instead. ian pearl is a victim of obamacare style price control. kobe rogerses another victim of obamacare price controls. their insurance companies competed to avoid them because they operate in markets subject to obamacare style price control. it includes more mandates and regulations whose purpose is to stop insurance carriers from doing what price controls force them to do, survive. obamacare create three programs to attack all health plans and subsidize those and the most shelby rogers is. obamacare regulate health insurance marketing and benefits, net nick adequacy, planned service area, the amount carriers plan to prevent carriers from doing what price control rewards them for doing. and none of this will work any more than the individual mandate will work. the biggest program is the risk

adjustment program and health economist henry aaron explained, quote, insurers have been able to outfox the best of the rhythm. i can of 14 programs and regulations whose purpose is to fix or medicaid the damage done by obamacare press controls. the mandate is not so much obamacare at centerpiece as one of a cascading series of efforts to prevent a catastrophic harm that the water's price control would inflict. this brings me to what i'd thing is the final and brazen myth, the myth and individual mandate promotes personal responsibility. if there are any obamacare supporters out there this might sing a little too. it does not promote personal responsibility but personal irresponsibility. obamacare supporters wanted to impose government price controls on health insurance that cause health insurance markets to

collapse and insurers to compete to be sick. they could have taken personal responsibility. they could have lost their own health insurance plan. and by personally subsidizing some people's premiums to keep them from meeting the market, and the mandate that in forces as to pay with money and freedom to fix the problem that they created with price control. the entire purpose of an individual mandate is to enable supporters to avoid taking responsibility for the decisions to find a more brazen example of personal irresponsibility. thank you. [applause] >> thank you.

great pleasure to be here at the inaugural program of the cato institute's auditorium to see all of you out here. of beautiful facility. i hope to come here many times in the future. great pleasure to be debating my friend elizabeth elizabeth wydra with a mile of debated many times and co-authored to the supreme court defending the individual right to keep and bear arms against the city of chicago which is the constitutional accountability center supported in filings that brief. they are to be commended for of that act of commitment to the or original meaning of the actual constitution. today i am charged with giving you a briefing an overview of the lawsuit you will hear next week, lawsuit that will consume six hours of arguments spread over three days. that is the longest argument time being allotted in 47 years.

no matter how this case is decided, no matter how the court comes out there has already been one claim that has been definitively refuted by the fact the court granted six hours of oral argument spread over three days and that is a challenge to the constitutionality of the affordable care act and the individual mandate is somehow frivolous. or an easy case which you actually go -- still here in the media. i can assure you the supreme court does not dedicate three days of our large human. to resolve an easy case to dismiss a frivolous claim. that is what my law professors were saying. when this challenge was first brought and all the way up until today and at the end of this talk i will say a little bit about the spin you have been

hearing. and the conservative justice must rule, if they're consistent with the rulings they made in the past which is complete myth in my view. to begin with i will summarize the case and the argument against the individual mandate but for those who don't follow this case as closely as we do let me summarize how the argument will go next week. on monday the court will hear 90 minutes of oral argument discussing the issue of the anti tax act which is a provision of law which says you can't challenge collection of a tax. you must pay the tax. it will apply to the penalty provided to enforce the individual mandate. the second day tuesday the court will hear about the constitutionality of the individual mandate which is double the normal time devoted to the single issue. on wednesday the court will hear

90 minutes of argument on the severable request and which is whether you strike down the individual mandate as unconstitutional how much of the rest of the bill must be struck down? some of it insurance company regulations or all of it. to private parties that are challenging the mandate, we believe on that issue, the government concedes, and they also have to do. and to argue the position held by the eleventh circuit can be struck down a loan and the rest of the bill remained up and running. that is an idea and that will take 90 minutes wednesday morning and on wednesday afternoon and important challenge to the constitutionality of medicaid requirements imposed on the state will be heard in the afternoon for one hour. that is the topic of this

