Caplis and Silverman, John Suthers, March 27, 2012

Station:   630 AM, KHOW

Show:     Caplis & Silverman Show

Guest:     Suthers


Date:      March 27, 2012

Topics:    Supreme Court of the United States, SCOTUS, Obamacare, Individual Mandate, ACA, Affordable Care Act, Healthcare,

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CRAIG SILVERMAN:  (inaudible) VIP line, Colorado Attorney General John Suthers, representing Colorado as one of the parties in this big litigation taking place in the United States Supreme Court.  Mr. Attorney General, welcome back to Colorado!  I’ve got bad news – I think your house just burned down.  But how did it go in Washington?

JOHN SUTHERS:  Well, I’m still in Washington, Craig, and it’s been fascinating.  I was in the Court both yesterday and today.  Just an electric atmosphere, you know– thousands of people in front of the Court protesting, jam-packed court.  I think in today’s session I probably identified between twenty-five and thirty United States senators, on both sides of the aisle.  The Attorney General was at both sessions. Kathleen Sebelius, who of course is the defendant, was there both sessions. It’s quite an atmosphere, From the perspective of the plaintiffs, the states, we were very heartened.  I’m too good a lawyer, been around too long to make any predictions, Craig. But, you know, two years ago when we filed this case and suffered the skepticism of people like yourself …

CS:  No, no, no!  Come on, Mr. Attorney General!  I was not in favor of Obamacare.  Ididn’t like the process and I did not challenge you about your decision to take it on.  I …so, go ahead.   Maybe you were thinking of somebody else.

JS:   Okay.  Maybe I am confusing you, Craig.  But in any event, what was heartening to us is the very issues we raised two years ago, which certainly did meet with skepticism among law professors and all that sort of thing, and editorial pages, were the very issues the Court focused in on today.   And as you know, for example, Anthony Kennedy’s perceived as a potential swing vote, and there was a little bit that either side could cite from his questions that, uh… We would certainly cite the first question out of the box that the United States Solicitor General was, “Okay, the Constitution you the power to regulate commerce.  Does it give you the power to create commerce by forcing people  to buy a product or a service in the first place.  Later on, he said, “Look, will you admit that if we uphold this power to force a(n) individual to buy a product or service to help solve a national problem that we are fundamentally changing the relationship of the individual to the Federal government.”  And, those, of course are exactly what we’ve been talking about.  So we were heartened by that.

On the other hand, the focus of the argument seems to be, is there something unique about the healthcare market as opposed to other markets, and Kennedy suggests (that) there might be.  Alito, Scalia, and to some extent Roberts said there’s lots of markets where there’s cost shifting, and were questioning whether there’s anything particular about Healthcare – there’s lots of national problems that the government might want to try to solve by forcing people to buy products, so….

CS:  Right.  And the key thing… Let me just play a little sound.  You were there, but let me give people out there a flavor.  This is Justice Kennedy making the point that you just spoke about, that if the Supreme Court authorizes it, it’s getting into brand new territory.


[Justice Anthony Kennedy speaking]:  “Help me with this.  Assume for a moment, [and] you may disagree… Assume for a moment that this is unprecedented — this is a step beyond what our cases have allowed:  the affirmative duty to act to go into commerce.  If that is so, do you not have a heavy burden of justification?  I understand that we must presume that laws are constitutional.  But even so, when you are changing the relation of the individual to the government in what I think we can stipulate is a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?”


CS:  So, Attorney General Suthers, I bet you had a smile on your face when you heard that question.

JS:  You bet I did.  I tapped the Attorney General sitting next to me and gave him a thumbs up.  Because that was some indication that he is focusing in on exactly the issue that  we’ve been talking about for a couple of years.  You know, I talked to a lot of people afterwards.  I was on an NPR program with Walter Dellinger, the former Solicitor General, this afternoon, and he makes the case that there were some things that Roberts said and Kennedy said that leads their side of the case to believe there’s a possibility, but….  All I can say is that the Court is taking it very seriously, that it’s obviously confronting the government with the very arguments that we have been maintaining all along.  I think it’s going to be close.  I said that two years ago, I still think it’s going to be close, and obviously we will be respectful of whatever decision they come down with.

CS:  Now the state of Colorado, one of the twenty-six states to join in this litigation, do you have any idea of how much it ended up costing the taxpayers of Colorado for this state’s participation?

JS:  The taxpayers, I would predict — about five thousand dollars.  I think it’s going to cost about $25,000 in total.  Twenty thousand of that will come out of a litigation fund that comes from successful lawsuits.  So that won’t come from the taxpayers.  But about five thousand of taxpayer money.  I will tell you the, …you know, I was on the management committee, a six Attorney General management committee on this case and that’s one of the reasons I have been in the courtroom these past two days.  The best decision we made, Craig, was to hire Paul Clement to argue for the states.  I don’t know if you’ve had a chance to hear the arguments, but if it was based on who had the best lawyer, we win.  He was fantastic.

