hiv-aids and things like that with those problems won't choose your product? how do you avoid informal underwriting? >> i think -- let's see. i got to learn how to run this thing here. why would you listen to me when i can't run the microphone. my opinion is there's lots of ways to avoid risk. the name of the game in the current system be the private system is risk avoidance. the reason it's the case the incentives in our system create that. you can make a lot more money if

you're a for-profit plan by avoiding risk by being an efficient administrator. so what you have to do is you have to structure the design of exchange in such a way that you take away those incentives. now, there are things like -- you have the classic things like underwriting in the individual market and so forth but beyond that you can have benefit design that is intended to make it so sicker people won't have the plan. you have to have some of the plan where you can have that. we have employers in illinois -- it's really fascinating to me the kind of coverage that we can get in chicago that we can't get in navu which is in the central part of the illinois. that's because the plans have made the decision that i can't make as much money in central illinois than i can in chicago. so the plans ought to be required to require the entire service area. that has to be a regulatory

scheme to eliminate the externality to the plans -- >> i'm trying to get another question before my time runs out. mr. shea, there's a pay and play where your insurance don't get any insurance. is it important if you choose the pay option that the employees actually get coverage? >> oh, absolutely. and it's also important that there's a meaningful payment option not like massachusetts. that they are $300 per employee and you're proposing something that's substantial. i think that's the right way to design it. >> mr. cassidy? >> my wife is a breast cancer surgeon and when you speak, i just think oh, my gosh, isn't that just nuke my ears and to my wife's ears. we share your concern. dr. hacker, a couple of things.

you know,no carrierringconnect central to improving outcomes. what i do see there's a great emphasis on bargaining power to decrease cost even though in your paper you mention that probably for physicians, that bargaining power has been used

to excess and you can demonstrably show in some cases that physicians that access the decrease because of it indeed the cbo scoring of this or maybe the document, the cbo score said there would be limited access to some specialists because of rate -- because of rates paid by the public option. so i don't see that much innovative. and so let me bounce it back to you. if we're going to come up with a patient centered plan i think the only way that history subpoena by towing so -- and improve it by doing so -- and -- i keep on saying this but it's just -- i feel like a tree falling in the forest for a similar demographic, a similar set of benefits, hsas cost 30% less than do a fee for service plan. the patient is now in control. yesterday, i was speaking to someone -- they have an hsa. they said that their doctor prescribed them $150 a pump inhibitor. they went to them and say

listen, we're paying for this out of our hsa and they asked for a substitute and they got a $20 generic substitute. that's because the patient had her healthcare was not subsidized. i don't see much innovative to drive down costs and presumably shifted over to the degree. how do we effectively make the patient central as opposed to the payment mechanism and the government bureaucracy which must administer this program? >> well, thank you very much for your question and thanks for the compliment, i think. at this particular moment i don't think i want to be considered the author of this proposal. >> i wouldn't either, but that's okay. >> so i want to -- i want to address each of your questions in turn. with regard to the question of whether or not this is an innovative approach, i think it's very important to emphasize

as i have and as is emphasized in the legislation that the idea would not be to replicate the medicare program but to create a new program that had a broader set of benefits, a different risk pool -- >> yes, but you're very explicit the same way you're using which is through the power and using your bargaining power to lower rates. >> i believe i said it should be one tool -- >> but other tool as you'd suggested had not been agreed to work but even the proponents will admit it's basal a pilot product and thank you for your intellectual honesty you prevent the benefits in controlling costs are limited. >> that's interesting. i don't remember saying that prevention was limited. i do say that there's been great skepticism on the part of congressional budget office with regard to the cost control effects of some of these measures. and it should be noted whether or not prevention reduces cost, it's a good thing to do.

