Guests: Dahlia Lithwick, Neal Katyal
RACHEL MADDOW, HOST: I love you, Ed, you're awesome.
ED SCHULTZ, "THE ED SHOW" HOST: I love you too, Rachel.
MADDOW: Thanks, man, I appreciate it.
Thanks to you, again, for joining us on this hour on what is a
historic news day for the richest country on the planet.
The United States of America is the largest economy in the world, the
richest country on the planet. And that sometimes makes it hard to believe
that this has to happen here.
(BEGIN VIDEO CLIPS)
SCHULTZ: What brings you here?
UNIDENTIFIED MALE: Oh, just can`t afford to go to a regular doctor
and they advertise this on TV, so I called in to get my blood pressure
medication done, anti-anxiety medication, get it refilled.
SCHULTZ: How often do you go to a doctor?
UNIDENTIFIED MALE: Least as possible.
SCHULTZ: Haven`t been very often?
UNIDENTIFIED MALE: No, can`t afford to go to the emergency room,
costs too much.
REPORTER: You drove 200 miles to get here and slept in this parking
lot just to have this done?
UNIDENTIFIED MALE: Yes. I`ve been in very excruciating pain.
REPORTER: There`s no shame in seeking health care.
UNIDENTIFIED FEMALE: No, you`re right. Really, I am sad that we are
the wealthiest nation in world and we don`t take care of our own. But it
will be okay.
(END VIDEO CLIPS)
MADDOW: Free clinics like those, with Americans lining up for days
and some days camping out for a chance to see a doctor or dentist because
there`s no other way in this country to get care -- that is hard to
understand for the richest country on Earth.
In Alabama just last month, in a part of the state called the Black
Belt for its fertile, dark, rich soil, Alabama last month welcomed the
United States military to come in and set up a clinic to provide basic
health care to Alabama residents.
Over less than two weeks, military doctors treated more than 12,000
people, 12,000 Americans in an area with few doctors and a multitude of
medical problems. Aside from general health care screening and nutrition
screening, military doctors are fitting patients for eyeglasses and pulling
teeth by the dozens because there isn`t anywhere else. There isn`t any
other way for these Americans to get just basic care. We don`t have a
system for that in America.
Part of the reason the military has started doing this kind of thing,
not just in Alabama, but in Mississippi, in Arkansas, other places, is
because it is good training for our military. "The Associated Press"
writing up this event in Alabama "Operation Black Belt," noting that by
doing these clinics, our servicemen and women, quote, "learn to set up
health clinics and other projects and deal with large amounts of people
just as they might do after a natural disaster or in a foreign country."
Now, to be clear, we don`t have to do foreign disaster aide style
clinics like this because there has been some kind of disaster in these
places, the disaster here is just the normal status quo, access to health
care in parts of the United States and for many millions of Americans is an
appropriate dress rehearsal for the U.S. military training to respond to
earthquakes and floods in the developing world.
We are a rich country but we have a really profligate, wasteful,
inefficient, poorly run health care system that does not work. Not only
doesn`t work for people for whom it doesn`t work, it doesn`t work for us as
Look at this, this is what Australia spends per capita on health care
and Canada as well. Now I think we`ve also got Germany and the Netherlands
there. Here`s New Zealand`s and the United Kingdom, the per capita health
care costs, and here`s the United States.
We spend double what other modern, well-off industrialized nations
spend on health care, and for the privilege of paying twice as much as
everybody else, we get something those other countries just don`t have, we
get 30 million people with no health care coverage -- no access to a
regular doctor, no way to get something checked out before it gets serious.
Tens of millions of Americans dependent on begging at the emergency room or
maybe camping out overnight for charity care.
And even if you do have coverage, as a country we are not getting
great care. Compared to other like countries. We get a worse life
expectancy than everybody else. We get fewer doctors per capita. We get
fewer hospital beds per capita. We`re ranked second to last on quality of
Part of the reason, it`s not working right, is that the system we have
got in our country was never designed to be a system. During World War II,
when the nation was 110 percent devoted to the war effort and industrial
production was turning to war-time purposes and war-time wage controls and
price controls limited the way that businesses could compete for workers
who they desperately needed and were in short supply, businesses then
started offering health insurance as an extra perk to try to attract
The idea the population being insured through private insurance routed
through who your employer is, is an accident. Over time, we`ve kept that
accident, and we`ve tried to patch together fixes to work around the worst
implications of that accident.
For the elderly who weren`t working, so they are not going to get
covered by any employer, we came up with Medicare.
For the very poor or for the disabled who also aren`t working or who
are working at jobs so low wage that they`ll never offer benefits, we came
up with Medicaid.
For veterans to whom the nation promises health care as a rather
sacred deal we make with them in exchange for them agreeing to die for the
country if asked to do so, for veterans, there`s the V.A. health system.
For people laid off and on the way to their next job but need a bridge
to keep their coverage while they`re between employers, a president named
Ronald Reagan signed something into law called COBRA. COBRA lets you
extend your old health insurance after you left your old company.
