the benefits, seems to me you're saying the only way that can be done is if the government does it itself? it can't involve the private market. it can't involve private insurers. if it wants to do this, social security as its model, the government has to be, has to be government takeover. we can't have the insurance industry in it. is that your position? >> no, i don't think justice ginsburg. i think there are other options available. the straightforward one, figure what amount of subsidy to the insurance industry is necessary to paid for guaranteed issue and community rating. once we calculate the amount of that subsidy we could have a tax spread generally through everybody to raise the revenue, to pay for that subsidy. >> give us context for that exchange. >> well, that's falling into what we were talking about before. justice ginsburg is saying, why would, what constitutional theory essentially prevents the government from approaching a flob a way it thinks is wisest

extthme by some measures than prior approaches. in other words, this idea of building onivat health care industry and attempting to what the sponsors felt opposed to dismantinging it and replacing it across the board with what justice ginsburg said was a government take jove. paul clement, represents the 26 republican-led states challenging the measure, paul considered one of the best litigators of our time and a former solicitor general under george w. bush said that, well, there are other alternastakeove mentioned one of them which would be a subsidy. simply have the government handing out money directly to insurance company, money thatit perhaps a government subsidy to individual americans, the government simply giving them money they could use to pay for insurance. so this comes back to the fact that this argument, while it is constitutional, is not a constitutional argument about fundamenri constitutional argum

about structure and powers of government and where powers within the federal system of the united states lie. no one at the disputed that. all 50 states enact identical systems to the affordable care act and this constitutional challenge would disappear. what they dispute is that the federal government has the power to that. paul clement saying there are certain ways the government can reach this permissible objective and certainth can't. >> we have a tweet in from don who agrees with one of ourhat t supreme court, arbitrary athor terrorism, every healthy government requires to function. michael, independent caller from new york. go ahead. >> caller: oh, yes. go ahead. you're on the program. >> caller: oh, ye works for abc has worked there 25 years, a as, you know, has the best insurance plan you could have.

she's citizen. so if she flies home during the medical needs. now, the harvard case studied prove the following -- payerhat germany, denmark and system have the top five life expectancior the united states is 49th. so with a private ranked 49th worldwide. so i think, you know, the private payer system has proved to be successful, if you want to live longer. thank you very much. >> a emily etheridge with "congressional quarterly". >> it's true a lot of those, the ranks of the united states doesn't have really great health care system when you look at, that was the impetus for passing this bill in the first place through congress that democratsd to really look at whether that's whether that's a function of

several other things. our country is just a different type of country, apuigtion than countries. we have a whole different system and we do have a lot of the best professionals and that's why a lot of people come leer to be providers. so there's a lot of other our h system that may be change things, not necessarily how we get insurance and whether we get innce system between government given insurance and all different private insurers and access them that come into play. >> let's go to larry, republican in new york. new york, new york. hi, larry. >> caller: hi. od, thanks. >> caller: i feel that this health care law is unconstitutional. a financial burden on this country. and every day the government's taken away our and i think that the supreme court should strike it down. i mean, you with

the ip insuran insurance that i have. i don't need no government insurance. people need insurance? in it. thank you. >> dan's up next. democratic caller in julian, california. good morning, diane. >> caller: hi. good morning, libby. haven't see seen you on there for a while and you've got the ponytail look today. >> ask your question, diane. >> caller: beg your >> what's your question? >> caller: not a question. i comment on what was said earlier about the justice apparently, it might be his interest that he -- i take issue with that, because the fact is these justices are not only -- it's not only interest, not only how their opinion is going to reflect, and i also want to make a comment about the fact that students, college students now

have, our young people who are now still living at home, 26 years old, will be under this and are under this under our laws, under obamacare and the people that have pre-existing problems, as my son, or issues that my son has a melanoma, and, you know, many people across the united states are not -- don't vin insurance due to this. i worked all my life and have had insurance all my life, and the misrepresentation that, you know, it's going to cause. the whole point is, as people we should have a health care system that does help people and what is, you know, throwing up the price of insurance is the fact that there are so many that are using going to just -- just on

certain bases. if you have an insurance policy were you can go and use that which i have of since very young woman and provided for my son when he was in college until he was 23, at that it's about the money for the insurance companies, and it has nothing to do with republican and democrat, and arlen specter was on there last week with greta, and, you know, deciding vote, and he also, you know, he was a republican and then went back to being a democrat. and, anyway, i feel that we all -- it has nothing to do, that we're going to people that have insurance and had it all these years and that ougoinrto others in the country, and it doesn't work that way. and i believe that - rule

