that was the purpose of the individual mandate. since congress had required insurers to sell below cost insurance to sick people, which would drive up premiums, they wanted to bring in a bunch of healthy people to drive down the cost of insurance. so the question is where does congress get this to force americans to buy products they don't need. it's a relatively simple case for people who read the constitution. constitution only gives congress limits of powers and the power it gave them was the power to regul regulate commerce. when you're sitting at home not buying insurance, you're not involved in commerce, so the question is can they compel you the power to regulate commerce, does that incorporate the power to apel you to enter in. since they can regulate your

transactions when you go out to buy a gm car, can they require you to. the answer is pretty obvious. even the government didn't really push that argument. their argument was a series of cases that you guys know about from the 1930s, most notably wi wickard against fillburn, congress can get at people who substantially affect interstate commerce and regulate people who are only selling or involved in a small amount of wheat and that's the famous case. and our point was that wickard did say you could get at people only producing a small amount of wheat. what it didn't say was that you could require americans to buy wheat. that people who are in the market, even though in at a

local level, are analogous to local bootleggers and congress's power to regulate the interstate liquor market allows them to get a local bootleg. what it doesn't alew them to get is local -- not in the market, possibly adversely affect market participants. it's going to be the same as it was. you're in no way engaged in the type of activities for congress to regulate local people like wicker. the government's -- even if you don't negatively affect comme e commerce, you affect commerce regulation. this plan, this act won't work unless we constrict all these healthy people into buy insurance and we really need their money. because if we don't get them to buy insurance and we're

requiring insurers to insure these sick people, premiums would go through the roof and we won't be able to keep premiums affordable. certainly had the ability to eliminate people creating problems for regulation. if you have in this case, a small amount of marijuana, creating problem in terms of congress' effort to -- all marijuana. they're going to regulate the insurance companies and they are not going to deny people with preexisting condition any care. we don't have anything to do with that. we're not standing as a barrier to that. we're being brought in not because we're a problem in terms of regulating the insurance companies, but because we're a solution to the problem that congress has already created through its fully executed law and if that is a power that

congress has under the necessary and proper clause, that means every time they impose a burdensome regulation on it, a car company through environmental or safety regulations and drives up the cost of again cars, that means they can bring you in to off set the cost of their burdensome regulations and require you to buy gm stock or cars. that can't possibly be the law and it's never been a law for 200 years when ever we have told private companies like the insurance companies in this case that they've got to take some actions for the public welfare. in this case, because of charity bable reasons, we're requiring them to give the low cost insurance to sick people. when we've done that kind of thing, when we've allowed hospitals to provide care to people, we don't get some other group and say you pay them for the public good they've just done. we pay for it out of the tax

dollars or the public treasury that we all contribute to. we either give tax exceptions to hospitals or medicare payments. so if congress can get away with this notion, not only have they violated the constitution, they've given congress a new power where they continue to spend well beyond their means and never have to face the political accountability of raising taxes. they can just escape to certain people in society, call them the problem and make them buy the products in order to off set the costs of their burdensome regulation. the government's basic response to that was to say yeah, but health care's really different. it's unique because there's a lot of free riders out there. who are not paying and if you want to regulate free riders, regulate them, but there's a vast majority insured that pay

their doctors and pay it out of their own pocket. doesn't make any economic sense for them to have insurance again if you're a 30-year-old and then the only economically sensible thing to do is to buy catastrophic insurance because then you might become on the public dole if you get hit by a bus or get some unexpected decide. but what's the one product that the obamacare act prevents you from buying? catastrophic risk snurns insurance. you've got to buy the full bode. with all these other things that you really don't need and don't need to avoid becoming free rider, becoming somebody who defalls on their health care. again, the purpose, they need to money now. if they're going to drive up insurance company costs in 2014, they need a huge infusion of cash from these people so that

they can keep the premiums within some relevant range affordability. and the other argument was everybody goes to the doctor. 100% of the people in the united states will at some point in their lives engage in health care. and our basic response to this is that's an economic and policy argument that may distinguish health care from some other industry, but of course, it's not a judicially limiting principle. limiting is where the judiciary can tell congress based on constitutional grounds they can't do something. all of these economic and policy arguments are by definition committed to congress' discretion. so these are fake limiting principles. and of course will require the same sort of ad hoc case by case adjudication before the 1930s, so all of these things are fake.