For kids who are unlucky enough to have their parents` uninsured or
not be covered on their parents` insurance for some reason, there is a
health insurance program that`s specific to kids, it`s called SCHIP.
And all of those fixes arranged by the government, all of those fixes
do work in their own way for the people they are designed to serve.
Honestly, COBRA sucks, because it`s expensive, but everything else works.
Medicare in particular is beloved and it is provided with much lower
overhead costs than the private insurance system, but for everybody that`s
not covered by those policy patches we`ve come up with, one of those fixes,
the system has just been still based on that initial accidental non-system
of private insurance through the place where you work, and that system
means very, very expensive care. It means out of control rising and
unpredictable costs for American businesses who are providing that
coverage, which is a responsibility that, frankly, their international
competitors do not have.
And for families or God forbid for individuals trying to pay coverage,
costs are just out of control. It is not a real system, it`s a crazy,
quote, "patchwork" that does not work for the country. Even the people it
does work for, it doesn`t work for you because of the pointless drag this
non-system is on our economy as a country.
After Democrats trying and failing to reform this mess in the 1990s
and Republicans rejoicing at that failure and the problem just still
getting worse, when the new Democratic president and Congress were elected
in 2008, they decided to try again, and they did it.
And you know what? They did it in the most conservative way possible,
a cautious, centrist, tested approach, they used as a template the
Republican plan from 1993, a plan that had been implemented in one U.S.
state by the most unlikely next presidential nominee, but even with all
those Republican and bipartisan branches extended, even following the most
small C conservative possible to reform, they got no Republican help to
Republicans then turned to the conservative majority U.S. Supreme
Court arguing that the policy they themselves have championed for decades
should now be seen as unconstitutional, if not tyrannical.
Today, of course, as you may have already heard, the court said no to
that. The court put a rest to that. And so, we`ve got reformed. We have
a restrained, incremental reform that keeps together that patchwork private
insurance system, but reforms it.
It essentially trades between the government and those private
insurance companies, a deal, an agreement by the companies to lower costs
in exchange for those companies getting millions more customers, millions
more people covered by private insurance. It is a pretty small c
conservative reform, but even that was almost politically impossible,
Now, a few practical, pretty non-ideological forward-thinking states
like Vermont and Montana have been talking about trying to move their
states to an even more cogent system, to a single-payer system, that gets
rid of the expensive bureaucratic layer of private insurance companies and
just essentially expands Medicare to cover everybody.
Both of those states, incidentally, border Canada, which has that kind
of a system -- a single payer system -- and apparently that kind of a
system looks good from up close.
But for the country as a whole, today was a landmark day. Today was a
victory for policy, for the now apparently totally partisan notion that if
we see problems, systemic problems in our country, we should try to solve
them using our constitutional small d democratic representative American
system of government.
It was a historic plan of flag, state your position day today -- a
declaration that politics of something other than just for fighting, it`s
for policy. It is for trying to tackle and surmount even our most
Now, politically, today, there is, of course, a freak out on the
right. There is much strategizing on the left. We`ll have more of that to
come over the course of this hour. Institutionally, the court itself has
avoided what looked like an impending crisis of caricatured raw
partisanship in that branch of government.
But big picture, on a historic day, on it`s worth looking at the
biggest possible picture, right? And big picture, this is a simple,
strong, good thing, if you agree in the simple, strong, good idea that as a
country, we can solve our problems through the American system that we`ve
We can solve problems using what the Founders gave us, which is a
constitutional defined representative system of, yes, government, through
which we shape solutions.
The political process for all of its nonsense and static is here to
produce policy -- policy to solve problems, even the big problems.
Joining us now is Dahlia Lithwick, senior editor at Slate.com, who is
at the court for today`s ruling.
Dahlia, thank you for being here. It`s nice to have you here.
DAHLIA LITHWICK, SLATE.COM: Thank you for having me back, Rachel. It
is a big, big day.
MADDOW: It is. And, you know, and legally the court said this
Congress, this law is allowed to do this particular big thing, to try to
solve this problem that we`ve got in this specific way. But is there kind
of a trap door in this ruling in saying, yes, Congress can do this, but it
can`t do a lot of other things it thought it could do under the Commerce
Clause? Is there -- is there sort of a hidden message in this ruling?
LITHWICK: I think there was some fear early this morning, you know,
on some of the con law list serves that I hang out on that maybe there`s a
poison pill in here, that there`s a really, really crabbed version of
Commerce Clause power that comes out of this or, you know, that the
Medicaid expansion, which was struck down as it exists, that that really
could be consequential. But I think over the course of the day what I
heard more and more is actually, these are pretty constrained rulings, that
there were not five votes that were clear votes on what the Commerce Clause
power is. Chief John Roberts wrote for himself and the four dissenters did
not agree with him.
