updated 7/2/2012 11:27:56 AM ET 2012-07-02T15:27:56

CHRIS HAYES, MSNBC ANCHOR: Good morning from New York. I`m Chris
Hayes. Egypt`s new president, Mohamed Morsi, took his oath of office today
becoming the first freely elected president in that country since the fall
of Hosni Mubarak.

And violent thunderstorms swept through the Virgnia and Washington,
D.C. regions overnight, leaving millions without power and bringing down a
web server that hosts popular sites like Twitter, Instagram, and Netflix.
That`s probably the most important news.

My story of the week, though, first, fair and balanced. During one of
the many fraught moments in the healthcare debate when it looked like
implacable and novel forms of GOP obstruction would kill the bill, writer,
Matt Yglesias (ph), posted the following tongue-in-cheek thought experiment
to establish the point that just because you can do something according to,
say, the letter of the law, doesn`t mean it`s acceptable.

He wrote, quote, "To the best of my understanding, nothing is stopping
Rahm Emanuel from sauntering on to the floor of the Senate, murdering
Republicans from state who have Democratic (ph) governors in cold blood,
having them replaced by new Democrats and then getting a pardon from Barack
Obama."

Matt`s point was that norms matter. A lot. Healthy governance isn`t
simply a matter of those with power playing by the technical boundaries of
the rules in place, but also with some larger sense of respect for the
norms of the institutions. There are certain things that just aren`t done
even if they might very technically be permissible.

Indeed, norms are much more powerful than written explicit rules. The
problem, however, is that when norms go, they go very fast. We`ve seen
this inside Enron and on Wall Street and in Major League Baseball during
the steroids era.

And we`ve seen it in governing institutions from the United States
Congress to the Federal Election Commission where Republicans have
normalized a kind of maximalist keys list (ph) by any means necessary
battle for supremacy of all costs. Where the Senate will deny
confirmation, for instance, for even the man nominated by Barack Obama to
serve as printer of the United States or rush the country headlong towards
default on its debt.

The actual official rules that guide the Supreme Court are preciously
few in number. A majority of justices can pretty much issue any ruling
they want. Constrained by the distant threat, perhaps, of impeachment or a
cut in funding from Congress, they`re the final say on what is and is not
constitutional.

And that`s why the norms for the court are so important and the
subject of such intense and constant debate. Should the court be like the
House of Representatives, explicitly partisan and ideological, a place
where a narrow majority is expected to vote more or less in lock step for
the favored outcomes of its side or should judges be as John Roberts
described then in his confirmation hearing?

(BEGIN VIDEO CLIP)

CHIEF JUSTICE JOHN ROBERTS, U.S. SUPREME COURT: Judges are like
umpires. Umpires don`t make the rules. They apply them. And I will
remember that it`s my job to call balls and strikes and not to pitch or
bat.

(END VIDEO CLIP)

HAYES: After joining the five for a majority to uphold the
constitutionality of the Affordable Care Act, Roberts is getting a lot of
grief from conservatives who fell in love with that metaphor and now feel
betrayed. You see, the definition of an activist judge has always been a
judge who rules differently than you would like.

And this is the heart of the problem. The umpire analogy Roberts
originally use is as laughably disingenuous as the slogan "fair and
balanced." But that doesn`t mean that the only choices for the court in
conducting itself are some delusional note vision of total neutrality on
one hand and partisan trench warfare on the other.

There`s a whole lot of room in between those two extremes. And that`s
what our model of judging should be. Someone with a world view a
perspective and outlook on life, but one who engages with the issues in
good faith who does not simply and crudely reverse engineer his or her
reasoning around a predetermine desired outcome.

Aside from his closest friends and family, no one can really know why
John Roberts decided the way he did in the case of National Federation of
Independent Business v. Sebelius.

But given how depth his decision was, how delicate a needle he
threaded in simultaneously upholding the law while also endorsing a quite
conservative interpretation of the limit of the commerce clause, many have
naturally come to the conclusion that Roberts` decision was motivated
largely by political and institutional desire to guard the courts and his
own legitimacy.

So, I think, Roberts did the right thing, both, as a matter of law and
of politics. Let`s be clear, this was inescapably a political decision.
All major controversial cases before the court can`t help but be. Umpire
Roberts was nowhere to be seen because he never really existed. In the
short term, Roberts is to be credited both for upholding a law that is, in
my own humble opinion and the opinion of the majority of prominent
constitutional scholars, squarely constitutional.

He`s also to be credited for briefly stopping a slide towards a court
that is truly nothing other than the House of Representatives in the
nature. Let`s also remember, this is the same man who steered the court
toward Citizens United. A man who overseas a court that is, according to
an empirical analysis by legal scholars, Andrew Martin and Kevin Quinn, the
most conservative court in 75 years.

The question in the long run is, if this decision signals a change of
direction or simply a pause.

Right now, I`m joined by Ezra Klein, MSNBC policy analyst, "Washington
Post" columnist and Bloomberg contributor, Avik Roy, member of Mitt
Romney`s healthcare policy advisory group, senior fellow of Manhattan
Institute, and healthcare policy writer for "Forbes" and the "National
Review."

Congresswoman Yvette Clarke, Democrat from New York, also my
congresswoman. Until January, there is this parking sign outside my house
we got to talk about.

(CROSSTALK)

(LAUGHTER)

HAYES: Well, let`s see if we can maybe get a sort of special bill
pushed through. Akhil Amar returning the program, great to have you back,
professor of law and political science at Yale University and former law
clerk for Judge Steven Briar (ph). It`s great to have you all here.

So, let`s just start of with reaction to the ruling. We`ve been
chewing it over now for a few days. And, congresswoman, I guess, I want to
get your perspective to begin with because you watched this legislative
battle play out and the prospect of it all crumbling at the court must have
been depressing.

REP. YVETTE CLARKE, (D) NEW YORK: It`s so interesting. We were
actually in a caucus meeting talking about ironically enough the contempt
vote that was coming up. The Democratic caucus was meeting, and that`s
when the decision came down. And, we were confused, to be quite honest.

HAYES: As was America.

CLARKE: Exactly.

HAYES: And certain news networks.

CLARKE: Exactly. That we won`t go into at this moment. But, you
know, once we had a reading of it, we felt vindicated. I felt vindicated.
I worked very hard along with my colleagues to make sure that all Americans
could have healthcare. And the fact that -- of the matter is that
healthcare is a right, it`s not a privilege, in my eyes. And this
vindicates us.

HAYES: Do you think -- it was interesting to see the messaging. I
want to get to the constitutional questions here and some of the policy
questions. We`re going to get through all that. And I think the
constitutional questions are fascinating. We`ll get into that in a second.

CLARKE: Yes.

HAYES: But do you think -- it was interesting to me -- and anyone at
the table can answer this -- to see the Democrats` reaction. Barack Obama
had two messages. There were two messages on the table. Two messages from
Barack Obama. One was, this law is better than you think it is. I don`t
do this, obviously. In fact, do we have sound of the president reacting to
the decision? Let`s play that for a second.

(BEGIN VIDEO CLIP)

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: Even though I knew it
wouldn`t be politically popular and resisted the idea when I ran for this
office, we ultimately included a provision in the Affordable Care Act that
people who can afford to buy health insurance should take the
responsibility to do so.

In fact, this idea is enjoying support from members of both parties,
including the current Republican nominee for president.

(END VIDEO CLIP)

HAYES: So, I want to get your reaction to that in a second, but there
were two reactions. There was a defense of the law.

CLARKE: Yes.

HAYES: And then, there was -- what the president led with and then
what Harry Reid led with in the Senate press conference was basically let`s
not relitigate the past. And I understand the short-term desire and the
effectiveness of that as a political message, because I do think there`s
some fatigue in the country about this extended battle we`ve had.

But it also strikes me as not the strongest defense of a major piece
of social legislation that the party has spent the better part of four
years enacting.

CLARKE: Well, it`s become so politicized. I mean, the commercials
running in battleground states right now around health care. You know, we
would hope that we can move forward, but clearly, you know, it would be
disingenuous not to raise this as an issue in the way that it has been
raised by both Harry Reid and the president.

They`re both, you know -- well, the president is up for re-election.
You know, Harry Reid has to do what he has to do at the leadership of the
Senate. The bottom line to it is that we`ve got to move the needle here.
And, I think that a lot of folks are beginning to gain the benefits of the
healthcare reformat.

And, as more and more of those benefits come online, it will be
finally entering into the 21st century.

HAYES: Avik, what would be the reaction to the ruling and to the
president`s making that remark, noting the thing that everybody always
talks about in this context which is that, of course, the Massachusetts
healthcare plan that Mitt Romney signed into law included a mandate
structured essentially identically.

AVIK ROY, ROMNEY HEALTHCARE ADVISOR: Yes. I mean, in terms of the
ruling, if -- I think there`s a difference in the formulation of judicial
activism that you described in your opening segment and what conservatives
describe.

When we talk about judicial activism, what we`re talking about is, are
you making up law from the bench or are you administering the constitution
as it was written in 1789?

HAYES: But that`s the whole -- let me just stop you there, because
this is precisely the issue, right? If it were manifestly plain what the
law meant as it was written, then we could hire robots. We could code
computer programs to sit on the bench.

The whole point is that the only case that reach Supreme Court are
difficult matters of interpretive work. And so, that definition of
activism seems to completely stack the deck definitely (ph) to just produce
the result that you want.

ROY: I think it`s more manifestly plain than you argue. I think that
there has been a lot of outcome driven judicial results in the last 70
years, but that really, if you go -- if you actually read the constitution
-- the constitution is a short document. It is written in English. The
federalist papers give us a lot of illumination at how the constitution was
designed.

So, there is a plain reading of the constitution that again, you know,
I think either way, I think, in this case, it is a difficult case because
if you go by new deal precedent, you can`t make a case that the mandate is
constitutional according to commerce clause. And if you go by plain
reading of the original intent of the commerce clause, you can say, well,
that doesn`t make any sense.

