does the epa have the power then to say you've got to have an anti-pollution device? it's statistical. >> what they can't do -- yes, if you have a car, they can rooer you -- >> then you're not going on statistics, you're going on something else which is what i'd like to know what it is. >> it's this. they can't require you to buy a car with an anti-pollution device. once you've entered the market and made a decision, they can regulate the terms and conditions of the car that you do have and they can do it for all sorts of reasons. what they can't do is compel you to enter the market. >> and then you've changed the ground of argument which i accept as totally legitimate, and then the question is when you are born and you don't have insurance and you will in fact get sick and you will in fact impose costs, have you perhaps involuntarily, perhaps simply because you are a human being,

entered this particular market which is a market for health care? >> if being born is entering the market, then i can't think of a more plenary power congress can have because that literally means they can regulate human activity from cradle to grave. i thought that's what distinguished the plenary police power from the very limited commerce power. i don't disagree that giving the congress plenary power to mandate property transfers from "a" to "b" would be a very efficient way of helping "b" and of acaccomplishing congress' objective. >> i see the point, going back to justice kagan, don't forget her question. >> i've forgotten my question. >> i was facing the same dilemma, justice kagan. >> let me ask a question that i asked mr. clement. it just seems -- >> what it means to be the junior justice. >> it just seems very strange to me that there's no question we

can have a social security system besides all the people today, i'm being forced to pay for something i don't want, and this would seem to me to try to get care for the ones who need it by having everyone in the pool, but it's also trying to preserve a rule for the private sector, for the private insurers. there's something very odd about that, that the government can take over the whole thing and we all say, oh, yeah, that's fine. but if the government wants to preserve private insurers, can't do that. >> well, i don't think the test of a law's constitutionality is whether it more adheres to the libertarian principles of the kato institute or the status principles of someone else. i think the test of a law constitutionally is not the policy questions. it's whether or not the law is regulating things that negatively affect commerce or don't, and since obviously the failure to purchase an item

doesn't create the kind of effects on supply and demand that the market participants in wickrad and raich did and doesn't in any way interfere with the regulation of the insurance companies, i don't think it can pass the basic -- >> i thought wickard was you must buy. we're not going to let you use the home-grown wheat. have you to go out and buy that wheat that you don't want. >> let's be careful about what they are regulating in wickard what. they were regulating was the supply of wheat. it didn't in any way imply that they could require every american to go out and buy wheat. one of the consequences of regulating local market participants is that it will affect the supply and demand for the product. that's why you can regulate them, because those local market participants have the same effect on the interstate market that a black market has on a legal market but none of that is true -- in other words, you can regulate local bootleggers, but that doesn't suggest you can regulate tea totelers, people

who stay out of the liquor market because they don't have any negative effect on the existing market participants or on regulation. >> that's why i suggested, mr. carvin that it might be different if you were raising an as applied to challenge and presenting a class of people whole you could say clearly would not be in the health care market, but you're raising a challenge, and we can't really know which -- which of the many, many people that this law addresses in fact will not participate in the health care market and in fact will not impose costs on all the rest of us, so the question is can congress respond to those facts that we have no crystal ball, that we can't tell who and isn't going to be in the health insurance market and say most of these people will be and most of these people will thereby impose costs on the rest of us and that's a problem that we can deal with on a classwide basis. >> no, again, the people who

impose the costs on the rest of us are people who engage in a different activity at a different time which is defaulting on their health care payments. it's not the uninsured. under your theory you could regulate anybody if they have got a statistical connection to a problem. you could say -- since we could regulate people who enter into the mortgage market and impose mortgage insurance on them, we can simply impose the requirement to buy private mortgage insurance on everybody before they have entered the market because we're doing in a prophylactic way before it develops. >> no, no, that's not -- i don't think that's fair because not everybody is going to enter the mortgage market. the government's position is that almost everybody is going to enter the health care market. >> two points, one of which, mr. clement has already made, which is the health insurance market is different than the health care market, but let me take it on full stride. i think everybody is in the milk market, everybody is in the wheat product market. that doesn't suggest that the government can compel you to buy five gallons of meat or five