So, we don`t have exactly five votes, we might have a lot of dicta,
that`s legalese for throat clearing, from the chief justice about striking
down the mandate on Commerce Clause grounds.
So I don`t know that there`s a poison pill in here. I think this
might be a one time only a moment.
And furthermore, as long as we call this a tax going forward, Rachel,
we won`t have this problem again.
MADDOW: In terms of calling it a tax, I believe that was a legally
crucial distinction. Let me float to you what I think that means in policy
terms, and you tell me if it matches what the legal ruling. As far as I
can see, the federal government decides things like when you buy gas, we`re
putting a tax on that, because frankly when you buy gas, that means you`re
driving a car, your car creates wear and tear on the roads, we need to
maintain the road, there`s going to be a tax on that.
You`re not forced to buy gas, but if you are, there`s a tax.
Similarity, if you choose not to have health insurance, everybody else
has to pay for your freaking care when you show up at the emergency room or
whatever, and we decide as a society, decide not to let you die. In
exchange for us having that value of not letting you die, so therefore,
covering your uninsured care, we`re going to tax your decision to not have
It`s the same principle at work, legally speaking. That`s how I
understood it as a non-lawyer, is that basically right?
LITHWICK: That`s it. I mean, Chief Justice John Roberts alone among
the conservatives said the government has broad taxing powers, broad powers
under the Spending Clause, and even though they deliberately didn`t call
this a tax and that irks him a little, it`s a tax.
It walks like a tax, it quacks like a tax, so it`s a tax. And so yes,
the government can levy taxes and that`s what this is, and therefore, even
though the Commerce Clause power is exceeded, the tax power is perfectly
acceptable and the law stands.
MADDOW: And specifically, I mean, it`s been interesting to watch the
evolution of the interpretation of the ruling on the right today,
particularly in conservative media, and they`ve now decided that because
Justice Roberts used that term "tax" to describe why he thought the
individual mandate was legal, and I think he was specifically talking about
the penalty you have to pay if you decide to be uninsured, they decided
it`s a broad-based tax on everybody in the country in order to have health
That isn`t what he meant, is it?
LITHWICK: No, I mean, I think what he meant, you should have called
this a tax in the first place, Obama administration, you knew it was one.
There were political reasons you didn`t, but I sure wish you had, but it`s
a tax. People can choose to pay it or not, there are no criminal
consequences for not paying it, move on.
I think really what he was saying was I found a way to save this bill.
He`s very eloquent, by the way, in saying, look, this is what the courts
are tasked with doing. They are tasked with being humble, with saving as
much as the legislation as they can, I choose to find a constitutional way
to uphold this bill, because that`s what the courts should do.
So, really actually what he did today was very much in keeping with
the promises he made at his confirmation hearing, to take the court out of
the story and let the political branches sort this out.
MADDOW: Dahlia Lithwick, senior editor at Slate.com -- big picture,
as always. Thank you, Dahlia. I really appreciate it.
LITHWICK: Thank you, Rachel.
MADDOW: All right, we have one of the Obama administration lawyers
who helped defend health reform in the courts joining us next. And we`ve
got Ezra Klein. And we`ve got the best new thing in the world, and we`ve
got lots more, and maybe I`ll have another coughing fit and have to go to
early commercial like I did last night.
Anything could happen. Please, stay with us.
MADDOW: As cases over the constitutionality of President Obama`s
health reform law worked their way through the federal appeals court
systems, the government side was argued in several instances by Neal
Katyal, the former acting solicitor general of the United States.
Joins us now on the occasion of the Supreme Court upholding that law
is Neal Katyal, who is now at Georgetown law and in private practice, at
Hogan Lovells, which the former firm of Chief Justice John Roberts.
Mr. Katyal, thank you so much for joining us tonight. It`s nice to
have you here.
NEAL KATYALL, FORMER ACTING U.S. SOLICITOR GENERAL: It`s great to be
MADDOW: Most court watchers with less experience than you were
expecting that if the liberal side won today it would be because Justice
Kennedy swung to their side. That did not happen. It was Justice Roberts
who swung instead.
Why do you think -- do you think that was important? And should more
people have seen it coming?
KATYAL: Well, yes, I do think more people should have seen it coming.
I mean, I think during his confirmation hearings to be chief justice, John
Roberts promised the notion of judicial restraint, of judicial humility, of
really trying to see things as accurately and apolitical as possible and
those of us how have worked for him, I think, saw that in him and took a
lot of heat, frankly, from the left when we said good things about him.
And lo and behold, I think that`s what you have here. I mean, I don`t
want to say, you know, you could view this decision in lots of different
ways, but the one really important thing about the decision is it`s really
an apolitical decision. I mean, the chief justice did what I always teach
my law students to do, which is pretend the parties are reversed and think
like a lawyer and say, you know, who should win this case regardless of who
the party is, who`s on what side of the "V" in the case caption, and that`s
what he did here.
And I think it`s really a model to be celebrated.
