Health Care Back in Court

This is a rush transcript from "Special Report," May 10, 2011. This copy may not be in its final form and may be updated.


KEN CUCCINELLI, R-VIR., ATTORNEY GENERAL: Using the constitution's commerce clause to force people to buy a product goes beyond Congress' enumerated powers. That is why I have said all along this case is about liberty, not healthcare, because if they can do it for health insurance, they can do it for anything else as well.


BRET BAIER, ANCHOR: Virginia's attorney general talking about the appellate court case in front of Richmond appellate court, the fourth circuit. Two separate challenges to the president's healthcare law based on the same bottom line argument, that Congress overstepped its constitutional power to regulate commerce when it passed the law mandating that everyone purchase health insurance.

Here is what Stephanie Cutter a presidential assistant on special projects responded, quote, "Those who claim that the 'individual responsibility' provision exceeds Congress' power to regulate interstate commerce because it penalizes 'inactivity' are simply wrong. Individuals who choose to go without health insurance are actively making an economic decision that affects all of us." What about the court challenge to the president's healthcare law, the newest one? We're back with the panel. Charles?

CHARLES KRAUTHAMMER, SYNDICATED COLUMNIST: I think what Cutter is saying is a way to vindicate what conservatives have argued, that if you pass this, then there's nothing that the Congress and the president can't regulate, even inactivity, and that means there are no limits on the government. And that means it undoes the basic premise of our constitution, a government of enumerated power. So I think it is a very strong argument that she is making on behalf of the other side.

Look I think what's important here is that it's ultimately going to be a decision of the Supreme Court. It will not be decided in the lower courts. Which means it will be decided by the most powerful man in America, Anthony Kennedy, who decides everything of importance. He'll decide what side of the bed he gets out of on the morning that the court decides.

What's happening, I think in the lower courts is that liberals had originally thought it would be dismissed, their lawsuit against it on the grounds of overstepping the bounds of Congress would be dismissed as a nuisance a suit, or trivial. It now has a lot of traction. A majority of the states are pursuing this.

I think it also has an effect on public opinion. People have a sense that there is something un-American about the government letting a fine, if you don't do "X" or "Y," if you don't, if you don't engage in commerce, engage in purchasing anything. And what they are getting from the courts when you have successes in the lower courts is a sense that it really is noxious and their instinctive sense is correct.

BAIER: Mara this will clearly end up in the U.S. Supreme Court, but is there any sense about how quickly?

MARA LIASSON, NATIONAL PUBLIC RADIO: Well, it's going to go to them next term, it's probably going to get to them in the fall. I mean this is a case that could be decided before Obama runs for re-election, which is really extraordinary when you about it. I mean if his signature piece of legislation is overturned by the Supreme Court, you know, I try to think this through. It's a huge, huge blow. On the other hand, does it energize his base against the Supreme Court? I don't know. I think it would be a big problem for him.

A couple of things. Stephanie Cutter is trying to make the argument that not buying health insurance is being a free rider, and that is not inactivity. That's activity and all we have to pay for those people. That's a hard argument to make. And although I am certainly not a constitutional scholar at all, but it seems to me that if they had just come out and said this isn't a requirement to buy health insurance. We are just going to tax you if you don't have it. And taxing is absolutely constitutional. The federal government can do that. We're gonna --

KRAUTHAMMER: But explain why you can't say it?

LIASSON: Well, they couldn't have passed the bill if they had said it.

KRAUTHAMMER: No it's because Obama denied it openly. He said --


LIASSON: Yes, he denied it to George Stephanopoulos after being grilled, he said it's not a tax.

KRAUTHAMMER: Being grilled? He said it.

LIASSON: Yeah, he said it, but the fact is it would have been simpler and legally more elegant to just say we're not forcing you to get health insurance. We're just going to tax you if you don't have it.

BAIER: Quickly on this, I want to talk to you about a political question, Steve.

STEVE HAYES, SENIOR WRITER, THE WEEKLY STANDARD: Well, I think Charles is right. I mean, if you take what Stephanie Cutter says, I mean, ya know for all the president's supporters who run away or laugh off these claims, these arguments that the president is socialist or something, if you look at the argument she is making here, they might want to have a sit down with her. Because I mean, basically she is arguing that if citizens don't engage in certain economic activities, Congress can do anything, can compel you to do anything. And that is such an extraordinary argument in this context.

BAIER: Speaking of arguments, former governor Mitt Romney will make a speech this week on healthcare, about how to repeal the president's healthcare law. And obviously, Steve, he has got his own explaining to do about Massachusetts healthcare.

There are numerous people out there, including Democratic groups, Republican groups saying, how close Massachusetts healthcare law is to the president's healthcare law.

HAYES: Yeah. At this point, the only people who are denying that the two are close are either Mitt Romney himself or people who work for Mitt Romney. I think he's just in a really tough spot. He is trying to run to lead a party that gave no vote to President Obama for the passage of something that closely resembles his in so many ways -- the individual mandate, canceling all plans, government-run exchanges, the subsidies. There are such obvious similarities. I think he's in a tough spot.

BAIER: It doesn't fit on a bumper sticker.

KRAUTHAMMER: I don't know how he explains it away. I hope he can. I think he would be a great president, but this is a millstone around his neck. And he's gonna give a shot of trying to make it an issue of the past and talk about abolishing it in the future. I hope it works.

BAIER: That's it for the panel. But stay tuned for the importance of a reporter's checklist.

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