but i was just going to say quickly that one tool that the plan should use this bargains power. i was proud to see in this legislation that after a period of time, that the plan would actually be developing new payment modalities and i've said and care coordination strategies and i've said repeatedly that i believe that's what's needs to happen and it will be easier to do with a public plan that's focused on the nonelderly than it is within the current medicare program. i think it's important tomorrow morning about how to separate this plan for some of the political forces that have made it hard for medicare to do the more value-oriented kind of purchasing that we'd like it to do. i agree completely that patients should be central. i mean, it is worth noting for all its flaws within the medicare program there's high level patient -- >> that's because they are relatively screened for the cost and that's the reason why it's going bankrupt in 2017 and in your proposal there's no requirement for market capitalization or for business

capitalization rather it's the full faith, and credit of the federal government. that concerns me. >> well, i believe that there are many reasons why patients are satisfied with medicare but my read of the surveys are that they are favorable toward it because of the ease that they have in finding physicians and having access to specialists and the sense that they don't have to wait for doctors and those are things that i think that the public plan can provide. >> thank you. >> we thank you very much for your patience with the committee and for all of your testimony that you've given us today. i hope that we can continue to engage you as we move forward in this process. there's a number of very good and relevant suggestions that have been made by this panel and we hope that you would agree to let us continue to pick your brains on this one. thank you very much. raise those

the hearing reason. it gives the concerns of the senators and also -- advance is a national discussion on issues

of great importance. today, we talked about the second amendment. i would just say a lot of people just think the hella case was a defining, decisive decision that i guarantee the individual right to keep and bear arms and it was. however, it explicitly applied only to the federal law and federal government of the district of columbia. and so in a footnote noted that they were not deciding whether the second amendment was incorporated through the 14th and would actually apply to states. that being the case, you could have a nonfederal city, a new york, or a richmond or a philadelphia, bar handguns completely if the second amendment is not incorporated. so that remains a tremendous issue. and in her decision-making

process, in cases that she decided, judge sotomayor earlier this year rendered an opinion that held that the second amendment is not a fundamental right. that is a decisive and important question and whether the second amendment should apply to the cities and the states. so this fundamental right question is a matter of some real significance. in truth, there's a supreme court decision in the 1800s i believe that is consistent with that and she says and our panel did that they were acting consistent with that opinion and the seventh circuit agreed with her opinion on that issue. and the ninth circuit, however, has seen it differently. they concluded that the second amendment does have apply to the states and the cities and the counties. so there's a difference of opinion. i would just say, first of all,

this is a very significant case. it will come before the supreme court. just earlier this year, she rendered an opinion that if it were to become law would eviscerate the second amendment in many parts of this country because i don't have cities are hostile to weapons and guns of any kind. and like the district of columbia are liable to evoke very certificate restrictions if not bans on the right to keep and bear arms. so i would say that's what we discussed today. the nominee i know will be willing to talk about that and talking about it, i'm sure, in individual meetings. i did not raise that with her. but i'm sure some senators have. i'm sure senator demint has. the senator is a fabulous senator, a constitutional scholar a man who has been through confirmations time and

again. and i know he made a very eloquent speech just earlier today and i would recognize senator hatch. >> well, thank you, senator. i'm grateful to have your leadership on the senate judiciary committee. it's a very important issue and i think it's important for us to raise them in advance so that sotomayor at least has some idea what some of the questions will be. this is a very important question for us, the second amendment means a great deal to us. it took a long, long time to get the heller case that finally decided that the second amendment is a personal right. and i think the distinguished from alabama has explained it quite adequately. the senate has to look at judge sotomayor's entire record to looking at hir philosophy and her speeches as well as her cases. now, her second amendment decisions appear to have unnecessarily minimized and

confined the scope and vitality of this second amendment constitutional right. even after the supreme court in heller indicated the second amendment protects not only an individual right to keep and bear arms but a preexisting fundamental right. judge sotomayor continued to say the right to keep and bear arms is not a fundamental right. this appears to be an approach focused on politically correct results rather than on the -- a judicially correct process. other circuits looking at the issue as the distinguished senator from bathrooms gave it more attention and analysis than did judge sotomayor. and they did not address the unnecessary issues. i wish judge sotomayor had been similarly restrained on these issues.

