coming up next on cspan-3 the cato institutes hold a discussion about the constitutional tee of the health care law. the president of the national congress of american indians gives the state of the nation address. the u.s. conference of mayors examines local job training programs and initiatives to help at risk yout youth. in march of 1979, c-span began tell advising the house of representatives to households nationwide. our content of politics and public affairs non-fiction books and american history is available on tv, radio and online. whether we put that force together to go to desert storm i

viewed every one of those youngsters as somebody i had a personal responsibility for. i know that the general felt the same way. we knew they were going in a dangerous conflict, perhaps. we wanted to give them every benefit that would allow them to come home safely. i'm more distressed than any member of this committee would ever be, there are veterans that are suffering illnesses in that may be the result of their services of serving in the gulf. i don't know if they are or not but we have to keep that as operating hypothesis, we have to get to the bottom of this to find out what the source of the illnesses were. >> cspan, created by america's cable companies as a public service. l i mean my friends a new america where freedom is made real for all. without regard to race or belief

or economic condition. i mean a new america which everlastingly attacks the idea that men can solve their differences by killing each other. >> as candidates campaign for president we look back at 14 men who ran for the office and lost. go to our website, cspan.org/thecontenders to see video of the men who had a lasting effect on the politics. >> the radical left offer one solution, to the problems which confront us. they tell us again and again and again we should spend our way out of trouble and spend our way

into a better tomorrow. >> cspan.org/thecontenders. next week, the supreme court hears three days of arguments in florida versus the department of health and human services. about the health care law signed by president obama two years ago. some of the legal issues to be covered include the constitutionality of the individual mandate. and whether the expanded medicaid program violates state's rights. 26 states are supporting the legal challenge. the cato institute hosted a discussion of legal scholars about the supreme court case, this is two hours, 40 minutes. cato sin tcenter for constitutional studies, the host of today's event. i want to give a special welcome to you because of course we're here in the brand new fa hyatt auditorium.

and this is the inaugural event for this auditor yuchlt we are he is personally proud to be hosting it for you. as you may have noticed we're not finished with everything. the furniture has not yet arrived for the podium, and we've got some other touching up to do but that goes with construction, and we're very fortunate to be as far along as we are. today, the topic is of course the subject of next week, namely is the patient protection and affordable care act constitutional? on monday the supreme court begins six hours of oral argument running over three days on that question. this will be a preview both pro and con of those oral arguments. our first panel will look at the

question whether congress can order individuals to buy health insurance. the individual mandate. our second panel after lunch will ask whether congress can use its taxing power to compel states to expand their medicaid coverage. without doubt, florida, the department of health and human services, is the most important case to come before the supreme court in several decades. it is because it will raise the fundamental question of whether there are any limits on federal power under the constitution. so let's begin i'm going to turn the panel over to our moderator, elia shapiro, and i'll give a summary of his bio, because you have in your packages the bios for each of us. elia a graduate of princeton, the london school of economics,

and the university of chicago law school. after which he clerked for grady jolly of the fifth circuit. he is the editor of the cato supreme court review and senior fellow here at the cato institute. and he has been responsible for orchestrating a wide range of amicus briefs before the supreme court. without further ado turn it over to elia, please welcome him. [ applause ] thanks very much, roger, welcome to you all. i'll get in some short introductions before we get to our main event. you have been waiting patiently for. you know roger called the legislation we're discussing the patient protection affordable care act official title of the forum is obamacare, but we know the accurate title for this law is the libertarian legal scholar

full employment act. i have been really busy with all this stuff and i'm happy that randy barnett is here, i am practically making a living on speaking appearances and writing opportunities that he turns down. so thank you, randy, for being even busier than i am. we'll begin with michael cannon, who is cato's director of health policy studies. one thing i learned for the first time about michael in reading his bio, he was cited by the washington post as an influential health care wonk at the cato institute. i'll look to learn even more. i use michael as an excuse when i get tough questions in public speaking, i say i'm a simple constitutional lawyer, you want to know about this stuff, talk to michael. he will be followed by randy barnett, the professor of legal theory at georgetown law center, where he teaches constitutional law and contracts. randy famously argued the last

big case relevant to our discussions here, gonzalez versus raich in 2004 and been called by the new york times the intellectual godfather of the lawsuits against the individual mandate and obamacare misdemeanmore broadly. we have elizabeth wydra, of the constitutional accountability center, an action center dedicated to fulfilling the progressive promise of the constitution's text and history. she frequently participates as do a lot of us in this business, in amicus briefs before the supreme court and unlike many of us has argued several big cases in the federal courts of appeal. so without further ado, i'll turn it over to michael and then hear from lawyers and we'll keep going. >> thank you, elia, thank you roger for putting this together and thank you for reading that quote from the washington post.