bushels of wheat because they are not regulating commerce. whether you're a market participant or not, they are still requiring you to make a purchase that you don't want to do, and to get back to your facial -- >> that's true of almost every product. >> i'm sorry. >> that's true of almost every product directly or indirectly by government regulation. the government says, borrowing my colleague's example. you can't buy a car without emission control. i don't want a car with emission control. it's less efficient in terms of the horsepower, but i'm forced to do something i don't want to do by government regulation. >> you are not forced to buy a product you don't want, and i agree with you that since the government regulates all markets, there is no limiting principle on their compelled purchases. when they put these environmental controls -- >> they force me to buy, if i need. >> no, i'm sorry. >> unpasteurized goods, goods

that don't have certain pesticides but have others. there is government compulsion in almost every economic decision because the government regulates so much. it's a condition of life that same may rail against, but -- >> let's think about it this way. when you enter the marketplace, they can impose all sorts of restrictions on you, and they can impose, for example, all kinds of restrictions on states after they enacted laws. they can wipe out the laws. they can condition them. but what can't they do? they can't compel states to enact laws? they can't compel states to carry out federal law, and i am arguing for precisely the same distinction, because everyone intuitively understands that regulating participants after "a" and "b" have entered into a contract is fundamentally less intrusive than requiring -- >> we let the government regulate the manufacturing process whether or not the goods will enter into interstate

commerce merely because they might statistically. there's all sorts of government regulation of manufacturing plants, of agricultural farms, of all sorts of activity that will be purely intrastate because it might affect interstate activity. >> i fully agree with you, justice sotomayor. >> so how is that different from saying you are self-insuring today, you're foregoing insurance? why isn't that a predecessor to the need that you're eventually going to have? >> the case as you referred to i think effectively eliminated the distinction between participants in the instra state market vis-a-vis mar miss pats in the interstate market. none of that suggests you can regulate people on outside of the market on both an intrastate and interstate level by compelling them to enter into the market. >> what about, you know, the simplest counterexample for me to suggest is you've undoubtedly

read judge sutton's concuring opinion, or he has about two pages, it seemed to me, of examples where everyone accepts the fact that under these kinds of regulations the government can compel people to buy things they don't otherwise want to buy. for example, he gives even in that farm case, the farmer was being forced to go out and buy grain to feed to his animals because he couldn't raise it at home. you know, he goes through one example after another, so what -- what is your response to that which you've read? >> judge sutton is wrong in each and every example. there was no compulsion for him to buy wheat. he could have gotten wheat substitutes or he could not sold wheat which is actually what he was doing. there's a huge difference between conditioning regulation, ie conditioning access to the health care market and the

saying you must buy a product and forcing you to buy a product. i thought -- >> it was common ground that the requirement -- that the insurers, what was the community-based one, that they have to insure you despite your health status. they can't refuse because of pre-existing conditions. the government tells us, and congress determines, that those two won't work unless you have a pool that will include the people who are now healthy, so -- well, first, do you agree with your colleague that the community-bas community-based, and what's the name that they give the other? >> the guaranteed issue.

>> that that is legitimate commerce clause legislation? >> oh, sure, and that's why -- but we didn't -- we don't in any way impede that sort of regulation. these non-discrimination regulations will apply to every insurance company, just as congress intended, whether or not we buy insurance. >> wouldn't that be the determination that they can't possibly work if people don't have to buy insurance until they are -- until their health status is such that the insurance company just dealt with them on it will and say i won't insure you because you are already sick? >> it depends what you mean by work. it will work just fine in ensuring no people are discriminated against, but when you do that -- >> the sick people, why would they insure early if they are going to be protect federal they get insurance late? >> yeah. this is the government's very illogical argument. they seem to be saying we couldn't force people to buy insurance to lower health care premiums but we can do it