It`s not interstate commerce. However, Roberts did neither of those
things. He said, it was attacks in one case for the purposes of
constitutionality and penalty for the anti-injunction act. And you know,
kind of made it up as he was going along.

HAYES: Implicit (ph) in what you just said is that the true
conservativision (ph) is to go back to a constitutional jurisprudence from
before the new deal, the kind of Lochner vision of the court, which I just
want to put on the table as a genuinely radical thing to say whether true
or not.

ROY: I would say there`s two -- it was within the conservative legal
movement. There are two positions. One is sort of Thomas (ph) position
which really about the plain reading. Another is maybe the Scalia (ph)
vision, which is you want to respect the president, be sensitive to the
stability of the country as it is, but having said that, you want air on
the side of constitutional originality.

HAYES: So, professor, you were thumbing through the constitution
(ph). I would like to get your response to this, and we can get into the
constitutionality. We`re going to bring in one of the leading intellectual
architects of the constitutional arguments against the mandate. I want to
talk about policy as well. All of that right after we take this break.

(COMMERCIAL BREAK)

HAYES: We are thinking and talking our way through the big event of
the week, of course, which is the Supreme Court`s ruling, upholding the
constitutionality of the Affordable Care Act. Avik, you just talked about
expressing or channeling some of the conservative frustration with both the
court`s direction and the court`s jurisprudence on the commerce clause.

And just to put on the table, I think people probably know this at
this point, but basically, the ruling was that John Roberts joined a
majority of justices saying that the individual mandate is not within the
constitutionally prescribed powers of Congress under the commerce clause to
regulate interstate Congress.

It exceeds that power, but that it falls squarely within the taxing
power which is granted a commerce (ph) and constitution. And Akhil, I`m
curious to get your reaction to that ruling.

AKHIL AMAR, PROF. YALE LAW SCHOOL: So the constitution is a pro-tax
document. We fought an anti-tax revolution (INAUDIBLE) was no taxation
without representation, because parliament is posing taxes. The
constitution was a push-back saying but taxation with representation,
because we vote for these folks and we can vote them out if we don`t like
it.

We have elections, and you have term limits that called elections
every two years. The longest section of the longest article of the
constitution tells you four different ways Congress is going to -- Congress
outpower (ph), taxes, duties, imposts, and excises. You don`t have to call
it a tax.

(CROSSTALK)

AMAR: Revenue enhancements to pay the debt to provide for the common
defense and general welfare of the United States, and that`s because
without taxes, you can`t have national defense.

HAYES: Right.

AMAR: You can`t have an army. You can`t do the things that we
weren`t able to do and the articles -- and hang on, one more thing. 1789
and the founders, this constitution is an intergenerational document. We
have made amends to it. We got rid of slavery after the civil war because
this originally didn`t get rid of slavery. We the people of the United
States at the beginning of the 20th century, people proudly called
themselves progressives put into this yet another provision.

A pro tax provision in the 16th amendment when the Supreme Court had
actually tried to say there isn`t broad federal tax power. We know (ph)
Abraham Lincoln thought there was. The five conservative justices said,
no, you can`t have progressive income taxes. And we the people who rose
up, the 99 percent, and said, yes, we can.

And the 16th amendment is another -- but this is a pro-tax instrument.
And if you don`t like the taxes and spending, vote the bums out.

HAYES: Right. There is broad constitutionality authority. I made
the point yesterday. We`re going to bring in Randy Barnett in a second,
but there`s this -- the ruling is interesting, right?

Because the ruling actually starts off with Justice Roberts saying,
for the narrow purposes of the anti-injunction act, because I don`t want to
get two in the (INAUDIBLE), but let`s say one of the things on the table
was could the court even rule on the matter at hand because the anti-
injunction act which is statutory legislation says that you cannot strike
down a tax in advance of it being collected.

You have to wait until the tax is collected, and then you can sue to
recoup. And this is to make sure that you can`t sue the stop (ph) every
tax from going into effect. And he said, for the purposes of statutory
interpretation there, this is not a tax. But for the purposes of
constitutional interpretation, this is a tax, and I think people thought,
well, that`s crazy.

But here`s an example, I think, just to give folks something, I think,
that`s similar, right? For a long time, I was a freelance writer. And if
your employer doesn`t collect your taxes, you have to file quarterly
estimates. If you don`t file those quarterly estimates, you pay a penalty,
right? That penalty isn`t a tax.

There`s no way in which the penalty is a tax. It`s a penalty. But
it`s clearly under the taxing authority of the United States Congress. So,
there are things that we do have that have this sort of somewhat strange
hybrid nature. I want to bring in Randy Barnett, professor of
constitutional law and legal theory at Georgetown University Law and author
of "Restoring the Lost Constitution: The Presumption of Liberty."

Randy, great to see you this morning. I want to get your reaction.
You basically said you were satisfied -- you were not satisfied in the sort
of the outcome and you think the law is a bad law, and you object to it on
policy grams (ph) and you object to it constitutionally across the board.

But, you were heartened by the fact that Chief Justice Roberts joined
the majority saying that this was not permissible under the commerce
clause.

RANDY BARNETT, PROF. GEORGETOWN UNIV. LAW CTR.: Yes. I mean, what we
had was a decision in which eight justices voted their principles. And one
justice gave us a political ruling. And I`m happy with the part of the
political deal that we got, and I`m unhappy with the political deal that he
gave the other side.

HAYES: I should say this is a broad reading of Roberts`s behavior,
but none of us actually are seeing into the man`s mind. So, it`s possible
that this, you know -- he was just really persuaded by the tax argument on
one side and persuaded by the commerce clause on the other side.

BARNETT: I actually don`t think anybody who reads this opinion can
reach that conclusion, that he was really persuaded by it. And, I think
that most of the people who were so outspoken after the oral argument
looked like it was going the other way were insisting and demanding that he
make a political ruling in order to effect the legitimacy of the court.

And, that`s what he did. And I think everybody knows that`s what he
did. I think that people who like the outcome like that fact that he did
it. I don`t know how much they respect that. And I like the part he gave
me and gave our side which was the constitution. So, we had two things on
the table.

(LAUGHTER)

HAYES: But Randy, this is precisely the point --

BARNETT: We had Obamacare and we had the constitution --

HAYES: This is precisely the point. You cannot -- every time we have
these arguments, and I genuinely respect the massive intellectual effort
that you put into this challenge. I genuinely do. And it`s been a
remarkable thing to watch. But I just -- for this terminological thing, I
want to say the thing that same thing as with Avik, you don`t as get the
way of setting the table in this exchange to say the ruling for your side
is political and our side is the constitution.

BARNETT: No, no.

HAYES: It is the constitution that is at issue, right? That is what
we are debating.

(CROSSTALK)

BARNETT: Chris, what I said was, eight justices voted their
principles.

HAYES: Right.

BARNETT: Eight justices voted their principles. The four in the
majority who concurred with the result voted their principles and then the
other four voted their principles. I had said only one justice decided
this case politically.

HAYES: I see. One of the big questions after this, I think there was
some confusion about what the commerce clause ruling, it means going
forward, because there is -- and I think liberals were divided on this, and
it was interesting to read your reaction. There`s one group that says,
look, this is pretty generous, OK? This is something that you`re not going
to have a lot, the idea of the mandate.

It`s specific to the way healthcare works. It`s very hard to envision
another legislative challenge in the future that will require this as a
solution. And so, if this is the thing that is blocked by the
constitution, not a huge deal. We`re not going to have to use it again.
And then, there was a school of people that said, actually, no, no, no.

This is as significant as Lopez, or Morrison, or other cases in the
line of the kind of new jurisprudence on the commerce clause that restricts
what the commerce clause can do. And I want to get your reaction to that
question right after we take a break.

(COMMERCIAL BREAK)

HAYES: Randy Barnett, I cued up a question about what the court`s
ruling on the commerce clause, the majority opinion of the commerce clause
means going forward. I`d like to hear you answer that.

BARNETT: Well, the two choices you gave me was that it only applies
to this law, so it`s a narrow ruling, and the other one is that it`s really
important. I actually agreed with both of the positions that you
previously articulated. We argued all along that if, in fact, the court
had invalidated the individual mandate, it would only apply to individual
mandates like this one and would be very limited in that sense.

But, the other time side has argued all along that Congress has a
virtually unlimited commerce and necessary and proper clause authority.
And so, this decision actually definitely repudiates that view. And it
accepts every single legal argument we made about the commerce clause and
necessary improper clause having limits.

HAYES: What`s interesting about that is that there is, of course,
this period in jurisprudence from the new deal, essentially, 1995 in the
Lopez case in which nothing was struck down as exceeding commerce clause
authority. The rank was court -- created this new jurisprudence with Lopez
in that case called Morrison (ph) in which they struck down a provision to
violence against women act.

And then, there`s this case called Raich in which the court finds and
Scalia writes in the majority that it is an exercise of commerce clause
powers to regulate marijuana grown inside your own house. How do you
square the Scalia ruling in Raich where he says that`s within the commerce
clause`s powers, but this is not.

BARNETT: It`s actually quite easy to do, and as you know -- because
you`re smiling, but your audience doesn`t know. I was the lawyer who
brought the case on behalf of Angel Raich (ph). I argued in the court, and
I lost that case 6-3. Actually, on the commerce clause, I got five votes
this time. So, I did (ph) better than I did last time.

It`s simply that the Raich case did not involve the idea of compelling
anyone to grow marijuana. And so, Justice Scalia said if it was necessary
to enforce an interstate ban on marijuana that you actually cannot segment
out a certain subset of the market, then the Congress can do that, but that
was completely different than requiring that Angel Raich grow marijuana.

