor general?

HENNINGER: The solicitor general was not able to talk to the central issue that Kennedy was putting to him.

GIGOT: But Kennedy did leave open, Joe, the possibility that Justice Kennedy could find a limited principle in a relationship with the young people, to the larger health insurance market.

JOE RAGO, EDITORIAL BOARD MEMBER: Right, saying, at some point, you'll consume health care, therefore, we can mandate that you buy insurance. The problem is that really isn't a limiting principle. And you say that health care leads to health insurance, all sorts of things lead through health care, you know, whether it's healthy decisions, life choices. So, it's really another way of stating the police powers that -- and the separation--

GIGOT: The separation of states.

RAGO: The separation of the states and the federal government that's at the core of this jurisprudence.

GIGOT: How big a hole is there for Justice Kennedy to walk through if he wants to uphold this mandate?

TARANTO: Not a very big hole, it seems to me. I mean, he would have to define it very narrowly and explain why the health insurance business is different from all other businesses, different so that the federal government can order people to buy something. All right, in prefacing that comment that Joe just quoted, Kennedy said, well, they say that this market is unique. Of course, they'll say that about the next market that comes before us.

GIGOT: All right, let's take up another issue, which is, if the mandate goes down, then how much of the rest of the law needs to fall.

Let's listen to Justice Ginsburg.

(BEGIN VIDEO CLIP)

RUTH BADER GINSBURG, U.S. SUPREME COURT JUSTICE: There's a question of whether we say everything you did was no good, and now start from scratch or to say, yes, there are many things that have nothing to do, frankly, with the affordable health care. And there are some that maybe it's better to let Congress to decide whether it wants them in or out. So why should we say it's a choice between a wrecking operation, which is what you are requesting, or a salvage job, and the more conservative approach would be salvage rather than throwing out everything.

(END VIDEO CLIP)

GIGOT: Dan, a salvage job. That's what she's undertaking here? Is she implying that the individual mandate's already gone and trying to save the rest of the law?

HENNINGER: They obviously are trying to save the rest of the law. And Justice Scalia got one of his biggest laugh when he said, doesn't the Eighth Amendment come into play here when --

(CROSSTALK)

GIGOT: Cruel and unusual punishment.

HENNINGER: Cruel and unusual punishment.

(LAUGHTER)

But --

GIGOT: Because the justices would have to sort through all 2700 pages and say, well, that stays, that goes, that stays, that goes. That would be a big undertaking.

HENNINGER: Yes. And it gets to the nature of the law itself. Judge Vincent, on one of the lower court rulings, said it was not severable. I think that Judge Vincent may be the only one that read all 2,700 pages. Seriously. Because once you do that, you see that this thing is like just the most incomprehensible complex piece of legislation. And for somebody to -- like Justice Ginsburg to start describing which of these endless parts you're going to save is kind of a fool's errand.

GIGOT: The critics of the court, if it overturns the law, will say this is a very activist act by the justices. They're really just taking this law and throwing it out in total. But would it be really activist or be more activist just to overthrow part of it?

RAGO: Well, see, that's the point. If they strike some parts and not others, they're creating a new law that Congress never intended. So, wouldn't it be better, Justice Scalia argues, to give Congress a blank slate. To say, look, you screwed up with this one. But start from scratch. This is an important problem. And the analogy he drew was to campaign finance law, where in the late 1970s, they threw out some parts of regulations on political speech, and now we just have a mish-mash of contradictory rules that persists to this day.

GIGOT: James?

TARANTO: Judge Vincent had the best answer.

GIGOT: At the appellate court?

TARANTO: At the trial court.

GIGOT: Trial court.

TARANTO: Had the best answer to Justice Ginsburg's analogy of the salvage operation versus a wrecking job. He said this is like a defectively designed watch where the designer has made a significant error in designing one of the main moving parts. You can't redesign it. You have to -- you can't salvage it. You have to throw it out. It's junk.

GIGOT: All right.

Still ahead, what happens to America's health insurance markets if the individual mandate is overturned? And would it help or hurt President Obama in the fall? Answers to those questions and more when we come back.

(BEGIN VIDEO CLIP)

(CHANTING)

(END VIDEO CLIP)

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

SEN. HARRY REID, D-NV, SENATE MAJORITY LEADER: Do I think it would damage the Democrats if the law is overturned? You folks read stuff more than I do. There's a significant school of thought that the administration is -- puts them in a better position for the election if it's turned down.

(END VIDEO CLIP)

GIGOT: That was Senate Majority Leader Harry Reid speculating on the potential benefit for the president and Democrats if all or part of Obama- care is overturned.

Let's assume, Joe, for the sake of argument that that happens. Let's talk about the health care system first. What happens to this law if the mandate and some of the main regulations are overturned?

RAGO: We're just going to have an incredible amount of uncertainty, even more so than we have with the law, as it is now. You're going to kind of have a hole right in the middle of it. And I think that Congress is going to have to go back one way or the other and either defer this for a year, two years, maybe longer, and come up with something that will work without the heart of the law.

GIGOT: But you'd still have potentially a lot of it still in place. You might still have maybe the states having to put together the exchanges. You might still have the subsidies in place. But no cost control mechanism to control the cost of health care.