afternoon's panel at the cato institute. in today's talk i am not going to talk about the anti obstruction act. you will be relieved to hear that. i will not talk about several ability of there's time for questions. i will not talk about the medicaid challenge. i will simply lay out why it is at the fundamental level the individual insurance mandate requires every person in the united states to purchase private health insurance is unconstitutional. as you can well imagine this is a very technical issue involving a lot of precedents and a lot of cases, a lot of text and that is not something that can be effectively presented orally. what i have is eight more minutes. one of will do is basically give you what i consider to be the four most salient reasons why this lawsuit contrary to the opinions of the experts, this lawsuit did have legs and this lawsuit is serious and this lawsuit is going to be a very

difficult one. not an easy one for the supreme court to decide. i will make four points that will involve four words. won the personal first word in unprecedented. the second word is unlimited, the third word is unnecessary and the fourth word is dangerous. unprecedented. you heard about unprecedented. you heard the issue about unprecedented. this claim of power by the united states congress is without precedent and what i mean by that to translate into ordinary language is it has never been done before. that is what i mean by unprecedented. never in history of the united states to enforce any other law has the congress claimed the power to require all american citizens entering into contracts and do business with private companies. they certainly have not claimed that under the commerce power which they're doing now. this is an unprecedented act of power and there are two way of

establishing that. i can ask all of you to think of any other contract the federal government requires you to enter into upon pain of a penalty payable to the irs. in the view can think of any work with your parents or grandparents because this has never been done before. every court who has decided on this case has agreed with that. the course that have struck a lot down said was on president course that upheld the law have said was unprecedented. what difference does that make? it is true as defenders of the law say that just because something has never been done before that does not automatically mean it is unconstitutional. there's a first time for everything. before congress does something that is constitutional for the first time we have to find out if it is constitutional. the fact that it is unprecedented does not automatically make it unconstitutional but it does mean that there's no direct authority that says congress may do this. that is true right off the bat. we are talking what we call a

case of first impression. the second thing is proposition of what that justice scalia observed in prince versus united states case which involved the enforcement of the brady act and what justice scalia said in that case what commerce was trying to do was forced local sheriff to do background checks on gun purchasers even though they worked for the state. they don't work for the federal government. that with an unprecedented claim and what justice scalia said is if for 200 years a power this attractive has gone and used by congress, that is a pretty good argument that that power does not exist. the same can be said about the individual insurance mandate. if for 230 years the congress has gone and fall ball kinds of problems and we fought several major wars and wars on poverty and drugs and done all of those things without having to impose an economic mandate in the past even though that would be a very

attractive power, rather than paying you cash for clunkers we could make you buy a new car legal we would not have to pay money out of the treasury. that is a very attractive power congress has never sought to exercise. that is a good argument for why the power doesn't exist. there is a constitutional significance to the fact that this law is unprecedented. second the lot is of limited. in the two years this case has been litigated the defenders have been unable to come up with a single limiting printable on the exercise of the power to point -- of those economic and dates on the people. the sky 7 case in the d.c. circuit court of appeals, the justice press the government attorney for ten minutes to the missing the example of a mandate government would be unable to impose on the theory of why it can impose this mandate and a

government attorney was unable to provide a single one. on was told by a reporter in the press conference when the justice department was filing their briefs in this case that reporters asked what the limit in principle was for this power and the justice department lawyers were unable to answer questions and reporters asked this question and justice department lawyers grew frustrated at the ability of lawyers--reported to take no for an answer that we don't have an answer to the question of what the limit in principle is. it is a fundamental principle of constitutional law the federal government and congress is one of limited and enumerated powers and unless you can state that women that is likely to be a losing argument in court. there is one thing the defenders of the bill to say when the issue of limits come. government does this and every defender of the bill will save this. that is although i think they don't say this, won't here it is from her but every other defender of the losses this. that is somehow all health-care is different.

there's something about health care markets and insurance and something distinctive about this for together thing and that distinguishes this from everything else. whenever you hear anybody say that, what you have to remember is even if that is true and it is not, but even if it were true that would not provide a constitutional argument. that would not provide a constitutional limit. responses fine. health care is different. with your constitutional limit on the imposition of this power? and why is that? because the court is not -- next time an economic mandate is used going to have a fact based inquiry in which they decide whether the next set of imposing an economic mandate is like this one or the next market will be similar to the health-care market in order to justify an economic mandate in the next case. that is because the supreme court doesn't get into effect will increase like that and they won't in the future so this is a smokescreen for having no