HAYES: And thanks to you, Randy Barnett, that law requiring us to all
grow marijuana will never see the light of day. I think we can
definitively say that the precedent cause by this ruling means no mandatory
marijuana growth --

BARNETT: But you could be taxed if you don`t grow it.

(LAUGHTER)

EZRA KLEIN, THE WASHINGTON POST: But said that, I think that point he
just made about you can be taxing if you don`t growth (ph) what`s going to
be interesting going forward. This is going to change how Congress
legislates for a long time.

There`s been a long shift in the way particularly Democrats legislate
where there`s a move from trying to do things through the government, too,
in order to get Republican votes or seem like you`re more in the center
trying to compel the private sector to do things, right? And that was what
the healthcare bill was, right?

It wasn`t single payer. You would keep private insurers in the game
and the way to keep them in the game was to, you know, you would fix the
insurance markets so they can get everybody in there. And it would
essentially be universal insurers in the way the government could have done
clearly for what`s taxing power.

But here, you have to do sort of more creative mechanism called the
individual mandate, originally come up with by Republicans that has now
been clearly not knocked out of the box, right? It`s still allowed. But
what I think people are going to take from this is don`t get too creative.

Use the taxing power, use the things you`ve already done, have the
government to set up its own programs. I think this may, in terms, of sort
of the long arc of liberal law making, I think, it may prove to be a very
significant incentive, not to get too different in the way you try to
achieve your goals and said to go back to things that are tried, tested,
and true in front of the court.

HAYES: And one of the things that would be the irony in all this and
this came up in oral arguments and I think it came up in briefs on both
sides, which is that clearly Medicare expansion, right? Just
straightforward exercise where we say, we tax people and we pay for the
service. Squarely, squarely obviously constitutional that it was this kind
of hybrid nature. Do you think that`s true, congresswoman?

CLARKE: I do.

HAYES: That you will see the approach of liberal lawmakers change?

CLARKE: I think that this is really a game changer. We`ve done a lot
to try to accommodate, you know, the diversity of thought around how one
construct a mandate that is national in scale.

HAYES: Right.

CLARKE: And you know, we`ve been basically vilified for trying to do
so, and I was one for single payer, so you just let everyone know that at
the expansion of Medicaid for all. But the whole idea of not embedding
public option and going with negotiating rate had to do with the fact that
we had members who were concerned that we were going into single payer.

HAYES: Right.

CLARKE: Well, now we know, clearly, that it is within the
jurisdiction of our purview --

HAYES: Right.

CLARKE: -- to make sure that if we have a national issue, we use the
full length and breath of our authority. Now, at the end of the day, that
becomes challenging politically.

HAYES: Right.

(CROSSTALK)

HAYES: And that is why -- I think that is why single payer was not
pursued --

CLARKE: Exactly. It`s an issue of the fact that, you know, you`re
labeled, right? So, the tax and spend liberals.

HAYES: Right.

CLARKE: We can`t get out from under that, so we tried to become
progressives, but that`s not quite work out for our adversary. So --

HAYES: Akhil, is there something you wanted to say in response to
Randy in terms of his conception of what the meaning of this commerce
clause ruling is going forward?

AMAR: Well, I believe that there are limits. I just don`t think that
the limit is action, inaction, or mandates versus prohibitions, you know?
If government can tax me, they can tax me 100 percent. But the check is,
we can vote the bums out of office.

HAYES: Right.

AMAR: You know, if government can prohibit things, you can prohibit
grocery stores from selling anything except broccoli, you know? But
they`re not going to do that.

HAYES: Right. I have a question to you.

AMAR: But hang on. The limit in the constitution because his limits
are made up, and no founder ever said any of this and no one said any of
this for three years ago. They really didn`t. Here`s what they said, and
here is the limit. This is a document designed to solve genuinely
interstate problems, problems with spill over across state lines.

Now, actually, healthcare does. If someone`s uninsured and they false
sick (ph) out of state -- most of my students are out of state. If they
fall sick, and they`re uninsured and they go to an E.R., that`s an
interstate problem. If I get a job offer out of state, and they`re going
to pay me more -- pay more --

HAYES: Can I ask you a question?

AMAR: Hang on just a second, Randy. If I can`t get that job because
I have a pre-existing condition that locks me into the, you, know, -- and
there`s not interstate (ph) labor markets, I think the real limit is, is it
an interstate problem, and that`s what Justice Ginsburg said. She believes
in this, too. We believe in if we don`t think Congress can do everything,
we just think this is easy because it`s an interstate problem.

HAYES: Randy, I want -- you want to ask a question, but first, we`re
going to take a quick break. We`ll come back first to you and the question
right after this.

(COMMERCIAL BREAK)

HAYES: All right. Randy Barnett from Georgetown University, I cut
you off. You wanted to ask a question of Akhil --

BARNETT: Yes. Before this thing got going, Akhil wrote a very
interesting op-ed piece in which he said any Yale law students who`d be
able to give the answer that he just gave prior to -- if they were taking a
final exam, they would give the answer he just gave prior to the break. Of
course, they would. They were Akhil`s students.

But I`m wondering out, if now that this decision has been rendered and
his students read this decision, on the next exam answers, were there exam
answers be the same as they were before this decision was reached?

AMAR: As I made clear in a whole series of op-eds and a piece I wrote
a year ago, I`ve always believed that this was easily sustainable as law,
both as a regulation of interstate commerce and five justices had a
different view, and easily and obviously as a tax. Randy, you know, I
mean, he`s very good. He says, "we won."

Well, please have more victories like that, Randy, because your
position, at the end of the day, was this was unconstitutional. And, we
said on the other side, it`s easily constitutional. We had different
theories about why it`s constitutional. It`s clearly a tax, and that makes
it OK. It`s also regulation interstate commerce. It`s also a national
security issue. It`s also a human rights law. And we can talk about all
of those things.

BARNETT: Can I ask my question again?

(LAUGHTER)

(CROSSTALK)

BARNETT: The commerce clause part of the exam, will they answer the
question the same way?

AMAR: I`m going to teach my students that they should ask themselves
the following question. Did anyone for the previous -- for the first 200
years of the constitution say that there was an action, inaction
distinction that was the basis of the distinction between federal power and
state power?

Did anyone connect that to the commerce clause or, was instead, the
basic test of how to be a genuine interstate problem. And if it`s the
second, then the question going forward is -- is this new made up principle
really going to have any legs? I`m extremely doubtful because it won`t
wash.

HAYES: Let me just bring this up, and then, I`m going to go to Ezra.
Just because part of this, I think, in the political context, obviously,
and I want to say this that I`m not questioning your good faith, because
you know, you`ve been doing battle with an overly broad reading of the
commerce clause in your estimation for a while.

But there is a sense, I think, among Democrats of having this kind of
Lucy in the football situation with the mandate in which it came out of
conservative think tanks. It was proposed by Republicans. And somehow,
when it was proposed by Republicans and came out of conservative think
tanks, there wasn`t a huge bunch of conservative legal scholar saying,
well, obviously, this is preposterously unconstitutional.

And so, it does seem like there`s a little bit of disingenuousness
which is the constitutional arguments against it seem to only have been
discovered after it migrated from being on the right side of the aisle to
being a major Democratic law.

BARNETT: Well, let me begin by saying -- I want to respond to earlier
thing. You know, I`m not at all happy with the victory that I got. I lost
this case. I`m just saying, in the deal that we were given in which the
president gets his signature legislation and we get the commerce clause
doctrine that we asked for, I`m going to take what we got and I`m going to
be happy about that, but I`m not happy with the outcome.


So, I just don`t -- I don`t want to -- I`m not trying to sugarcoat
this thing. As for your question, you know, I don`t look to Republicans as
the font of all constitutional wisdom. And the fact that Republicans may
not have given this much constitutional thought is consistent with the fact
that Congress simply hardly ever gives what they do constitutional thought,
Republican or Democrat.

That`s what we`re supposed to have an independent Supreme Court to do,
and we have eight justices this time that gave the matter sustained
constitutional thought, and one justice who basically decided to split the
baby and make a political deal.

KLEIN: Since we`re kind of asking questions. I actually have a
question for both Akhil and Randy here, which is that -- but the odd things
in this whole debate was it really seemed to turn on policy questions.
What sort of problem did you think healthcare policy presented was the
problem it presents interstate?

Is it a national problem? Is it a special market that requires a
special set of regulations? I remember, back in the oral arguments, just
listening to them. These were arguments that I read constantly in health
affairs.

HAYES: Right.

KLEIN: And they were being done by a set of lawyers, none of whom
were, in fact, as per the healthcare marks -- I remember thinking a panel
of nine healthcare economists would, in certain ways, be better set to
decide what sort of problem healthcare is, and then, we could have the
lawyers come in and say, what are the rules around that kind of problem.

And in that way, it did seem from the outside that people were making
a set of policy judgments and then deciding how they wanted to decide that
constitutionally. But that, really, what was being decided here were
actual things that you really do think of Congress is being the ones to
judge more so than really abstract legal principles.

It really came down not just to what you think of the constitution but
what you think of healthcare as an economic question. And how you think
the evidence on that falls and how often people are participating and
whether or not they can get out.

HAYES: Randy, you want to respond to that.

BARNETT: Well, you know, one of the things that the congressman said
earlier was about how this was novel. And maybe they should go back to --
the Congress should go back to basics. I think that`s right.

I think that if you try -- by trying to do something new and clever
politically to avoid the political accountability of having to raise taxes
which they didn`t have the votes for, they did something that when it
became defended in court had very dangerous implications for federal power.

AMAR: I want to make two points --

BARNETT: And so that -- go back and do the tax power. Say you`re
doing a tax and then take the political heat for doing a tax, and you`re
not going to do constitutional damage. You might policy damage, but not
constitutional damage. One last thing about the nature of this opinion by
the chief justice.