RAGO: Right. No, exactly. You'll have a regime, like in six states right now, where they have all kinds of regulations that drive up health costs, but nothing to offset them. So, I think you're going to see major problems.

GIGOT: What about the political implications, Dan? You buy Harry Reid's argument that is this goes down -- and James Carville's argument, the Democratic consultant, that this will help Democrats?

HENNINGER: I don't see how it helps them at all. This is something they said they've been trying to do for 70 years. It was the crown jewel.

GIGOT: Only 70?

HENNINGER: Yes.

(LAUGHTER)

It was talked about during the depression and the Roosevelt years. And this is the crown jewel of President Obama's -- excuse me -- first term. And for the Supreme Court to overturn it, I think is a significant blow to the Democratic idea. And sure, they'll try to demonize the Supreme Court. What else are they going to do? But out there among average voters, it's going to suppress the president's support.

GIGOT: But you have a lot of Republicans, even this week, who are fretting, oh, my gosh, we'll lose our best issue if this is defeated. I mean, Steven King -- our colleague, Simpkins Rossel (ph), wrote about the Iowa Congressman who was saying, oh, man, this would be bad. Does that make any sense?

TARANTO: Well, it makes sense if you think about how it's bad for Obama if the law is upheld, because that means he has to run on this widely hated law that is going to have terrible --

(CROSSTALK)

GIGOT: Yes, but if you're like Dan, if you're like Dan and you think, as I do, that this is -- they want this because they really want the government to run health care. This is the culmination of the social welfare system.

TARANTO: Right, that's a policy argument and this is an argument about the short-term political effect. All right, it doesn't really make sense to say, it's going to help Obama to have his signature initiative deemed unconstitutional. It's hard to see how it helps Obama either way. And so, the answer is, really, what happened was, this law that was passed two years ago was a political disaster for Obama. And either way he's going to pay the price for it in November.

GIGOT: Dan, what about the court when it thinks about it, particularly Chief Justice John Roberts, when he thinks about the reputation of the court, he must know if this is a 5-4 decision that the left and maybe even the president himself is really going to go after the Supreme Court and say, fundamentally, this was a political judgment, another Bush v. Gore.

HENNINGER: Yes.

GIGOT: Do you think that would give the justices pause to say, you know what, whatever we think about the -- the constitutional arguments, we've got to think about the reputation of the court. And so, we're going to be very cautious here about overturning the law.

HENNINGER: Well, I understand that concern. But I think, what we have here, is a division similar to one we've talked about before, which is the partisan division in Congress itself. Everyone followed this case and obviously, the case was argued seriously over the issue of the extension --

GIGOT: Really substantive issues.

HENNINGER: Very substantive issues. And what we discovered is this court, the courts, are divided over the law, over -- the left and right divided over the interpretation of the extent of federal power, vis-a-vis the state and the individual. And this is -- they are now so far apart, it's going to be very difficult to bring them together. Just as it is difficult now to bring Congress together. And ultimately, I think this is the sort of thing that has to be resolved in the election booth and in the November election. The American people have to think about which direction they want to go in.

GIGOT: Joe, what do you think is going to happen?

RAGO: I think 5-4 decision upholding the law, but right on the edge there. It could go either way.

GIGOT: James?

TARANTO: I also think 5-4, but to strike down the mandate. and after sitting through the session this week, I think there's a good chance the whole law would be overturned.

GIGOT: Dan?

HENNINGER: It would be impossible to imagine Anthony Kennedy supporting the mandate after all the criticism, articulate criticism he made in those hearings.

GIGOT: This is bigger than one president or one election, or even one law. This is about the structure of the American government and liberty. And I hope the justices take it that way and ignore all of the outside politics.

When we come back, it's a box office phenomenon, setting records on its opening weekend, but should you let your children see "Hunger Games"?

(COMMERCIAL BREAK)

GIGOT: Well, it's a box office smash, taking in a record-breaking $155 million in North America last weekend. But is "Hunger Games" appropriate for kids? The movie is based on the first book in the best- selling young adult trilogy by Suzanne Collins.

And in a controversial essay in the Wall Street Journal last year, children's book critic, Megan Cox Gurdon, called the "Hunger Games" hyper- violent and lamented what she says as the book industries, quote, "ever more appalling offerings for adolescent readers."

Megan Cox Gurdon joins me now.

Thanks so much for being here.

MEGAN COX GURDON, WSJ CHILDREN'S BOOK CRITIC: Great to be here, thanks.

GIGOT: So you followed the book and now the movie. What is the appeal of this phenomenon to -- why are so many young adults, young teenagers seeing this movie?

COX GURDON: It's -- well, it's very compelling story. And I think that, first of all, we know that the gladiatorial concept has been interesting to people since before the Christian era. And now we're in the post-Christian era and people are still enjoying gladiatorial contests.

(LAUGHTER)

It's something that speaks very deep in the human experience. We all want to slow down and look at the horrible thing on the highway. So that is part of what brings people into it. It's such a transgressive idea. It has young children, children in this case as young as 12, killing each other, fighting to the death in the arena for the pleasure of the adults around them. And I think you can say that there are all sorts of concepts in the book that are -- are less lurid and interesting, and so we can talk about that.