CS:  Well, that’s interesting – your assessment of  that.  What about yesterday, the argument that this is not ripe for consideration; that it’s a tax issue and therefore the Supreme Court might put it off until 2014 or 2015.  Do you assess that there’s a possibility that that will occur?

JS:  I don’t.  I don’t even think that the liberal wing of the Court had an appetite for that.  First of all, the notion that it is a tax didn’t seem to go over very well.  There’s something fundamentally different about this.  Its primary purpose is not to raise revenue, but rather to secure compliance with a mandate.  And the fact that the Federal government wasn’t even pursuing that issue yesterday – as you may know, they actually had to appoint outside counsel to take up that issue because the Government had abandoned the issue in the trial court,  that it was covered under the Anti-injunction Act.  So, I just didn’t hear a lot of support for that. I would be very surprised if the Court doesn’t go ahead and decide this issue right this year.

CS:  Now you are a member of the Republican Party, but in your role as Attorney General, if this Act, the Affordable Healthcare Act, otherwise known as Obamacare, — if it did not have the individual mandate, would you be a part of the litigation?   Or would you just be opposed politically to it?

JS:  Well, there is one other issue that is being taken up tomorrow that the states are concerned about, and that is the way the Obamacare so dramatically increases the state’s burden in Medicaid.  The states contended that it is so coercive as to violate Federalism.   That wasn’t, frankly, one of my great motivations. I am pleased that…We lost that issue, by the way, in the trial court in the Eleventh Circuit but the Court did accept cert on it and I think it’s an important issue because the government tends to get into these programs when they’re relatively cheap, and the far end of them they’re very burdensome on states.  So I think it’s a legitimate question to answer.  But, first and foremost, Craig, as I expressed to you and other folks all along, I have been very concerned about the individual mandate as an unprecedented expansion of the Commerce power.

CS:  You’re a skilled politician and an accomplished prosecutor.  Politically, I know that you’re backing Mitt Romney to be president of the United States.  How do you think this will play politically?  I mean if Obamacare is held unconstitutional by a 5-4 ruling, is it possible that Barak Obama will be able to rally and say that, okay, we’re going to get rid of the individual mandate but we’re still going to do something about healthcare, and it could be to his benefit?  Whereas, if it’s upheld 5-4, then majority of Americans seem to be against it and the individual mandate, and maybe they’d want a Mitt Romney who would  repeal it?

JS:  Craig, I’ll be the first to admit, I’m a better lawyer than I am politician, but there’s no question that there’s some kind of complex politics surrounding this.  There’s a lot of people who think that Obama is better off losing it and kind of rallying the liberal base.  Whereas if he wins it, the Republicans perhaps persuade a lot of people in the middle that we’ve got to get Republican senators or a Republican president to get rid of this.

As far as Romney is concerned, I argue,… you know, Santorum is trying to say, “well, I’m the only guy to really take this on.”  I don’t think so at all.  In fact, there was a big discussion in the Court today about, “yeah, the states could do this.  They exercise broad police powers, unlike the Federal government that is burdened by enumerated powers.  So, Romney has said all along, “you know, my issue is Federalism – the Federal government can’t do this to you, and it’s up to each state and the voters of those states to decide what they want to do.”  I think that’s a message he can carry forward, and be successful and say, if in fact we still have an Obamacare after June, he can say, “I’ll repeal it, because it shouldn’t be the Federal government pushing this down our throats.

CS:  Well, you are an accomplished lawyer, and putting on your lawyer hat, regardless of the politics, if the Supreme Court rules 5-4 in favor of Obamacare, it’s an expansion of the federal government’s constitutional rights.  And it’s going to be there on the books, and it’s going to be law in this country.  And I take it, that is what you oppose.

JS:  Yeah, Craig.  Big, big discussion today about limiting principles.  Assure us, Federal Government, that it stops there.  You know, you’re saying this is justified because it’s a national problem and you need this power to solve this national problem.  But there’s a lot of national problems and you can conceive of national problems in the future.  Are you gonna come … Is Congress going to say every  time they face a national problem, whether it be climate change or something else, that the way to solve it is to force individuals Americans to buy a particular product?

And frankly, I think, in the trial courts and in the Court today, that was a problem for the government.  They didn’t seem to have a compelling limiting principle.  They say Healthcare. When they’re pressed… Alito said, “hey, if you die and you can’t afford to get buried or cremated, and the government does it for you, you’re shifting costs.  Should everybody have burial insurance?  Should everybody have long term insurance?

CS:  Right, and it’s all a health issue.  You can’t have corpses laying around, and you gotta make sure everyone eats right, and you gotta make sure everybody exercises.

JS:  Yeah, so healthcare, in and of itself, is not a good limiting principle.

CS:  Well, Mr. Attorney General, you’ve been so generous with your time.  I can hear the excitement in your voice.  You were part of history today.  Congratulations!  Thanks for sharing with us along the Front Range.

JS:  It was a real privilege to be there and it’s a privilege to represent the people of Colorado.  Thanks, Craig.