and that's why we're here this week. tomorrow we will hear another day of argument on the severability issue as well as the medicaid expansion. today we felt very comfortable with the questions that were asked. and we firmly believe unconstitutional, and as a justice has said, this would be such an overreach. if the federal government can do this, they can force us to do anything, and that's why we're fighting this with everything we've got. i would now like to introduce my colleague, attorney general john bruning from south dakota and the next united states senator. >> well, first of all, i want to say thank you to my colleagues, pam from florida and greg from texas and allen wilson of south mittee of six states that manages this litigation. we started as 13 states. mocked rally across the country by law professor who is said this case will never end up in

the supreme court. you have no opportunity to feed this legislation in court. here we stand at the supreme the court. i feel a lot better after witnessing two hours of argument than i felt when we started. and the reason i think, as senator said it clearly. all eyes were on justice kennedy. justin kennedy were vuz skept kl of the mandate and the constitutionality of the mandate, and that makes me feel better about our chances. it's hard to predict when you stand outside the supreme court as to what they're going to do. in keeping with his decision making in cases where we see the decision making, he's very skept kl under the commerce laws. my colleagues and i have been managing the case day-to-day. we felt great about the questions we heard from the justices. we feel positive that the mandate will be struck down. tomorrow will be important when we talk about severability. we believe if the mandate is

struck down, the entire law must fall. so with na i want to introduce my colleague fromtexas, greg abbott, the attorney general there. >> thank you. today we are one step closer to inthe senators who spoke here earlier. they have talked for two years now about repealing and replacing wia not have to worry about crossing that bridge. we're getting closer and closer to the court striking when the state filed this lawsuit, we knew it would be a governments.n individual and we knew if we could get the court to agree to focus on whether or not obama care unprecedently infringed upon individual liberty, we had a chance of winning. we were pleased to walk out of the courtroom today, knowing

that five of the justices of the united states supreme court focused their powerful questions against the united states government on that very issue, and that is the unprecedented encroachment obama care poses on individual liberty. today is a very positive step in the right direction. not just for the state who is are bringing us lawsuit. ho i clerish liberty, who believe in the united states constitution, and want to see the rule of law introduce my colleague from south carolina, attorney general wilson. >> thank you so much. first off, what i heard today in the court was aember of the supreme court, justice kennedy say if the court up hoelz this law it will fundamentally change the relationship by which people. the government at that point tried to make the argument that we are dealing with a health care market. chief justice roberts said this could be a slippery slope in that if we can regulate the

health care market, then we can't pick and choose what congress can or cannot regulate. it's an it's pandora's box. it's a slippery slope. that's scary to me. the drafters of the constitution never gave this congress the power to create commerce by contracts. it gave congress the power to create or coin money. it gave congress to the power to raise armies and provide for the navy. and then it gave congress the power to regulate money and the military? it never gave congress the power under the commerce clause to create commerce. they don't have that power. and that is exactly what this health care law does is it creates commerce by shutting people into contracts they don't want to be in for the soul p purpose of regulating them. this fundamentally changes the relationship between the people

and their government. and that is why this case is so important. i don't know if there are timeo at the florida house at 2:00 p.m. for media. all the attorney generals who are here, there'sus. and you're welcome to come over there at 2:00, and we'll take any indquidual questions or interview requests for specific stakes. that's where we will all be at 2: back side of the supreme court courthouse. >> thanks, allen. >> thank you all. do you have some legislation ready to go? dods tbe health care reform? >> of course. unlike those who voted to pass this, i believe that the entities that have the kind of

power to enact legislation, sweepingeg with most of these shoes are states, and not the federal government. it is, after all, statesrses an hospitals and clinics. and license and regulation health insurance companies and cop lws that determines how medical malpractice suits operates. i believe that many proposals for federal court reform are not appropriate federal legislation. i did not vote for the last proposal in the senate for that reason. how do you think he was leaning

based on the questions he was asking? in the wake of the answers to those questions, i think he was unconstitutional. it exceeds the power under the commerce clause. that conclusion becomes mrempli. even more inevitable when cow couple it with a review of his writings on cases addressingesol of ralism. questions asking what the limiting that exists. andnt. one of the opening questions was

does the commerce power allow them into interstate commerce. >> senator? >> yeah. >> having worked for ito, do you think there's anything -- if we just say he's in the conservative camp. is that too broad? on this issue. question. >> do you anything on this case will be predictable? >> i don't want to describe any justices as predictable.

they may compel people to purchase the argument. you know, the government was saying, well, no. >> yeah, a lot of arguments focused on that. and many members of the court brought up that point in connection to the questions. >> kennedy did. >> yes. a lot of justices on both sides used that point as a way to frame things. justice kennedy and chief

justice roberts were trying to drill down and makens had been nswered. >> you didn't read it in thatme? >> no i didn't think anything about how they asked the question or how they responded to the answers to their questions indicated they thought that was i think they were tryingoositio arguing counsel. >> most americans are forced to buy car insurance because it's and people who are for the health care law well, this is n insurance, taxpayers are picking up the tab for those who don't have health insurance. so how is it different in this case? >> justice sothe rst is it's st

congress that require people to buy automotive insurance. and state hour is different than federal power. they would be numerous and n't prerogative of being a living, breathing human being. you may choose, regardless of what state you live in, not to purchase the car. not the drive the car. you don' buy automotive insurance. this just by virtuevi been born and living on american soil, you must purchase a specific kind of health insurance. one of the arguments made.

