american population who would withstand for the death of that child? they had an allergic reaction and a simple 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 alternative, 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 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 world, 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 clo s %, 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 inactivity are not in the constitution. 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 deprives 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 monstrous 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.

>> mr. verrili, you have four minutes remaining. >> 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 unfathomably 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 would work 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 sub-a 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 respectfully submit that it is this court's duty to do so. thank you. >> thank you, general. counsel, w s >> at the confusion of today's oral argue. s, several people commented on

the day's court. also reaction from democrat and republican lawmakers. together, this is about 45 minutes. hi. mike carvin? any questions? 'r court's interest in the case. they obviously deeply explored the issues. 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.ythi els? >> how did you feel about the arguments today? all the justices were very rmed.

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 >> any surprises? >> no. i think both sides prettmu the briefing in the prior arguments, and obviously a new level of sophistication and digging by the individual justices, but i in and i think they were adequately addressed in the argument. that would give you thoughts one way or another on the outcome? >> i never make predictions. doe want to introduce? i run the small business legal center and this is one of the main plaintiffs in the lawsuit. he is a business owner from west virginia. >> 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 >> pardon me? >> 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 taxt would actually put us out of business. >> can you expand on that? about putting small 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. 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. i built an emergency fund and i have other resources to pay for it. i made provisions to take care of my health. i go to the dentist three times a year, i see the doctor when i need it and i go to the hospital when i need to. i just take my checkbook with me. >> this law would affect millions of people. why is it bad for america, aside from your own position, do you think? >> really, what it comes down to is what kind of america do you want, a socialized one or a free one? >> is it that simple? >> it is in my view. >> any other questions? >> pardon me. >> thank you. hankou all.

>> do you have the first speaker's name? >> michael carvin. >> we would like to begin now. now, the supreme court today heard arguments on what has been described as the individual mandate. just so everyone is clear, i just want to read a passage from the summery of the senate's health care law that lays out the mandate. quote, requires each citizen or covered under a qualified health plan or equivalent health care in other words, each citizen is mandated to have health

insurance. now, i just want to make one clarification. this is indeed from the senate health care law, but it's not from the affordable care act. it's an excerpt from the senate republican health care from 1993. the concept of individual oad be conservative heritage foundation. it was taken up by conservative republicans as an alternative to the universal health bill proposed by president clinton. senators grassley, hatch and lugar were co-sponsors, as was senate majority leader, then senate majority leader, bob r releblicans have endorsed the mandate in recent years. in 2009 senator grassley did. in 2007 senator demint did. senators graham, alexander and cork h they were co-sponsors of the healthy americans act that included an individual mandate, so what we're seeing now is

baffling. republicans have gone from being the main champion of the individual mandate to being a main antagonist, and you have to ask why. the republicans were fathers of the indivi now suddenly they want to give it up for adoption on thep of the u.s. supreme court.on t mandate is the prime example of their willingness to oppose anything this president proposes simply because he proposed it because it was their idea, and, of course, there is the issue of mitt romney who passed romne care in massachusetts which is based on exactly the same model years ago. there's no question that the health care law mitt romney passed as governor of massachusetts is the same one that president obama passed at

the federal level. four years ago mitt romney even called the law he signed in massachusetts a model for the t. he wrote an op-ed in "usa today" in july 2009 while the health care debate was raging, calling on the president to follow the example he set with his law in massachusetts, and then the president, when he proposed his plan said he was basing it on mitt romney's idea in massachusetts. now that the mandate sun popular with conservatives, romney is trying to disown what he did in massachusetts. well, mitt can run, but he can't hide. no matter what he tries to say now, mitt romney is a walking, talking amicus brief in favor of the president's health care law. if he tries to make it an issue in a debate with president obama, it's just going to confirm that he's the etch-a-sketch candidate. he should just admit it was planned all along. if mitt romney is the nomine in effect health care will be off the table as an issue, and with that i am going to call on the chairman of our judiciary