it sounds like an impressive quote but they are just quoting me saying that. so it's less impressive when you know the full story. roger told me i would have the honor of being the first person to really present here in cato's new auditorium. i have to tell everyone who will follow me the view from right here is fantastic. let's jump in the individual mandate. last month the usa today gallup poll found 72% of americans think obamacare is unconstitutional. what is remarkable about that is that 56% of democrats and 54% of those who support the law as a whole think the individual mandate is unconstitutional. and therefore, illegal. an associated press poll consistently found more than 80% believe the government should not force people to purchase

health insurance. defenders will say they oppose the law because they are confused. it's 2,000 pages long. how can you not be confused? it is generating additional thousands of pages of regulations. the department of health and human services has so far issued 200 pages of guidance on how to draft a four-page summary of health benefits. when they released -- by the way their sample summary, it was eight pages long. everyone is confused about the law, but none more so than the defenders. nearly every claim they make is a myth. it does not make health insurance more affordable as they claim. it makes coverage more expensive by forcing consumers to purchase additional coverage they do not want and may find morally offensive. the mandate has increased health insurance premiums by as much as 30%. before the mandate has even taken full effect, these aspect have increased health insurance

premiums by more than cost shifting from the uninsured does. so the mandate will not eliminate cost shiftding from uninsured, even if it did, it would increase premiums. the mandate does not reduce cost shifting, it increases cost shifting. one of obamacare's leading cheerleaders is jonathan gruber, projected when the mandate takes full effect in 2014 will cause some people's premiums to double. think about how much you pay for health insurance right now. think of that amount and now imagine doubling that. that is because the law will force a lot of healthy people to pay higher premiums to subsidize the sick. that doesn't reduce the cost of covering the sick, it shifts the cost to others. it's cost shifting leads to higher costs overall. president obama has said the mandate and rest of the law will save lives. problem is he doesn't have solid

toe evidence to back it up. researchers in oregon were conducting the study ever to generate solid evidence on whether broad based expansions of health insurance saves lives and the president and congress couldn't wait -- couldn't bother to wait for the results. so far, that oregon study has not found that broad based coverage expansion saves lives, and there is less reason to think obamacare will, it expands coverage to a group that is more affluent and has a higher baseline access to care than the people in that oregon study. president obama has also claimed that imposing an individual mandate and the rest of the law shows that he cares. you may remember this when he embraced that term that we all use obamacare. i don't mind people calling it obamacare, it means obama cares. the underlying assumption is obamacare is compassionate and supporting it makes you a compass national person. i want to worn any obamacare

supporters. what i'm about to say sting a little. if you were a compassionate person you would support whatever policy saves the most lives, or creates the most financial security with several trillion dollars that obamacare spends. just as there is no solid evidence that obamacare will save lives, there is evidence even less reason to think it will save the maximum number of lives, possible with the trillions of dollars that it spends. so in fact, obamacare is not compassionate, neither are you if you support it, by supporting obamacare rather than experiments that would show which policy saves the most lives per dollar spent you're revealing you are willing to forego more lifesaving uses of that money in order to get whatever other x factor obamacare delivers to you. whatever other x factor it brings you. you're literally willing to let some people die. who might have been saved by more life saving uses of that

money. but obamacare's opponents advanced a myth about the individual mandate. they will tell you it's the centerpiece of obamacare. it is not. the centerpiece of obamacare is the set of government price controls that obamacare imposes on health insurance. price controls that tell insurance carriers they must charge healthy and sick people of a given age the same premiums. health care wonks call them rating restrictions or community rat rating. they would rather the public not recognize them as price controls. the rest of obamacare including the individual mandate can fairly be described as attempts to undo the damage that these price controls cause. for example, these government price controls are so destablizing, they cause markets to collapse because they increase premiums for healthy consumers, that healthy people leave the market together. it is slowly collapsing in another 17 states because obamacare imposed price controls

on those markets. the individual mandate is an attempt to undo the destablizing effects by forcing healthy people to pay inflated premiums. millions of households won't be able to afford the coverage and could still save thousands of dollars by dropping coverage and paying the penalty. so obamacare's trillions of dollars in health insurance subsidies are a further attempt to undo the destablizing effects by bribing healthy people to stay in the market. the employer mandate is an attempt to keep -- so workers can take advantage of the subsidies. obamacare's price controls don't just affect the healthy. they also hurt the sick because they force insurance carriers to compete who can provide the worst coverage for sick people. if a certain -- if a certain type of patient costs one