Akhil Amar would have never written this opinion. Akhil Amar would
have been with the four justices that joined Justice Roberts. Akhil Amar
would never have split the baby (ph) the way Chief Justice Roberts does,
and that`s what I`m saying about the nature of this opinion.

HAYES: Randy Barnett, professor of constitutional law and legal
theory, Georgetown University Law, it`s been really great to have you.
Thank you coming on. Thank you for engaging.

BARNETT: My pleasure.

HAYES: We`re going to talk more about this. Akhil Omar, I`m going to
ask you if you would have split the baby or not right after this.

(COMMERCIAL BREAK)

HAYES: Really, this or that?

(LAUGHTER)

ROY: Constitutional or unconstitutional.

HAYES: Yes. Exactly. That`s right. Avik, we were going back and
forth, but there were a few points you wanted to make.

ROY: You know, it`s true. Akhil`s right that the constitution gives
Congress broad taxing power, but this -- the individual mandate was not
passed as a taxing power. It was angrily Obama -- President Obama in an
interview with George Stephanopoulos said, no, it`s not a tax.

HAYES: He didn`t quite say that actually.

(CROSSTALK)

ROY: And I think it remains uncertain if it was billed as a tax when
it was going through Congress. Would it have passed Congress? I don`t
know. And I think the other point I would make is, you know, we talk --
Ezra talks a lot about this in his column about how well, the lesson the
Democrats should learn is don`t compromise with Republicans.

Let`s not forget, Democrats had 60 votes in the Senate. This wasn`t
the matter. The public option didn`t get through the Senate because of
Republicans. It was because Joe Lieberman and Ben Nelson didn`t like it.

(CROSSTALK)

KLEIN: -- the way it was constructed. I mean, without doubt, because
they thought this was going to help them get support.

CLARKE: Exactly.

KLEIN: I mean, the genesis of this bill is Max Baucus coming out of
the white paper of the bill that looks very similar to this one in 2008.
And Max Baucus expecting the whole time he will get his friend, Senator
Charles Grassley, the Republican from Iowa, to be part of this with him.
And it will be 20 or it will be 20 or 10 --

CLARKE: There was a flim-flamming going on during that whole debate.
A lot of flim-flamming. And let me just say this, the individual mandate
is such a small provision when you look at the entirety of the bill.
You`re talking about maybe two to five percent of people who can afford
healthcare who have decided that they`re not going to get insurance.

HAYES: Right.

CLARKE: And we pay the price. So, I like to call it a free load of
fee. If you`re going to call free load off American people, you`re going
to go into their emergency room when you`re at your most critical and most
expensive, then there should be a fee attached to your healthcare.

HAYES: Avik, I want you to respond to this, because, you know,
obviously, that`s the rationale for what happened to Massachusetts signed
by Governor Romney.

ROY: Right.

HAYES: And for a while, Governor Romney`s position was, basically,
yes, that was appropriate in the states, but it wasn`t appropriate for the
United States Congress to do it. This is something that should be done at
the states. But then, the line that he used in the press conference after
the decision was that, this is bad policy.

But if you`re making an argument on policy grounds, it`s pretty
unclear why that policy is bad policy at the federal level and good policy
in Massachusetts.

ROY: Here`s the thing. First of all, there is -- and that`s why the
constitutional arguments came through is because there is a huge difference
between state for level reforms and federal level reforms.

When you`re a state governor, you have very limited tools to use or
reform your healthcare system because so much of our healthcare is driven
by federal policy, Medicare, Medicaid, the employer sponsored system,
right?

So, you have to use certain instruments that you don`t necessarily
want to use at the federal level. Second thing, in response to the issue
of free loading, OK, so, if you go to the emergency room because you don`t
have insurance and we pay about $50 billion a year. Of the three trillion
America spends on healthcare, it`s $50 billion a year of which a tiny
fraction is actually spent by the uninsured.

Now, you can solve that by making sure that everybody has emergency
catastrophic insurance. But, the Affordable Care Act requires everyone to
buy comprehensive insurance. Far more -- you know, we had this whole
debate about the contraception mandate, right? You don`t have
contraception in emergency rooms.

KLEIN: You know, so one of the things that can be, I think, somewhat
honest debate is sometimes it feels like healthcare history began in late
2009, right? Like, I remember back in the day having a lot of discussions
with folks in healthcare who are on the conservative side. And they would
say to me, well, you know, the systems we like are Singapore and
Switzerland. I`m not wrong. You like Switzerland.

ROY: I do.

KLEIN: And that basically has both of them on individual mandate.
Singapore forces you to save 20 percent of your income, if I`m not getting
the number wrong, in order to pay for healthcare costs. It`s regulating
inactivity in that way. And Switzerland demands you buy healthcare
insurance, most of it semi-private and non-profit market.

And then, we -- then, the individual mandate became toxic and people
said, well, those are good systems except for this individual mandate
thing, but this wasn`t a huge issue if people saying, oh, you would never
want to use that on the federal level a couple years ago and leading (ph)
Senate Republican.

Some nice people say, well, I bring up a lot, the fact that
Republicans brought up -- you know, came up with the individual mandate and
say, well that was in the 1990s. But no, I mean, White and Bennett which
had, you know, seven or eight Republicans on it, in 2009, had an individual
mandate.

And Chuck Grassley was saying, there was bipartisan consensus for an
individual mandate. And Newt Gingrich in 2009 had an individual mandate.
This really did have significant bipartisan support. I`m not saying 100
percent. But to say like now that it was clearly out of bounds is just to
me, that is why it feels like there can`t be a compromise. The ground
shifted.

ROY: You know, I`ve written extensively about this, Ezra.

KLEIN: Yes.

ROY: And the history of the individual mandate on the right is a
little bit more nuanced than what I think you know, what you guys have
described. It wasn`t like -- it`s a conservative idea and conservatives
all rallied behind it. It was a couple --

HAYES: Hold that thought for a second. We would take a very quick
break. I want you to continue it right after we do it.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

MITT ROMNEY, (R) PRESIDENTIAL CANDIDATE: With regards to the mandate,
the individual responsibility program, which I proposed, I was very pleased
to see that the compromise from the two Houses includes the personal
responsibility principle. That is essential for bringing healthcare costs
down for everyone. And getting everybody the health insurance they deserve
and need.

(END VIDEO CLIP)

HAYES: It`s Governor Romney in 2006 talking about Massachusetts care.
Avik, I`m very sorry that I interrupted you mid thought.

ROY: Not at all.

HAYES: But continue.

ROY: Yes. We were talking about the history of the individual
mandate among conservatives, and I think --

HAYES: And the suspicion that liberals have the basically this is a
completely disingenuous turn because Democrats adopted it, so they said we
don`t like it.

ROY: Yes. And I think, actually, there were some conservative
institution that`s supported individual mandate at the Heritage Foundation
most famously. But the vast majority of conservative institutions that are
involved in healthcare were actually very much opposed to a federal
individual mandate.

And a lot of that policy debate happened in the early 1990s. And it`s
true that a number of republican Senators, to Ezra`s point, did endorse the
federal mandate. I think they weren`t as aware of the constitutional
issues with it because, you know, it never became a piece of legislation
where, you know, conservative constitutional or the Randy Barnetts of the
world would have to examine it.

I think once people like Orrin Hatch were confronted with those
argument, so they had to realize, OK, maybe this is more complicated than I
thought of the federal --

KLEIN: You know, but the one thing I -- I`m sorry, I know Akhil
wanted to get in. Well, just one thing I would say is that, sometimes, the
timing on this stuff is what`s very frustrating. So, I asked the Heritage
Foundation. You guys tell me, because they`re very against it now. They
helped to come out (INAUDIBLE) tell me the first time you ever came out
against the individual mandate.

Show me the first written or spoken word from anybody on your team
that this is not a good idea or it`s unconstitutional. And it was spring
of 2008, after all the democrats have put in their plans. This was, you
know, Mitt Romney we just saw. That was 2006. It wasn`t 1993 (ph).

HAYES: Right.

KLEIN: And Mitt Romney was endorsed by Senator Jim DeMint, one of the
most conservative, you know, Tea Party champions in the Senate. And he
said, you know, Mitt Romney was able to do great things on healthcare in
Massachusetts, and we need that kind of thinking nationally.

So, I think you`re right to say there was (INAUDIBLE) dissent. That`s
not the argument, but it was mixed, and then, it became complete. It
became a complete unified opposition. I think that if 15 Republicans have
remained on the individual mandate, you know, nobody would say that was
disingenuous.

HAYES: Akhil.

AMAR: So, channeling Lloyd Benson, you know, I know Orrin Hatch.
Orrin Hatch is a friend of mine. I testified before and on his invitation
on many occasions. And he co-sponsored the mandate, and then, on January
20th, 2010, the one year anniversary of Barack Obama`s inauguration, he and
I had dueling op-eds in the "L.A. Times," which I said it`s constitutional.

And Randy Barnett, I said, it was constitutional as a tax. And he
said, it`s unconstitutional, which was news to me. And, so, Randy said, do
you believe your constitutional argument? You know, would you have written
it like John Roberts? Not only would I have. I actually did. I wrote a
piece a full year ago.

The first 15 pages of which said this is -- it`s up on SSRN. It`s
freely downloadable. It`s a tax and what was said before that it wasn`t
passed -- none of those things are actually true, and I go through in great
detail showing you it`s clearly -- so John Roberts actually channeled all
that. And so, here`s the point that Randy -- Randy Barnett came up with
this brilliant idea.

HAYES: Right.

AMAR: And the conservative constitutional scholars actually don`t buy
it. They won`t go on the record. I promise you, I talked to a lot of
them. And they said, we don`t buy it at all.

HAYES: This is the disingenuousness question. We`re going to come
back to this, and we have Don Berwick joining us right after this break.

