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STARTING POINT WITH SOLEDAD O'BRIEN

Deadly Colorado Wildfires; Peter Madoff Arrested; Crisis In Syria; U.S. Nears BP Settlements; Nadal Out At Wimbledon; Ready To Repeal The Law; Health Care Law Stands; Individual Mandate Upheld As "Tax"; Eric Holder Cited For Contempt

Aired June 29, 2012 - 06:59   ET

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


SOLEDAD O'BRIEN, CNN HOST: And welcome. Good morning, everybody. Our "Starting Point" this morning, the Supreme Court rules. The healthcare law stands. Republicans are now vowing to do what the high court did not and kill it. Could it end up costing the president in November?

In contempt, Democrats walk off the floor during a historic vote that puts the attorney general into uncharted territory.

And a mountain inferno. A monster Colorado wildfire now destroying close to 400 homes. One person has been found dead and another is missing as the president plans a visit today. And the threat of more wildfires with an intense heatwave on the way. Hundred-degree temperatures and hundreds of records already broken.

We have a packed show this morning. Obama's deputy campaign manager, Stephanie Cutter, is going to be with us. Virginia governor, Bob McDonnell, Congresswoman Michele Bachmann join us, and Rielle Hunter to talk about her new book.

It's Friday, June 29th, and "Starting Point" begins right now.

(MUSIC PLAYING)

O'BRIEN: Hey, welcome, everybody. That was viewer request Friday, which is Jim Dafron (ph) joining us by facebook. It's Gloria Gaynor words. And yes, that's not Gloria Gaynor --

(LAUGHTER)

O'BRIEN: That's "I Will Survive" covered by Cake. Huh? Really?

WILL CAIN, CNN CONTRIBUTOR: Good job viewers, starting off well.

O'BRIEN: I like Gloria Gaynor too. A five-four decision in the end, it was John Roberts, the chief justice appointed by President Bush who saved the health care law. Senator Obama voted against Roberts confirmation in 2005. Roberts went against his four conservative justices ruling that the individual mandate, which requires people to buy health insurance was a tax, not a penalty that falls under the congressional power to levy taxes.

A pre harsh op-ed in the "Wall Street Journal" said "The remarkable decision upholding the Affordable Care Act is shot through with confusion. The mandate that's really a tax except when it isn't and the government whose powers are limit except when they aren't. One thing is clear, this was a one man show and that man was John Roberts." Our senior legal analyst Jeff Toobin joins us now. He was in the courtroom when the decision was announced. Was it chaotic?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: It was the opposite of chaotic, Soledad. I've been privileged to cover a lot of news events and I have never been in a room like that, there were not air molecules in that room everyone was poised and waiting. When John Roberts announced the decision at 10:06, it was electric.

And he began by saying that the commerce clause, which we spent so much time talking about, did not give Congress the right to support -- to pass the Obama care law. And that as I looked at my colleagues in the press area, looked like it, seemed like the case was over and they were going to strike down the law.

But then he continued and said there is an alternative ground that the government puts forward, the Congressional power to tax and as he was talking, it became clear, he was going to say that the law would be upheld. I happen to be sitting a few steps away from Senator Orrin Hatch, the famous Utah senator. And I saw him brighten at the beginning of Roberts remarks and saw his face fall as it became clear that Roberts was going to uphold the law. He was stunned. I was stunned. And if anyone comes to you and says they predicted this result, I want to put them on a lie detector, because I didn't. It was stunning, shocking, and I'm still shaking my head.

O'BRIEN: And there are many conversations this morning about why. I read a little snippet. Why? Some people who say it is a legacy ruling, others who say it is a way for Justice Roberts to circumvent the -- to be a legislator essentially. What do you think it is?

TOOBIN: I think there are several possibilities. One is that he simply thought it was a tax, period. What you see is what you get. Another possibility is he didn't want the court as an institution to be embroiled in the kind of partisan warfare Democrats versus Republicans that Congress is on the other side of First Street.

Another possibility is he is also setting things up down the road for more conservative decisions. The version of the commerce clause that he laid out in the decision yesterday gives Congress much less leeway than previous versions of the commerce clause has. It might be a long term play. All of those are possibilities, but I'm still puzzled over it.

O'BRIEN: You and everyone else as well. Jeff Toobin, I'll ask you to stick around as we introduce everyone to our guests. There are lots of aspects. Stephanie Cutter is going to join us, the Obama deputy campaign manager and former aide to Ted Kennedy who was a champion of universal health care. Delaware Governor Jack Markell joins us. He's a supporter of the health care law, his state voluntarily expanded the Medicaid coverage in 1996. Dr. Sanjay Gupta is back, also a practicing neurosurgeon, worked in the White House during the Clinton administration. Abby Huntsman is a political commentator. Will Cain is an attorney and gave us a tour through the constitution and columnist of TheBlaze.com. Stephanie, let's start with you. It's a victory, how are you feeling this morning?