million to insure and obamacare tells carriers they can only charge them a $10,000 premium, what happens to carriers that provide the best coverage to the million dollar patients? that insurance carrier will attract every one of the million dollar patients and go out of business because each of those patients will bring down the bottom line, by $990,000. the price controls create a race to the bottom because they force insurance companies to compete to see who can provide the worst coverage to the sick. they do that in the hopes, insurance carriers do that in the hopes the sickest patients will choose competitors and bring down their bottom lines. ian pearl is a victim of obamacare style price controls. shelby rogers is another victim of obamacare style price controls. their insurance companies competed to avoid them because they already operate in markets subject to obamacare style price

controls. obamacare includes mandates and regulations and programs whose purpose is to stop carriers from doing what price controls force them to do to survive. obamacare creates three separate programs that attempt to tax all health plans and subsidize those to get the most ian pearls and most shelby rogers. it regulates marketing, benefit design, network adequacy, plan offers, service area, the amounts they spend on administration to prevent, all to try to prevent carriers from doing what price controls reward them for doing. none of this will work any more than the individual mandate is going to work, the biggest of the programs is risk adjustment program. and as health economists henry aaron and austin frak have explained, insurers have been able to out fox the best. i count 14 programs in regulations whose purpose is to fix or mitigate the damage done by price controls, so the

mandate is not so much obamacare centerpiece as merely one of a cascading series of efforts to prevent the catastrophic harm that the law's price controls would inflict. this brings me to what i think is the final and most brazen myth. specifically the myth that an individual mandate promotes personal responsibility. again, if there are any obamacare supporters out there, this one might sting a little, too. the mandate does not promote personal responsibility, it promotes person irresponsibility. obama care supporters wanted to impose these sort of government price controls on health insurance. the sort that causes health insurance markets to collapse, that causes insurers to compete to provide the worst care possible to the sick. supporters could have taken personal responsibility for that decision. they could have launched their own plan that operates under those pricing schemes.

or they could have tried to re-establish he'llize the market by subsidizing some people's premups to keep them from leaving the market. but that is not what they did. instead they imposed a mandate forces us to pay with our money and freedom, to fix a problem that they created with their price controls. so the entire purpose of an individual mandate is to enable supporters to avoid taking responsibility for their decisions and i defy you to find a more brazen example of personal irresponsibility. thank you. >> thank you, michael. thank you, elia. a great pleasure to be here at the inaugural program at the cato institute's auditorium to see you out here it's a beautiful facility, i hope to come here many times, again in the future. also a great pleasure to be debating my friend elizabeth wydra, someone with whom i've

debated this issue on numerous occasions in the past, and someone with whom i co-authored and amicus brief defending the original right to keep and bear arms begins the city of chicago, i think they are to be commended for that act of commitment to the original meaning of the actual constitution. today i'm charged with giving you a briefing, an overview of the lawsuit you will hear next week. a lawsuit that as elia told you will consume six hours of argument spread over three days. that is the longest argument time being aloted in 47 years. it no matter how this case is decided, no matter how the court comes out, there has already been one claim that has been refuted by the fact the court granted six hours of the oral arguments spread over three days, that is the challenge to

the constitutionality of the affordable care act and the individual mandate is frivolous. or an easy case. which you actually still hear in the media. even this week. i can just assure you that the supreme court does not have to dedicate three days of oral argument and six hours of argument to hear an easy case, to resolve an easy case. to dismiss a frivolous claim. but that is what 99.9% of my colleague law professors were saying when this challenge was first brought, when these arguments were first made, when the challenge was first brought and all the way up until today. and at the end of this talk i'll say a little bit about the spin that you have been hearing or many people have been hearing in the press this week about how the conservative justices on the court must rule if they are supposed to be consistent with the rulings that they've made in the past which is complete myth, in my view. to begin with, i'll summarize the case. summarize the arguments against the individual mandate but for

those of you who don't follow the case as closely as we on the panel do, let me summarize how the argument will go next week. so on monday the court will hear 90 minutes of oral argument, discussing the issue of the anti-tax injunction act, which is provision of law which basically says you can't challenge collection of a tax in advance of the tax's collection, you have to pay the tax and you have to sue for refund and the question is whether that statute would apply to the penalty of the individual to enforce the individual mandate. on the second day, tuesday, the court will hear oral argument for two hours about the constitutionality of the individual mandate. that is double the normal argument time devoted to just that issue. on wednesday in the morning the court will hear 90 minutes of severability question, how much of the rest of the bill, if you strike down the individual mandate, some of it the insurance company regulations, or all of it? by the way, i represent the national federation of independent business, the