limiting principal at all. if you don't have any limiting principle than that means of holding the mandate is going to pose a serious threat. it will end limited and enumerated powers we lived with since the founding. the third reason why there's a problem with this what is it is unnecessary. congress had powers it could have used to accomplish what it was trying to accomplish. not the same way interests have to change but they really did have very powerful powers. the one they always used to subsidize activities they don't have the power directly to command and that is their taxing and spending power. yet they chose not to use those powers. why is that? we know why that is. was political which is exactly the constrained exists. the president ran for office saying he would not raise taxes on people making less than $200,000. democrats in the event were not prepared to support any tax increase and as a result they didn't use the power they had

for strip political reasons to accomplish what they say they want to accomplish with this bill. because it is unnecessary is not a justification. not a justification that you have to use this mandate because it is the only means necessary when congress had the power to -- they could have exercised and yet they chose not to. had a done that it would have been a whole lot better than what they have now -- the power they are now trying to claim which brings me to my final point that this particular power is dangerous. why is that? when congress tries to incentivize americans to do what they want them to do but don't have the power of to command them to do the only consequence of americans not doing what congress wants them to do they have to forgo a natural benefit. if you don't want to trade your clunker in you have to forgo the $5,000 we were willing to pay you to destroy that perfectly good car and drive business to the american car companies. that is what you have to give

up. if this individual mandate is upheld even though in this case it is only being enforced by a monetary penalty, in the future it could be enforced by the full panoply of enforcement mechanisms that are typically used to enforce the commerce clause of to and including imprisonment. this mandate may seem innocuous but the next mandates' doesn't have to be and that is why this power is more dangerous than a tax power would be. let me conclude by talking about what you have been hearing lately in the last week about why certain conservative justices have to vote to uphold the mandate or they would be contradicting themselves. the first which is the most ludicrous has to do with chief justice roberts who has said has to uphold the mandate because he signed on to interpretation of necessary and proper clause and united states versus comstock which involved a sexual predator's law that restricted and empower the federal prison system to a bunch of people who had been adjudicated and

sexually dangerous the on their prison sentence. could congress to that? there is narrowing language. there is narrowing language that says the law in comstock is a very modest addition to existing federal power. an area the federal government has occupied for a long time and there's a state of out for anyone who wants to reclaim their own prisoners they're free to do so. that is the opinion chief justice roberts signed on to. but notice this. it had wilmot's built into its text. but if you hear constitutional law experts talk about comstock now they don't care about those limits. what was written in to that opinion. they say congress can do anything after the necessary and proper clause. that will happen if the supreme court tries to limit this power by the use of health-care. the next one about justice pallia who wrote a concurring opinion in the case i brought to

the supreme court involving medical marijuana. i was very disappointed in justice the iliad to vote. relied on the necessary and proper clause. he said in that case because the reaching of my client's marijuana that was being grown by caregivers privately and not commercially, because it was essentials to the broader prohibition of interstate marijuana that they reach the non economic activity, therefore it was constitutional, what justice scalia held was it was ok to reach my client's marijuana because it was the essential to broader regulation of interstate commerce which was prohibition of interstate marijuana. i could say more about what that means but i am out of time. let me say one thing about that opinion. justice scalia's opinion which was about the necessary and proper clause was only about word necessary in the necessary

and proper clause. the issue was whether it essential to a broader regulatory scheme would be interpreted in the same deferential way as the word necessary has been interpreted by the supreme court meaning congress has discretion when it chooses meaning among various meanings that might be convenient to its end and justice scalia adopted that approach. much to our disappointment. here's what that opinion said not one word about. it said not one word about word proper and necessary and proper clause. it said congress shall have power to make laws which shall be necessary and proper to carry into execution it foregoing powers. nothing in the case about word proper. yet just as the leader himself said that the unprecedented and position of power to congress local sheriff to enforce federal law in the brady act by making them run been checks, that was beyond the power of congress's commerce power to enact and he called a necessary and proper

clause being offered to that power the last refuge of those who would defend the powers of congress. to that argument he said that law may be necessary but it is not a proper exercise of power. if there's any justice on the supreme court it will be very capable of distinguishing concurring opinion from this case. the justice that has made the greatest use of the distinction between necessary and proper. and individual mandate to make every man, woman and child differs business with a private company at the whim of commerce because congress makes it convenient to regulation of interstate commerce is not only unnecessary as i explained but also highly improper and for that reason for it is unconstitutional. thanks. [applause]