these were among the most important issues and questions that her record raises in which which must be addressed at the hearing. and so this is a fair way of letting her know in advance that this is an important issue to -- i think the majority of senators in the united states senate and certainly a majority of the people in this country and we'll expect her to tell us what her real feelings are on this and really what she believes the law really should say. and we'll give her every opportunity to represent herself and, of course, to bring us up to speed on what her personal feelings are and what her belief on the law really is in this particular area. >> jim? >> thank you. >> the questions here about the second amendment really bring up the question of whether the constitution still applies to all americans.

president obama before he was president suggested in interviews that he saw the constitution as incomplete. as a charter of negative liberties. that it told the government what it couldn't do but it didn't tell the government what it had to do on behalf of the people. the president apparently doesn't see the constitution as a document that limits the role of government. and we've seen in many areas of his administration an attempt to expand government in many areas of our society and to our economy, and that brings us to the discussion about his supreme court nominee, who also appears to be part of this pattern. when i had a chance to meet with judge sotomayor and ask her if the second amendment applied to every american, i was not asking her to pre-judge any particular case. but to just give me her interpretation of the second amendment.

which is pretty clear that the right of the people, it says people, to keep and bear arms shall not be infringed. if this does not apply to every american, then the question is clear whether or not the constitution still applies. that's my concern with this nominee. it appears to reflect a pattern of this president that he does not respect the limits of the constitution and intends to have himself and his administration and his judges reinterpret it on our behalf. if the second amendment does not apply to every american, as it very clearly does, then the constitution no longer has any bearing opposite controlling the role of the federal government. it's a very important question that goes much beyond the question of bearing arms but whether or not we are still a constitutional republic. >> thank you.

well, 200-plus years ago we had a debate in this country about what the constitution should consist of, and you remember the fight between the federalists and antifederalists and as a result of that fight, a compromise was achieved where the first 10 amendments of the constitution, the bill of rights, was adopted. and that includes some of the rights that as jim demint said, the basic freedoms against government constraints and control that americans now believe constitutes their most fundamental rights. the right to free speech in the first amendment. we hinted some questions that we want to ask of judge society of political speech and political activity. the fifth amendment, which, of course, protects private property rights. the fourteenth amendment which deals with equal protection of the laws. all of these will be areas of concern. but this is the first time that i know of in our nation's

history where a supreme court nomination will really focus on and in many ways revolve around the nominee's commitment to the bill of rights and most particularly the second amendment to the constitution. and, of course, the stakes, as you've heard are very high. even though the supreme court of the united states decided just this last year in the heller case that the right to keep and bear arms of individuals in the district of columbia -- there are other cases as i believe senator hatch and senator sessions mentioned that are on their way to the united states supreme court. so this is not a fanciful or made-up issue. this is a real issue that will be addressed by the supreme court of the united states if judge sotomayor is confirmed with her on that court and part of that court. the concern i have is that when given the opportunity to interpret the second amendment

of the constitution, she essentially denied that the right to keep and bear arms under the second amendment was an individual right and was a fundamental right of all americans. and that was in the case that perhaps you're familiar with, the meloni versus quomo. it did not apply to the cities and states but merely to the federal government. for any law student of a federal judge to take that kind of cramped and restricted view of a basic civil liberty in our bill of rights is troubling indeed. so these are -- again, i agree with senator hatch that in fairness to the nominee, we are highlighting issues of concern to us to give her time to prepare for the questions that we expect to ask her and we look forward to that hearing on the

13th and her candid responses to the questions about these important issues. >> on the meloni case, it was merely standing for the proposition that the supreme court in heller did not overrule the 1890s case which said that the second amendment didn't apply to the states and that because in heller they specifically said they were doing that, this court was following the supreme court precedent which is how the seventh circuit came in? >> i would say if, in fact, the rights of the second amendment apply to each and every american and guarantee an individual right to keep and bear arms, then her decision was inconsistent with that proposition. we can talk about the incorporation doctrine and her reliance on 19th century

precedent after the supreme court of the united states had just decided the heller case. and i would say it takes -- as i mentioned, an unnecessarily cramped and restricted view of an individual right when it comes to the right to keep and bear arms. >> thank you. >> senator, as you mentioned, this has come up in three circuits, how can she address the question if it's likely to come before her? how does she answer that question then? >> i think that's a good question. i'm not sure that we've thought that through yet and what the right answer would be. approximate she certainly can be asked about the case she decided. as you know judge roberts and judge alito were all asked about cases they decided and their reasoning was examined in that. but i don't think it's appropriate for us to try to insist to state on how she might