MADDOW: In terms of the political -- I guess, political view of the
court and the kind of heat that flies from left to right and right to left
around decisions like this, the right is going nuts today denouncing
Justice Roberts as a traitor and worse. I just wonder if there is --
you`re speaking to me as a liberal speaking to an audience that here`s my
political view over the course of this hour, if you have a response you
think can be constructive in looking at that political pillaring that he`s
KATYAL: Yes, I mean, I think that in this town, particularly in D.C.,
but across the country, everyone thinks about issues like there are the
Republican justices or the Democratic justices, and I think what the
decision today says and Chief Justice Roberts most poignantly says, no,
there are nine justices, and we approach these things as apolitically as
possible. And you saw not just the chief crossing so-called party lines,
you saw Kagan and Breyer also today and voting to strike down a piece of
the Affordable Care Act is unconstitutional.
And so, I think ultimately what this decision is, it`s a resounding
victory for the rule of law, of the idea that, you know, let`s all take a
step back and view this stuff a little more apolitically and as a straight-
up law. And, you know, if Republicans are right that the Affordable Care
Act is bad law, repeal it. But don`t, you know, run to the courts every
time you don`t like something and try and get it struck down as
MADDOW: In terms of that element of the case in which the more
liberal justices crossed over purported party lines on that Commerce Clause
piece -- the Commerce Clause is, of course, the constitutional means by
which Congress makes law for tons of stuff, everything from actual
interstate commerce, to civil rights, and a lot of things in between.
I just spoke with Dahlia Lithwick about this. But I`m wondering what
your view is on part of that decision -- did we get a really big change in
what the government is allowed to do under the auspices of the Commerce
KATYAL: Right. No, I think that`s exactly right, and I normally
agree tremendously with Dahlia, but on this one I think there is a bit of
cause for concern here. I do think there`s language both in the Commerce
Clause parts of the decision, as well as the spending clause parts of the
decision that really do mark possibly a difference between federal state
powers and the tightening of the ability of the federal government to act
in the way it has before.
And so, there is something, frankly, for those conservatives that
believe in limited government to really celebrate here, is the whole
decision by Chief Justice Roberts is really based on a very limited notion
of federal government power. And so, time will tell what this decision
means. But there is language in there that could blossom and become fairly
radical constitutional theory in eliminating a lot of different acts of
MADDOW: I think that`s a really, really important point. I do think
it`s going to become more clear overtime. But it`s something that we
should start to realize happening today in assessing the importance of
Neal Katyal, former acting U.S. solicitor general -- thank you for
your time tonight, and congratulations on your part in the winning side of
this case. I appreciate your time tonight.
All right, we have a really great best new thing in the world today,
which is coming up at the end of the show. Stay tuned.
MADDOW: If you were online at all today, you probably saw this. It`s
the famous Dewey defeats Truman photo re-imagined as President Obama
learning the wrong news about his Supreme Court ruling from CNN online.
This photo montage was created and tweeted by a former "New York Daily
News" reporter, named Gary He, who after this thing went seriously viral
later in the day tweeted this, "My new twitter followers will be
disappointed this weekend when I live tweet my panda hunting expedition
with John Boehner, let me tell you." And now, Gary He is the king of the
Internet, at least for today. At least he`s the king of my Internet.
But why did some of the initial reporting on this historic Supreme
Court ruling today go so badly, and who got it really ostentatiously right
in the face of a lot of other people screwing it up. That`s the subject of
the best new thing in the world today, and it`s really good. It`s coming
MADDOW: Heading into today, heading into health reform ruling day,
you could almost tell by the body language of the Democrats and Republicans
in Washington how each side thought this thing was going to shake out.
Republicans thought they were going to win at the Supreme Court today, and
I think the Democrats thought they were going to lose.
That was the Beltway zeitgeist. That was the common wisdom. That was
how political factions on both sides of the aisle were behaving yesterday.
Democrats were bracing themselves and Republicans were poised to pop
Had they won, Republicans, obviously, would have had a huge political
cudgel with which to hit the Obama administration. This ruling would have
undone the greatest legislative achievement of President Obama`s first
term, one of the greatest Democratic legislative achievements ever. And
their caricature of him as an overreaching president would have moved
So, there was great potential reward for Republicans in having
challenged this law, had they won, and the risk to them was, frankly, not
all that big. I mean, the Republicans did lose badly at today at the
court, but they are essentially where they were before in politics here.
They are vehemently opposed to health care reform, but they have some
awkward baggage that goes along with that, too.
Their own idea for what we ought to about our screwed up health care
system is still that we ought to kill Medicare, which is the one thing in
our health care system that everybody likes and everybody agrees is sort of
working. So, that`s baggage A for them. Baggage B for them is that their
presidential nominee is a guy that did this exact same health reform policy
at the state level.
So, that`s where Republicans were before this ruling and that`s where
Republicans are after this ruling, too. They`ve got a clear position with
a ton of baggage. So, they had a lot to gain if health reform was struck
down today, but they had almost nothing to lose.
