CBS's Smith: Do ObamaCare Opponents 'Have A Legal Leg to Stand On?'

On Tuesday's CBS Early Show, co-host Harry Smith seemed skeptical of the legal reasoning of a federal judge who ruled part of ObamaCare was unconstitutional: "The thing that he objects to most strenuously is this idea that everybody has to be insured. And the Republicans are jumping up and down, they're ready to have a party. Do you think they have a legal leg to stand on?"

Smith directed that question to Illinois Democratic Senator Dick Durbin, who used the softball setup to declare: "I think the law is sound, and when Eric Cantor on the Republican side says, 'Let's repeal ObamaCare,' he wants to repeal the protection Americans want against the discrimination against them for pre-existing conditions. I think that's a losing political position."

Smith could have come back with the latest ABC News/Washington Post poll that shows support for ObamaCare at a new low, instead he gave Durbin another opportunity to tout the legislation: "The White House says it's going to go ahead and continue with implementation of the law, of the entire health care system, while all this legal wrangling is going on. Should it proceed?" Durbin responded: "Absolutely. Let me tell you, there are people who will see the protection of health insurance for the first time in their lives. Over 50 million Americans have no health insurance. 60% of them will receive health insurance protection."

Durbin added: "If the Republicans want to repeal the reach and protection of health insurance, it's a great issue, but I'm afraid it's not going to be very kind to the people who are being discriminated against today." Smith didn't challenge that assertion but simply went on to ask about the tax deal.

No Republican guests or sound bites were featured in the segment. In a report prior to Smith's interview with Durbin, congressional correspondent Nancy Cordes did repeat a quote from the GOP: "Republicans, who universally oppose the health care law, praised the Virginia ruling. In a written statement, incoming House Majority Leader Eric Cantor said, 'Once the new Republican majority assumes control of the House in January, we will pass a clean repeal of ObamaCare.'" She quickly added: "The White House argues the insurance mandate is critical to the success of health care reform. Because getting everyone insured is key to bringing down costs."

Here is a full transcript of the December 14 segment:

7:00AM ET TEASE:

HARRY SMITH: Hit and miss. As President Obama's tax cut compromise is about to pass the Senate, a federal judge throws a curve ball at his health care reform law, deeming it unconstitutional. So what's the next step for the President and the Democrats? We'll ask a top senator in an exclusive live interview.
                        
7:05AM ET SEGMENT:

SMITH: Now to politics. The tax cut compromise that President Obama worked out with the Republicans is one step closer to law. But the President's signature, health care reform, is running into trouble in court. CBS News congressional correspondent Nancy Cordes is on Capitol Hill with the latest. Nancy, good morning.

NANCY CORDES: Good morning, Harry. Republicans vowed to fight the health care bill in court, and they scored a big victory yesterday. While here on Capitol Hill, the tax cut deal passed its first major hurdle, with bipartisan support.

[ON-SCREEN HEADLINE: Tax Cut Showdown; Will House Dems Stop From Passing]

By a commanding margin, 83 to 15, the Senate voted to push ahead on a bill drawn up by Republicans and the White House. It would prevent a January 1st tax hike and keep jobless benefits from running out for the long-term unemployed.

BARACK OBAMA: The United States Senate is moving forward on a package of tax cuts that has strong bipartisan support. And this proves that both parties can, in fact, work together.

CORDES: While President Obama was celebrating, a Virginia judge was handing the White house a potential setback. Ruling that parts of the massive new health care law were unconstitutional. In his decision, Judge Henry Hudson said Congress overreached when it mandated all Americans must buy health insurance. 'The Constitution,' he said, 'does not allow that kind of unchecked expansion of congressional power. It's about an individual's right to choose to participate,' he wrote. Republicans, who universally oppose the health care law, praised the Virginia ruling. In a written statement, incoming House Majority Leader Eric Cantor said, 'Once the new Republican majority assumes control of the House in January, we will pass a clean repeal of ObamaCare.' The White House argues the insurance mandate is critical to the success of health care reform. Because getting everyone insured is key to bringing down costs.    

[ON-SCREEN HEADLINE: Healthcare Law Rejected; U.S. Judge Rules It Unconstitutional]

ROBERT GIBBS: I think it's constitutionally – constitutionality will be upheld.

CORDES: All these legal challenges to the health care bill could and most likely will end up at the U.S. Supreme Court. While the tax cut deal, which passed that first vote yesterday, could hit final passage in the Senate today, and then it heads to the House. Harry.

SMITH: That's Nancy Cordes on Capitol Hill. Thank you very much. Also on Capitol Hill this morning, to talk exclusively about the tax compromise and other issues, is the Senate's number two Democrat, Illinois Senator Dick Durbin. Senator, good morning.

DICK DURBIN: Good morning.

SMITH: I'll tell you, every single paper that I pick up this morning, 'Health Law Loses In Court Challenge.' 'Core of Health Care Law Is Rejected by U.S. Judge.' And the thing that he objects to most strenuously is this idea that everybody has to be insured. And the Republicans are jumping up and down, they're ready to have a party. Do you think they have a legal leg to stand on?

DURBIN: Harry, and now for the rest of the story. This was the third court ruling, and the first one that overturned that provision. The first two said it was fine. It was constitutional. So clearly there's a difference. Even among the Virginia federal courts, and we're going to move forward to an appellate level, perhaps even to the Supreme Court. I think the law is sound, and when Eric Cantor on the Republican side says, 'Let's repeal ObamaCare,' he wants to repeal the protection Americans want against the discrimination against them for pre-existing conditions. I think that's a losing political position.

SMITH: The White House says it's going to go ahead and continue with implementation of the law, of the entire health care system, while all this legal wrangling is going on. Should it proceed?

DURBIN: Absolutely. Let me tell you, there are people who will see the protection of health insurance for the first time in their lives. Over 50 million Americans have no health insurance. 60% of them will receive health insurance protection. Imagine, Harry, if you and I had to go a week without health insurance protection. There are millions of Americans who do it every single day. If the Republicans want to repeal the reach and protection of health insurance, it's a great issue, but I'm afraid it's not going to be very kind to the people who are being discriminated against today.

SMITH: Well, let's continue on to the tax cut deal, and to the implementation, then, of the extension of unemployment benefits. This really looks like it's going to finally actually sail through the Senate. Will it get through the House?

[ON-SCREEN HEADLINE: Tax Bill Debate; Senate Set to Pass, Will House Revolt?]

DURBIN: Well, I can tell you that that vote last night in the Senate was overwhelming. When over 80 United States senators of both political parties support a measure I think the House takes notice. Let me say, I understand the resistance in the House among some Democrats. You know, this bill, I think gets high marks for economic stimulus moving us forward and out of this recession. But in the spirit of the season, it does say, 'God bless Tiny Tim and Donald Trump.' It gives the wealthiest in America a tax break at a time when they don't need it, shouldn't have it, but it was part of the compromise the Republicans insisted on.

SMITH: But in the end of the day, will the House go along? It's clear that the senators are on board. Will the House do this? And will it get done by Christmas?

DURBIN: I think it will be done by Christmas. I think there may be several stages in this debate. But ultimately, those who oppose it will have their day.

SMITH: Senator Dick Durbin, we do appreciate your time this morning. Thank you very, very much.

DURBIN: Thank you.