STEPHANIE CUTTER, OBAMA DEPUTY CAMPAIGN MANAGER: As the president said yesterday, this is a victory for the American people because there are tens of millions of Americans already benefitting of this law through cost savings, rebate checks are going out to people across the country. Senior citizens are getting discounts on the prescription drugs. Parents are able to ensure kids with preexisting conditions can get care they need or put adult kids on the plans until they are 26. So there are real benefits already under this law.

O'BRIEN: Then there are lots of buts that come with that, we know that Congress has already scheduled a repeal vote.

CUTTER: This is not first time they scheduled a repeal vote. Since it passed they've been scheduling repeal votes periodically and fairly often in Congress. And they keep failing. And I think that now that the Supreme Court ruled, the American people are going to want us to move on. There's a reason why Congress has such a low approval rating, because there's not a sense they are getting anything done for the country. I think now that this ruling is done, it's time to move on and focus on things like the economy in Washington. There are jobs proposals sitting in the House of Representatives that could mean a million jobs right now and they should focus on that.

WILL CAIN, CNN CONTRIBUTOR: Stephanie, I think it's very incontrovertible it's a win for the president in short term. The president in Congress this is not a tax. We can play clip after clip saying this is not a tax. They made a promise not to raise taxes on the middle class. And yesterday we learned it was a tax. Is that not problematic?

CUTTER: What John Roberts said, we have the power to impose this penalty on people through the taxation clause, it's a penalty. Let's talk about who this impacts. Most people have private insurance. I'm assuming everybody at this table has private insurance.

CAIN: You said it's a penalty. But yesterday we learned it was a tax.

CUTTER: Let me finish. I'm assuming everybody at this table has private insurance. So this penalty does not apply to us. There are some people who are choosing not go get insurance because they can't afford. The health care law makes it affordable through the largest middle tax cut in history. After receiving this tax cut and putting the law in place, a very small amount of people, according to independent analysis, less than one percent of American people will still choose not to get health insurance. For those people, what we call free riders, what Mitt Romney has called free riders, we pay their health care costs so they need to take individual responsibility for they are health care and pay a penalty for their decision.

CAIN: I do understand also you like the law very well but I'm thoroughly confused. Now is your position it's a tax or is it a penalty?

CUTTER: It's a penalty that if you choose not to get health care and you're imposing a hidden tax on all of us because we pay for your health care, then you pay a penalty.

O'BRIEN: So let's talk a little bit about what happens next. Stephanie says everyone know needs to move on and points to the very low numbers of approval for Congress. How likely do you think that is? If you listen to anybody on the GOP side, moving on is not how I would describe the tenor of the conversation.

GOV. JACK MARKELL, (D) DELAWARE: We have to move on. Most states have been preparing for this moment, even if other states didn't like it. Now the law is settled. So what people really care about, the rest of this is purely political. The vote in Congress is total politics, it's not going anywhere. The Senate won't do it, the president won't approve it. Frankly I agree with Stephanie, they ought to be focusing on things to get people back to work.

But for those of us responsible for putting it in place, let's keep going. The other thing I would love to see the White House and campaign focus on over the last couple of years actually health care costs have been coming down, premiums have not been increasing at the same rates and there are lots of benefits. For all of the folks who want to repeal it, let's make them say, that means they want to get rid of the condition on preexisting conditions and don't want young adults to be covered anymore on their parents policies. There's some real important provisions there that apparently they want to get rid of.

O'BRIEN: Let's talk about the expansion of Medicaid, which is going to be -- was a very confusing element, one of those things that after people talked about the ruling, it became and there's this. What exactly goes on with that?

DR. SANJAY GUPTA, CNN CHIEF MEDICAL CORRESPONDENT: The backdrop is a lot of people would be covered under Medicaid, however much money your income was, they'll expand the amount of income and still qualify for Medicaid. It's the same thing was done in Massachusetts in 2006. In the past they say, look, if you don't do this, you lose your Medicaid funding and states did not like that. As you point out, Soledad, sort of buried in the ruling yesterday was this stipulation that look, you no longer will lose -- you can opt out of this thing and not lose --

O'BRIEN: With no penalty.

GUPTA: With no penalty essentially.

What happens pragmatically, there are people stuck now in the middle. They are no longer eligible for federal moneys but may not get state money either. I did some research on Massachusetts to give you some scale, there's about 450,000 people who were added who got health care insurance and 158,000 of them actually did it through the exchange program and 61,000 did it through the expansion of Medicaid. About 15 percent fell into that category in Massachusetts to the extent that's a model. That's concerning.

O'BRIEN: What goes into a governor's thinking about whether or not to opt in or opt out, especially now if there's no penalty for not opting in and big cost burden, why wouldn't everybody say let's not opt in?

