NERMEEN SHAIKH: On Tuesday, the Supreme Court continued its historic session on the constitutionality of the Affordable Care Act, the landmark healthcare reform bill signed by President Obama. Conservative judges sharply questioned whether the U.S. government has the power to penalize Americans who have no medical cover, an issue at the heart of so-called “Obamacare.” The individual mandate requires most people to buy health insurance by 2014 or pay a tax penalty. The nine judges spent about two hours questioning attorneys on the controversial individual mandate. Antonin Scalia, in particular, expressed concern that Congress and the federal government would have unlimited powers if the law was upheld.

JUSTICE ANTONIN SCALIA: The argument here is that this also is maybe necessary, but it’s not proper, because it violates an equally evident principle in the Constitution, which is that the federal government is not supposed to be a government that has all powers, that it’s supposed to be a government of limited powers. And that’s what all this questioning has been about. What—what is left? If the government can do this, what else can it not do?

AMY GOODMAN: Today, the Supreme Court hears its final arguments on the constitutionality of the healthcare overhaul law. They will focus on whether the law can survive if the justices decide to strike the individual mandate. The case is expected to have huge implications for the nation in the 2012 elections and is being followed closely by all sides of the healthcare debate.

To talk more about the debate and what’s happening in the Supreme Court, we’re joined by Wendell Potter, former spokesperson for CIGNA and Humana Insurance, now turned whistleblower. He was outside the Supreme Court Tuesday. He’s the author of Deadly Spin: An Insurance Company Insider Speaks Out on How Corporate PR is Killing Health Care and Deceiving Americans.

Wendell Potter, welcome back to Democracy Now! Can you talk about the questions raised by the judges and how you think the Affordable Care Act is faring in the Supreme Court?

WENDELL POTTER: I think the questions that were raised by the conservative judges were to be expected. I think that most of their questions were along the lines of expansion of government and where are the limits of government. So that doesn’t surprise me a bit. And I don’t think we should read into their questions what the court will actually decide. One of the things that was said in one of those sound bites was, one of the justices said—I think it was Scalia—this may be necessary, but is it proper? I think there will be a realization that the individual mandate actually is necessary. If this—if we expect to try to expand healthcare coverage and to bring down cost, you’ve got to have an individual mandate. I think that’s what they will ultimately decide to do.

NERMEEN SHAIKH: Can you explain why the individual mandate is as controversial as it is?

WENDELL POTTER: Because this whole issue became very political. As you know, the idea of an individual mandate actually is a conservative idea. It can be traced back to a proposal that came out of the Heritage Foundation in the 1990s in response to the Clinton healthcare reform plan. So you would think that the Republicans would embrace this. In fact, I think the President felt that he could get bipartisan support in Congress if he did go along with it. He was lobbied very heavily by the insurance industry, as was Congress. But there are a lot of people who don’t like Barack Obama. And the people I saw outside of the court yesterday were people who I think would not vote for Barack Obama under any circumstances. They see this as a political issue, as a way to try to turn people away from the President, not just the reform act.

AMY GOODMAN: In fact, that’s a very interesting point. Polls have been done that show that the vast majority of Americans, something like three-quarters, think this is a political decision that is being made by the Supreme Court. You know, let’s go back to Citizens United and, before that, Gore v. Bush. But let me ask you about Justice Antonin Scalia asking the Obama administration’s lawyer, Donald Verrilli, to defend the controversial individual mandate provision of the Affordable Care Act. He drew an analogy between forcing people to buy health insurance and forcing them to buy broccoli.

JUSTICE ANTONIN SCALIA: Everybody has to buy food, sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli.

AMY GOODMAN: I am convinced that soon everyone is going to be calling it “Barackoli.” But Wendell Potter, talk about this comparison.