because we've created the problem. we, congress, have driven up the health insurance premiums and since we've create that had problem it somehow gives us authority we otherwise wouldn't have. >> so you think that there's -- what percentage of the american people who took their son or daughter to an emergency room and that child was turned away because the parent didn't have insurance, do you think there's a large percentage of the american population who would withstand for the death of that child? they had an allergic reaction and issism shol shot would have saved the child. >> one of the more pernicious misleading impressions the government has made is we're somehow advocating that people get thrown out of emergency rooms or that this alternative that they have hypothesized is going to be enforced by throwing people out of emergency rooms. this all attorneytive, ie, you condition access to health care on buying health insurance is enforced in precisely the same

way that the act does. you either buy health insurance or you pay a penalty of $695. you don't have doctors throwing people out on the street, and the -- >> do you say the penalty is okay but not the mandate? i'm sorry, maybe i misheard you. >> no, no, no. they -- they create this straw man that says, look, the only alternative to doing it the way we've done it if we condition access to health care on buying insurance, the only way you can enforce it is making sick people not get care. i'm saying no, no. there's a perfectly legitimate way they could enforce their alternative, ie, requiring you to buy health insurance when you access health care which is the same penalty structure that's in the act. there is no moral dilemma between having people have insurance and denying them emergency service. congress has made a perfectly legitimate value judgment that they want to make sure that people get emergency care. since the founding, whenever

congress has imposed that public responsibility on private actors, it has subsidized it from the federal treasury. it has not conscripted a subset of the citizenry and made them subsidize the actors who are being hurt which is what they are doing here. they are making young, healthy people subsidize insurance premiums for non-discrimination provisions that put on insurance companies, and that is the fundamental problem. >> so the -- i'm -- i want to understand the choices you're saying congress has. congress can tax everybody and set up a public health care syst system. >> yeah. >> that would be okay. >> tax power. >> yes. >> congress can take the same position as your colleague. congress can't say we're going to set up a public health

system, but you can get a tax credit if you have private health insurance because you won't access the public system. are you taking the same position? >> there may have been confusion. i fully agree with my brother clement that a direct tax would be unconstitutional. i don't think he needs to suggest or do i that a tax credit that incentivizes creates a problem. congress incentivizes all kinds of activity. if they gave us a tax credit for buying insurance, then it would be our choice to make sure whether or not that makes economic sense. >> how is it different than this act that says if a taxpayer fails to meet the requirement of having minimum coverage, then they are responsible for paying the shared responsibility payment. >> the difference is that the taxpayer is not given a choice. it's the difference between banning significant sets and saying i'm going to enforce that legal ban through a $5 a pack penalty and saying, look, if you want to sell cigarettes, fine, i'm going to charge you a tax of

$5 a pack. >> i think that's what's happen, isn't it? >> no. >> i thought that everybody was paying, what, is it $10 a pack, i don't know the price, it's pretty high, and i think everybody recognizes that it's all taxation for the purposes of dissuading you to buy it. >> that's precisely my point. and everyone intuitively understands that that system is dramatically saying that cigarettes tomorrow is illegal. >> it is different, it is different. i agree with that. but you pointed out, and i agree with you on this, that the government set up these emergency room laws. the government set up medicaid. the government set up medicare. the government set up chp and therefore 40 million people who don't have private insurance. in that world government has set up commerce. it's all over the united states. and in that world of course the decision by the 40 million not to buy the insurance affects

that commerce and substantially so, so i thought the issue here is not whether it's a violation of some basic right or something to make people buy something that they don't want but simply whether those decisions of that group of 40 million people substantially affect the interstate commerce that has been set up in part through these other programs, so that's the part of your argument i'm not hearing. >> oh, please, it is clear that the failure to buy health insurance doesn't affect anyone. defaulting on your payments to your health care provider does. congress chose for whatever reason not to regulate the harmful activity of defaulting on your health care provider. they use the 20% or whoever among the uninsured as a leverage to regulate 100% of the uninsured >> i agree that's what's happening, and the government tells us that's because the insurance market is unique and