TOOBIN: There's a big cost burden either way, but we have to recognize, if we're not putting more people into Medicaid, there are going to be accessing health care one way or the other. And most likely if they don't have another kind of insurance or coverage, they'll be going to the most expensive place of all, which is the emergency room, which is also not a good outcome. And I think that's one of the most frustrating things about this entire debate. People forget how bad it was before this law was passed. When I was campaigning for office in 2008, health care was the number one issue, before the president got his Bill passed. People were concerned about access and small businesses were concerned about costs. We had real issues. Nobody liked the status quo before either.

O'BRIEN: That's very true and polling supports that. I'll give you the last question, Stephanie. When Richard, who I made a bet with for a dollar --

CAIN: You lost.

O'BRIEN: I lost big time. He e-mailed me immediately, "You owe me a dollar." So I will agree with Jeff Toobin, I was stunned. He said and I think that others would say this, that the messaging was very bad around this for the Obama White House, the selling of the plan. When you look at the polling, a large number are against -- not an overwhelming number, are against the overhaul and when you break it down into the individual elements, they are overwhelmingly for it which to me says the messaging has not been great, and Richard pointed that out yesterday. You now have another opportunity to rye to redo the messages.

CUTTER: I don't think you redo the messages. A couple of points on the polling of the health care law. First of all, it's largely split according to party line. To the extent it's not, there's a good portion of the American people who disapprove of the law because they wanted it to go further than it did. And if you ask the question, you may not like the law but you want it repealed, overwhelming majority say no consistently. That's been the way since the law passed.

I appreciate Richard's comments on how the messaging went wrong, but $200 million in negative ads were running against this law just after the law was passed. We saw the impact of that in the run-up to the 2010 elections.

O'BRIEN: What will you do differently now?

CUTTER: Most Americans are starting to experience this law, whether you can put your college graduate kid on your health insurance so your kid can get his foot on the ground and start thinking about his career, or if your kid was hey preexisting condition, you don't have to live in fear of your insurance. Those are real things impacting people's lives. And most Americans want this debate past them, the law to be implemented and have it improved as needed. And that's what we're going to do. We're going to continue implementing this law, efficiently and effectively and over time the American people are going to see the benefits and I think move past this political debate. That's what it boils down to.

O'BRIEN: I was with you until the move past the political debate then you lost me. Nice to have you in person, we appreciate that.

Coming up, Virginia's Republican Governor Bob McDonnell will join us, his state was one of 26 states that sued the government. Let's get to Christine Romans for today's top stories. Good morning.

CHRISTINE ROMANS, CNN ANCHOR: Good morning, Soledad. President Obama will head to Colorado to survey the damage from the wildfires and thank fire crews there, this as the out of control Waldo Canyon fire turns deadly. A charred body was discovered in a home outside of Colorado Springs. A second person is missing. Police have arrested two suspected looters who targeted one home evacuated in the fire. To find out how you can help those affected by the fire, go to CNN.com/impact.

Blistering and potentially dangerous heat is on the way to the Midwest and east coast. Temperatures may top 100 degrees in many major cities today, including in St. Louis where the national weather service it will be 108 degrees in St. Louis. Hundreds of records already broken and the heat wave may last well into next week.

George Zimmerman expected back in court today. He's hoping to convince a judge to grant him a new bond after his first bail was revoked. Zimmerman admitted to misrepresenting his finances at his first bond hearing. His attorneys say he's not a flight risk and posing no danger to the community.

Attorney General Eric Holder on the wrong side of history this morning. He's the first sitting cabinet member to be cited for contempt of Congress. The house voting to hold the attorney general in contempt for failing to turn over documents related to the fast and furious gun running operation, a sting that's linked to the death of a U.S. border agent. More than 100 Democrats boycotted the vote, walking out of the House chamber in protest. Holder called it unnecessary and unwarranted.

(BEGIN VIDEO CLIP)

ERIC HOLDER, U.S. ATTORNEY GENERAL: Today's vote may make for good political theater in the minds of some. It is a grave disservice to the American people. They expect and deserve far more.

(END VIDEO CLIP)

ROMANS: Coming up at 7:50 eastern, we'll talk with Pennsylvania congressman Jason Altmire, a Democrat who voted for the contempt charge.

O'BRIEN: Christine, thank you. Still ahead on STARTING POINT, we'll talk to the man who argued against the health care law in front of the high court. As I predicted, this is one I got right, along with everybody, that's true. Anthony Davis, there he is, goes number one in the NBA draft. As expected. But the most heartwarming moment actually came in the second round with the 33rd pick. We'll show you what happened there. You're watching STARTING POINT. We're back in just a moment.

(COMMERCIAL BREAK)

ROMANS: Welcome back to STARTING POINT. Stocks in Europe are surging responding to a brand-new effort to tame Europe's financial crisis. EU leaders have agreed to a special bailout fund that struggling countries can borrow from without racking up any more debt.