WENDELL POTTER: Yeah, I think that was anticipated, too. There have been discussions by punsters—excuse me, by analysts in the past who have said that, “What’s next? A requirement to buy broccoli?” It was an inevitable question, I think, because, again, it’s a question about the limits of government. And when you’re being asked a question by an advocate of small government or a strict interpretation of the Constitution, then I think that you would see a question like that. Clearly, I don’t think anyone would expect that the federal government would go so far as to require us to eat broccoli. That doesn’t necessarily have anything to do with interstate commerce or the commerce of the country, so—

But the other thing is, I don’t think that, from the transcripts that I heard and the recordings that I heard—the transcripts I read, that the government’s attorney was quite well prepared to defend the act. I think that we saw something that, in my view, was a continuation of the administration’s inability to really communicate about the Affordable Care Act.

NERMEEN SHAIKH: Well, one of the criticism that’s been leveled against it has to do with its cost. You’ve talked elsewhere about how—well, first of all, the U.S. has one of the most expensive healthcare systems in the world, and certainly more than most advanced, or if not all advanced, economies. Can you say a little about how you suggest healthcare costs in the U.S. can be cut and how the Affordable Care Act either fails or succeeds in fulfilling some of the things that you’ve pointed to, some of the measures that could be taken?

WENDELL POTTER: The Affordable Care Act would bring down the deficit. It would curtail government spending. One of the things that is necessary to control healthcare spending is to bring more people into coverage, and the Affordable Care Act would do that by expanding Medicaid and to provide subsidies to many millions of others who are not eligible for a public plan. When you get more people in coverage, they behave differently. They don’t go to seek care all the time at the emergency room, and it would alleviate the cost shifting that is the hallmark of the American healthcare system.

But it’s not—the Affordable Care Act, in my view, is a start; it is not what we ultimately need. It doesn’t bring everyone into coverage, even with the individual mandate. There are people who could be exempted from that requirement, many millions of people who could be. In fact, it’s only estimated that about 30 million of the 50 million uninsured who would be brought into coverage, if the Affordable Care Act does go forward. We eventually have to get the for-profit insurance companies out of providing coverage, and we need to move toward a system or systems like in the other developed countries, that don’t permit for-profit companies to run their healthcare systems. And there are states that are looking at single payer. Vermont, in particular, has already passed a bill that would establish a single-payer system in Vermont. And I think there will be a growing recognition that that is probably the ultimate way to control cost and to bring everybody into coverage.

AMY GOODMAN: Conservative Justice Samuel Alito asked about burial services, saying if young people can be required to get health insurance under the law, they could also be required to get burial insurance.

JUSTICE SAMUEL ALITO: Suppose that you and I walked around downtown Washington at lunch hour, and we found a couple of healthy young people, and we stopped them, and we said, “You know what you’re doing? You are financing your burial services right now, because eventually you’re going to die, and somebody is going to have to pay for it. And if you don’t have burial insurance or you haven’t saved money for it, you’re going to shift the cost to somebody else.”

AMY GOODMAN: Your response, Wendell Potter?

WENDELL POTTER: Well, again, I think it’s an absurd suggestion that young people will have to buy burial insurance. But again, it’s—I think that the justices are testing. They’re trying to determine what will they write, what will they say, when they make a decision this coming summer. I think I, myself, am somewhat agnostic and detached from the outcome of what the justices decide. I think it is important for us to bring more people into coverage. And in that regard, I have said that I think the Affordable Care Act should go forward. But it’s beyond my control or any of our control. If it is declared unconstitutional, then the decision will be made: is the entire act unconstitutional? If it’s declared unconstitutional, even the individual mandate, we will have a period of chaos in our healthcare system, and it will certainly have a huge impact on the campaigns and the election this November.

NERMEEN SHAIKH: So how significant is it, in fact, that this debate is taking place in an election year?

WENDELL POTTER: Very, very significant that it’s taking place in this election year. I think that it will—regardless of what the decision is, it will—it will inspire those who don’t like the President, who don’t like the healthcare law, to be more involved in the campaign. I think, frankly, though, if it’s declared unconstitutional, those who support the President, those who are—have long advocated for healthcare reform, will be outraged and especially inspired to get out and to try to elect progressives and Democrats to Congress and re-elect the President.

AMY GOODMAN: Justice Kennedy—everyone is looking at Anthony Kennedy, the questions that he’s asking, who could join the four liberal justices to uphold the law. He said young uninsured people affect the overall market by not paying into it and ultimately receiving care over the long term.