>> since thank you for having me here. i am honored to be part of the inaugural event in his wonderful auditorium at the cato and i want to thank cato because i carry around in my purse my pocket constitution. i heartily disagree on many issues with what kato thinks about what is inside the constitution they have the best -- for ten years. i would like to carry one around for my liberal brethren. you got it right on the cover. let's talk about what is inside the constitution. in the affordable care act the challenge of the supreme court i am honored to represent 500 state legislators from every state in the union. the district of columbia and for rico. >> i represent 333.

>> we counted. we filed in support of both the minimum coverage provision known here today as the individual mandate and the medicaid expansion which will provide coverage to approximately sixteen million more low-income americans and the state. as i was preparing these briefs i came across a quote from great chief justice marshall's opinion in gibbons vs. ogden which having done these debates before immediately made me think of him. here is the quote. powerful and ingenious minds taking sphere of power is expressly granted to the governments of the union are to be contracted by construction in to the narrowest -- and the regional powers of the states are retained if any possible construction will retain them made by a course of well

digested and refined and metaphysical reasoning about the on these premises explainable way the constitution of our country and leave it a magnificent structure to look at but totally unfit for use. they may so perplexed the understanding as to obscure principles which were before fought quite plain and induced doubts where if the mine were to pursue its own course none would be perceived. i think randy's are giving you heard here today it that he has written in his brief on behalf of his clients are very compelling but i think they might be of the sort that justice marshall was warning about when he spoke of the brilliant and clever advocates who are trying to convince us that basic principles are essentially controversial and up for grabs. and next week when we hear paul clement stand up on behalf of 26 state who challenged the affordable care act will feel

more of this. of brilliant, wonderful, gifted advocate. before i get into why i think these arguments are not true to basic and controverted principles of the constitution i want to talk about the affordable care act itself because i disagree with the characterization of the act that michael gave earlier. perhaps surprisingly. i am also myself a simple constitutional lawyer, nobel prize-winning economist has disagreed with his take on the law and its consequences so i would take his presentation with a grain of spirit. i mean a grain of salt. i don't know why i said that. it was a response to what i hope everyone would agree was a national crisis in the health care system. tens of millions of americans

did not have health insurance either because they cannot afford the skyrocketing premiums, they would like to purchase insurance even at any price but are refused coverage because of preexisting medical conditions or simply because they choose not to purchase insurance and gamble that they will not need medical treatment beyond -- that cost more than what they have in their own pocket. these and in short ship $43 billion a year to other market participants. this is in part because an american law culture we require emergency rooms and urgent care centers treat those who show up and need care regardless of their ability to pay. i will disagree with ron paul and say i think that is a very good thing. but when a person who does not have insurance shows up and gets treated and run up bills they can't afford to pay someone has

to put the bill. this results in approximately $1,000 increase a year in the average family insurance premium and about $30 billion in taxpayer burden as a result of these uninsured costs shipped to other participants. congress chose to address this crisis through the patient protection and affordable care act. i am happy to call it obamacare. i think it sounds lovely. warm and fuzzy. so among other things obamacare created incentives for business to pay insurance for their employees, provide state exchanges where people can get better deals on their insurance. it established tax credit for eligible families to get insurance on these exchanges. allows children under the age of 26 to stay on their parents' health insurance plan longer than was previously possible,

expanded medicaid to cover millions more of the most vulnerable among us who need health care. and put a ban on insurers' discriminating against people based on preexisting conditions or raising their premiums when they become sick. it also of course is subject of today, amended the internal revenue code to provide that insurance can afford to do so does not maintain a minimum level of health insurance, pay a tax penalty. this shared responsibility payment paid by those who choose not to purchase insurance is a shared responsibility payment which sounds pretty ronald reagany. as most people know it as the individual mandate. putting together this reform