He's like to spend the rest of his life behind bars, but convicted sex offender Jerry Sandusky could end up collecting his full pension from Penn State. That's nearly $59,000 a year. The state's pension forfeit tour laws cover 22 separate crimesm but felony child molestation is not on the list.

And an emotional night at the NBA draft. The New Orleans hornets selecting Kentucky big man Anthony Davis, but the most unexpected moment came in round two, chants of HUS for Bernard James, selected 33rd overall. He's 27 years old, ancient by draft standards. That's because he has already served three tours of duty in the Air Force in Iraq and Afghanistan. Gives you goose bumps doesn't it.

O'BRIEN: That's what you missed when you went to bed.

CAIN: And went to my team.

(CROSSTALK)

O'BRIEN: Let's talk more about the Supreme Court this morning. The decision to uphold virtually all of president Obama's health care law will is far-reaching legal implications. A new precedent has been set by the ruling on the individual mandate could affect future law that's will be passed by congress. The court says it is valid as a tax with the intention of limiting government's authority. And the ruling also says states can't be penalized for refusing join in the expansion of Medicaid eligibility.

Rupert Katsas argued before the health care before the court in March. He's also a former clerk for Justice Clarence Thomas. He joins us this morning. Nice to see you and thanks for being with us. I appreciate it.

KATSAS: Good morning.

O'BRIEN: When you heard that the law was upheld and you had argued against the law on behalf of the national federation of independent businesses, what was your reaction?

GREGORY KATSAS, ARGUED AGAINST HEALTHCARE REFORM AT SUPREME COURT: Well, I was surprised and disappointed, of course, at the result. At the same time, we were gratified that the court made some new law very significantly limiting federal power in two different respects with the commerce clause holding and Medicaid.

O'BRIEN: About the chief justice who has a reputation of course as a constitutional conservative and yet he was a swing vote, today there have been some -- some of the op-eds have been sometimes vicious, sometimes trying to understand what happened. The "Wall Street Journal" said "If the chief justice capitulated to this pressure, it shows the court can be intimidated and swayed from its constitutional duties. Politico said "It appears the act of the chief justice willing to cast aside judicial modesty in favor of playing to an audience." The "Washington Post" said "Why did he do this? He carries two identities. Institutionally he's a chief justice sees himself as uniquely entrusted with the court's legitimacy and reputation and stature." What do you think is the rationale behind his decision?

KATSAS: I don't want to speculate about his motives. I will say --

O'BRIEN: Everyone else is.

KATSAS: Well, look, he upheld the statute only by turning it into something very different from what Congress enacted. What Congress enacted was a legal requirement to buy health insurance. And he said that was unconstitutional and saved the statute by turning it into a tax on not having health insurance. And I think the dissent was very persuasive in arguing that regardless of whether or not Congress could have passed a tax, they didn't pass a tax, and indeed the president and the Congress in selling this act to the American people were crystal clear that they were not intending to raise anybody's taxes.

O'BRIEN: But literally verbatim in that answer you just gave, that is the rationale behind people who say it's -- he's acting like an activist, if you will.

KATSAS: He is acting like an activist in the sense he is reading a statute and I think a very implausible way, and in order to try to save a statute he's created something that's very different from what Congress enacted. Congress and the president said this is not a tax, and now for him, after they sold it as a mandate, for him to say is a tax is pretty unconvincing.

CAIN: In fact, you said this in your initial answer, you thought federal power might have been limited. Referencing the opinion limiting the effects of the commerce clause, the portal through which so much law has been enacted. Do you think Congress won't be able to pass laws without the constitutionality of the commerce clause?

KATSAS: The Congress's power still remains broad but there was a holding by five justices yesterday that the commerce clause does not allow Congress to force American citizens to buy unwanted goods and services, health care, broccoli, cars, whatever. That is a holding of the court. So going forward, Congress will not be able to require people to enter into commerce and buy things. It may be greater latitude to tax people, but it won't have the ability to force people to buy goods and services. And that, frankly, was the major dispute in the case.

O'BRIEN: Gregory Katsas argued against health care in the Supreme Court. Thank you for being with us, we appreciate it.

Still ahead, the health care decision lighting a fire under Republicans. Mitt Romney saying we can repeal it by voting out Obama.

And now it's a deadly inferno, a wildfire burning unchecked through hundreds of homes of. Rob Marciano will update us live. He's on the fire line this morning.

You're watching STARTING POINT. We've got to take a short break. We're back in just a moment.

(COMMERCIAL BREAK)

O'BRIEN: Welcome back to STARTING POINT. Virginia governor and key Romney supporter, Governor Bob McDonnell is going to join us in a moment.

First, we want to get to Christine Romans with an update on the headlines today. Hi, Christine.