rule because i think that would be an improper act by the congress. but -- and i would also suggest that there may be a question of whether or not she should sit on a case if it's one she already ruled on, perhaps one coming up, who knows? >> but she could -- but the heller case did say this is an individual right. and i think she should have to respond to the question, do you believe it's an individual right? because that should have not a heck of a lot to do with the future cases although in my eyes, it will have a lot to do with those future cases, but i think she can be asked that question with the appropriate result? >> have any of you asked her that question or senator demint specifically? >> i did not, no. >> senator sessions, in the

beginning -- [inaudible] >> is this somehow more fertile territory for you to attack this -- or take a look at this nomination? >> well, i think there's been a lot of discussion about the speeches that she's made. the president has even said she misspoke, but if she did she misspoke about half a dozen times 'cause she repeated that statement. i don't think she will say she misspoke. so it will be interesting to see to see how she answers that, the question about whether the court of appeals are policy-making bodies. those are very, very important issues that i'm sure will be examined at the hearing and have trouble -- the american people, the people who talk to me. i will say there will be other issues and not much talked about and i think it's important to discuss this issue because i

believe the second amendment is a vital constitutional amendment. a lot of people don't think they have to enforce the constitution as it's written. they'd like to enforce it as they would like it to have been written. and i think it's a question as to whether she's committed to it. it will be an interesting discussion. >> can i just respond to your question and say -- i'm not picking on you. but first you use the word attack. you're not the only one i've seen sort of characterized what we're doing is attacking the nominee. this is the opposite of attacking the nominee. this is raising questions and i think performing our constitutional duty under the constitution under the advice and consent clause. and so please -- i think it's unfair to characterize what we're doing as an attack. we're raising the issue saying these are legitimate questions. and we want to have the nominee responsible to them. i would once again point, however, this stands in stark contrast to the way that mcgill

estrada who would perhaps to have been the first nominee if he wouldn't have been filibustered nine times by democrats about they were in our position now and in contrast to the disrespectful and unfair process by which previous nominees have been considered, i think this stands in stark contrast and we are -- we're committed to a fair and dignified process, raising these issues but then doing our job under the constitution. >> i'm still confused, though, why you think she and the panel opined whether the second amendment was fundamental or not when heller, the court specifically said was not whether it applied to the states. and that was what they refused to overturn that other -- >> may i read -- may i read you two sentences? >> sure. >> on page 3, and this is a lexis copy of the case. she said the fourteenth

amendment provides to relief for appellate. acts that do not interfere with fundamental right and carry with them a strong presumption of constitutionality. and must be upheld if rationally related to a legitimate state interest. i think fairly read, she says this does not interfere with a fundamental right, which we believe -- i believe that every american under the second amendment of the constitution has a fundamental right to keep and bear arms unless, of course, they'd been convicted of a crime -- >> but wouldn't it be the same issue whether or not it's related to the fourteenth amendment. and that's what the supreme court in heller said they are not deciding. >> you are right this is about incorporation and that arcane and archaic doctrine which i thought was pretty much decided that the supreme court had said basically all of the bill of rights have been incorporated of the fourteenth amendment of the constitution. all i'm saying she went out of her way to deny the right to

keep and bear arms as a fundamental right under the language that i read to you. >> i would just say we don't think that language was necessary to the opinion. it was not -- so it's -- it raises some questions that we'll need to talk about. i think she can be asked about that opinion that she wrote. >> senator sessions, democrats are going to try to get healthcare reform done next month and they're going to try to pass the sotomayor nomination. how much time do you think the sotomayor nomination will take and -- >> he's got more experience than i know. we both to have run the committee hearings. i would say that the supreme court nominations are perceived as more important now than 20 years ago, for a lot of reasons. i think you'll have a lot of senators that want to speak on it. and it will take some floor time. and