aggressive only in the sense of enforcing the 15 and five minutes, but my job is not basically done. and i'll turn it over starting with ilya. >> i'd like to start out by thanking the washington legal foundation for organizing this event and perhaps even more important, for giving me the privilege of represent them throughout this litigation. we have written a amicus brief on behalf of the plaintiffs in this case urging the supreme court to strike down the individual mandates. i'd also like to thank tom goldstein for moderating, and andrew pincus for taking part in this discussion. certainly mayor brown is one of the top of birds in the outfield but i know -- andrew pincus is certainly one of the top supreme court litigators. so i definitely have my work cut

out for me here, but fortunately the point i want to make is ultimately very simple, and that is this, there is no way for the supreme court to uphold the individual insurance mandate without simultaneously giving congress the power to enact virtually any other mandates of any kind. and such a result is contrary to the text, history and history of constitution and it's a very dangerous power for congress in a. the federal government has offered three arguments why the the the insurance mandate is within congress' power. they say it's allowed under the commerce clause, the tax clause, and a necessary and proper clause. but all three of these arguments have the same weakness that is accepted by the court, they would lead to virtually unlimited congressional power. so i did like to start out with a commerce clause argument which is the one that has been emphasized the most in the litigation so far. the commerce clause gives

congress the power to regulate cloak, among the several states. so right away when you just look at the text of the clause it seems clear that in order to be authorized by that clause, the measure has to be to requirements. first it has to regulate commerce and second the commerce that it regulates must be interstate. on these criteria the individual mandate is over too. it's not regulated and commerce, not having health insurance is not commerce. and it's not regulating anything that is interstate either. moreover, this sort of common sense interpretation of the clause is actually roughly the way that the clause is interpreted by the supreme court during the first 150 years of our history. some people especially today argued that the clause gives congress the power to oppose any measures to have some effect on interstate commerce, but if that were true then it would render much of the rest of congress'

power under article one of the constitution completely redundant. for example, in the very same phrase where the constitution gives congress the power to regulate interstate congress, it also gives it the power to regulate foreign commerce and commerce with the indian tribes. foreign and indian commerce both have important effects on interstate commerce, so if the interstate commerce clause already give congress the power to regulate anything which has affected interstate commerce, these other two powers would be completely unnecessary and superfluous, and same can be said for many of the other 17 enumerated powers that congress is given under article one. i fully recognize that over the last 60-70 years, the supreme court has expanded its interpretation of the congress power well beyond its text and original meaning. i think some of these presidents are badly misguided, but even the most extreme of them do not go far enough to justify the individual mandate. i think almost everyone would

agree that the courts brought his commerce clause president so far is the 2005 case of gonzales versus race with the court stated the commerce clause allowed congress to forbid the position and growth of medical marijuana even in a case without mayor juan had never crossed state lines and never been sold in any market. i think race is a misguided decision by does not go far enough to justify this mandate. the marijuana can be forbidden because possession and growth of marijuana was the quote economic activity. they define economic activity very broadly as production, consumption or discretion of the commodity. if you look at this case and that light, obviously not having health insurance it is a production of a commodity, it is an consumption of a commodity and it certainly is not the distribution of the commodity. so even raich doesn't go far

enough to get the government where it needs to go in this particular case. so it turns out the only possible way to uphold the mandate under the commerce clause is if congress were held to have the power to impose virtually any kind of mandate to do anything that has some sort of economic effect which, of course, is pretty much anything that congress can compel it to do. the government has tried to resist this conclusion and has argued that actually health insurance is a special case in various ways. the most common argument that the abuse is claiming health insurance is special because we all use health care at some point in our lives, and that makes it different from most other products. however, notice the sleight of hand here. there focusing to health care to a broader category. if you are allowed this in a similar sleight of hand, and

justify pretty much any other mandate of any kind. consider for instance, the famous broccoli man become an example has been used so often throughout this case. is to not everybody eats broccoli, not everyone likes it as much as i do, however, everybody does it is that in the market for food which broccoli is just one part. indeed, the market for food is even more difficult to avoid in the market for health care. just tried avoiding it if you don't believe me. you'll be able to do so probably for very long. and similarly you can use the same argument for mandate to buy cars. nutter butter uses cars that everybody participates in the market for transportation. therefore, a car purchasing mandate could be justified and pretty much any other mandate the same way. the federal government also says this market is a special case because in some instances health care providers are required to provide free service to the indigent, those who cannot pay for health care.