private parties that are challenging the mandate. we believe on that issue we agree with the district court that held that if the mandate goes, the entire act must go, the government concedes if the mandate goes, the regulations that michael told you about, they also have to go. and the court had to point an amicus friend of the court to argue the position held by the 11th circuit the mandate can be struck down alone and the rest of the bill remains up and running, that will take 90 minutes on wednesday morning. wednesday afternoon an important challenge to the constitutionality of the medicaid requirements being imposed on the states will be heard in the afternoon for one hour and that is the topic of the afternoon's panel here at the cato institute. in today's talk, i am not going to talk at all about anti-injunction ak. i think some of you are relieved to hear that. i won't talk about severability or medicaid challenge.

i'll layout why it is at the fundamental level the individual insurance mandate that requires every person in the united states to purchase private health insurance to -- is unconstitutional. this is a very technical issue involving a lot of precedents, the reasoning of a lot of cases, a lot of technical text, and that's not something that can be effectively presented, orally in what i probably have is it a more minutes. so what i'm going to do instead is basically give you what i consider to be the four most l salient reasons why, contrary to the opinions of the expert, 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'll make four points that will involve four words. ing or the first one is unprecedented. second word is uncabined, third

word is unnecessary, fourth word is dangerous. unprecedented, you heard the issue. this mandate, this claim of power by the united states congress is without precedent. what i mean by that, to translate this in ordinary language, it has never been done before. that is what i mean by unprecedented. never in the history of the united states to enforce any other law has the congress claimed the power to require that all american citizens enter into contracts and do business with private companies. and they certainly have not claimed that under the commerce power which is what they are doing now. this is an unprecedented act of power and not only -- there is two ways of establishing that. one is i can ask all of you in the room to think of any other contract that the federal government requires you to enter into upon payment of a penalty. none of you can think of any nor could your parents or grandparents, because this has never been done before.

and every court who has decided on this case has agreed with that. the courts that have struck the law down said it was unprecedented and the courts that upheld the law said i ht i unprecedented. what difference does that make? just because something has never been done before that does not mean it's unconstitutional. there is a first time for everything. and before congress does something that is contusional for the first time, we have to find out if it's constitutional. so the fact that it's unprecedented doesn't make it unconstitutional. but it does mean there is no direct authority that says the congress may do this. so that is true. right off the bat we're talking about what we call a case of first impression. the second thing is a proposition of law that justice scalia observed in the prince versus united states case, involved the enforcement of the brady act. and what justice scalia said, what congress was trying to do

is force local sheriffs to do background checks on prospective gun purchasers, they don't work for the federal government, that was an unprecedented claim of power, what justice scalia said if for 200 years a power this attractive has gone unused by congress, that is a pretty good argument that that power does not exist. and the same thing could be said about the individual insurance mandate. if for 230 years the congress has gone and solved all sort of cost shifting problems and wars on poverty, wars on drugs, without having to impose an economic mandate in the past, even though that would be a very highly attractive power, rather than paying you cash for your clunkers, we could make you buy a new car. we wouldn't have to pay money out of the public treasury. even though that is an attractive power, congress never sought to examiner sides that, that is a good argument why the

power doesn't exist. there is a constitutional significance to the fact this law is unprecedented. second, the law is uncabined or unlimited. so far, the government, and this has been remarkable to me, in the two years in which the case has been argued and litigated, the government and defenders have been unable to come up with a single limiting principle on the exercise of the power to impose economic mandates on the people. at oral argument in the sky seven case, in the d.c. circuit court of appeals, the justices pressed the government attorney for ten minutes to give an example of a mandate the government would be unable to impose on the theory of why it can i am poets thmpose this. i was told by a report near a prets c press conference when the briefs were being filed, reporters asked them what the limiting principle was for the power and the justice department lawyers were unable to answer their

questions. the reporters asked them the question and they grew frustrated at the inability of the reporters to take no for an answer, we don't have an answer to the question of what the limiting principle is. it is just a fundamental principle of constitutional law the federal government and congress is one of limited power, unless you can state the limit, then that is likely to be a losing argument in court. now there is one thing that the defernders do say when the issu of limits come up. every defender will say this, that is all though elizabeth doesn't say this, you won't necessarily hear this from her, every other defender of the briefs of the law says this, that is that some how health care is different. there is something about the health care market, something about insurance, there is something distinctive about this particular thing, and for that reason, that distinguishes this from everything else. whenever you hear anybody say that, what you have to remember is that even if that is true and