package congress determined the decision about whether, when and how to purchase health insurance were essentially economic. congress also determined that without the individual mandate many of the provisions of the law would not work. the very popular man undiscriminating against people with preexisting conditions as well as the guarantee that insurance companies will not raise your premiums if you get sick which michael refers to as price controls but i fink many americans and the polls back this up have -- support controlling price when it comes to insurance companies jacking up their insurance premiums and necessarily. the question of the day is not whether this is a good law but a constitutional law. and i think it clearly is constitutional. i will give you three main

sources for the authority congress has to pass the mandate. first congress's power, express power to regulate interstate commerce among several states. congress's power to pass laws that are necessary and proper to executing this commerce and other delegated powers and the power to tax and spend for the general welfare. i am happy to talk about that more but i will focus more on the commerce clause and necessary proper clause. applying these constitutional principles to the case of the individual mandate the argument in support of the mandate boil down to the mandate is a valid exercise of the commerce clause power because it regulate economic conduct. that is how and when to pay for health care services in the interstate health care market.

even if you think the mandate regulates 9 economic conduct which has been one of the arguments made it is nonetheless within congress's commerce clause power because the decision not to buy health insurance substantially affects interstate commerce and is part of a broader regulation of the health-care industry. the entire affordable care act. i don't think anyone would dispute that congress has the authority to regulate the health care industry more generally. but we will see. finally the mandate is a necessary and proper means of regulating commerce that is interval to the affordable care act and in particular the government would focus on the ban against preexisting condition discrimination. and i would like to and pack so

we can talk about whether you think these are truly basic principles of law that should be easily understood. it is difficult to see how the decision to remain uninsured is not economic tour at the very least those not have a substantial affect on the interstate market. those who choose not to purchase health insurance cost approximately $43 billion a year on other market participants and $1,000 approximately to reach american families to the average american family's insurance premium. that seems pretty economic to me but even if you insist on categorizing the decision not to purchase health insurance as non economic, i think we can look to justice scalia and see what he

thinks. as randy noted, wrote a concurrence that said congress may regulate non economic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. it is difficult to get around that. i disagree that this will be difficult for justice scalia to get around when he considers the health care case. i think it pretty much do the opponents of the law's arguments which randy did not make wisely in his argument. that there is some activity distinction or some focus on non economic versus economic. no one can dispute the affordable care act is a general regulation of the interstate health service market which comprises 20% of our nation's economy. as for the minimum coverage you

look back to justice scalia's quote. must be a necessary part of the general regulation. as far as it being necessary to the a c a as a whole we look to u.s. forces, stock which i respectfully disagree with randy's characterization of. chief justice roberts joined justice briers's sweeping opinion that any means rationally related to the implementation of constitution we enumerated power is appropriate for congress to use. whether the mandate is good or bad policy, it is difficult to say that the minimum coverage provision is not rationally related to the indisputably valid regulation of the interstate market for health-insurance. even if you argue with me on the commerce clause i don't see how

you can't be with me on the necessary and proper clause. the power to pass legislation that is necessary and proper was intended to be sweeping. as the supreme court held the framers of the constitution did not intend to impede the exercise of enumerated powers by withholding the choice of means that unlike the articles of confederation, our enduring constitution is not required as everything granted, expressly and my new be described. our first president directed the framers and the supreme court from the founding to the president have recognized the necessary and proper laws grant congress the power to use means outside the enumerated list of article i powers to achieve the ends contemplated in those powers. even if you don't think the minimum coverage provision is a valid regulation of interstate commerce it can still be constitutional as a means of

regulating the 20% of our nation's economy that makes up the health-care industry. i want to take a moment to talk about this unprecedented argument. first the price of unprecedented in response to the individual mandate are themselves far from unprecedented. we heard it in response to the founding here a charter of a national bank which this court of course rejected. we heard that in 1964 which the court rightly projected. we heard it in response to social security, environmental laws, voting rights act all rejected. there is a good reason in this case what congress might not have exercised power to impose an individual mandate as it did in the affordable care act. it is nearly 20% of the nation's economy but that was not true of the founding and in the case

that i quoted from at the beginning of my remarks, chief justice marshall noted that at that time health care was something that was a purely local activity. i don't think we could say that anymore with a 20% of our nation's economy going to the health-care industry. i want to say finally because my time is running short that i agree with randy that there should be a constitutional limit on government power under the commerce clause. the argument that the health-care industry is different isn't enough. you need to show where in the constitution there are limits. but i think there are real and important limits and unlike apparently the government as some of these press conferences i will give you several.