in the next case it will say the next market is unique, but i think it is true, as most questions in life are matters of degree, in the insurance and health care both markets stipulate two markets, the young person who is uninsured is uniquely approximately very close -- in a way that's not true in other industries. that's my concern in the case. >> i may be misunderstanding you, justice ken dishes i hope i'm not. sure, it would be perfectly fine if they allowed -- you do actual risk for young people on the basis of their risk for disease, just like you -- just flood insurance on a homeowner's risk of flood. one of the issues here is that they are not only compelling us to enter into the marketplace, they are prohibiting us from

buying the only economically sensible product we would want, catastrophic insurance. everyone agrees the problem with the 30-year-old as he goes from the healthy 70% of the population to the unhealthy 5% and yet congress prohibits anyone over 30 from buying any kind of catastrophic health insurance, and the reason they do that is because they need this massive subsidy. justice alito, it's not our numbers. cbo said that injecting my clients into the risk pool lowers premiums by 15% to 20%, so justice kennedy, even if we were going to create exceptions for people outside of commerce and inside of commerce, surely we'd make congress do a closer nexus and say, look, we're really addressing this problem. we want these 30-year-olds to get catastrophic health insurance. not only did they deprive them of that option, and i think that illustrates the dangers of giving congress these plenary powers because they can always leverage them. they can always come up with some public policy rationale

that converts the power to regulate commerce into the power to promote commerce which as i was saying before is the one that i think is plenary. >> mr. carvin, a large part of this argument has concerned the question of whether certain kinds of people are active participants in a market or not active participants in a market, and your test, which is a test that focuses on this activity/inactivity distinction would force one to confront that problem all the time. now, if you look over the history of the commerce clause, what you see is that there were sort of unhappy periods when the court used tests like this, direct versus indirect, commerce versus manufacturing. i think most people would say that those things didn't really work, and the question is why should this test, inactive versus active, work any better? >> the problem you identify is exactly the problem you would create if you bought the government's bogus limiting principles. you'd have to draw distinctions

between the insurance industry and the car industry and all of that. return you to the commerce clause jurisprudence that bedeviled the court before the 1930s where they were drawing all these kinds of distinctions among industries, whereas our test is really very simple. are you buying a product, or is congress compelling you to buy the product? i can't think of a brighter line, and, again, if congress has the power to compel you to buy this product, then obviously they have got the power to compel you to buy any product because any purchase is going to benefit commerce, and this court is never going to second guess congress' policy judgments on how important it is this product versus that product. >> do you think drawing a line between commerce and everything else that is not commerce is drawing an artificial line, like drawing a line between commerce and manufacturing? >> the words activity and activity are not in the contusion. the words commerce and non-commerce are, and, again, it's a distinction that comes, justice kagan, from the constitution. the framers consciously gave congress the ability to regulate

commerce because that's not a particularly threatening activity that debraves you of individual freedom. if you were authorized to congress "a" to transfer property to "b" you have as the earlier cases put it a mons strous legislation which is injustice. everyone intuitively understands regulating people who voluntarily enter into contracts does not create the possibility of congress compelling wealth transfers among the citizenry, and that is precisely why the framers denied them the power to compel commerce and why they didn't give them plenary power. >> would you care to comment? >> thank you, mr. chief justice. >> congress confronted a grave problem when it enacted at fordable care act. 40 million americans who can't get health insurance and suffer some often very terrible consequences. now we agree, i think everyone arguing this case, agrees that congress could remedy that

problem by imposing insurance requirement at the point of sale. that won't work. the reason it won't work is because people will still show up at the hospital or at their physician's office seeking care without insurance, causing the cost-shifting problem, and mr. clement's suggestion that they can be signed up for a high-risk pool at that point is utterly unrealistic. think about how much it would cost to get the insurance when you are at the hospital or at the doctor. it would be -- it would be unfathombly high. that will never work. congress understood that. it chose a means that will work, the means that it saw worked in the states, in the state of massachusetts, and that -- and that it had every reason to think wouldwork on a national basis. that is the kind of choice of means that the constitution leaves to the democratically accountable branches of government. there is no temporal limitation in the commerce clause.