(COMMERCIAL BREAK)

CHRIS HAYES, HOST: Good morning from New York. I`m Chris Hayes, here with
Congresswoman Yvette Clarke, Democrat from New York, representing the
borough of Brooklyn where I live; Akhil Amar, professor of law and
political science at Yale University; Ezra Klein, MSNBC political analyst;
and Avik Roy, member of Mitt Romney`s health care policy advisory group and
health care policy writer for "Forbes" and the "National Review".

We are, of course, talking about health care in the wake of the
Supreme Court decision. We had a fascinating constitutional argument with
one of the architects of the arguments against, though, sort of moved into
policy. We have been talking about the individual mandate.

I just -- we have been talking about this. There are two questions
about the mandate, right? There`s the policy question about is it good
policy, does it work?

But then there is a political argument about disingenuousness, right?
The sort of frustration, the sense of Lucy and the football where you guys
wanted a mandate, and conservatives say mandate, Republicans said mandate,
we say mandate, and then all of a sudden you want a mandate.

So, let`s talk about the policy. Is a mandate at any level, state,
federal, is mandate good policy?

AVIK ROY, ROMNEY HEALTH CARE ADVISOR: Yes. I think if the mandate
is used to justify buying generous comprehensive insurance it doesn`t make
sense. The free rider problem is really for only a limited amount of
emergency care. So, what you really want to do is you want to create an
incentive for people to buy insurance, make insurance cheaper. You make
insurance cheaper by deregulating insurance in the sense of what insurance
must contain. Let people buy high deductible policies, let people have
health savings accounts.

REP. YVETTE CLARKE (D), NEW YORK: But that`s not entirely true.
What we did within the provisions of the law is to provide various levels
of coverage. So, not everyone is getting the Cadillac plan. If you can
afford the Cadillac plan, you purchase the Cadillac plan.

There is a specific preventive care-based model that we are asking
individuals to cover themselves with.

HAYES: Right.

CLARKE: So it`s not completely true.

ROY: I mean, I disagree with that. I think that actually -- and
Jonathan Gruber reports to the state governments about this.

HAYES: Jonathan Gruber is a health economist at MIT who is crucial
in the brain trust behind Mitt Romney`s health care in Massachusetts and
also worked on the federal program.

ROY: He`s estimating a number of states like Colorado, insurance
premiums in the individual market are going to go up by 30 percent because
the law requires the plans to be more financially generous than people
normally buy.

Now, a lot of the progressive health economists say that`s a good
thing. We want people to buy very comprehensive insurance.

(CROSSTALK)

EZRA KLEIN, MSNBC POLITICAL ANALYST: Yes, I want to make one
addendum here which is we`re seeing that they have to buy more
comprehensive plans in some -- than they can currently afford. One reason
that these premiums can go up in a way that we`re talking about here is
that what the plan does now is to give somebody who doesn`t have much money
and has trouble buying it so they can comprehensive health care insurance -
- I don`t think the insurance is as generous at the lower levels as you
make it sound here.

But nevertheless, there is a difference between people want - people
simply can`t buy insurance that covers what they need and cheap insurance.

HAYES: I want to bring in Dr. Don Berwick who`s joining the program,
former administrator of the Centers for Medicare and Medicaid Services and
former president of Institute for Healthcare Improvement.

Don, it`s great to have you. What are your thoughts about this
question about the level of care the law requires and whether that`s a good
or bad thing?

DR. DON BERWICK, FORMER ADMN., CNTRS FOR MEDICARE & MEDICAID: Well,
if you are uninsured this law requires you to have a level of care you need
and want. The fine structure of what`s covered and what is not is more
important than the fact we`re going to have, with this law -- 30 million
people actually will have coverage who otherwise won`t have it. And the
care system will get better.

This whole constitutional debate, although it`s fascinating and
important in policy terms, frankly is not what`s important to me. If you
just look at what`s good about the law, 30 million people get coverage who
don`t have it. That`s crucial, as Congresswoman Clarke said.

The other part of the law that`s important to me is care gets better.
People know that health care isn`t working well for them. Under this law,
it will work better. That thrills me about where we are headed as a
country right now.

CLARKE: The people who are going bankrupt paying all of these bills.
That`s the other side to it. The diversity of concerns embedded in the
Affordable Care Act is something I think we all need to examine, because
people were losing their homes because of the bills they were getting and
not being a adequately covered. And the pre-existing condition, you know -
--

(CROSSTALK)

HAYES: Yes. And one of the things I think that`s gotten lost in the
debate of the bill is just how bad the status quo before was. I mean,
that`s one of the things that happened.

But, Don, you just said I think that`s something important and I want
to follow up on. You said this is going to make care better. And I just -
- you know, part of the problem in selling the Affordable Care Act, which
is a term we use a lot, is that you can say that and people think it`s like
you are promising to extend summer by four months or something.

It`s just like totally implausible that you the government -- explain
to me, convince me, a skeptical individual, that this will make care
better. What does that -- how does that happen? What does that look like?

BERWICK: It will make it tons better. But it`s not the government
that makes care better. It`s the care providers who make it better.

But under the current situation, they don`t have the opportunity to
do that. The care is fragmented. The quality performance isn`t
transparent. There isn`t a way to focus on payment for quality of care.

So we get this durable case (ph) in health care with more and more is
done but it actually isn`t helping patients the way it can. And people
know that. I often give speeches and say, how many people have a relative
or a friend or maybe themselves who have been injured by lack of safety in
health care. Everybody raises their hand.

You know what`s that like -- continuity suffers, people forget your
name. Nobody knows your medications. This law has tons of things of very
wonderful programs that focus on making care more continuous over time,
paying providers so they can make care continues, which they want, too,
attaching payment to quality.

All of that -- it`s already changing the tectonics in the health care
system. I can see in almost every town and city I visit, more focus on
quality, people are trying to make care safer and more continuous.

As a result of this law -- it`s not the only thing going on -- but as
a result of this law, people in health care are going to be safer. Their
care will be more continuous over time. There will be more transparency of
what`s going on. That`s really very, very important.

I think it`s terrific. And not only that, we`re going to have 30
million people who get coverage.

I don`t know why we aren`t celebrating this. Instead of you
splitting hairs about constitutional -- you know, fine structure. It`s
important. I don`t want to dismiss that.

HAYES: Right.

BERWICK: What`s important is this is better care for our country.

HAYES: Akhil?

AKHIL AMAR, YALE LAW SCHOOL: I agree with everything that was just
said. But I want to connect it to the constitutional conversation in the
court in this one very specific way. Four justices on the court because
they had a problem with one provision, one basically paragraph or page,
we`re willing to strike down the entire law. All these things that really
have no constitutional problems and really good policy -- sound policy that
will make -- improve the lives of millions of Americans. That was -- we
came within one vote of all the good stuff unrelated to the mandate. That
was radical.

HAYES: Yes, the dissent says basically, without the mandate the
whole thing falls.

AMAR: All the good stuff.

HAYES: Major provisions -- I`m reading from the dissent by Justice
Scalia signed by Antony Kennedy, Clarence Thomas and Alito -- "Major
provisions of the Affordable Care Act cannot remain once the individual
mandate and Medicaid expansion are invalid. The consequence would be in
absolute conflict with the ACA`s design of shared responsibility would pose
a threat to the nation that Congress did not intend."

I don`t know why nation is capitalized there like in German where the
nouns are capitalized. No, no, no. It was capitalized in the original
opinion. My control room is telling me, don`t call us out. That was in
the original opinion. I was calling out Justice Scalia.

Don, you just talked about the 30 million coverage. This is
something, Ovik, I want to talk to you about because here`s a montage of at
this point -- the idea from Republicans is repeal the Affordable Care Act.
I think that`s the platform of Mitt Romney.

Here is a montage of Republicans saying that to give you a flavor.

(BEGIN VIDEO CLIPS)

MITT ROMNEY (R), PRESIDENTIAL CANDIDATE: I will act to repeal
Obamacare.

SEN. MITCH MCCONNELL (R-KY), MINORITY LEADER: There is only one way
to truly fix Obamacare. Only one way. And that`s a full repeal.

REP. JOHN BOEHNER (R-OH), SPEAKER OF THE HOUSE: Today`s ruling
underscores the urgency of repealing this harmful law in its entirety.

REP. JOE WALSH (R), ILLINOIS: No matter what, the thing needs to be
repealed. And it will be repealed.

SEN. KAY BAILEY HUTCHISON (R), TEXAS: I hope Congress will roll up
its sleeves right now today, and start talking about repeal of the health
care bill.

REP. ERIC CANTOR (R-VA), MAJORITY LEADER: I have scheduled a vote
for total repeal of the Obamacare bill to occur on Wednesday, July 11th.

(END VIDEO CLIPS)

HAYES: So, here`s my question. It was repeal and replace, now it`s
just repeal.

ROY: No, it`s still repeal and replace.

HAYES: Well, but here`s the thing, do -- it seems to me you have two
major political coalitions in this country. One of whom has a policy
objective to cover the uninsured, and one of whom simply does not. I mean,
there was eight years under George Bush and Republican Congress and there
was just nothing was done aside from the prescription benefit for seniors
to cover the uninsured.

It just strikes me that like it`s not a priority for Republicans.
They just don`t really care that much about covering the insured.

I mean, that`s fine. That`s their prerogative. But isn`t that the
case?

ROY: No. I would say Republicans do want to cover the uninsured but
they want to do it in the right way. And I think that`s one of the
challenges here, is coverage, insurance -- health insurance is not health
care. I think we equate those things very simply. Medicaid in particular
provides pretty inadequate care for what you get particularly for the acute
care population. That`s why health outcomes in Medicaid are far worse than
those in private insurance.

KLEIN: I do want to note, there is disagreement there.

ROY: There`s disagreement. That`s fine.

KLEIN: Significant disagreement.