first is the limits placed on the commerce clause power by the rest of the constitution itself. even if in the service of health care reform congress passed a law that allows unreasonable and warrantless searches into health care company's records, that regulation would be unconstitutional because it would violate the fourth amendment's guarantee against unreasonable searches and seaters but there's no right in the constitution to freeload of your neighbors if you decide not to purchase health insurance and run up bills you can't pay. anything congress -- must not run up against any other provision in the constitution. second there's the text of the commerce clause itself which requires that congress regulate interstate commerce.

commerce among several states. holy interstate conduct that affects the interstate market. it does require a nexus between the intrastate conduct and the interstate market that congress is regulating. as the supreme court held in lopez, the united states versus morrison, the court should not need to pile inference upon inference to see the link between conduct regulated and interstate commerce and when you have a $43 billion drag on the nation's economy, $43 billion a year dragging the nation's economy i don't think you have to pile inference upon inference to see the relationship between the decision not to purchase health insurance and its effect on interstate commerce market. these limits are real and upholding the mandate will not lead to some sort of unfettered

federal police power but that doesn't mean this doesn't necessarily answer the powerful concerns that randy has articulated and many americans have. they will not be mandated -- i don't like to be told what to do either. but when our nation's founders came to philadelphia to draft the constitution. they came with the idea of creating a national government that has power to create national solutions, national problems and they specifically gave congress powerful authority to regulate interstate commerce and the founding -- the idea of regulate included the idea of directing. so congress has the power to direct certain conduct when it comes to interstate commerce.

you may not like that so you vote out the people who directed you in ways you don't like but that does not mean the constitution doesn't give the authority. i want to get to the point randy made at the end of his remarks about whether or not conservative justices will or should feel constrained by president to uphold the act. i am not going to make any predictions here because you never know what the supreme court will do but i think there is a good reason to believe that the mandate will be upheld and not just by 5-4 vote between justice anthony kennedy voting with more liberal justices but based on kong stock, justice roberts might be a possible vote and just the sculley and race will have a hard time getting around his ruling if you wants

to be seen as respecting president and history of the constitution as he claims. with that i look forward to your comments and questions and thank you again for including me. [applause] >> thank you. i know there must be lots of questions in the audience while people get ready to do them. i want to ask michael quickly to outline what will happen if the mandate is up held, health care policy and economics and let's take the government's position on the mandate and guaranteed issue community rating struck down. what will be the policy and economic consequence really quickly? >> the policy consequences if only the mandate restrict down? if everything is upheld -- [talking over each other] >> this regulatory structure is a pretty rickety one to begin

with even with the mandate in place. a lot of americans will save thousands of dollars per year by dropping health insurance coverage and paying the penalty and waiting until they're sick to purchase coverage which could lead to adverse selection death spiral causing insurance markets to collapse. even with the mandate in place it could collapse and the federal government does not have the authority to put in place another essential component. those subsidies. in health insurance exchanges which is where the magic of obamacare is supposed to happen created by the federal government and another reason this law may collapse if states do not set them up. what will happen if the supreme court strikes down the mandate and the price control, preexisting condition provision? what we will be left with are a lot of health insurance subsidies and expanded medicaid program and a lot of cuts to

medicare and taxes. those are not going to destabilize the health-insurance market. it may stabilize employer sponsored insurance because the employer mandate might be struck down as well. because of that, it could still be so unstable that congress will have to revisit this law and reopen it. there will be at least one house or high likelihood of one chamber of commerce -- congress that will be satisfied with full repeal of the law. >> wafer the microphone. start right here. state your name and any affiliation and actually ask a question. >> this question is addressed to elizabeth wydra. you mentioned the bill of rights as restrained on the commerce clause. congress staff under the constitution in march of 1789.