On the Democratic side, there was a ton to lose -- the elimination of
the president`s big legislative achievement, right? The boost to the
Republicans who have been attacking him on this for so long.
I mean, conceivably, maybe the Democrats would be able to salvage if
this ruling had gone against him, the ability to run against how partisan
the conservative Supreme Court is. But that was pretty most the Democrats
could have salvaged out of this had the ruling gone the other way.
The big question now -- which nobody`s really talking about today but
I think is the most important political point here about this -- it`s this:
there was a lot of potential risks on the Democratic side had they lost.
Since the Democrats didn`t lose, what`s the Democratic reward for winning?
What do the Democrats win by winning this court ruling today?
What they win is this:
(BEGIN VIDEO CLIP)
BARACK OBAMA, PRESIDENT OF THE UNITED STATES: Insurance companies can
no longer impose lifetime limits on the amount of care you receive. They
can no longer discriminate against children with pre-existing conditions.
They can no longer drop your coverage if you get sick. They can no longer
jack up your premiums without reason.
They are required to provide free preventive care like checkups and
mammograms, a provision that`s already helped 54 million Americans with
private insurance, and by this August, nearly 13 million of you will
receive a rebate from your insurance company because it spent too much on
things like administrative costs and CEO bonuses and not enough on your
There`s more. Because of the Affordable Care Act, young adults under
the age of 26 are able to stay on their parents` health care plans, a
provision that`s already helped 6 million young Americans. And because of
the Affordable Care Act, seniors receive a discount on their prescription
drugs, a discount that`s already saved more than 5 million seniors on
Medicare about $600 each.
All of this is happening because of the Affordable Care Act. These
provisions provide common sense protections for middle class families and
they enjoy broad popular support. And thanks to today`s decision, all of
these benefits and protections will continue for Americans who already have
(END VIDEO CLIP)
MADDOW: Those were the president`s first remarks today upon learning
that the Supreme Court ruling had gone his way. They had upheld his
signature health reform law.
The president talked this much about the politics of it, but mostly,
he talked about the details of the law, he was like a brochure, he talked
about how you get health care, about how this law will solve a lot of
problems we had in our health care system, how it may benefit your family
specifically, whether or not you`ve got health insurance already.
Here`s how to do it. Here`s how it`s going to work -- the president
getting into the specifics today.
The chance to have the country pay attention to those specifics today,
the chance to reclaim the bogeyman under the bed that is Obamacare and
remind you what it actually is is the thing that says you can still get
your kid on health insurance even though if your kid had some pre-existing
condition, that is what the Democrats won today -- a chance to make that
case all over again because they blew the chance in the first place.
And that is the whole political enchilada here. And we know that
because this is not uncharted territory. There is in one state of the
Union a template for how to do this and have it work. Awkwardly for Mitt
Romney, that state is Massachusetts, which under him passed the same policy
for that state that the Obama administration and congressional Democrats
passed for the whole country.
I mean, look, this is Mitt Romney`s official portrait from his time as
governor as Massachusetts. You see in terms of the props here, there`s
some sort of indeterminate painting behind him. Try to figure out what
that is today.
Maybe it`s a boat or a fish or something. Then you got a lamp, you
got a flag, you got picture of his wife, and -- wait a second, what`s that
other thing? Hey, nothing`s done by accident --oh, yes, a folder on the
desk next to him that has the medical symbol with the snakes on it, the
caduceus. That`s what his official portrait is.
His portrait summed up his time in office by two things, being married
to Ann Romney -- remember, the Massachusetts gay marriage problem happened
under him -- and also that bill, passing health reform. That`s it,
married, health reform.
Massachusetts passed Romney`s health care plan in 2006, it went into
effect almost immediately, and they rolled it out with a big P.R. campaign
in Massachusetts to tell the state how this new thing worked, why the state
had done it, and how it was going to benefit you.
So anybody who may have been upset about the individual mandate part
of it in Massachusetts, which is exactly the same in the state level as it
is at the federal level -- anybody upset about that may have been upset,
but they did hear a ton of messaging about the other side of the argument.
They did hear a ton of messaging that was the case for why Massachusetts
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: I`ve got it.
UNIDENTIFIED FEMALE: We`ve got it.
UNIDENTIFIED FEMALE: We`ve got it.
ANNOUNCER: Got what? Health insurance. Massachusetts residents are
now required to have it and the state`s health connector makes it more
affordable and easy to get.
UNIDENTIFIED MALE: I got it.
UNIDENTIFIED FEMALE: Me too.
ANNOUNCER: Call or go to our Web site to compare plans, get
information, and choose the right plan for you -- get preventive care, and
medical and financial protection.
UNIDENTIFIED MALE: I`m getting it.
UNIDENTIFIED MALE: I`ve used it.
CROWD: We`ve got it.