ROMANS: Good morning, Soledad. New this morning, an explosive Colorado wildfire has now turned deadly. A charred body has been discovered in a home destroyed by the Waldo Canyon fire outside Colorado Springs. A second person is missing.

Meantime, police have arrested two suspected looters they say targeted at least one home evacuated in that fire. Later today, President Barack Obama is visiting Colorado to survey damage and thank the responders.

Meteorologist Rob Marciano is live from Colorado Springs this morning. Rob, are the firefighters making any progress this morning?

ROB MARCIANO, AMS METEOROLOGIST: They made some progress yesterday and it's a little bit cooler today so maybe the weather will cooperate once again. They got 15 percent containment so that's a lot better than what they had over the weekend.

But still the damage done, 346 homes burned. This is the most destructive wildfire in Colorado history. Residents still not allowed to go back although it's a day. Some of them will be allowed to go back to see what's left of their homes.

You know, the victims are spread out throughout the city in shelters with friends and family in hotels. The chef who runs the kitchen in our hotel, actually victim himself, he had to evacuate. We caught with him yesterday and he explained what it was like having to get out.

(BEGIN VIDEO CLIP)

PETER AIELLO, COLORADO SPRINGS CHEF: The whole mountainside looking up from my house was on fire and a lot of homes, families that in my neighborhood and people that are my neighbors, their houses were engulfed in flames.

(END VIDEO CLIP)

MARCIANO: Scary thought. He's burying himself in his work. His wife is working as well. They got news last night they were lucky, even though most of the neighborhood was torched, their home and street was left untouched.

A sliver of good news there and also a little bit of good news is that they are starting to get somewhat of a handle on this. But there are still 20,000 homes that are threatened.

And temperatures are going to remain high and threat for thunderstorms will remain as well making the winds erratic at times, but all right now as it stands, the most destructive wildfire in Colorado history is not the only one burning in the state -- Christine.

ROMANS: All right, Rob Marciano in Colorado Springs. Thanks, Rob.

Breaking news this morning, Peter Madoff, the brother of convicted Ponzi scheme king, Bernie Madoff, is under arrest. He is in the custody of the FBI.

They arrested him this morning. He will head to federal court at 11 a.m. and part of a plea deal with prosecutors. Peter Madoff expected to plead guilty to his role in the Madoff Ponzi scheme. He is the former chief compliance officer at the private investment arm of Bernard Madoff's business.

The crisis in Syria is getting some high level diplomatic attention. Secretary of State Hillary Clinton is in Russia this morning, meeting with the country's foreign minister.

The U.S. is trying to narrow its differences with Russia, which has opposed regime change in Syria. Clinton has criticized Russia for resupplying the Assad government with arms. Tomorrow, she travels to Geneva for emergency talks on Syria.

The Justice Department said to be nearing civil and criminal settlements with BP and Transocean over the deepwater horizon disaster some two years ago now.

The "Wall Street Journal" says talks have accelerated in recent weeks and the deals will likely include billions of dollars in fines and penalties. Eleven workers died in the oil well incident that led to the worst ever oil spill in the Gulf of Mexico.

A Wimbledon stunner, two-time champ Rafael Nadal bounced in the tournament in the second round. Nadal lost a five-set thriller to Lucas Rasso of the Czech Republic, the world's 100th ranked player playing in his first Wimbledon. Nadal have reached the last Wimbledon finals.

On the women's side, Serena Williams barely broke a sweat advancing to the second round in a straight set victory over Molina Zinc.

Outrageous video you really have to see to believe, a youth hockey coach tripping a teen player from the opposing team. Witnesses say he did it on purpose.

He knocked two kids to the ground, one of them suffering a broken wrist. The coach has been suspended and now Canadian police are looking into possible criminal charges. Breaking the stereo type of the civilized world of hockey.

O'BRIEN: You were so crazy about that. The first time I saw that, I thought no one would ever trip a kid. It must be he like as he's walking past, he bumped into him and the kid tripped. Play that again. Look at that.

CAIN: That's a clothesline. Unbelievable.

O'BRIEN: He literally takes him out and the kid has to be 10 years old or something.

CAIN: Broke his wrist.

O'BRIEN: I'll bet you could get criminal charges.

UNIDENTIFIED FEMALE: That video is now viral so --

O'BRIEN: Will Cain, you're an attorney, should the parents sue?

CAIN: We need a tax or penalty on this. I don't care what you call it.

O'BRIEN: That's terrible. All right, let's turn and talk about the president's health care law. It is constitutional, but already the future is uncertain.

The president said it is a victory for Americans, but the speaker of the House, John Boehner, and House Majority Leader Eric Cantor has scheduled a vote already to repeal the Affordable Care Act scheduled now for July 11th.

If the repeal fails, which I think it will, Mitt Romney is making a campaign promise to get rid of the law himself. Here's what he's saying.