(CROSSTALK)

GIGOT: Yes, and one -- one of my colleagues here has a 13-year-old son and he allowed him to go to the movie. And he said that there were actually some very good traditional moral themes in the movie. And what are those?

COX GURDON: Yes, well, that's right. Once you get past the violence and I think maybe starting at the age of 13 and going up, and not younger than that I would say, you have a really classic and interesting demonstration of the individuals, a noble individual who is motivated by good and honorable instincts, dealing with a tyrannical and distorted government that is -- that takes concepts like honor and hope and twists them in evil ways. And what you have is the -- in this particular story, you have the president of this corrupt culture is invoking concepts like honor in an entirely cynical way as part of the way that's depressing the population.

(CROSSTALK)

GIGOT: Politicians have been known to do that.

COX GURDON: Well, indeed. And you have actually the individuals, through their acts of genuine sacrifice and genuine love, show in sharp relief that kind of the falseness, as it were, the politicians are saying. So, yes, it's very compelling. And the individual against the state is a live issue at all times. And certainly not -- I think your conversation a few minutes ago has to do with that.

GIGOT: You wrote, in your essay for the "Journal," about how the larger universe of these young adult books do tend to deal with very dark themes these days, dysfunctional families and behavior, even depraved behavior. Why -- obviously, the books sell, because the publishers wouldn't public them if they didn't. What does it tell us about the larger culture that these themes are so prominent and popular?

COX GURDON: Well, they're prominent in a particular sub group. I will stipulate. There are young adult books that don't deal with the dark stuff.

Again, going back to the first point, the human creature is drawn to darkness. And therefore, if you offer darkness, people will gravitate towards it. It's one of the more remarkable features of the way we're designed, I suppose.

It's also -- in the "Hunger Games" and some other young adult books, there's a very strong -- how do I put it? There's a strong element of the scrutiny under which teenagers find themselves. And you know, I thought about the "Hunger Games" itself. It's -- it's like helicopter parenting, plus Facebook, plus Twitter.

(LAUGHTER)

The characters in this story have to -- in order to survive, have to get people to like them. It's a perfect analogy of how high school can be for children now.

GIGOT: What price do children pay for these messages? We like to think of childhood as an innocent time, relatively innocent. Certainly, when I you -- and I'm showing my age here -- I read the Hardy boys and Robinson Crusoe. This is a long ways from that.

COX GURDON: All great literature has a certain amount of darkness in it, doesn't it? Even Robinson Crusoe even.

GIGOT: Sure. Of course.

COX GURDON: But it's the way in which it is presented, right? It's the immediacy. It's whether it takes place in a place with some distance from the reader or a place that's immediate. I would say, with the "Hunger Games," in particular, the books and movie really are for children on the older end of the spectrum.

GIGOT: Right.

A lot of pressure on the parents for the 10 -- in my own household, there's a 10-year-old --

(LAUGHTER)

-- that's going to be outrage when she finds out that she's not allowed to see the movie. But it's rather well done for what it is with its excellent moral themes. And yet, it's unbelievably brutal and very tough to see, you know, a 12-year-old with a spear sticking out of her.

GIGOT: OK. Megan Cox Gurdon, thanks so much for being here.

COX GURDON: Thanks for having me.

GIGOT: We have to take one more break. When we come back, "Hits and Misses" of the week.

(COMMERCIAL BREAK)

GIGOT: Time now for "Hits and Misses" of the week.

Joe, first to you.

RAGO: Joe, a surprise hit this week to President Obama for naming Jim Kim to the World Bank. He passed over the usual ex-politicians and ex- bankers for the Dartmouth president and medical doctor. He brings an outsider perspective to a dysfunctional institution and may actually do some tangible good for the world's poor. It's an inspired pick.

GIGOT: Except we're not sure how good it is for Jim Kim going into that snake pit.

James?

TARANTO: A miss for Gannett, the newspaper company. Their Wisconsin media investigative team did an expose of 29 state judges who had signed a petition to recall Governor Scott Walker. They called it watch dog journalism in the finest sense. Then it turned out that 25 Gannett reporters signed the petition as well. The Gannett revealed his in the interest of full transparency but did not disclose the names of the reporters. Paul, who will watch the watch dogs?

(LAUGHTER)

GIGOT: All right.

Dan?

HENNINGER: Paul, a hit for the people described in recent stories as avoiding the new iPhones and clinging to their ancient cell phones, like this 6-yeawr-old Samsung 707. Now, I'm not a technophobe. I love carrying around 25 books on my e-reader, but I'm all for anybody trying to minimize their interface or not be captured by the world of computer engineers.

(LAUGHTER)

GIGOT: That's surprisingly slick. Why don't you have a big -- real clunkers?

HENNINGER: I got in on the ground floor.

(LAUGHTER)

I was reluctant to get one of those big ones.

GIGOT: All right.

That's it for this week's edition of the "Journal Editorial Report." Thanks to my panel and to all of you for watching. I'm Paul Gigot. We hope to see you right here next week.

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