ROY: I should say, actually, there is very little disagreement about
Medicaid versus private insurance. There`s disagreement on Medicaid versus
being uninsured.

HAYES: So, I want you to tell me -- we`ll take a quick break. Tell
me what the vision to cover people looks like.

ROY: Sure.

HAYES: Don, we`re going to talk about the Medicaid ruling part of
the Supreme Court decision which got less attention but is really
important. That`s half of those 30 million, probably more than half are
cut under Medicaid. All that when we come back.

(COMMERCIAL BREAK)

HAYES: A little Ted Leo this morning.

So I remain skeptical the Republicans care about covering the
uninsured and the skepticism is just grounded in the fact that they had a
chance during George W. Bush. If it was a major initiative, they could
have done something. They could have done it the right way when they had
the majorities, they didn`t.

What does covering the uninsured look like in Republican world, and
what are the odds of that being a piece of legislation that goes anywhere?

ROY: So, I`d like to say a couple of things. I think you are right
when Republicans had power in the 2000s, it was a strategic mistake not to
do something about health care. I think historically for reasons about
when the modern American conservative movement came to be, which was in the
50s when it was about communism, it was about some other things that really
didn`t involve health care because Medicare, Medicaid, all these programs
emerged in the Great Society, the Lyndon Johnson area. But that time sort
of conservatism as we know it in America was kind of fully formed.

So, it`s been a bit of --

HAYES: Although Reagan famously recorded an LP that can be played
opposing Medicare.

AMAR: Socialized medicine.

ROY: There`s been an evolution. I think today conservatives do
understand, you know, if we don`t have our own solutions then, you know, I
think people like myself and others, like Governor Romney who have been
very passionate about the health care issue, who`d really been, who`d
studied it very carefully and thought about it, had tried to enact reforms,
I think you`re going to see much more momentum in the future.

I think Republicans in Congress and conservatives intellectually are
much more focused on health care reform today than they were 10 years ago.
I think that`s a good thing.

KLEIN: Can I ask you a question about that? It`s something that`s a
big interest to me. In the past couple of years, there was I felt more
focus from conservatives a few years back. The early versions of the Paul
Ryan road map which eventually became a budget had a big plan that would
have covered a number of the uninsured, it was a big health care plan.
It`s not exactly what I would do, but it was serious.

It disappeared when they moved to the budget. In Romney`s bill or
Romney`s proposal so far, what`s there in terms of the uninsured is very
vague. He`s very specific on cutting Medicaid, very unspecific on covering
the uninsured.

So, what should I look at that would make me confident I would be
there. I agree through the intellectual movement thinking about health
care, but it seems conservative politicians have sort of look at this and
they see the upside of repeal. They believe in repeal and they are kind of
backing off.

ROY: No, I would -- so, you know, let`s also remember that John
McCain in 2008 proposed universal catastrophic health insurance. And
President Obama -- Senator Obama then campaigned against it. It`s not like
Republicans haven`t had solutions.

I think it`s also a matter of priority and emphasis.

HAYES: That`s -- yes.

ROY: I think now in this election it will be a matter of priority
and emphasis. Governor Romney has articulated in the kind of broad
outlines of his replace -- repeal and replace approach. It`s going to be
very different from the Affordable Care Act. It`s going to will be, you
know, again, as you say, the priorities are about market reforms rather
than -- and more choice and competition.

HAYES: Don, I want you to -- because we have you -- because you
oversaw Centers for Medicare and Medicaid Services, one of the aspects of
the Affordable Care Act that gets a lot of the coverage is that you have,
the states have to expand Medicaid coverage of people 133 percent of the
poverty line. That`s where how more than half of the coverage happens.
And if they formally in the bill, in the law, if they didn`t do that, then
they lost all their Medicaid money.

And seven justices on the Supreme Court, including Justice Kagan and
Breyer joined the other five to say that wasn`t constitutional, represented
a gun to the head of the states and states can now take the money, take or
leave the money on the table for the expansion of coverage.

And I want you to walk us through what means and what you -- what
that means in terms of how we should expect states to make this
calculation? Are conservative governors particularly in red states with
lots of uninsured like Texas or Mississippi -- are they going to walk away
from this expansion?

BERWICK: Yes. The way I interpret it is they are saying, well, the
expansion of Medicaid is going to occur under the same condition as
Medicaid did originally. No state had to adopt the Medicaid program. All
did eventually. It was optional.

With federal matching funds that varies depending on the wealth of
the state, from maybe the 50 percent to 70 percent range. So, they are
saying the same rules apply here for the expansion. The states are going
to have the option. They don`t lose their basic Medicaid system if they
don`t adopt it. But the expansion is funded differently.

In this law, it`s 100 percent federal money for the gap between
wherever they are at 133 percent for three years. Then it goes to 95
percent, then 90 percent from then on. So, it`s about 95 percent federal
money when you average it out.

HAYES: So, it`s a lot of money on the table to cover a lot of poor
folks without insurance is the bottom line.

BERWICK: Yes. Those folks show up for care. The estimate we heard
about free riders or emergency care is an under estimate.

If you see patients who don`t have coverage, I mean, they are sick
for a long time. Their kidneys fail if they have diabetes. I mean, this
is a big deal.

But that means now a state is going to quite -- I mean, they`re
going to be looking at 95 percent federal funding to cover people that are
coming to care anyway. I can`t imagine in the long run, every state isn`t
going to -- is going to say, well, at least take that. And if they don`t,
I think the hospitals and doctors are going to say, what are you doing?
These people are coming in for care, you`re leaving all that money on the
table. We have to take care of them anyway.

So I would think state will come in pretty readily into that system.
It`d take a little longer. But it would be foolish.

HAYES: A key point about the political landscape there is that it
may be popular for Republican governors to say, we`re not -- you know,
we`re not going to take this and I`m standing up against Obamacare.

UNIDENTIFIED MALE: We`re not taking it anymore.

HAYES: But the hospitals want the money and they actually --

(CROSSTALK)

HAYES: They could call up the governor.

KLEIN: And what`s interesting is that it`s a much more money if you
have a sparse Medicaid program. So, a state like Texas has a very low
Medicaid. It`s not the generous Medicaid, but they get a ton of money
because they are getting brought up all the way to this new expansion on
the 90-10 match.

A state like Massachusetts which already have a very generous
Medicaid program is getting very little. So, the particular --

HAYES: It`s a red state transfer.

KLEIN: It`s a massive red state transfer, huge. And in the long
run, that`s going to be a very compelling fiscal incentive.

CLARKE: That`s right.

(CROSSTALK)

ROY: -- Chris, about this, speaking of fiscal incentives I wrote
about this on Thursday for "Forbes" on Thursday is that because of the new
opt out the Supreme Court created for the Medicaid program and because of
the way --

HAYES: For the Medicaid expansion.

ROY: For the Medicaid expansion.

And the way it overlaps with the subsidized exchanges that are also
part of the law, a number of states like New York, New Jersey, California,
states with existing generous Medicaid programs, they may have the ability
to pare those programs back to bring more individuals on the exchanges.
And that has the potential to expand the deficit considerably.

Douglas Holtz-Eakin, a former CBO director, Congressional Budget
Office director, estimated this could cost as much $500 million over 10
years.

HAYES: To move people from Medicaid to the private market.

(CROSSTALK)

ROY: -- more expensive on a per capita basis.

HAYES: Don, what do you think of that?

BERWICK: Well, it`s -- we -- this is going to take a couple of weeks
for everyone to sort out. But the law basically says that between 100 and
132 percent of poverty, a person could go into the exchanges. And that`s
100 percent federal -- all of the subsidies, federal money, instead of
saying in Medicaid.

We don`t know what -- I don`t know what happened in the gap. Let`s
say you are at a state that`s current cut off is 50 percent of poverty.
There`s a group of people between 50 percent and 100 percent.

And if you stay out of the Medicaid expansion system, what happens
with the exchanges? I do not know the answer to that. And I think there`s
going to be fine analysis of exactly what would apply. Some games will be
played.

But in the long run, remember, whether it`s through the subsidies in
the exchanges or through the Medicaid program, this is mostly federal
money. And for states to stand aside, it just doesn`t make any sense to
me.

HAYES: Don Berwick, former administrator of the Centers for Medicare
and Medicaid Services -- so great to have. Thanks for coming on this
morning.

BERWICK: Thank you, Chris.

HAYES: All right. What you know about the fast and furious scandal
is almost certainly wrong. We`ll have the author of a bomb shell report
with us to explain, up next.

(COMMERCIAL BREAK)

HAYES: On Thursday, the House voted to hold Attorney General Eric
Holder in criminal contempt for refusing to disclose more than a hundred
thousand internal Justice Department documents related to Operation Fast
and Furious, a project by the Bureau of Alcohol, Tobacco, Firearms and
Explosives to stop the trafficking of guns along the southwest border into
Mexico`s drug war. This is the first time in history a sitting cabinet
member has been held in criminal contempt of Congress.

The Department of Justice issued a ruling saying it would decline to
pursue the case because of the assertion of executive privilege. Holder
dismissed the vote on Thursday as an act of political theater by
Republicans.

(BEGIN VIDEO CLIP)

ERIC HOLDER, U.S. ATTORNEY GENERAL: It`s clear they were not
interested in bringing an end to this dispute or even obtaining the
information they say they wanted. Ultimately, their goal was the vote of
the help of special interests they have now engineered.

(END VIDEO CLIP)

HAYES: Republicans led by Congressman Darrell Issa, chairman of the
House Oversight Committee, have accused Holder of lying to cover up so-
called gun-walking by ATF agents in Arizona, claiming that they
intentionally allowed gun smugglers to transfer weapons to Mexican drug
cartels across the border in order to track the weapons and penetrate the
cartels, leading ultimately to one of the guns ending up at the crime scene
where a U.S. border patrol agent Brian Terry was shot and killed.

That account has been the largely accepted by the political
establishment in Washington.