this is i think that the deciding vote will be by scalia and i think that kennedy ginsburg and breyer will be the opinion. >> we're going to bring in a y mome stands up to yours and first to emily to address the health care issues our caller was bringing up. >> two points diane brought up. >> pre-existing cti coverage, people with pre-existing conditions and letting children stay on their parents health insurance until age 26 are two most popularlaw. when people do holds, they don't like the law, they love those provisions. it has approval rating. the argument by the administration you can't have that provision of insurance companies not being able to raise premiums or deny coverage ratch for people withondions wi something like this mandate. saying those two things have to

go together, because you can't have that benefit without also getting all the people into that pool paying into health insurance and broadening the pool of he c coverage. >> let's go through the justices we haven't talked about and looking at the "boston globe" here, pulling out key comments or quotes made by eigh justices. justice thomas famously does not ask questions or make comments during oral thrgh the lineup. give us your score card at this point. >> well i think that one, we can start with the justices who seemed almost certain to support the law. the four justices appointed by democratic presidents. in seniority, justice ginsburg who made the remarks about social security and some of the other government programs that seem to be more extreme, if you will, in reordering the economy than this one is, and how those were constitutional. she didn't seem to -- to her this ed an economic problem, an economic

problem of people unable to pay for medical care when theyed it, and an approach for government to try to mitigate that. seniority, next in breyer. and justice breyer put forth a theoretical approach why he suggested this law might be constitutional, and that had to do with other sorts of government powe under the commerce clause bp for instance, if there were a epidemic affecting 40 million americans clearly that would affect interstate commerce, fall under the government's powero a commerce and could, xwersz exercising that power he believed would required americans to get inoculated. it they can do that, why can't they do this? and many other e justice breyer. we'll hear his oral arguments from yesterday. >> 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 c.h.i.p. and there are 40 million people who don't have the private insurance. 's in that world the 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 things they don't want, but simply whether people substantially t group of 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. >> that's justice breyer, and he's speaking to michael carvin,

the attorney representing the nationalen businesses and jess, take us through the other justices appointed presidents? >> president obama's own appointees, jueotomayor aggressively gan. challenged them particularly of the government in the view, their claim this wan an exercise of the taxing power. it seemed that while she was likely to uphold the law, she might question whether it felld. then justice kagan, theppointed court, she questioned really what the dispute was all about,w conceded that the federal government can require everyone to pay for health insurance, or rather pay for health care with insurance, that meant that the government could require them to do it, say, after they've been

hit by a bus and brought to an emergency room. if they can make them pay at the poiney do it at more rational point, which is earlier in the year? >> looking at live images right now outside the supreme court and watchificers give out tickets to the people who have been waiting in line so they can get seats inside and watch the proceedings take place. some people stayed out allingut days to get into yesterday's arguments in particular, and now we're seeing the folks who hmor. let's hear from neil, independent caller, from fort lauderdale, florida. good morning krt good mornin tag the call. you know, i cannot speak fluently to the constitutionality of what is going on, although if kept intact it will benefit very many people, but if it becomes a quantitative thing as opposed to something that is qualitative, want to get through is, i spent 25 years in health care management, and administration, and sadly, must remark, one

thing, that the quality of your health and the quality of your health care is on two factors. sadly, it is who you know and how deepis. i don't believe that's of going to change and we freed to look at the core issue here. yes, it's available, quantitative. what about the qumportynt matted someone who cannot any longer thank you so much. >> monty tweets in and this debate is, he call it is a debate in futility is heating millions remain with no health care and hundreds of thousands dying due to the lack of it. emily etheridge, talk us through the quality of health care and monty's nc uninsured. >> right. one thing that actually would not address, to a big extent is what do those insurance plans ves a requirement that people pay for their health care through insurance. and there are some minimumhat t

plans would have to have if they wanted to operate in the stateh questions, how do you increase the quality of providers? how do you increase accessibility to provide jers how do we make the system better? better outcomes? how do we stop spending money on maybe unnecessary procedures and things that don't work? and the law, the people behind his law were really designing it to make atlantic so that not only do people have more coverage, more health insurance but ac caly once they use that insurance and go to their doctors. >> and what happens if -- if the insurance industry -- what happens in the insurance industry if the mandate is struck down? a tweet, the rational payment of insurance should be the key words in the decision. jess, rational payment of insurance? >> i don't know that -- i can't really answer that because i don't know -- it's not a phrase i've heard come up in the debate. the rational payment of