the bill of rights was ratified on dec. nineteenth, seventeen ninety-one. i use saying between those two dates it would have been proper for congress to authorize searches and seizures under the commerce clause? >> the fourth amendment was an example i gave. the rest of the constitution in addition to the amendments to it also serve as a limits on the exercise of any of the other provisions in the constitution. you have things that the necessary and proper clause is proper. that means several things. properly enacted law according to way is that constitution set forward legislation to be passed by both houses of congress etc. etc. and also means proper in terms of not violating any other provision of the constitution and that means any amendments to

the constitution or any provision of the original constitution itself. >> many supporters of the bill say that one of the limits on the commerce power is the bill of rights. can't use commerce power to violate the bill of rights. they stress this morning and elizabeth those. it is an indirect way of admitting under their theory the commerce power has no -- the commerce power is unlimited except for when it violates the right of freedom of speech. that is the same degree of power states have. the state power is unlimited legal unless it violates freedom of speech. the argument is the scope of the power is the same as the state power which is the police power. as you point out this was two years before there was a bill of rights which was suggested the scope of national power was changed when the bill of rights

was enacted under that argument and nobody thought that at the time. what they thought was the bill of rights as many people thought but not everybody, the protection of individual liberty was to be provided by the enumerated powers scheme of article 1 section 8. that was the protection of individual liberty the federal government would be limited in those powers and that is a proposition the supreme court unanimously affirmed in the bond case. in an opinion by justice kennedy in which he said an individual citizen has standing to bring a claim that congress exceeded enumerated powers because it is not only the states that protected by enumeration of powers but individuals and their liberty that are protected and that was a decision that came out last year authored by justice kennedy. >> not the same as the state's police power because it has to be related to commerce among several state. that is an example where the constitution places a limits. >> that is a useful concession but if you then take the theory

of necessary and proper clause that anything with an economic effect including -- notice the euphemisms -- decision not to engage in commerce or entering marketplace is been deemed an economic decision and the economic decision to refrain from entering the marketplace is said to have an effect on interstate commerce which it does then by that route you are back to unlimited police power in the federal government. >> this colloquy is the key to the whole thing. right back there. >> i may have missed the key. >> i can't hear you. >> i would like to address this question to anyone on the panel the personal professionally trained clinician working health care. michael cannon was asked the consequences if this law was upheld or not upheld. what is not in this law is toward reform and for those of us -- don't know if there are any physicians -- is this an

appropriate thing to pass without toward reform or would it be something that would have to go back and be rewritten because toward reform was never part of this health care law? >> i want to address the policy. >> the constitutionality is more important. >> i had a niece who is a doctor in philadelphia and she says if it weren't for the threat of liability she wouldn't perform some 90% of the tests she has to perform and she would keep 90% of the people for an overnight stay except for the fact that if they release these people without performing that test and some doctors anywhere would say if they prescribe that test then she and her hospital are on the look under the state court law. that has driven up the cost both of health care and the insurance to pay for health care and something that must be addressed

but something that has to be addressed at the state level because tort law has historically been a matter of state law and should be a matter of state law the only way congress can claim power to affect reform of tort law would be to claim the same kind of expanded commerce clause power that they are doing with obamacare and that is something they shouldn't do. >> let's go right there. >> fine with congressman garrett's office. of the penalty is considered to be a tax -- also the constitutional argument. is that tax considered a direct tax through a portion? and if so what sort of problems do you see? >> the question of whether it is a tax is whether it is a tax at

all. the argument that it is constitutional under the taxing power is it raises revenue, it is not punitive, the supreme court has held a label given is not going to be determined so the fact that it is called a penalty is not necessarily that it is not actually a tax. no one is talking about the aye aye aye. i want to raise a point about that. randy mentioned in his opening remarks the anti injunction act, parts of this issue until the individual mandate goes into effect in 2014 and the tax or penalty or whatever you want to college is paid in 2015. if the court decides the anti injunction act applies, that is

a pretty big endorsement that the mandate is a constitutional pass. so even though the obama administration might not have won on the merits if the court applies the anti injunction act it will go long way towards saying they will eventually say that it is a constitutional tax. >> i don't want to get into that. there's an op-ed i wrote in your packets on that bat in the development only lawyers can love this could be a tax for anti injunction act purposes but not constitutional purposes and vice versa. the fourth circuit's which ruled applying the anti injunction act to bar one of the losses dropped a footnote to make that point. i won't go into why that is. it is very technical. >> try to do this in two minutes because people are interested. is going to be an argument that will come up. several reasons why this is not a tax and i will direct the