and the government is siimposin requirements needs police powers. i've got to run down here for a second. thank you. >> now, same day audio of day two of the supreme court's oral arguments on health care law. as we've been hearing today's focus is whether the law's individual mandate is constitutional. this arlgument is two hours. >> we will continue argument this morning in case 11398 the department of health and human services versus florida. general. >> mr. chief justice and may it please the court, the affordable care act addresses a fundamental and enduring problem in our health care system and our economy. ensure has become the

predominant means of paying for health care in this country. for most americans for more than 80% of americans the insurance system does provide effective access. for more than 40 million americans who do not have access to health insurance either h em programs such as medicare or medicaid, the system does not work. those individuals must resort to the individual market. that market does not provide affordable health insurance. it does not do so because the multibillion dollar subsidies that are available for the employer market are not available in the individual market.

it does not do so because erisa and hiipa regulations that preclude discrimination against people based on their medical history do not apply in the victim market. that is an economic problem. it begets another -- >> why aren't those problems that the federal government can address directly? >> they can address it directly, justice scalia. they are addressing it directly through this act by regulating the means by which health care -- by which health care is purchased. that is the way this act works. under the commerce clause, what congress has done is to enact reforms of the insurance market directed at the individual insurance market that precludes -- that preclude discrimination based on preexisting conditions that

require guaranteed issue community rating. it using and the minimum coverage provision is necessary to carry into execution those insurance reforms. >> you create commerce in order to regulate it. >> that's not what's going on here, justice kennedy. we're not seeking to defend the law on that basis. in this case, what is being regulated is the method of financing the purchase of health care. that itself is economic activity with substantial effects on interstate commerce. >> so any self-purchasing? if i'm in any market at all, my failure to purchase something in that market subjects me to regular lace. regulation. >> no. that's not our position at all, justice scalia. health care market the health care market is characterized by the fact that aside from the few

groups that congress choose to exempt from the minimum coverage requirement those for who religious reasons don't participate, those who are incarcerated, indian tribes, virtually everybody else is in that market or will be in that market and the distinguishing feature of that is that they cannot -- people cannot whenhey enter that market or what they need when they enter that market. >> is same it seems to me would be true for the market in emergency services. police, fire, ambulance, roadside assistance, whatever. you don't know when you're going to need it. you're not sure that you will, but the same is true for health care. you don't know if you're going to need a heart transplant or if you ever will.

there's a market there to some extent we all participate in it. so can the government require you to buy a cell phone because that would facilitate responding when you need emergency services you can just dial 911 no matter where you are? >> no mr. chief justice, i think that's different. i don't think we think of that as a market. this is a market. this is market regulation. in addition you have a situation in this market not only where people enter involuntarily and won't be able to control what they need when they enter. >> it seems to me it's the same in my hypothetical. you don't know when you need police assistance. you can't predict the extent to emergency response that you'd need. but when you do, the government provides it. part of your argument. when you need health care, the government will make sure you

get it. when you need police assistance or fire assistance or ambulance going to make sure to the best extent it can that you get it. >> i think the fundamental difference mr. chief justice is that's not an issue of market regulation. this is an issue of mark regulation. that's how congress -- that's how congress looked at this problem. there is a market. insurance is provided through a market system. >> do you think there is a market for burial services? >> for burial services? >> yes. >> yes. >> suppose that you and i walked around downtown washington at lunch hour and we found a couple of healthy young people and we said you know what you're doing you're financing your burial services right now. eventually you're going to die and somebody's going to have to pay for it. if you don't have burial insurance or you haven't saved money for it, you're going to shift the cost to somebody else. isn't that an artificial way of talking about what somebody is doing? if that's true, why isn't it equally argument official to say that somebody who's doing absolutely nothing about health care is financing health care services? >> i think it's completely different. the -- and the reason is that the burial example is not -- the

difference is here you are regulating the method by which you are paying for something else, health care. my friends acknowledge it is under congress's power to -- and to impose a minimum coverage provision. their argument is just that it has to occur at the point of sale. >> i don't see the difference. you can get burial insurance, you can get health insurance. moat people need health care. everybody is going to be buried or cremated at some point. >> one big difference is you don't have the cost shifting to other market participants. >> sure you do. if you don't have money, then the state is going to pay for it or a family member. most people are going to need health care. one big difference is you don't have the cost shifting to other markets. >> sure you do. if you don't have money, then the state is going to pay for it or a family member. >> that's the difference.