insurance. >> okay. >> we can say that i under the the court la to find that the and iment had a rational basis think it is extremely unlikely that any justice would say they had no rational basis for doing it. the question is whether the ea of the insurance companies, emily etheridge, what happens if they, the individual mandate is struck down, let's say that comes out of the health care law. what happens to the insurance companies that still have to insure americans? >> a big concern right now. the court could decide just to take down the mandate and perhaps not take any other requirements down. so insurance companies would still have requirements they have now, to cover people with pre-existing conditions, allow people to not r for those people. to expand coverage to children, pre-existing conditions, to adult children, all of those things. that's not financially viable if you don't have this requirement to get people into the pool somehow. be able to broaden

the number of people buying insurance to include the healthy people not buying it, except on the way to the emergency room, hit by a us is spread out amongst a broader pool of people. otherwise, they're going to pay a lot of money to take care of a lot of people who are sick, need more care, with of people they have now. >> let's hear from john, who's a republican in louisiana. good morning. >> caller: good morning. ho thanks. >> caller: just kind of one of these pet peeves of mine as i listen to the various discussions. the idea that it is somehow likened to automobile insurance. you hear that a lot. -- why can't somebody point out the simple fact that the mandated automobile insurance is liability insurance. it has nothing to do with fixing pers.ar if you use the analogy, in other words it doesn't -- if i don't -- there's no requirement for me to have insurance on my car, colon it's all liability which is

going to protect someone else. so i can't quite get my hands around the logic of that being applicable, rational argument. and then the o is, buying of the back to the 1870s. that law as i read was only for 18 to 45 white so the applicability of that is so far away from what the realwe and yet it seems those two keep popping up, popping up, popping up. i'd like to have your distinguished panel perhaps address why those keep coming up as rational reasons fsomething seem to have parallelism? again, thank you very much for c-span. i'm a c-span junkie and it's the place to get your news. >> we're seeing images right now outside the supreme court of th watch the oral arguments this

morning. jess braven, can you respond to john's questions? >> sure. two of the examples supporters have raised to say why this is not some radical innovation but this insurance mandate is similar to prior government requirements.rance. now, the -- it's true that automobile insurance is state under state authority and no one questions that, but the rationale is similar. it's not because it deals with cost shifting. the reason that states adopted these mandatory insurance laws indeed is for liability, others. to prevent me from crashing into libby and emily's car, walk ago way and leaving them with a bill. i way i guarantee damage or cost i impose isn't transferred to them. the theory behind theate di the. it is that if someone gets sick unlike if there's a car crash, society doesn't feel there's an obligation t, o

but there is an obligation to care for anyone who is hit by a bus, and so, therefore, the idea is to cover the exact same contingency to protect people who are paying insurance, who are able to, for having to be a people who don't carry it and then impose these costs on them. that's the policy rationale, separate from the constitutional question. the muskets issue is this. this was cll lactually brought p by a law professor, history of gun laws in the kens, winkler. he pointed out that actually this is not the first mandate that the federal government has imposed on people. that it did early in the country's history require certain americans to acquire weapons, muskets, for national defense. now the concept of who was a citizen and what citizenship rights existed in9th

and late 18th century are quite the -- when women couldn't vote. when african-americans citizenship status varied from state to state and so forth. so i don't know that our dengs ooul vote at that time is relevant. separately, the fact the government might find clsify a group of people who need to carry muskets doesn't speak to s there is a much broader group of people who need to carry health insurance. the government could rationally say that we only want people we cons f have weapons for the militia, our the risk ofl of protecting the catastrophic or health needs involves a larger pool of people. so it's a wouldn't really make sense to say only white males 18 through 45 need to have health insurance. >> let's go to a t a e-mail.

j.r.f. writes the court will not make a decision on he implement. no violations of the laws touc ogured the first day. whether or noty mandate hasn'to effect and can't be challenged before the court until 2015. a comment from south carolina by martha. emsed on insurance or lack there itof. how will emerncy room services? emily? >> emergency room service would still say the way that is-it-is, people wou if they don't have insurance. group of people who have insurance by expanding medicaid, having this you could still choose not to have insurance, paying the penalty to the government no re to have -- there is a requirement you have to have health care, but you have to pay for if you aren't going to have it. u's the way you do now. no one's going to turn you away from a doctor if you don't have all that insurance anymore.