JUSTICE ANTHONY KENNEDY: In the insurance and healthcare world, both markets—stipulate two markets—the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That’s my concern in the case.

AMY GOODMAN: That was the key justice, what most people are seeing as the person who is pivotal here, Anthony Kennedy. Wendell Potter, the questions he asked, in particular? And also, what is your assessment of the surgeon general? A lot of people are saying he did not do a very good job, that the liberal justices had to complete his sentences to sort of pick up his arguments, because he wasn’t—he wasn’t pulling his weight.

WENDELL POTTER: Yeah, first with Justice Kennedy, I think that his—that particular question and some others indicate that he gets it. He understands that our healthcare system is very dysfunctional. And when you have a system that many young people can’t afford to buy coverage or decide not to, that skews the pool of people who do want to get coverage. It makes it more expensive for everyone. So he understands that we have an unsustainable healthcare system and an unsustainable health insurance system.

The solicitor general, I agree with what others have said, that I just don’t think that he was quite prepared to be persuasive, which is baffling. This has been something that’s been anticipated for quite a long time. But as I said earlier, I think that it seems to be a continuation of a baffling inability of the government to articulate the benefits of the Affordable Care Act and the rationale for the individual mandate.

AMY GOODMAN: On Tuesday, I asked Dr. Steffie Woolhandler, who’s co-founder of Physicians for a National Health Program, what she would think if the Supreme Court were to reject the individual mandate as unconstitutional.

DR. STEFFIE WOOLHANDLER: The individual mandate is a very, very bad idea. The good parts of the bill are things like a Medicaid expansion, which does not require an individual mandate, some regulations on the insurance industry, which does not require a mandate. All of those could have been done without the mandate. The problem with the mandate is it’s telling people that they have to turn over their money to the private health insurance industry. There’s also $447 billion in taxpayer money that is going to be turned over to the private health insurance industry. So the bill is strengthening the position of the private health insurance industry, the very industry that’s responsible for $380 billion in wasted healthcare dollars on bureaucracy and paperwork.

AMY GOODMAN: So that’s Steffie Woolhandler, a progressive doctor who is the founder of Physicians for a National Health Program, who is against the individual mandate. Now, Wendell Potter, you were a spokesperson for the major insurance companies, both CIGNA as well as Humana. You have turned against them. You talk about how they’ve corrupted the political process, not to mention prevented Americans from getting healthcare. What do you say to Dr. Steffie Woolhandler?

WENDELL POTTER: Well, I agree with much of what she said, but we live in a political world, and it would not have been possible for Congress to have passed this law, a reform law, without the individual mandate. The regulations, any regulations on the insurance industry, the requirements that they now have to or soon will have to sell coverage to everyone regardless of their health status and their health history, and some of the other very consumer-friendly aspects of the Affordable Care Act just would not have happened without the individual mandate. The reality is that the insurance industry is incredibly powerful in Washington. And they—President Obama, when he was a candidate, did not embrace the individual mandate. In fact, he said that he didn’t think it was appropriate for us to require people to buy coverage if they can’t afford it. He also was a strong advocate of the public option. But the insurance industry’s lobbyists were so influential that he came around to supporting the individual mandate. And as we know—

AMY GOODMAN: And now, as Dr. Woolhandler says, they’re forcing every American to give even more money to the ever powerful insurance industry.

WENDELL POTTER: It will be—it will have that effect. They will get a new revenue stream, and they will get profits that will—that they wouldn’t have had before, as a consequence of it. And that—to that extent, there’s no doubt it’s true. But nothing could have passed Congress without that individual mandate. What we ultimately have to do in this country is figure out how can we reduce the power of these special interests. And we’ve got—that’s the ultimate work that we’ve got to do.

AMY GOODMAN: Wendell Potter, we want to thank you very much for being with us, senior analyst on healthcare at the Center for Public Integrity, former executive at CIGNA and Humana, and author of Deadly Spin: An Insurance Company Insider Speaks Out on How Corporate PR is Killing Health Care and Deceiving Americans.

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