committee who is in the proceedings, senator leahy. >> interesting. it's interesting, too, the final argument, the last two minutes of the argument is the solicitor general saying that this would work well just as it does in massachusetts to cover everybody. that did bring a little bit of you listened to the argument on the question of constitutionality today, it's very obvious that if this law unconstitutional, then tomorrow somebody can come in and attack social security for the same reason, and that would be unconstitutional, or people like myself who buy insurance but also have to pay medicare, we could say, well, medicare is unconstitutional because why should i have to pay for that when i'm also paying for private insurance? you can go through all of these examples, that this is unconstitutional, the argument

can be made that all the rest of them are unconstitutional. i don't think that that's what the american public wants. i'm not sure that that is the kind of issue the supreme court wants to unleash on americans. chairman of the health committee who s instrumental in developing a good part of this law. >> well, it's clear after the supreme court listening to the arguments that the opponents of the he raffordable care act, ar their arguments on politics rather than precedence.whats best for the american people. senator leahy is right. congress have tried to fulfill

ob general welfare, there have been those who have tried it by going to the supreme court. they tried to undercut social security. they tried to undercut the t, t rights act, you name it, there's always been a group out there that tried to undercut what we in congress have done ro the general welfare. the affordable care act, i think the arguments that i heard in the supreme court this morning are very clear. congress does have the power every person in this country, virtually every peon country will at some point in his or her life use health care. they will be in the commerce of the health care delivery system. the other side, the opponents say, well, but congress could tell you to pay for it when you

get it, but they can't tell you that you have to have insurance to cover you beforehand. talk about splitting hairs. that's where it now falls into the political realm. i am convinced after listening to the two hours this morning that this court can go no other wa put into the affordable care act. >> senator reid.>>ell, everyone harkin pointed out uses health care. the question is whether everyone will be required to pay their fair share for health care in a way that benefits everyone, and that's at the heart of this case court. we already have a mandate in this country, and the mandate says that if you are sick, you'll be treated, usually in emergency rooms, but that mandate exists. question is, again, who will pay for that care which is provided for by the public policy and the laws of the united states, and pointed out, this idea originated with republicans who

deny its legitimacy.undaon suggested that every household should be required, mandated to have health care insurance. in 1993, my former colleague john chafee, who i see a someonystee o but also respected the constitution, in fact, defended it asal canal in included an individual mandaman including senator robert dole. the same year former speaker newt gingrich went on "meet the press," and he said he was for the federal government requiring individuals to buy health care.. this is basically the same model that's the affordable care act. as again my colleagues have pointed out, governor romney of

massachusetts deserves credit for passing the bill, but also and i think he spoke at that point on behalf of republicans, quote, don't think theea where people would be able to do something and make other people pay for it, and that's the present american health care system. this is the national commodity. 17% of our economy is devoted to health care costs so the idea that this isn't interstate mm an option that we're compelling people to participate in, i today i hope the court est of listened well, and i hope that senator harkin is right, that based upon the arguments, they will uphold this affordable care act so that we can get on with providing better, more efficient care for all of our citizens and also doing it in a way that ent. >> are there any questions for any one of us? >> senator leahy, you were in the court.

most prognosticators think that this is all going to come down to justice kennedy. can you describe his reaction in the court and whether he was receptive to certain arguments on one side or the other? >> i never try to speculate. just looking at the justices on interesting some of the things justice breyer referenced one case where if justice scalia was consistent with the way he ruled in that case, it was a marijuana case, he'd have to uphold the health care legislation. i found more interesting that b and it -- in the court today we were arguing the constitutionality.lear-cut case. i think you have to really tch unconstitutional but social secu,

medicare is constitutional. if you say this is unconstitutional, then you've go s medicare are also unconstitutional. i'm not sure the court is prare. >> senator, what is the role of hands? why even talk about it? younow, passed the law, and i think we have a real interest in i want to hear what the arguments are. i'm a member of the supreme i wanted to hear it in that capacity and as chairman of the senate judiciary committee just how they react. i picked this particular one, the argument on the constitutionality because it

else we do in the judiciary committee and otherswant to hea to it. >> senators, the president has law over the last couple of i'm wondering if you're satisfied, or should the president be doing more to >> i think the president ably f demilitarized zone between the two koreas might not be the best place to talk about health care on his trip abroad. he's spoken about this over and over again. i don't think the president wants to see himself in a