Do health care challengers have the upper hand?

>>> it's wednesday, march 28th , 2012 . i'm chuck todd and let's get to the first reads of the morning. the health insurance mandate is found unconstitutional. can the rest of the health care law survive. that's the question they take up in less than an hour. by all accounts, the challengers of the law had the upper hand. the health care mandate is in trouble. sandra day o'connor said you have to be able to count to five. prognostication based on oral arguments is not a science. the number five sounded skeptical of the government's argument beginning with the justice who may be key, anthony kennedy .

>> when you were changing the relation in a unique way, do you not have a heavy burden of justification to show authorization under the constitution?

>> it was clear from the out set the other two who might have a broader power, the justices were not convinced with an analogy of a slippery slope analogy. if congress can make everybody buy insurance, is there an end to what else it could do?

>> can the government require you to buy a cell phone because that facilitates responding when you need emergency services .

>> everyone has to buy food and therefore everyone is in the market and you can make people buy broccoli.

>> solicitor general arguing for the government was struggling and some of the more liberal justices jumped in and tried to bail them out.

>> it's different because of the nature of the health care service. you are entitled to health care when you go to an emergency room , when you go to a doctor, even if you can't pay for it.

>> the obama administration saw a glimmer of hope to this late statement by the swing vote kennedy suggesting that his vote may be in play and he wondered because the cost of treating people without insurance is shifted to those who do. health care may be unique.

>> the young person who is uninsured is uniquely proximateimately very close to affecting the rates and the cost of providing medical care in something that is not true in other industries.

>> they are hanging their hat on that. pete williams joins me from the supreme court and let me ask about today and being the issue whether you can serf the mandate from the law. is that an opportunity for the government to basically reargue the mandate and come back with better counters?

>> i doubt it. this is a what if question and you have to take the what if as a given. that is to say if the court were to strike the mandate down. the argument for the government will be that whether or not the individual mandate, the requirement to buy insurance is so bound with the rest of the law that you can't pull it apart. they said this is like a watch. if you take the mandate out, the rest falls apart . the second question is what would congress have wanted? would they want the other things if they didn't have the mandate. one other thing, the court will look at the constitutionality of the other big requirement that is on the states to expand the coverage of the medicate program. it would greatly expand the coverage to single people under 65 who are at or below 133% of the poverty level. they can't afford health insurance . that's a constitutional question that comes this afternoon.

>> so the government basically is arguing that you have to overturn that for the mandate?

>> the government will try to save as much as it can. they will try to say that other parts are important. they can coexist without each other. let me try that again. the two can exist without each other because many provisions are already in effect. two years before the insurance mandate kicks in. they will sigh look, it obviously works. we are doing it now. these are things like the fact that insurance companies have to cover young people until they are 26 under their parents's plans. you can't turn down people because of preexisting conditions. tax benefits for employers who give penalties. all those things. limits on coverage and all those things are in effect or kicking in before the mandate. the government will say the evidence is right in front of you and it can work without the mandate.

>> they have to get into the supreme court and thank you very much. mitt romney may be 3,000 miles from the action, but he couldn't escape questions on health care even on a late night talk show. the questions came from our good friend here, tonight show host jay leno .

>> seems like children and people with preexisting conditions should be covered.

>> as long as you have been continuously insured.

>> what about those who don't?

>> if they are 45 and they want insurance because they have heart disease , we can't play the game like that.

>> hey, guy, we can't play the game like that.

>> how do you get healthy people into the insurance market? we have to figure out how to answer that. obama responded to the russian president who said romney 's line on the open mike smells of hollywood and romney should look at his watch. we are in 2012 and not the mid 70s. romney 's response.

>> they are turning into us. they have kentucky fried chicken and mcdonald's and love cars. they are more like us than people perceive.

>> i don't want to call the russian czar someone like us exactly. they are people like us , but you have vladimir putin and they are continuing to support iran. they stand up for the world's worst actors.

>> when handed an opportunity, romney decided to stay above the fray and he is making excuses for him.

>> one breath, the same day he said you were the worst possible guy to run against obama and the same day he said i would be his vice president.

>> you are on all the time when you are running for office. everything you say is followed by a small camera of some kind. you don't always get every word just right. you have to give people a little bit of slack, i think. in this case rick santorum is a good guy and running a good campaign. i'm happy with him saying he wants to be part of the administration with me. nothing wrong with that.

>> there were no questions about the story that hit the world from politico about the plans for one of mitt romney 's houses. mitt romney has a two-word and three-word phrase problem. in this case elevator. as bad of a day as the obama campaign may have had on health care , this provides the white house with good news to close the health care wounds. an abc news poll, mitt romney is viewed unfavorable by half of all adults. only 34% have positive impressions of him compared to 53% that view the president positively. the general election is seven months away. the bad news is it's just seven months away and romney 's numbers are following a trajectory like four years ago. no one has won the white house since 1960 without carrying florida, ohio, or pennsylvania . this is where obama teamed up more good news in the swing states . a new poll showed the president leading romney in all three states. surprisingly closer in pennsylvania than the other two states. why? check out this. a gender gap . the president is beating romney with women with double-digits and six points ahead in pennsylvania as well. good news for romney this morning in the pennsylvania primary . according to a franklin and marshall role, santorum leads, but by a narrow margin . now just up two points. what may be the do-or-die moment, wisconsin holding the primary tuesday. he is outspending by about a 5-1 margin. that came down from earlier in the week. romney holds a single digit lead according to a poll from the law school . in that poll, gingrich sits at 5%. weigh learned this. strategy has caught up to the stating in the polls. the campaign is laying off a third of the staff and lightening the travel schedule. his travel schedule is going to be so light at times, the question will be asked is he an active candidate or closer to being a candidate that decides to suspend the operation. he is acting as if he is in between at this point. it's been