but our other point is what difference does it really make that everybody's going to go to the doctor at some point? point number one, nobody says that going to the doctor is a problem. they didn't regulate going to the doctor. only becomes a problem if you don't pay the doctor. the amount of people who don't pay is a very small subset of the uninsured and a very small subset of the people that go to the doctor. the other point, even if you are a participant in a market that everybody participates in, everybody uses phones, but even the solicitor general conceded to chief justice roberts that they couldn't require you to buy a cell phone. everybody needs food, but their refeign is they can't require you to buy broccoli, so regardless of whether or not you're participating in the market, the relevant question is whether or not the government

can require you to buy five gallons of milk and make purchases decisions for you and again, they can't possibly come within the commerce power or the message or proper power. and finally, of course, and the major point of the argument in the supreme court was the justices constantly asking the solicitor general if you can require americans to buy this product, what limiting principle do you have? what product can't you force them to buy? i think that's really more or less -- that solicitor general is either a bad advocate, because there is no comprehensive answer to this and

the liberal intelligents sort of talks themselves into this notion that our position was sort of this tea party fantasy that didn't make any sense and when solicitor generals had a tough time asking the pointed and obvious questions that the republican appointed justices were asking them, rather than concede they had a weak case, they had to blame him for being a bad lawyer. i don't think that either that's true. and i'm not going to make any predictions. i can't say the argument went well and it went well mainly because the reasons that i said cht solicitor general was unable so allay any reasonable person's concerns about if we grant congress this power about this emergency, what's going to stop them from using it for the next emergency or the next time they decide it will be a little better to use the mandate power and taxing power for all the

obvious political reasons. and since he was unable to allay in an intelligible way, i hope and think optimistically that we've got a good chance of having individual mandate struck down. with that, i'll be happy to either answer any questions or chat about other aspects of the case. thank you. so obviously the -- everybody in this room knows what -- if you strike down one part of the statute, what happens to the rest. the justice department took a

very unusual position. normally, they say just the individual mandate goes down, but here they took the position yes you must strike down this previous position which essentially say that insurers have to ignore the health status of their customers. there's other parts of the law that were so inextricably intertwined that the individual mandate, you have to shut that down. i must say that i don't know why they took that position. the individual mandate, specifically, again twouz off set the cost of the preexisting condition ban and the individual mandate left the preexisting mandate in mace, but the tactical concession by the government made it dilt for them to explain if these two provisions go down, that add to

insurance company's cost, about all these other provisions, no cap on how much you have to pay out. all these other regulations on insurers that were also part of the deal. and basically, insurance companies as many rent seekers in washington do, said look, we'd like a law that you require all americans to buy our products. who wouldn't like that law. in change, you can do whatever else you want. tax us, preexisting condition ban. as long as we e get this law, really, we can cut any deal you want. once they take out the requirement, the 30 million people buy their products, then the deal doesn't look so good. so the government's problem was they couldn't really distinguish why these two provisions went down were in a way material from these other provisions that added to the insurance company's cost. in the other point we kept

stressing was look. you rip the heart of the act. the whole point was to, it's called the patient protection and affordable care act. the affordable care, the individual mandate that makes these regulations affordable. if you've done that, then the task on tanning salons and toilet paper may be able to work, but can't in the way congress intended. and i was gratified at the argument that the justices were saying look, sometimes, we'll ask the counterfactual hypothetical if what would congress have done if they had known this part of the law was not in play? but this counterfactual hypothetical, when you've taken the very guts of the law out, is like asking what would happen in europe today if hitler had been killed in 1922? you're in the, you're just guessing. you're making all kinds of policy judgments. you're creating this law that

nobody would have been ever voted for or at least we have no idea if they would have voted for it. so, they came away with the noes notion, if there's no principle ground between striking down the individual mandate and the whole act, if we can't figure out where in between those two we're going to decide to do things, then really the best course, the one that's most respectful of congress and the law making power is just to strike the who act down and let congress figure it out. doesn't make much sense to create this act that doesn't make any sense. and as a patriot, i hope they do that. as a partisan republican, i wouldn't mind this insane law going for three or four years because i don't think you'd ever elect a democrat again in the united states. i think they'll be hunting them down with dogs in 2018. so again, i have to put my

patriotism before my party, but we'll see what happens. any way. thanks. anybody else? paul. >> catastrophic illness issue. came up in the argument justice kagan asking about that. the emergency room and so forth and the free rider like you said. is it possible that a cord as a matter of law could split the baby in this regard say thag the mandate is unconstitutional to the extent exceeded coverage for catastrophic and you said sort of -- or an all or nothing proposition? >> i think it's fot to be all or nothing. they're not going to recite the law to do something congress didn't intend for it to do. i don't think there's any

constitutional ability, i don't think they can require you to buy cough drops or catastrophic health insurance, anything. my only point when i was discussing this with justice kennedy was look, he was saying i understand your point about they'll come back and this is unique, but he's saying isn't this really unique that these healthy 30-year-olds can come into the market and all of a sudden be this big burden on society. doesn't that dif wrennuate them? among the other points i was making, if we're going to create exceptions, uniquely compelling need arguments where we're going to bend the language, surely congress has got to show us that they are trying to address unique aspects in this, then i made the point that surely if congress was really worried about healthy 30-year-olds all of a sudden becoming wards of the state if they were hit by a bus as opposed to conscripting