ANNOUNCER: Get health insurance now through the state`s health
(END VIDEO CLIP)
MADDOW: The state of Massachusetts rolled out a big advertising
campaign to tout the benefits of health reform there and explain how it
worked. Did you catch the guy in the sling, by the way?
That guy, in addition to being an actor in this commercial, is a guy
who personally benefited from health insurance being signed into law in his
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: Man, I must be getting soft.
UNIDENTIFIED MALE: No.
REPORTER: Gabriel Field plays an uninsured man in a TV commercial.
UNIDENTIFIED MALE: Don`t wait until it`s too late.
REPORTER: It turns out in real life, fields himself couldn`t afford
insurance for two years. But through the new Massachusetts program, he
gets low-cost, subsidized insurance, paying $220 a month, half his old
UNIDENTIFIED MALE: Without health insurance, you feel like you`re
(END VIDEO CLIP)
MADDOW: Massachusetts did a ton of these ads promoting what health
reform was. And they did it in a way that had a simple message, and, of
course, they used the Massachusetts version of religious patriotism, which
is the Boston Red Sox. And it wasn`t just showing guys walking on the
field at Fenway Park, they actually got real Red Sox players to take part
in the ad campaign, or at least a guy that was a Red Sox player at the time
to take part in it.
(BEGIN VIDEO CLIP)
TIM WAKEFIELD: In Massachusetts, we`re leading the way. The state`s
health connector has affordable plans, lots to choose from, and easy
signup. And in Massachusetts, even if you lose your job, you can still get
coverage. So, visit the health connector today.
(END VIDEO CLIP)
MADDOW: That was the great Red Sox pitcher Tim Wakefield, Mr.
Now, I know we are five years on from that and the Red Sox are having
a difficult year -- thank you, Bobby Valentine -- but this one state`s
pilot version of our national health reform law does not suck the way the
Red Sox do this year. It has worked really well in Massachusetts.
The proportion of people who now have health insurance in
Massachusetts is 98 percent, 98 percent of people in the state are insured.
That is the highest rate in the nation. Nearly 100 percent of
Massachusetts` kids are insured.
Ninety percent of doctors in the state say the quality of care has
improved since the reform law went into effect and Massachusetts residents
like it by a nearly 2-1 margin and even that poll was taken in the middle
of the Republican presidential primary when candidates were talking about
how awful the Massachusetts plan is because it`s the same as what President
Obama did for the country.
So, even with a national political campaign where everybody`s slogging
off the Massachusetts` health plan: (a), it works, and, (b), Massachusetts
Here`s the thing, though -- the most important political thing about
health reform at the national level is this difference in this chart.
Within a year of this law being signed in Massachusetts, it was going into
effect, within a year, the major reforms were taking place, and in that
year, that short window of opportunity, the state owned the airwaves,
blanketing the state with the good news about the law passing and what you
needed to do and how it was going to be great for you and you can take
advantage of all the great things that it was going to offer your family,
the state and yay, Red Sox.
At the federal level, though, same reform, but look at that. Thanks
to the Democrats` pleading efforts to try to get some Republicans on board
with it in Congress, one of the things we ended up with this is four-year
implementation plan, and during those four years, nobody is blanketing the
country with an equivalent of yay, Red Sox, isn`t health reform great?
Instead, we`ve got a quarter of a billion dollars being spent by
opponents from this president, to say that this law, which you probably
haven`t benefited from yet, because it hasn`t really gone into effect, this
law is murder and Satan and stubbing your toe all rolled into one. It`s
not health reform, it`s Obamacare, it`s awful. I don`t know what it is, but
it`s definitely awful, comes from the government, the government`s awful.
Quarter billion dollars.
Yes, there have been some comparatively meager efforts by the
government to let people know about what the law actually is and its
benefits and how you can take advantage of them, but a quarter of a billion
dollars spent against it, it`s been like spitting into a win. And the
latest effort to spit more into that wind, the $20 million contract with ad
agency called Porter Novelli to try to explain to people about the benefits
of the law, the Republicans in Congress want that contract cancelled. I
wonder why that is.
And so, today, health reform was upheld as constitutional at the
Supreme Court. Political pandemonium, all eyes on the president, and he
steps up to the same lectern from which he announced that he just killed
bin Laden and he makes his first remarks to the nation on the most
important Supreme Court case in a decade and not longer and he uses that
occasion to be a human brochure, to explain that if you are 25 years old,
you can stay on your parents` health insurance instead of being kicked off.
Right, that`s exactly the right thing to do. The details, the policy,
the political reward to be reaped here is the success of the policy, and
because of this huge implementation lag of the policy, the only way that
you get there is by teaching the country, reminding the country, selling
the country, marketing to the country what it is that this law does, to
neutralize the fear about it, and to get credit for actually making things
better in a material way for just about every family in the country and
starting to fix a problem that has flummoxed us for decades.