the question however arises why is this different constitutional a significant? the answer seems be if you don't have a health insurance mandate, then the pre-health care requirement creates an adverse economic impact on producers. this is true but it's also true pretty much any other market conditions or government regulation that might reduce the purchase of product below the level at which it otherwise would be. anytime i decide not to buy broccoli or not to buy a car, or not to like anything else, or to buy fewer of those products, then i would otherwise, but also as an adverse economic effect on producers and, therefore, this factor failed to differentiate this case ultimately from any other market. so next the federal government argues on the basis of the tax clause and they say the individual mandate is a tax and is therefore authorized by congress' power to impose

various kinds of taxes. why is it a tax, they say? because if you don't of a demand a check to pay monetary fines collected by the internal revenue service. if this argument is accepted, it's pretty obvious that pretty much any mandate would be permissible as long as the penalty for failing to obey the mandate was a fine. so you have a monetary fine for not buying broccoli or not buying cars, pretty much anything else that congress could possibly imagine. this area is a rare state of consensus in the lower courts so far, 15 out of 16 federal judges left consider this argument to this point have rejected it, including several who have upheld the mandate on other kinds of rounds. it's not hard to see why they rejected it. they have all held that this is not a tax, rather a penalty. it is a situation where the federal government tells you to

do something and if you don't do it you have to pay a fine. if this is a tax and 95, then the same goes, say, for penalty for jaywalking if you have to pay a fine booty jaywalk, that could be considered a tax under this kind of reasoning. moreover, the supreme court and its president has repeatedly distinguish between fines and penalties. as recently as 1996, they have said the penalty is called an exaction imposed by statute as punishment for an unlawful act or in this case an unlawful omission and i think this fits that definition to a t. it is a fine imposed as punishment for an unlawful act or an unlawful omission. i should mention i'm not the first law professor to suggest that this is not a tax but rather a penalty, and much more famous law professor, back in september 2009, i refer of course to former university of chicago law professor barack

obama who said at that point that for us to say that you've got to take responsibility to get health insurance is absolutely not a tax increase. i think the president is absolutely right about that, and i hope it's not too late for them to instruct the department of justice lawyers to get in line with the white house position on this question. so lastly, the federal government defends its position on this case on the basis of the necessary and proper clause which is, in fact, the focus of the brief that i wrote for the washington legal foundation. the necessary and proper clause is not an independent grant of power to congress, rather what it does is it gives congress the authority to implement measures which are both necessary and proper to carry other powers that congress was given in the document. it's important to recognize that both the original meaning of the clause and the supreme court precedent are clear to the point that necessity and propriety are

huge separate requirements. that is not enough for enmeshed to be necessary nor to pass muster. it must also be proper. the supreme court has, in fact, if i necessary very broadly as anything that might in some way be used for convenience to other congressional power. they have not been so clear on defining proper. however, if proper means anything according to the original meaning, it is that a measure is improper is the only argument that can justify it is one that would give congress virtually unlimited power or make lots of congress' other powers under the constitution completely redundant. as james madison put it in a speech on the clause, what every meaning this clause may have, he said, none can be admitted that would give it unlimited discretion to congress. and the federal government's argument is precisely the unlimited discretion that madison said the clause denies to congress.

they say that this is proper, than virtually any mandate that is some effectiveness of some kind on commerce, it would be considered proper as well. so the claim here that is made is that this is proper because the mandate affect the health insurance, the health care market, and, therefore, -- the power to regulate interstate congress, but, of course, virtually any mandate to do anything can have some significant effect on interstate commerce. if you mandate that people buy broccoli, that would have effect on food markets. if you mandate that they buy cars, that would have effect on the car and transportation market, and so forth. so if you allow any of the mandates on the basis of the same kind of reasoning, the end result isn't unlimited power to include mandate of any kind whatsoever, and that is certainly inconsistent with the standard of propriety. there's a limited time right

now, so i can't go into this in great detail but this is i should issue we focus on her brief. so take a look at if you happen to interest in this particular question. i would note one more thing. among all the founders, the ones that have the broadest conception of federal power was alexander hamilton. yet in federalist 33, hamilton said that federal laws interfering in state property taxes or state inheritance laws would be unconstitutional because they would be improper under the clause. it's pretty obvious the taxes or inheritance laws, federal law regulating that, would have effects on interstate commerce. it might be useful or convenient for regulate interstate commerce, but said hampton, it still improper and that's a strong sign that even among the founders those have a very broad conception of federal power stay believe that propriety imposed important limits year. so the last point i would make

is this, lawyers and especially law professors are notorious for making slippery slope arguments that may be clever but have no real place in the real world because these things would actually happen. hear the slippery slope from this mandate to weather future mandates is not have that kind. rather, it is a very real danger because congress has a long history of imposing special interest legislation, and there's lots of powerful industry lobbies that would be more than happy to lobby congress for the opportunity of a mandate that forces people to buy their products. indeed, lobbying by the health insurance industry was probably one of the -- the legislation that we see today. it's interesting that in the 2008 campaign when the individual mandate was first proposed by hillary clinton, then candidate barack obama was very strongly opposed to it. he said at the time that trying to solve the health insurance