(BEGIN VIDEO CLIP)

MITT ROMNEY (R), PRESIDENTIAL CANDIDATE: What the court did not do on its last day in session, I will do on my first day if elected president of the United States. That is I will act to repeal Obamacare. (END VIDEO CLIP)

O'BRIEN: Well, that statement seems to have energized conservatives. The Romney campaign announced that they've raised $3.2 million as of 9:00 Eastern last night.

That was just in the window when the court's decision was announced at 9:00 p.m. Governor Bob McDonnell of Virginia is a campaign surrogate for Mitt Romney.

His state was one of 26 states that filed suit against the Department of Health and Human Services after the Affordable Care Act was passed. It's nice to see you, sir. Thanks for talking with us.

GOVERNOR BOB MCDONNELL (R), VIRGINIA: Hi, Soledad.

O'BRIEN: Let me ask you -- what happens now, Governor Romney saying that in fact if he is elected into office, he's going to be sure to repeal that law. Do you worry the American public by then may say we like the law?

MCDONNELL: I doubt it, Soledad. This has been a very unpopular law since the beginning. In fact, I think most of the polls show about 60 percent plus of the people oppose this bureaucratic big government mandate on the states and on individuals.

I think there's broad agreement that increased access for cost and innovation and health care is good, but doing it in this way, to mandate that you must buy an insurance product or now a tax or penalty is not the way it go.

I think it's a bad policy. The court didn't say it was a good policy. It just said 5-4 it was constitutional under I think somewhat tortured tax and spend clause analysis of the U.S. constitution.

So now this $2.2 billion unfunded mandate falls on Virginia. I'm hoping it gets repealed in the upcoming Congress with the new president.

O'BRIEN: Yes, you know, it's looking like that repeal in Congress might be a tough one. But let's go back to that polling for a second because I think, sir, you're wrong on some of those numbers.

If you look at the latest poll, and I'll give you the one from Bloomberg, 34 percent, when they asked how people felt about reform, 34 percent felt that the Affordable Care Act should be repealed.

But 43 percent felt it should be kept with small modifications and another 15 percent actually felt that it should be left as is. So, you know, math is not my greatest subject, but that's almost 60 percent actually are pretty good with the law.

So I think on the polling, you might be wrong there. Isn't it Romney the right person to be discussing taxes and penalties and fines and fees when you look at the state of Massachusetts where he did a similar thing with his own plan? Listen to him defending that. This is back in 2006, April.

(BEGIN VIDEO CLIP)

ROMNEY: It's not a tax hike, it's a fee. It's an assessment of the great majority of employers in Massachusetts are assessed this fee right now.

(END VIDEO CLIP)

O'BRIEN: So it's a fee, it's an assessment, it's a penalty, it's a tax. As a person who ends up paying for those things, aren't those all kind of the same thing?

MCDONNELL: Well, Soledad, I'm going to disagree with your previous comment too. It depends what polls you look at. I can tell you the people of Virginia don't want this law. And so we've got some challenges in addressing it.

Here's what the court said, which is ironic that it say, it is a legitimate use of the tax clause, powers of the constitution. Ironically in 2009 when President Obama was proposing this law he said it's not a tax, it's a penalty.

So now, of course, they uphold it on exactly the opposite. Here's the problem overall is that the unfunded mandates on the states, the cost that we will have to bare overtime are crushing.

Medicaid is growing incredibly fast as a part of the budget. Now this is $2.2 billion on Virginia. So here's what the issue is. The court said it's constitutional. It didn't say it was a great idea.

Mitt Romney in Massachusetts said that the states could do it, not that the United States Congress could mandate that all of the states can do it. So it's a very different proposition.

So yes, Mitt Romney is the right guy to be able to champion this repeal and President Obama is going to be running on a record, Soledad, that says that he's got the worst unemployment rate in modern history, on a sustained basis.

He's got the worst amount of debt and deficit in history and now he's got one of the largest tax increases on the middle class in history. I think that's a pretty good battle for us to have in November.

O'BRIEN: Let's talk about that Medicaid expansion before I let you go. If you choose to run again, you would be running for governor in 2014, you have the decision to make, would you opt in or decide your state would not opt in? Which way are you going to go?

MCDONNELL: Well, unfortunately I'm a one-term governor. Virginia is the only state in the country, Soledad, one term. So my job is to do the right thing.

I can tell you right now that we have to choose between a state base or a federally based exchange if this law stays in effect. I hope it will get repealed in a new Congress.

Right now, it seems like controlling these exchanges at the state is a better way to go. But I tell you, the federal government hasn't told us what the state, the federal based exchange is fully going to look like.

So it's hard for us governors to be able to make that full determination. So we're going to take what other steps are necessary to comply with the law, but at the same time, I hope we get a new president and I hope we can repeal it.