everyone subject to this regulation is in or will be in the health care market. they are just being regulated in advance, and that's exactly the kind of thing that ought to be left to the judgment of congress and the democratically accountable branches of government, and i think this is actually a paradigm example of the kind of situation that chief justice marshall envisioned in mccullough itself, that the provisions of the constitution needed to be interpreted in a manner that will allow them to be effective in addressing the great crises of human affairs that the framers could not even envision, but if there's any doubt about that under the commerce clause, then i urge this court to uphold the minimum coverage provision as an exercise of the taxing power. under new york versus united states this is precisely a parallel situation. the court thinks there's any doubt about the ability of congress to impose the

requirement in 5,000a suba it can be treated to which the tax incentive of 5,000a sub-b seeks accomplishment, and -- and the -- and the court, as the court said in new york, has the solemn obligation to respect the judgments of the democratically accountable branches of government, and because this statute can be construed in a manner that allows it to be upheld in that way, i respectfully submit that it is this court's duty to do so. thank you. >> thank you, general. counsel, we'll see you tomorrow. >> so wrapping up the second day of oral argument, the supreme court justices heard related to the health care law, if you missed any of this, it is now available online at our website. go to c-span.org. you should also know that we also will be showing this again in our primetime schedules. what the justices dealt with today was whether or not the individual mandate is constitutional. tomorrow, there will be two questions before the court. in the morning, if the

individual mandate portion of the law is unconstitutional, can the rest of the law survive? and then tomorrow afternoon is the law's expansion of medicare coverage an unconstitutional intrusion on states? also, c-span has commissioned a poll on consideration of the health care law. among the findings, 95% have expressed interest in the case, while 54% have indicated they will listen to the arguments. 86% think this week's case should be televised. 74% of the respondents think all supreme court arguments should be televised. don't forget that we have been following the health care debate from the beginning at c-span.org. you will find archival video of hearings, speeches and rallies, as well as related documents and links to other web pages. again, that's at our website, c-span.org. we will re-air the oral argument from today at about 4:15 eastern. right now reaction from attorneys involved in the case

followed by comments from democratic and republican lawmakers. this is about 30 minutes. >> any questions? we're very happy with the court's interest in the case. they obviously deeply explored the issues. i feel that we got our chance to make our case, and since our case is so compelling, i'm hopeful that the court will do the right thing and strike down the individual mandate. id you feel about the arguments today? >> as i said, i think obviously all the justices were very informed and veryactive. i think their questions went right to the heart of the matter since i think we've got basic and better first principle responses, i'm hoping that that will have carried the day. >> any surprises? >> no. i think both sides pretty much staked out their positions in the briefing in the prior arguments, and obviously a new level of sophistication and

digging by the individual justices, but i think the issues were squarely presented before, and i think they were adequately addressed in the argument. >> anything in the courtroom that would give you thoughts one way or another on the outcome? >> i never make predictions. doe want to introduce? >> i wanted to introduce to you, i run the small business league center and this is one of the main plaintiffs in the lawsuit. he is a business owner from west virginia. >> can you step up to the mike. >> anybody have any questions? >> i was real happy with the way things went in there. it seemed to -- it seemed to stay simple, and there was a lot of conversation. it seemed like everything went well. we're real pleased with it. >> why is it important for you to challenge the law? >> pardon mow. >> why is it important for you

to challenge the law? >> it directly affects us. we're a sole proprietorship in a small community, and it would put us in an added tax that would actually put us out of business. >> can you expand on in a? >> pardon me. >> can you expand on that, about putting small businesses or whatever out of business. >> sure. we run a retail floor covering store in a community with a population of 383. there's not a whole lot of revenue to -- to spend on things that we don't deem necessary. >> how many employees do you have? >> i'm a sole proprietor. >> and if you are in a car accident on the way home today, what happens, sir? >> my auto insurance covers me for that, and as far as medical goes, i don't go uncovered.