problem by requiring people to buy health insurance is kind of like trying to solve the housing problem or the homelessness problem by requiring the homeless to white house. i'm not saying that the president changed his mind between then and now, simply because of lobbying by the insurance industry but obviously special interest are was one of many forces that did lead to the legislation that we are considering now. so ultimately the power is inconsistent with the constitution and has allowed by the supreme court, it would be a very dangerous power for congress to have going forward. thank you very much. >> thanks so much. andy? >> thanks, and i echo the thanks to foundation with what does a terrific job of putting on these programs and bringing opposing views, and also to c-span. as a big c-span watcher i have to say how great it is in the middle of the night if you happen to the way if you happen

to be away, so if something interesting to watch. let me start by addressing this question of, if this is upheld as that mean congress can impose any of the mandate? i think there are some distinctions here, but i think it's also important that look at the question of mandates, i think virtual all the opponents of the legislature agreed that the states have power to oppose this kind of mandate. so it's not as if it's something totally foreign to our political system. states can do it. they haven't done it very much, but that indicates i think that it is not something that is totally outside the realm of permissible legislative activity. i've like to start in analyzing, the federal government can also do what the states can do, maybe by turning first to the tax power. first ball, spindle bit of an eclectic regard and also because i wrote a brief about it, i hope

it's less neglected in the supreme court big event has been in the lower courts. the courts have said repeatedly that the taxing power is incredibly broad. virtually without limitation is one of the quotes that the court has used, and it's really a consequence of history. ever go back to the articles of confederation, one of the principal flaws was that congress did not have the power to directly raise revenue it's a. it had requested, send a request to the states, the states had to levy revenues and senate to the federal government. the federal government didn't get any money and so one of the critical reasons for the constitutional convention and replacement of the articles of confederation with the constitution was the need to provide clear power for the federal government to raise its own revenues. and, of course, many times since and have address the question of taxing power. some things are very clear. first of all the taxing power is not limited by the other powers.

congress can tax things that it can't regulate. and second of all the fact that attacks has a regulatory purpose or effect in addition to a revenue raising the fact does not mean that it cannot be upheld as a tax. to the contrary, the court, every time issue has been raised, rejected the argument that a measure that both has a revenue raising purpose or effect and a regulatory purpose and effect can't be upheld as a tax. everything time it has been upheld as a tax. it has to raise revenue, and it can't violate the other protections of individual rights that are in the constitution. here i think it's awfully hard to say that the accompanying the mass debate doesn't promote the general welfare they are always a free rider problem in health

care, and this is designed to deal with that. it clear he will raise revenue. a case decided by the court a couple decades ago, the revenue estimate was $4500, 90,000, and the court said that was well within satisfied the revenue raising requirement. and second of all, this is not a punitive a criminal much. the court has said the test for that is where the monetary fine is well in excess of the underlying value of activity being taxed. that's not here. the tax is key to the persons in, and relates indeed to what insurance, what it would cost to ensure that person or that person's family. now, there is another limitation on the taxing power in the constitution of the constitution said no capitation for direct attacks may be levied unless it is apportioned by population. but the court has interpreted

that clause quite nearly. only taxes per person taxes, taxes on land have been found to fall into that category, and here with a levy is specifically tied to income, it clearly doesn't. finally, the court's jurisprudence is quite clear that congress doesn't have to use the magic word tax in order for enmeshed to be upheld under the taxing power. the courts rejected that argument both in the context of the taxing power and in the context of other powers, and there's a good reason why. the courts will hear is striking down a decision made by the people selected representatives. that's a pretty significant power and there's a perception of constitutionality. and so taking those two things together, the courts very unique role here, the presumption that the people's representatives action is constitutional, that action should all be struck down if there's no way to sustain. if it's clearly beyond all of

congress' power and, therefore, the court has not insisted the magic words we use to invoke one power or another and effect in many cases has upheld a statute on grounds that congress didn't invoke and not address the grounds that congress did invoke. and, in fact, macculloch versus maryland, a similar decision of the early republic apply this principle and upheld the statute there creating the bank of the united states on friday of survey by serving up friday of constitutional powers none of which were invoke. maybe if congress clearly is a valid a power, that might be a basis for the courts and congress specifically didn't want to do this so we're not going to look at but it certainly is not the case here. this measure is in the internal revenue code, it's paid on your 1040 income tax form. it is enforced by the irs and is tied to your income. so there certainly enough energy