The White House today showed that they get that, by having the
president do an explanatory ad for health reform with his first very high-
profile comments after the Supreme Court ruling. And if everyone else is
as smart as the White House on this, people who want the president to be
reelected, allies of the president, supporters of Democrats, would start
coming up with $250 million of their own to repeat that message, to sell
that message, to sell this accomplishment beyond what the president did
behind that lectern today, because the forces arrayed against the president
were not dumb when they spent a quarter billion dollars arguing against
It is his signature legislative achievement. It is a signature
Democratic achievement for all time. If it is a victory and it is seen as
a victory, he definitely wins a second term. If his opponents still get to
define what that achievement is and get to define it as something scary
instead of something good, then not only do we lose the reform of our
broken health care system, but the Democrats lose their shot at a second
Unsolicited advice from me: Democrats and liberals, sell health reform
now or forever hold your peace.
MADDOW: On a day in the media when a lot of the big guys failed,
chalk one up for one of the littlest guys of all. It`s the best new thing
in the world coming up. It`s really good.
(BEGIN VIDEO CLIP)
OBAMA: I know the debate over this law has been divisive. I respect
the very real concerns that millions of Americans have shared, and I know a
lot of coverage through this health care debate has focused on what it
means politically. Well, it should be pretty clear by now that I didn`t do
this because it was good politics. I did it because I believed it was good
for the country. I did it because I believed it was good for the American
(END VIDEO CLIP)
MADDOW: I did it because I believed it was good for the country.
That was President Obama about two hours after the Supreme Court upheld his
signature health reform law today. The president used his first remarks
after the ruling today to essentially resell health reform to the country.
To make a very, very, very detailed case about what it offers, to make the
case that while the fight over the bill may have been divisive, the policy
itself will prevail, and here why that`s a good thing for you and your
Joining us now is Ezra Klein, columnist for "The Washington Post" and
"Bloomberg News` and an MSNBC policy analyst. Ezra, it`s great to see you,
I`ve been really excited to talk to you all day.
EZRA KLEIN, MSNBC POLICY ANALYST: I can`t wait. Good evening.
MADDOW: Does the president have a chance of closing the gap between
people who are afraid of this law, don`t like this law, and people saying
they do like the component parts of it?
KLEIN: In an election year, I`m pessimistic on this. I think that
the key question for the White House -- now, the White House believes
firmly, 100 percent, that President Obama`s legacy will be the Affordable
Care Act. In 30 years, if people remember him as a great president, part
of the reason why is because he passed the Affordable Care Act. And if
they don`t, if they remember as somebody who lost in his first term,
probably why in large part is the Affordable Care Act.
And so, I think the question for them is how to do you get -- how do
you keep the Affordable Care Act alive long enough it starts delivering
benefits and it can then sell itself. Because I think you`re not going to
be able to sell this thing on the air waves, you`re not going to be able to
break through the chatter and the death panels and the Sarah Palin tweeting
and all the rest of it, you need to keep the thing alive so it can actually
deliver health care to 33 million Americans.
And for that, the question is: how does Barack Obama get reelected?
That is the fundamental question they are asking and the answer may not be
try to resell the Affordable Care Act. It may be for them you attack Mitt
Romney based on Bain Capital.
MADDOW: How did we end up with this political framework which I think
you and I both share in terms of the importance here? The delayed
implementation of the law is 100 percent of the process of understanding
the political viability of the law. How did we end up with this delayed
implementation that`s so important to the politics here?
KLEIN: Democrats, particularly conservative Democrats, in order to
get them on the bill, you need to remember, 60 Democrats, you had to get
every one of them. They wanted it to be under $1 trillion.
And the way Harry Reid and Nancy Pelosi and Barack Obama got there was
a kind of played a little bit of a gimmick here. They said, OK, we`ll
delay implementation until 2014 and in the Congressional Office Budget, I`m
sorry to get dull on this, you only covers 10 years. So if you`re only
really looking at six years, you could have a generous bill that was under
$1 trillion, but even though in the second 10 years it wouldn`t be under $1
And so, a lot of that decision making right there was based gaming
this budget score. And in the end, they thought they were getting
something good out of that and they got something very, very bad because
the bill was not able to begin delivering care quickly.
If you look back to the Medicare prescription drug benefit, which was
also a big lift to try to get it implemented and up and running, it was
just a couple of years. It was not as long as the Affordable Care Act has
taken to get off the ground. So, I think this was a strategic blunder on
their part and the whole question is, how do you keep this thing alive
until that moment when real ordinary people in large number begin to
benefit from it and see that it is not this terrifying thing, it`s actually
delivering health care to 33 million people in this country.
MADDOW: It may have been a blunder, it may have also been necessary
to pass the bill at all.
Although, there are some elements in the bill, and the president
talked about this today, that have gone into effect already. Not
everything waiting until 2014, until it rolls into effect.
Is there political potency to the elements of the law that have
already rolled out, that have already gone into effect?