question. it is not a tax. what something is called is not positive but it is the first approximation of an answer that they didn't, they tax the lot of other things. there's a reason they didn't, a tax. they did not want political accountability for calling it a tax. it doesn't fit the definition of a tax. a tax is defined as a measure the purpose of which is to raise funds for the federal government as opposed to a penalty which is defined as a sanction for the failure to perform an act or performance of an act that the government does or does not want you to perform. what does this look like? it is a penalty and functions like a penalty and it was not among revenue-raising provisions of the bill by the cbo. it doesn't fit the definition of the tax. if it were a tax it would be a direct tax. it would be a tax -- this is really arcane but a direct tax which the congress has power to

oppose direct taxes but if they do they have to test by respective states. you want to pay tax because you are you. congress imposed a tax on carriages. license tax on carriages. that was held to be an excise tax. that was held to be not direct tax. i bet your bottom dollar had congress imposed a tax on the people who did not own carriages to require that they should that that would be found to have been direct tax and with direct tax it needs to be apportioned and since this is not a portion would be unconstitutional. having said that i don't believe the court will reach this issue. they won't want to talk about that question. they had that question. if they're going to a poll that they will uphold it for reasons elizabeth said. the regional reasons. commerce, economic, necessary and proper. so this whole tax theory which

was the darling of the academic professoriate and the smartest people i know have become hypnotized by the tax power theory, it is not going to be -- it will be a nonstarter in the supreme court. there may be talk about it but likely for the justices who are disinclined to uphold the law. disinclined to strike the law down. >> mining is james. i want to go back to the debate elizabeth wydra and randy barnett were having about what is left for the state. save this law is determined to be constitutional. is there any activity i could do in my everyday life that could only be regulated by the states and could not be pre-empted by the federal government if this law is determined to be

controversial? >> any activity that does not have an effect on interstate commerce. was important to note in these hypotheticals, broccoli, you have to say what is the enumerated power congress is using, how in the world is that regulation necessary and proper to achieving that enumerated power and third do you need to pile inference upon inference to see the connection between conduct being regulated and the enumerated powers. does that, even all of those of why? does it conflict with any other provision of the constitution. i want to get back to what randy said about the comstock decision.

the end of that opinion there are narrowing factors on the court's endorsement of necessary and proper clause that is otherwise sweeping power. those narrowing part of the decision is fair because in comstock the chain i described was much more attenuated and it is in the mandate case. so comstock was about using federal law to they caen dangerous sex offenders after they serve their time in prison. that power, link it to the enumerated powers you have to say civil commitment is necessary to enforce federal criminal law? i made it closer than it is.

the power to enact criminal laws. that is not in there. and we get back to what allows congress to impose criminal laws? that is congress -- the federal government's ability to do things like establish post offices and patent laws. things that are violations of those powers can be made criminal. you have a much more attenuated step in the chain of necessary and proper enumerated power. in the mandate case you don't have that. it is much more direct. that is an important thing to remember when we talk about how broad or narrow comstock is. the chain of enumerated power is pretty attenuated in comstock. i know randy doesn't like to say this is an easy case but it is easier than comstock when it comes to necessary and proper. >> bad news i have for you.

after the case that the medical marijuana case, 65 and 3 vote, congress has sweeping powers to regulate any activity that is deemed to be economic including growing of a plant in your backyard for your own consumption. >> not just any plant. >> tied to a national market. >> any plant tied to congressional policy banning something in the national market could be regulated. as long as congress is reporting interstate commerce it could reach any activity it wants whether it is economic and the the majority opinion or non economic and the justice scalia's concurring opinion. however, barista leyland none of us really imagines when the case was decided because nobody had previously thought to do this and that is not only to say you can't grow marijuana or if you are going to grow marijuana here is how you should grow it but you must gr

marijuana. the same scope for addition to state scheme of regulation is something completely different. so that would be a tremendous increase in federal power over the already tremendous power the federal government currently has. >> i am afraid that is all the time we have. please join our panelists upstairs for lunch after this. we will resume in exactly an hour. join me in thanking our panelists. [applause] >> on monday the supreme court starts three days of hearings on the constitutionality of the new health care law. hear the oral argument yourself in its entirety as the court