>> carl, democratic caller in albany, georgia. good morning. >> caller: good morning. dealin this point of sale issue. and the of the state attorney general's argument is that commerce se. so, therefore, regulate it. however, i know advertising takes place before the point of sale. and it'sregulated. i can't falsely advertise something, and there's no sale made. so how's that argument water since the water isn't -- i mean, the argument isn't that the government forces to you buy something. it's when they can force you to buy something. >> jess bravin? >> the answer, those w voluntar joining the marketplace. they are entering the stream of

commerce by, one, purchasing advertising in most instances, even if not paying for it,g to sales. they have already entered the marketplace, entered commerce advertising recognized part of regulation, therefore, and what they're trying to do inducing to give money in exchange for something, there are fraud laws and sorry forth related to false afrts advertising. challenger's argument, somebody sitting alone in their room underground, wherever they are, you know, tavoid any interaction with the health care industry is not part of commerce. enin here under this law is that they're being compelled, being driven, being forced to do something, to take a step that they about not to or spend the money somewhere else and that is outside the government's power to regulate commerce. it can't create, it cannot create commerce in order to regulate it, would be the

argument. >> we're speaking with jess bravin. the supreme court correspondent for the "wall street journal" and emily etheridge, health car quarterly." justice roberts, the chief justice, has been one of the people that court watchers are looking to do potentially be a deciding vote, potentially be someone who either authors the opinion or pick the out who does. let's hear a little of his exchange yesterday with the solicitor general verrilli, talking about the powers of congress to regulate the methods of health insurance payments. >> unless i'm missing something, i think you're just repeating the idea that this is the regulation of the method of payment, and i understand that argument. >> and it is -- >> it may about good one, but what i'm concerned about is once we accept a principle that everybody is in this market, i don't seeower is limited to regulating the method of the payment, and doesn't include as it does in any other area. what other area have we said

congress can regulate this market but only with respect to prices? but only with respect to means? noe interstate congress and can regulate it, pretty much all bets are off. >> we'll catch today's oral arguments later on today on c-span3. you can hear them on c-span radio and our website, c-span.org to follow-up. jess brevin, tell us about the chief justice. >> the chief justice when in private practice and working the solicitor general's office, considered one of the best supreme court advocates of his day. someone who can easily internalize an argument whether or not he agrees with it and express it quite compellingly. we saw that in many arguments and certainly we saw it yesterday where qui cogently articulated both sides of the debate, and, therefore, left it somewhat side he most fully believes in. so that's why most observers say along with justice kennedy,

chief justice roberts, ultimate decision in this case may not b members of the court. what he's saying there, however, again, and this is frequent in supreme court arguments, they say things which have tremendou lawyers. what he is doing, refer tng in the early 19th century regarding the federal commerce power, and other federal powers, esnt if that power exists, then the congress and the federal government cand. and so, therefore, and not because among other things, the constitution gives congress the power to enact anything necessary or implement its existing powers. so the real important quest is r not, because if the power is there it can be exercised to the nth degree. what he's saying is, if the power to regulate the financing

in this way exists, then the power to regulate the marketplace exists or may exist in all kinds of ways we can't even fathom and therefore is raising a concern if we open the door to this novel payment mechanism, we may be potentially opin kinds of federal regulation we can't anticipate now, and that is people who are philosophically opposed to this, which more than, say, the payment of a few hundred dollar as year, they are concerned about theheorical, philosophical implications. >> emily, i see you nodding your head. >> i just think that everything he's saying isrned about, well, if you can, if the government can make you buy this you buy? and where are the limits of congress in passing these laws? and when can the supreme court step in and say, no, you've question on twitter. joseph asks, any chance the court will call the penalty a tax and thus constitutional? is

it seemed quite slim after the arguments yesterday, and on monday, in which none of the justices from either wing of the court was enthusiastic about that argument. and that is actually one of the i'd say, questionable political judgments that sponsors of the law made. when this ll the house version used the word "tax." referred to a tax on people who don't carry the required health insurance, and at the time it seemed obvious to a lot of lawyers and legal scholars that the law would be on much firmer constitutional ground if it explicitly invoke the the taxing power. the other word, penalty. i presume, i'm not a political expert, but for some reason an assumption americans prefer to be penalized than taxed. so the word penalty was used in the senate version, and although there was some debate on the democratic side over which would be the bet are way to go in