Because this is an intrusion into liberty and it's bureaucratic mess that really ought to be left to the states. That's Mitt Romney's position. Leave it to the states to decide how to reform the health care system.

O'BRIEN: Governor Bob McDonnell, a Republican from Virginia. Thanks for talking with us. Appreciate it.

Governor Markell, I want to ask you a quick question. Are you seeing a similar thing in the state of Delaware? How are people -- he says the polling is very much against it, what about in your state?

GOVERNOR JACK MARKELL (D), DELAWARE: Well, first, and Governor McDonnell is a friend of mine. We're going to be together in a couple of weeks. I want to make that clear.

Some of his comments here first of all, we've had 27, 28 months of straight job growth in the country, very important for people to focus on. I really think he is fighting yesterday's debate. The law is settled.

So let's move on. And so a couple of things, first of all, with respect to Medicaid, our view is that this is actually going to be a benefit in terms of state budgets because the reimbursement from the federal government is going to be higher than it was.

How we look at the expansion, it's something we're going to take a careful look at. As I said earlier, we've got to recognize, people are going to get their health care.

If they don't get it through Medicaid and through primary care physicians and the like, they're going to go someplace else that is much more expensive.

O'BRIEN: We're going to continue to talk about this obviously. It's our top topic today. We're going to take a short break. We're back in a moment.

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O'BRIEN: Welcome back, everybody. Let's go to Will Cain. Yesterday, he did, I thought, a stellar job of walking us through the constitution and the commerce clause. Before that, I never understood the commerce clause. UNIDENTIFIED MALE: I would have paid for that.

CAIN: We can figure out a way to make that happen.

O'BRIEN: I need a dollar to pay off a bet.

CAIN: Yes, we talked about the commerce clause, but actually also talked about the taxing power. While so many people gave attention to the commerce clause, it ended up being the taxing power through which Chief Justice Roberts found constitutional authority.

Now this didn't come out of left field, but it came out of deep center at least. This was kind of the government's backup argument that we have the power under the taxing and spending power.

Let me just put that in context for you. It took 50 lines of transcript in the oral argument, this concept of taxing power and 21 lines in the government's reply briefs. So this was really its back up argument.

That being said, Chief Justice John Roberts suggested he thought he had a duty to find a constitutional path for this act and we have a quote from the opinion.

Where he quoted, former Justice Oliver Holmes said, the rule is settled, as between two possible interpretations of a statute, by one of which he would be unconstitutional and by the other it would be valid, our plain duty is to save the act.

He says we must find a way to save the act. He said if it walks like a duck, it talks like a duck, it is a duck. It is a tax. This thing is substantively in effect a tax. So he suggested that's how it should be treated.

Now the dissent felt very differently. The dissent said you essentially are writing tax law from the bench. They said to say that the individual mandate merely imposes a tax is not to interpret the statute, but to rewrite it.

Judicial tax writing is particularly troubling. So during our discussion earlier, Abby and I were talking, is this feels like semantics. Here's why it's important, whether it's called a tax or penalty under the commerce clause.

Because we treat it differently in three ways, first of all, taxes are supposed to originate out of the House of Representatives. In fact, this bill originated out of the Senate. I don't think that's the last you'll be hearing of that little fact right there.

Second, it is easier to repeal a tax, 51 senators as opposed to 60 filibuster proof senators to repeal a tax. And finally, politically, the American public has an instant reaction to taxes and this was sold not as a tax.

So it went through a political process and many people are going to have questions about, you didn't tell you it was a tax. What is it, two years ago, three years ago now? And today it is? These are three big issues that are going to continue to linger.

ABBY HUNTSMAN, POLITICAL COMMENTATOR: But to be fair, Governor Romney said the same thing. We've played that video a minute ago. He called it a penalty. So I think he and Obama are both guilty of that. It's the wording.

CAIN: Just re-emphasizes how important it is in the political process what words you use. They have different effects.

DR. SANJAY GUPTA, CNN CHIEF MEDICAL CORRESPONDENT: To give it context because you brought up Massachusetts. There are only 1 percent of people in Massachusetts who ended up paying a penalty. So to call it a broad sweeping middle class increase in taxes is a little bit disingenuous. And that's what you keep hearing.

CAIN: Sanjay, do you impose taxes on a small amount of people? We have kind of a system in our country with taxation supposed to be equal and proportional. Now you're going to tax a few certain identified individuals?

GUPTA: Who did not purchase their health care insurance when they could.

CAIN: Sounds like a penalty again.

MARKELL: This is very interesting, especially to lawyers and folks who follow the Supreme Court. Most Americans are saying, where do we go from here?

I think the bottom line issue is we're going to have to shift the conversation away from all of this to how are we actually going to make sure there's affordable and quality care out there?