it's a significant difference that this -- in this situation one of the economic effects that congress is addressing is that the many billions of dollars of uncompensated costs are transferred directly to other market participants because health care providers charge higher rates to cover uncompensated rates and they're covered in higher premiums which translates to $1,000 per family. >> isn't that a small part of what the mandate is doing? it appears to me that the cbo has estimate that had the average premium for a single insurance policy in the nongroup market will be roughly $5,800 in 2016. respondents the economists who supported the spobts estimate that a young healthy individual targeted by the mandate on

it is requiring them to subsidize services that will be received by somebody else. >> no. i do think what's what the respondents argue. it's just not right. i think it really gets to a fum problem. >> that's how insurance works. >> at >> it is how insurance works. b, the problem that they're identifying is not that problem. the guaranteed issue and community reforms do not have the effect of forcing insurance companies to take on lots of additional people who they then can't afford to cover because they tend to be the sick and that is -- in fact, the exact opposite is what happens here. when guaranteed issue and rating reforms and you do so in the absence of a minimum coverage provision, it's not that

insurance companies take on more and more people and they need a subsidy to cover it, it's that fewer and fewer people end up with insurance because the rates are not regulated. insurance companies when they have to offer guaranteed issuing in community rating they're entitled to make a profit. they charge rates sufficient to cover only the sick population. >> could you help me with this. assume for the moment you may disagree. assume for the moment that this is unprecedented. this is a step beyond what our cases have allowed. a affirmative duty to go into commerce. if that is so, do you not have a heavy burden of justification. i understand that we must presume laws are constitutional. even though, when you are

changing the relation of the individual to the government in this what we can stipulate is i think a unique way, do you not have a heavy burden of justification to show authorization under the constitution? >> so, two things about that, justice kennedy. first, we think this is regulation of people's participation in the health care market. and all the minimum coverage provision does is say that instead of requiring insurance at the point of sale, that congress has the authority under the commerce power and the necessary proper power to ensure that people have insurance in advance of the point of sale because of the unique nature of this market. because this is a market in which -- in which -- although most of the population is in the market most of the time 83% visit a physician every year. 96% over a five-year period. so virtually everybody in society is in this market.

you've got to pay for the health care you get. the predominant way in which it's paid for is insurance. and the respondents agree that congress could require that you have insurance in order to get health care or forbid health care for being provided. >> why do you define the market that broadly? health care. it may well be that everybody needs health care sooner or later, not everybody needs a heart trant plant. not everybody needs a liver trant plant. >> could you define the market everybody has to buy food. you define the market as food. therefore everybody's in the market. therefore you can make people buy broccoli. >> no. that is quite different. that is quite different. the food market while it shares that trait that everybody's in it, it is not a market in which your participation is often unpredictable and often unvoluntarily.

it is not a market in which you don't know what you need before you go in. it is not a market in which if you go in and seek to obtain a product or service you will get it even if you -- >> is that a principal basis for distinguishing this from other situations? you could also say the person subject to this has blue eyes. that would indeed distinguish it from other situations. it is a principal basis? it's a basis that explains why the government is doing this. but is it a basis which shows that this is not going beyond what the system of enumerated powers allows to government to do? >> yes. for two reasons. first, this is the test as this court has articulated is congress regulating economic activity with a substantial effect on interstate commerce. the way in which this statute satisfies the test son the basis

of the factors that i have identified. >> i thought that your main point is that is unlike food or any other market when you make the choice not to buy insurance, even though you have every intent to the world to self-insurance and save for it, when disaster strikes, you may not have the money. and the tangible result of it is we were told there was one brief that maryland hospital care bills 7% more because of these uncompensated costs that families pay $1,000 more than they would if there were no uncompensated costs. i thought what was unique about this is it's not my choice whether i want to buy a product to keep me healthy.

but the costs that i'm forcing on other people if i don't buy the product sooner rather than later. >> that is definitely a difference that distinguished this market and justifies this as a -- >> if that is your difference, i'm somewhat uncertain about your answers to prex justice kennedy asked, can you under the commerce clause, congress create commerce where previously none existed? i thought the answer to that was since mccull law versus maryland when which said that congress could prevent the bank of the united states, which jobs created commerce that did not previously exist. since that time the answer's been yes. i would have thought that your answer to can the government in fact require you to buy cell phones or buy burials that if we propose comparable situations, if we have for example, a uniform united states system of paying for every burial such as medicare burial, medicaid

burial, chip burial, erisa burial. and emergency burial beside the side of the road and congress wanted to rationalize that system, wouldn't the answer be yes? of course they could. the same with computer ors the same with the cell phones if you're driving by the side of the highway and there is a federal emergency service just as you say you have to buy certain mufflers for your car that don't hurt the environment, depend on the situation? >> it does, justice breyer. if congress were to enact laws like that, we -- >> so then -- >> i would defend them on a rational like that. i do think we are advancing a narrower.

>> then the question is whether or not there are any limits on the commerce clause. can you identify for us some limits on the commerce clause. >> yes. the rational under the commerce clause would not justify forced purchases of commodities for the purpose of stimulating demand. it would not justify purchases of insurance for the purposes in situations in which insurance doesn't serve as the method of payment. >> why not? interstate commerce is affected isn't according to your view that the end of the analysis. >> n th when the difference between those situations and this situation is that in those situations, your honor, congress would be moving to create commerce. here congress is regulating existing commerce, economic activity that is already going on.