But an explosive new article in "Fortune" magazine this weekend
upends many of the basic facts underlying the Republican case about Fast
and Furious and how it went wrong.

The author of the article Katherine Eban joins us at the table to
walk us through it.

It`s great to have you here.

KATHERINE EBAN, FORTUNE.COM: Thanks for having me.

HAYES: Before you walk us through, the facts on this -- because you
are a member of Congress, Congresswoman Clarke, I just want to get your
reaction. You were -- what is your sense of where it goes now and what was
your reaction to the vote on contempt this week?

CLARKE: I think it went over like a lead balloon. Clearly, you
know, the Republicans have been looking for every opportunity to create
political theater. And this was one of those circumstances.

I think Katherine`s article goes to the heart of the facts and that`s
something that we`re not dealing with much in Washington these days. But
it`s the epitome of poor work on behalf of the Congress. And, you know, we
walked out. I walked out.

I thought it was important to send a signal we are not going to be
complicit with this type of theater. For me to put a vote on the board for
something where, one, the hearings had no Democratic witnesses whatsoever.

HAYES: Right.

CLARKE: They orchestrated their own, you know, what they knew they
wanted to do all along. There was no factual basis for what took place.
It`s unfortunate.

HAYES: All right. So, Katherine, let`s start with a context,
because I think one of the most important things about this article was
that it just filtered through -- you know, you heard about it in the water
cooler, you heard about it from reading a blog or something, it was sort of
unclear what was the problem it was set up to solve? That -- it was always
unclear like exactly was the issue they faced.

And one of the things you created is a context of this, which is that
there is a massive flow, right now, of weapons from the U.S. to Mexico. In
fact, 70 percent of weapons recovered in Mexico come from the U.S., which
is a startling statistic. And that`s largely due to the fact that Mexico
has very tight gun restrictions and the U.S. particularly along the
southwest border has lax very ones.

So, this -- so, what was the -- what was the idea behind this
operation to begin with?

EBAN: What`s alleged or what in fact is the idea behind the
operation?

HAYES: Let`s go with the facts. I think the allegation has gotten a
lot of play. So, what was the idea?

EBAN: Basically, the idea behind this ATF investigation, it`s not a
program. It was a single investigation called Fast and Furious, was to
stop straw purchasers from buying guns that they were then funneling to
Mexican drug cartels.

HAYES: Explain what a straw purchaser.

EBAN: A straw purchaser is basically somebody that the cartels tap
who can legally go and buy weapons. So, in Arizona, that might be an 18-
year-old kid who is not old enough to buy beer but who, if he has no
criminal record, or she, can go into a gun dealership and buy 50 AK-47s,
pay in cash, and face no waiting periods, no need for extra permits.

So, there are a lot of kids in Arizona, for example, who want to make
a few extra bucks. This is what they do.

HAYES: And the cartels find them. And you go and buy the guns and
then you give them to the cartels --

EBAN: That`s right. Or you give them to intermediaries who give
them to the cartels.

HAYES: One of the cases -- just again -- one of the folks that they
investigated, the ATF, was on food stamps, but had made $300,000 in
purchases of weapons.

EBAN: Correct.

HAYES: So, the initial problem they face, right, was what? Why
didn`t they just when the straw purchaser, the 18-year-old kid, walks out
of the Arizona gun shop, right, slap the cuffs on him and bring the full
force of federal law down on him?

EBAN: Because that kid just made a legal purchase. And as
prosecutors determine, there was nothing in the laws that gave the ATF
agents grounds to seize those guns or make those arrests. I mean, you can
complain all you want that guns were walked. However, we are a nation of
laws.

And I can assure you that if ATF agents were running amok making
baseless seizures --

HAYES: Of law abiding citizens purchasing guns, that would have been
a political fire storm.

EBAN: They would have been hauled before Congress. The reason I can
say that with confidence is because that is exactly what happened in 2006,
that ATF agents were hauled before Congress for making allegedly illegal
seizures of suspected straw purchasers at a gun show in Virginia.

HAYES: I want to hammer on this specific point, because this idea of
gun-walking and whether it was gun-walking or they were just -- didn`t have
enough legal authority to arrest them is key. Let`s talk about that after
the break.

(COMMERCIAL BREAK)

(BEGIN VIDSEO CLIP)

SHARYL ATTKISSON, CBS NEWS: You were intentionally letting guns go
to Mexico.

JOHN DODSON, ATF AGENT: Yes, ma`am. I mean, the agency was. I`m
boots on the ground here in Phoenix.

I`m telling you, we have been doing it every day since I have been
here.

Here I am. Tell me I didn`t do the things I did. Tell me you didn`t
order me to do the things I did. Tell me it didn`t happen.

(END VIDEO CLIP)

HAYES: That was John Dodson, an ATF agent.

That`s the explosive interview he gave in March alleging the core of
the scandal which is that ATF agents were instructed to intentionally let
guns walk, as it were, these straw purchases. And let them go and watch
them just wade off into the sunset with some vague sense that they were
going to be traced, and lo and behold one of them ended up at the crime
scene in which a U.S. border agent named Brian Terry was shot and killed.

What about your reporting calls that story into question?

EBAN: Well, first of all, and John Dodson may not have been privy to
this, although they talked about it every day, but prosecutors repeatedly
told the group supervisor Dave Voth, and the other case agents, that they
did not have grounds to seize these weapons. There is a long documentary
record of e-mails and back-and-forth with ATF lawyers which clearly
supports that contention.

HAYES: So, it`s a huge difference. I just want to make sure people
are clear about this. It`s a huge difference between we are letting guns
as part of a strategic vision of how we are going to bring down the drug
cartels and what you say and what you`re reporting indicates happened,
which was that these agents said we want to do something about these straw
purchasers and prosecutors said you cannot interdict these because these
are legal gun purchases.

EBAN: That is correct.

HAYES: What else in your reporting calls the story of John Dodson --
calls into question John Dodson`s story?

EBAN : Well, John Dodson who is, you know, very much been portrayed
as the heroic whistleblower who exposed this, one month after he claims
that this group, Phoenix Group Seven, was driven over the conflict of gun
walking, he actually went off and proposed and completed a separate
investigation in which he walked guns. And it was actually the most
egregious form of gun-walking in which he used taxpayer dollars, purchased
the weapons himself, handed them off to a suspected firearms trafficker and
then went on vacation and failed to interdict them -- seemingly had no plan
to interdict them.

And this really stands in stark contrast to his congressional
testimony which is that if even one gun gets away, we never get home until
we seize it, which he says is the ethos. But in this case, he actually
left for a four-day vacation which he himself documents in the ATF log of
his own case.

HAYES: That gets to something important. Clearly, Dave Voth, who
work with John Dobson, and I know a little on the weeds of the details
here, but it is important to lay out this fact pattern.

These are both agents who are working in Phoenix, in this operation,
trying to deal with the gun smuggling problem, right? And it`s very clear
that these two men do not like each other much. It`s clear that both is a
source of yours and he`s giving a side of the story that`s very different
from the side of the story we`ve heard from Dodson that had been channeled
through Chairman Issa, et cetera.

I`m -- you know, I`m a liberal. So I`m disposed to when I read this
I was like, see, this is the fact. Maybe that`s just confirmation bias.
Maybe I`m happy this backs up what I was predisposed to think.

Why should we believe this account rather than Dodson`s account? Is
this a he said/he said situation?

EBAN: Well, one of the things I did in my reporting is spent six
months trying to actually knock down every single claim that Dodson --
excuse me, that Dave Voth made, as well as trying to report against the e-
mails I had obtained and the documents I had obtained which seemed to
confirm both story. It really wasn`t until I could not knock down the case
anymore and also had four other ATF -- law enforcement agents supporting
his account separately, didn`t sit them down in a room together and
interview them, that we felt comfortable that we had gotten to the truth of
the matter.

HAYES: The facts laid out here when you read them -- it`s like I was
saying before, it`s like a horror movie or a gothic novel in which -- it
begins to read like someone, particularly the protagonist of this story,
Dave Voth, that this is like someone who has been condemned to an insane
asylum even though he`s not crazy and can`t convince anyone he`s not crazy
because, of course, in the insane asylum said they`re not crazy.

I want to tell you us how did this completely alternate story about
what happened get injected into the bloodstream and end up on Congress and
end up with Eric Holder being voted for contempt. I want you to tell us
that right after we take this break.

(COMMERCIAL BREAK)

HAYES: So, Katherine Eban, you wrote this piece, a six-month
investigation, tremendous amount of documentary evidence and reporting that
lays out a set of facts about what`s at the core of what happened in Fast
and Furious, that is in some sense it`s directly contradicts other facts
that had been promoted by Republicans on the Hill and in the conservative
media, and in lot of other cases, radically shifts the context of what we
know.

The question to you is how did this other story, the one that
everyone knows to be true -- that they allowed guns to walk intentionally
without any idea to trace them, how did that story become the dominant
story?

EBAN: Well, it`s hard to say exactly. You know, I`m definitely not
here to point fingers.

HAYES: Sure.

EBAN: But Republican senators stood strongly behind this narrative.
They put forth a whistleblower. Now, my understanding that they did have
documents that contradicted his claims and raised some of these questions
but I assume if they put it in the scales and weighed it, they chose one
side.

HAYES: Right.

So, there`s also, there are sort of two complaints being leveled
here. I just want to refer to the second one.

This is -- there`s one is that this was a botched operation, which I
think the ATF and DOJ has conceded, even though you kind of make the point
it wasn`t actually a botched operation. They couldn`t get the prosecutors
to sign on to prosecuting.

Atop that is the idea that this was an intentional conspiracy by the
Obama administration to produce some sort of gun tragedies which they could
then use as an excuse to crack down on Second Amendment.

Here`s Chairman Darrell Issa making exactly that point.