KLEIN: Absolutely. We`ve seen an interesting dynamic here, where
everything that`s actually gone into effect, both Republicans and insurance
companies have basically promised not to undo. So you had kids until age
26 being able to stay on their parents` plan. You`ve had no pre-existing
condition discrimination for children. You have an end of life caps, you
have medical, insurance companies having to spend a certain amount of their
premium dollars on actual health care instead of administration
And a lot of this stuff, you`ve been listening to Republicans, they
promised if this got overturned today, or they`re able to repeal, they`re
going to restore.
So as piece by piece of this actually comes into effect, people like
it. They like the fact that their kids can be on their health care. They
like the fact that their kids can`t be discriminated against for pre-
existing conditions. But so far, that`s not affecting all that many people
and it is nibbling around the margins.
So, the big bulk of it comes in a couple of years. But if this is any
indication of what we`re going to see, people like it a lot. They like
being protected in terms of their medical care and their health care from
both insurance companies and from bad luck.
MADDOW: Ezra Klein, columnist for the "Washington Post" and
"Bloomberg News" and MSNBC policy analyst, and somebody who never has to
apologize for being boring because you have yet to be boring.
KLEIN: Well, thank you.
MADDOW: At least here. Thank you, Ezra. I appreciate it.
You know, I will say that the really bold move here -- I mean, maybe
it`s true. Maybe nobody messages on health reform for the election and the
election is the most interesting thing about whether or not health reform
gets implemented because it depends on who`s the next president.
But I will say the bold move here would be for the president to use
Massachusetts as the example -- to say, look, this is the template. Look
what Mitt Romney did, it`s awesome, 100 percent insurance rate for kids, 98
percent insurance rate for the rest of the state, the highest in the
nation. Look how great it`s working in Massachusetts and great care.
You`re about to get that. Stick with me. (AUDIO BREAK) coming up.
MADDOW: The best new thing in the world day starts a metaphorically
with a train wreck.
(BEGIN VIDEO CLIPS)
TV ANCHOR: We have breaking news here on the FOX News Channel, the
individual mandate has been ruled unconstitutional.
REPORTER: It appears as if the Supreme Court justices has struck down
the individual mandate, the centerpiece of the legislation.
REPORTER: The court striking down that mandate is a dramatic blow to
the policy and to the president politically.
(END VIDEO CLIP)
MADDOW: None of that was true. False. Wrong.
Those people there were living every journalist`s nightmare on live
TV. And I feel for them very, very deeply. There but for the grace of
The Supreme Court did not strike down health reform. The Supreme
Court today upheld health reform. But for whatever reason, a lot of the
news got bumbled, got turned inside night because folks did not wait for
the upheld shoe to drop right on top of the struck down shoe to the course
So, if you were getting your news from some parts of TV tonight, you
might walk away with the wrong impression.
Even President Obama reportedly thought his law had lost, because he
was in the White House watching cable news. Frankly, that`s bad for us in
cable news because it`s not like the president loved cable news to begin
with. How do you think he feels about it now?
As he was starting to absorb the fake, bad news that had been
delivered to him from cable, the president however was in interrupted by
reality. White House counsel Kathy Ruemmier reportedly gave the president
two thumb`s up in the Oval Office. The White House had won. She had the
ruling right because she got it from another White House lawyer who was at
the Supreme Court and also from a Web site called "SCOTUS Blog".
You and I don`t have a White House lawyer waiting to relay information
like that to us from the Supreme Court. But you and I do have "SCOTUS
Blog", SCOTUS as in Supreme Court of the United States.
It`s a small operation most days. "SCOTUS Blog" is a hangout for
lawyers and law professors who obscure parsing obscure court rulings and
precedence. It`s like a calling card for a law firm called Goldstein and
Russell, which specializes in Supreme Court cases. It`s sponsored by
Bloomberg Law, but mostly "SCOTUS Blog" is a labor of love.
And "SCOTUS Blog"`s beating heart is this man, 81-year-old Lyle
Denniston. Mr. Denniston is an old school, old fashion Supreme Court
reporter. Lyle Denniston has covered SCOTUS for half a century, from "The
Wall Street Journal", to "The Baltimore Sun," to the "Boston Globe," to a
paper he personally outlasted, "The Washington Star."
Twice now, Lyle Denniston he has retired from covering the Supreme
Court. But he`s unretired now. He`s reinvented himself as a blogger, a
senior citizen blogger who says he`s still not all that crazy with
But this morning, with the White House and the world waiting, it was
this octogenarian, technology-resistant Lyle Denniston`s job to grab a copy
of the Supreme Court`s opinion and dash down to the hall to his cubicle
where he read it to "SCOTUS Blog" his editor over Skype so "SCOTUS Blog"
could accurately break the news to everyone. For the win.
Well done, "SCOTUS Blog". Well done, Lyle Denniston. Your reporting
on this best new thing in the world today. If I`m half as useful at 81, I
will consider it both unlikely and a personal victory.
Now it`s time for "THE LAST WORD" with Lawrence O`Donnell. Thanks for
being with us tonight.
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY
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