that this is a tax that would be quite odd to say oh, no, congress specifically disavow that power. and for those people who are judges who look at legislative history from the legislators is that most ambiguous picture sometimes the work of issues. sometimes the word tax issues. now, what do the opponents say in response to what i think is a pretty persuasive argument on the taxing power? the principal argument is this. you can't uphold this measure as a tax because of the way it is written. there's one section that says you must attain health care insurance. and then there's another section that says if you don't, you must pay this financial levy. so clearly there's a freestanding mandate that has to be upheld as a commerce clause enactment, and this other measure is not related, or can be used as a tax so it's not condition. it doesn't say you must either

purchase health insurance or pay the tax. so is that a dispositive argument? it's interesting. in a case called new york versus an ice age which involved the federal statute in with another very competent national problem, the disposal of low-level radioactive waste. that statute said each state shall be responsible for providing for the disposal of low-level radioactive waste, in one section. then there were three other sections as specified some things that provide incentives, maybe some carrots and sticks, the way the court put it, to press the states to do what was in that section. the people who are challenging the act said you don't have to address the constitutionality of those three carrots and sticks because there's a requirement that is directly imposed on the states, that's good unconstitutional so the whole statute falls. and the court said no, we're not going to do that.

it said you could understand this as a mandate standing alone, or you could look at the provisions together in a series of insisted and the court said we're going to do the latter. because we don't presume that congress legislates unconstitutional and we're going to interpret a statute so that it is constitutional. and we interpret this provision as conditional on the carrots and sticks in order to accord the presumption of constitutionality. so common it seems to me under the exact same argument that the court adopted in the new york case, that's the way to construe the provisions here, is it even though there is separately, they are really conditional because something happens to you other than the payment of a fee if you don't buy the insurance. so that are in practical effect conditional. some opponents say this is punishment, but it's not. it is not a disproportion

financial levy. as i said before, tied to income, not criminally enforced, no requirement to none of the traditional ever before in punishment and last argument is well, the corba has told congress and the clinical branches accountable. the clinical branches can't say we're not enacting a tax, and then when the constitutional challenge is racy but we are invoking the taxing power to uphold this measure. that will allow the political branches to escape accountability. i guess two points on the. i don't think that's too. i think if the supreme court issued a decision this jeev singh were only upholding this mandate because it's a tax you would see lots of political accountability the next election attempted to be imposed on the people who voted for it. so it seems to me the argument that they won't be political accountability just doesn't hold water is the real world in which we all live. and i'm not sure it's the court's job to worry about political accountability to sort

of supervised the political process in that way. but even if it were, i think you'll be a lot of political accountability if the court were to go down that road and the people would have to explain, the elected officials, why they voted for something that turned out to be a tax and by imposing the tax was justified or not. let me turn to the commerce clause because that is the principal field of battle on a lot of these, not in the sprinkle but has been in the lower court. and i think it's important to recognize that a lot of arguments advanced by the other side in jeopardy here before, is that the last 80 years of constitutional law, the last years of interpret the commerce clause were wrongheaded. the principal argument is regulating regulate. interstate means industry. if it's not interesting in we should throw this out and a lot of the decisions that have ruled

to the contrary were wrong. i think court certainly could go back to the pre-new deal era. i don't think it's going to. but i do think that the reality is that if this cases are accepted as i think they have to be, the opponents of the statute have a very, very tough time. is there economic activity that is being regulated? there is the decision to self-insure, and judge sutton, i think put it very well in his decision for the separating and the sixth circuit case of upholding the mandate where he said the decision to self-insure is an economic decision. he set and encoding, no, it isn't active in deciding -- private insurance are two forms of action for addressing the same risk. each requires affirmative choices. one is no less active than the other and both respect commerce. so i think even if one believes

that there is some activity, inactivity distinction that is embodied in the commerce clause, it's hard to say that in this particular context where we are dealing with insurance as opposed to an actual purchasing decision, there isn't anything like inactivity. by reducing the whole premise that there is some activity, inactivity distinction really doesn't hold water as judge sutton intimate and as judge and his decision for the d.c. circuit basically said, it's inconsistent with the court case and its emphasis with the constitution from server the constitution doesn't say buy voip inactivity is not regulated. is not commerce and is not regulated. let's look at some examples. the bank of the message is one. congress created a whole range of economic activity when it created the bank. in more modern times agreed fannie mae and freddie mac. we may wonder about the policy

implications of that but it commit all kinds of commerce that didn't exist before and no one would say that was wrong. if we go back to the new deal cases, the famous wiki? no, mr. phil burns we did was going to be kept on his harvard was going to enter commerce. yet the court said it could be regulated. and i don't think that children could have won his case as something force by week and interstate market as the judge said. so i think the activity, inactivity distinction, although further interesting when you drill down into what is the meaning doesn't really have a lot. and i would also step back and say what were the frantically trying to do? it seems to me they were trying to delineate interstate commerce as an area and then say with in that sea or the federal, has the same plenary power that the states do. and since as i said before, i think everyone agrees that th