(BEGIN VIDEO CLIP)

REP. DARRELL ISSA (R-CA), OVERSIGHT COMMITTEE CHAIRMAN: Could it be
that what they really were thinking of was, in fact, to use this walking of
guns in order to promote an assault weapons ban? Many think so. They
haven`t come up with an explanation that would cause any of us not to
agree.

If you don`t think this Fast and Furious and things like it are the
beginning of an attack in a second term -- on a Second Amendment, you
really haven`t evaluated this president.

(END VIDEO CLIP)

HAYES: How plausible an account is that for you?

EBAN: I mean, there is no evidence whatsoever to support that claim.
And John Boehner himself has said that. You know, you don`t need to have a
botched gun walking operation in order to produce evidence that we need an
assault weapons ban.

HAYES: Right.

EBAN: Right. I mean, you know, the attempted assassination of a
U.S. member of Congress --

CLARKE: Right, right in Arizona.

EBAN: -- would seem to some to be sufficient evidence.

HAYES: Which did not trigger any --

EBAN: No.

HAYES: You know, there is no will on the part -- that`s irony on
this whole thing, of course, is that the president has gotten an F from the
Brady Campaign, which is the main gun control advocacy group. There is no
appetite on Capitol Hill for gun legislation.

CLARKE: It`s so interesting the lengths people will go to in order
to discredit the president. I mean, this is really a manufactured scenario
here with respect to this whole Fast and Furious. They were looking for
something. They are constantly manufacturing things on the Hill.

And the bottom line is you`re absolutely right. We have not even
raised the issue of gun control on the Hill. That`s not been a part of
anyone`s political agenda as far as I know.

HAYES: Even when the Democrats have both houses and majorities and
could have --

CLARKE: As a matter of fact, Gabrielle Giffords herself was a gun
rights person.

HAYES: Right, right.

CLARKE: So, I mean -- you know, it boggles the mind that we have
wasted so much time on the Hill and distracted away from all of the key
issues here.

HAYES: Yes, please?

EBAN: You know, there is an incredible irony here. I mean, one of
the ATF agents who spoke out against the Issa narrative, Linda Wallace, who
said they whipped the country into the psychotic frenzy, identifies herself
as a very strong Second Amendment supporter and says in part that she chose
to speak out because she feels that Representative Issa`s inquiry is
actually harming the Second Amendment because he is effectively advocating
that ATF agents make illegal seizures of legally purchased weapons.

HAYES: Right. And you say, `Irony abounds when it comes to Fast and
Furious scandal, but the ultimate irony is this: Republicans who support
the NRA and its attempt to weaken gun laws are lambasting ATF agents for
not seizing enough weapons -- ones that, in this case, prosecutors deemed
to be legal."

It`s a fantastic piece of reporting. It is exactly why journalism
exists is to actually sort out fact from fiction.

Katherine Eban, thank you so much.

EBAN: Thank you.

HAYES: The article is in "Fortune." You can check it out. We`ll
post it on our Web site.

EBAN: Thank you.

HAYES: So, what do we know now that we didn`t know last week? My
answer is after this.

(COMMERCIAL BREAK)

HAYES: In just a moment what we now know that we didn`t know last
week, but first a quick update on the story we did last week, the
University of Virginia president Theresa Sullivan is now back in her job
after the board of visitors voted unanimously on Tuesday to reinstate her.

The initially decision by the board of visitors to force Sullivan out
in order to create a more corporate culture at the university using
annoying jargon like strategic dynamism to justify getting rid of, quote,
"obsolete disciplines like classics and German", provoked outrage from
faculties, staff, and students, as well as some moral shaming here on UP.

Another beneficiary of the UP bounce is New York state assemblyman
Hakeem Humphries who was on our show last Saturday, and with 97 percent of
the vote in one his primary by a vote of 72 percent to 28 percent on
Tuesday, to become the Democratic nominee for New York`s eighth
congressional district.

And yet more good news, yesterday, Congress voted to extend subsidies
for federal student loans, averting what would have been a doubling of the
interest rates for 7.4 million students.

Quick personal update, my book "Twilight of the Elites" is on sale
now. And on Monday, July 9th, I`ll be appearing at an event in Seattle.
On Wednesday, July 11th, I`ll be at the Commonwealth of Club of California
in San Francisco. It`s been awesome to see all of you who have come out in
Los Angeles and Cambridge and all around the country has been.

Check out the "Twilight of the Elites" Facebook page at our Web site
for details and information about other upcoming appearances.

All right. So, what do we know now we didn`t know last week? Well,
we now know that the Republican Party of Texas is actively opposing higher
order thinking skills in the schools, arguing in their 2012 platform that
critical thinking might challenge, quote, "students` fixed beliefs" and
undermine, quote, "parental authority". We know they also believe that
corporal punishment is effective and opposed mandatory preschool and
kindergaten.

We know that cultivating higher order thinking skills is more or less
the entire reason to have an educational system.

We know that while NBC News justice correspondent Pete Williams took
the unusual step of insisting on reading the Supreme Court`s health
decision before reporting on it, CNN and FOX News failed to read past the
first page, producing this Dewey defeats Truman moment, but not before the
president`s soul was briefly crushed with news that his legacy had been
ruled null and void.

We know that the role President Obama is on includes a huge vote of
confidence for the American people in an event of an extraterrestrial alien
invasion. Thanks to a poll by "USA Today" commissioned by National
Geographic, we know that 65 percent of people surveyed believed Obama would
handle an invasion better than Mitt Romney.

However, we also know that most Americans claim they would not mind a
minor alien invasion because they expect the creatures to be friendly. So,
Obama`s edge in alien battle won`t almost certainly not be a critical
factor in the swing states this fall.

And, finally, we know we lost one of the nation`s warmest and
funniest voices this is week, a person who in the words of friend Carrie
Fisher was so, so alive. Nora Ephron died this week at 71. She`s slayed
Hollywood`s boys club with her wit and talent, writing women in central
roles on iconic films like "When Harry Met Sally," "Silkwood," "Heartburn,"
"Sleepless in Seattle," and most recently "Julie and Julia."

As an essayist, playwright, journalist, novelist, screenwriter and
movie director, Ephron told the graduates of her alma mater Wellesley to
be, quote, "not to be the victim of their life but the heroine."

And as my colleague writer Katha Pollitt put it in "The Nation" this
week, "In every way, Nora Ephron was the heroine of her life. That`s
feminism."

Back to the table to find out what you think we now know that we
didn`t know at the beginning of the week. Congresswoman Yvette Clarke.

CLARKE: Well, we know that Obamacare is the law of the land. And I
think that`s extraordinary. That the Supreme Court has ruled that health
care for all in this nation is going to be very, a part of our lives going
forward and I`m excited about that.

HAYES: Yes, I think there`s a little bit of an open question. Ezra
and I debated this a little bit about what happens if Mitt Romney is
elected president. The law does survive. It may have one last, I think,
final challenge before the cement dries on the law being permanent, but
obviously that`s the big news of the week.

Akhil Amar, what do we now know?

AMAR: Building on that, we focus on the court`s ability to strike
things down. It also has the symmetric power to in fact to legitimate.
And as all the more effective when the legitimation occurs by institution
that actually is controlled, this was a Democrat law, by Republican
appointees. That`s very interesting.

And, we know belatedly, that there is which we didn`t know last week,
at least one institution in Washington, where at least on some things,
Democrats and Republicans, can actually vote on the same side.

So John Roberts voted with four liberals to basically, Democrats, to
uphold, and John Roberts is a Republican appointee, conservative, dye in
the wool conservative, to uphold Obamacare. And he voted on the other side
with four conservative Republicans and two liberal Democrats.

HAYES: On the Medicaid expansion.

AMAR: And that`s news that there`s at least one institution in our
nation`s capital where sometimes Republicans and Democrats work together.

HAYES: Ezra Klein?

KLEIN: I know more about the health care law`s constitutionality and
about the ATF organization or lack thereof. I think that piece, as you
said, amazing journalism. Exactly what journalists here are here to do,
which is take something that we don`t fully understand, give us a text
(ph), put in the work and help us see the truth.

HAYES: Yes, absolutely.

Avik Roy?

ROY: We learned this week that the federal society with once again
conservative intellectual movements has invested 30 years in building up a
legal community that can appoint strict constructionists to the Supreme
Court who look at the original intent and language of the Constitution. It
looks like they missed out once again.

HAYES: I`m not so sure about that. It`s going to be so interesting
to see what the Roberts` courts look like in the wake of this. I mean, I
think there`s a certain -- there`s one interpretation this was just what he
was persuaded by.

The others that he is essentially storing up some reputational
capital, which he will then begin to spend over the course of what will be
probably one of the longest terms as Supreme Court justice in the nation`s
history if not the longest. He`s the youngest since Justice Marshall, way
back at the dawn of the republic.

My thanks to Congresswoman Yvette Clarke, Democrat from New York,
Akhil Amar from Yale University, Ezra Klein, MSNBC analyst, and Avik Roy
from the Manhattan Institute -- thanks for getting UP.

All right. Thank you for joining us today for UP. And join us
tomorrow, Sunday morning at 8:00. I`ll have Kris Kobach, the Republican
Kansas secretary of state who co-authored Arizona`s controversial Senate
bill 1070 on immigration.

Coming up next is "MELISSA HARRIS-PERRY". On her show today, Melissa
sat down this week for an interview with Nancy Pelosi. They discussed the
Supreme Court`s health care ruling, her own political legacy, and the
prospects for Democrats this November.

And actor Blair Underwood will join Melissa to talk about his role in
the new all black cast of the Broadway show "Streetcar Named Desire" --
which I`ve heard amazing things about that. You do not want to miss that
interview. That is Melissa Harris-Perry coming up next.

And we will see you right here tomorrow at 8:00. Thanks so much for
getting UP.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY
BE UPDATED.
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