I think the law has a role to play, but at the same time, we have so much more of a sick care system where providers are paid based on how many procedures they do and how many tests you take as opposed to how do we reward quality --

CAIN: Governor, I think in your next re-election campaign, you're going to care whether or not people think you're imposing a penalty or tax. That's going to be something that the voters pay attention to from now on.

MARKELL: But voters also know that absent this, the status quo in terms of how we delivered health care is absolutely unacceptable.

CAIN: Fair enough.

O'BRIEN: When you look at polling or the people they polled, the voters overwhelmingly support the government being involved and support having a change in reform.

We're going to continue -- guess what? We still have an hour and 10 minutes to keep talking about whether it's a penalty, a fee, an assessment, or a tax. Still ahead on STARTING POINT today, the historic vote in the House. Attorney General Eric Holder has been cited for contempt of Congress. We're going to talk to Pennsylvania Democrat Jason Altmire who broke convention on the vote.

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O'BRIEN: Welcome back to STARTING POINT. Attorney General Eric Holder is calling the vote holding him in contempt of Congress politically motivated.

The House voted to hold the attorney general in civil and criminal contempt after he failed to turn over some documents they subpoenaed concerning the failed "Fast and Furious" program.

It's the first time that a sitting attorney general has been held in contempt of Congress. The case now will be put in the hands of one of his own employees.

But before the vote took place, 108 Democrats staged a walkout during yesterday's session. However, breaking from party convention, 17 Democrats voted in favor of the criminal charge.

The 21 Democrats supported the civil charge. Pennsylvania Democratic Congressman Jason Altmire is one of those who voted in favor of both contempt charges. It's nice to see you this morning, sir. Thank you for being with us.

REPRESENTATIVE JASON ALTMIRE (D), PENNSYLVANIA: Thank you. Good morning.

O'BRIEN: Why did you vote with the majority of Republicans on the contempt charges?

ALTMIRE: The fact is that the House has jurisdiction in oversight over these types of investigations. The attorney general was asked to provide information, and he chose not to provide it. So as a result, I had no other choice, but to vote in contempt.

O'BRIEN: As a result, many of your Democratic colleagues walked out as you well know. What was that moment like, when 100-plus of your colleagues are walking out, and you're staying there sitting?

ALTMIRE: That moment was exactly like 2008, when we had a nearly identical vote when President Bush was in the White House involving the U.S. attorney scandal, two very high-ranking government officials were held in contempt, and the Republicans walked off the floor.

So it goes both ways. But I don't like to play those kinds of political games. I stayed consistent with the vote I cast in 2008. The documents were not provided. The vote was called and I had no other choice, but to vote in contempt.

O'BRIEN: Nancy Pelosi, who walked out, said this. Let's play a little bit.

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REPRESENTATIVE NANCY PELOSI (D), MINORITY LEADER: What is happening here is shameful. What is happening here is something that we all have an obligation to speak out against because I'm telling you, as Eric Holder today. It's anybody else tomorrow, any charge they can drum up.

(END VIDEO CLIP)

O'BRIEN: Many of your colleagues in the past, I'd say, you know, week have come on this show to say that they think the charges against the attorney general are politically motivated. You disagree with that?

ALTMIRE: I have no reason to believe that Attorney General Holder has done anything wrong. I believe he is an honest man. I think the documents are going to show that.

The question of the vote yesterday was, did he comply with the House request for documents for an ongoing investigation about a very serious matter, that again I believe he will not be in any way found to be negligent in that.

But the fact is, he was asked to provide the documents, and he didn't. The larger investigation is a different story. The vote that we took yesterday was on one very specific issue. Did he comply with the House request for documents? Clearly, he did not.

O'BRIEN: How do you think it ends? Is it all going to be negotiated out or does it go to court?

ALTMIRE: I don't think it's going to go to court. I don't know how that segment of the investigation is going to end. But let's remember what we're talking about.

A federal law enforcement agent was killed because of a program that was initiated several years ago. It was carried across two different presidential administrations. There's a lot to look at.

The vote yesterday was only about one segment of those documents. But we have to get to the bottom of what happened with "Fast and Furious."

And, again, I have no reason to believe Attorney General Holder is in any way responsible for that. I just want him to comply with the congressional intent as I wanted President Bush to comply with congressional intent in 2008.

O'BRIEN: Congressman Jason Altmire joining us this morning. It's nice to see you, sir. Thanks for your time.

ALTMIRE: Thank you, Soledad.

O'BRIEN: Still ahead this morning on STARTING POINT, Congresswoman Michele Bachmann will join us live. She is leading a new charge against the health care law now that the Supreme Court has let it stand.

And she's been called the other woman in an affair that brought down a former presidential candidate. Rielle Hunter will join us to tell us her story. We're going to ask her, why did she decide to slam the late Elizabeth Edwards? You're watching STARTING POINT. We're back in just a moment.

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