them in order to lower everyone else's premiums, they would have allowed them to do the only sensible option, for 400, 500 bucks a year, buy catastrophic. i'll take care of all my medical needs except if i get hit by a bus. since they didn't do that, i think that illustrates from both a pollty and plausibility perspective, that's not what they were trying to get at and if you let him get away with this, they'll be abl to use it in whatever circumstances where they could cobble together some plausible rationale. >> little bit off topic, but what did you think of the arguments that the states were

being coerced into the medicaid porgts and how did that go? >> i was representing the private respondents so well, i had an academic interest in the medicaid stuff. the limb ma in this is that as the federal government becomes more and more involved in things that we think of as traditional areas of state regulation, health care and the like, that the states do become depend on the federal government's law. and there is this case out that says look, you can condition federal moneys on the state's doing things. because technically, you're not forcing them to do it. you're just offering them making them an offer they can't refuse like the godfather. so i think paul clement very ably argued for the states that look, if this isn't coerced, then what can be because we're literally talking about hundreds of billions of dollars and not participate ng this program

would create horrific budget problems for the state. i don't know how to handicap that and try to because that was paul's argument, not mine. the argument went well and people were asking them a lot of questions. and the solicitor general seemed worried about it because it was during that occasion that he made what i think everybody viewed as a jury summation speech to the supreme court talking about how men need to be able to pay for their wife's breast cancer as if the issue was whether we're going to throw all the sick people out on the streets or adhere to what they were doing. and the liberal justices were sitting there with their mouths open going where is this coming from? i don't know if they tells you about the medicaid argument, but it was an odd moment during the argument.

>> what are your thoughts on the president setting up the supreme court as a foil both in his state of the union address several years ago as well as his post argument comments? >> look. there's an obvious distinct between the state of the union and this. they had already written citizens united. so if you're going to yell at these guys, i wouldn't do it while they are writing the opinion. because there's always the chance that they might be changing their mind and i don't know what -- it was a relatively odd thing for a president to do. i was sitting there going, keep talking. because i think at the end of the day, it can only help us. and at the end of the day, it was kind of silly. right? i don't think it will have any effect. i think it will be negative and we don't need -- we have heard

from your solicitor general. we don't need you lecturing us in public. particularly when it was wrongly decided. >> someone in your office guided me to the institute which was writing a brief on behalf of states that had passed freedom acts. so i want to thank you on your guidance on that and say it seems to me the 10th amendment is an important piece of this puzzle because like any statutory or contractual construction you have to read the four corners of the document. so you have look at the limits under the commerce clause or the necessary and proper clause.

the tenth amendment has to be read into that. but there's not a real expectation that the tenth amendment is going to be a big part of the court's reasoning on this. is there any comment you can make about that? >> okay. in one way saying the tenth amendment enter it is not a criticism. the tenth amendment says, that every power not given to the federal government, i.e. the commerce clause, is given to the people respectively. in my optimistic days, i don't think they'll get to the tenth amendment. we don't need to get to the tenth amendment. but it comes in in this way. if the justices think in some circumstances we could require something that regulating nonmarket participants, there is the necessary and proper clause. and as the justice emphasized that the argument it's says necessary and proper. even if we thought regulating

the participants in some ways was okay, surely compelling them to transfer their property would be to compel iling in this case state government employees to enforce federal law. and in prints they said it might be okay, but it's not proper because you have never used it historically and it does exceed the kind of powers that have gone on to the federal government. and the government's response was that's when you're taking care of states. that's a problem when you're common deering states. and we said no. that's on the same footing and one is the fact that the tenth amendment, as i said, reserves the powers to the states and the people so individual liberty or justice problem mat call as interference with states. so it might come up that way.

>> the question is what would my opinion look like if i was writing something in favor of the law. it would be an extraordinary short opinion. you know, i mean it's not law. it's not limiting principle. it's not -- i guess it would look not unlike the solicitor general's. people are really sick. we got to do something. and these damn states can't take care of the sick people so let's ignore the constitution. there are no legal arguments. if there were, i sure wouldn't be telling you. there are no legal arguments in support of obama care. and that is why it's not a coincidence that congress for 230 years has never tried this before. they have had had millions of

opportunities where they -- all kinds of crisis. the height of the new deal. you know, nobody required you to buy war bonds during world war ii. that was because it was literally unthinkable that in a nation postulated on the principle that the people are sovereign to the government, that the government can commandeer the people to do something and they are merely required to salute and say yes, sir. particularly when the federal government had its powers limited precisely because they couldn't engage in this sort of tir rant call police power. that's the whole argument of the debate. he kept saying, look, the way the act is it's a much more efficient way of getting money into the insurance companies coffers than if we had followed this commerce clause thing and conditioned access to health care providers and then made you

buy insurance. and i was like, yeah. that's exactly right. i can't conceive of a system more badly equipped to force citizen aid to give property to citizen b than the system the framers came up with. that simply reflected the fact that the framers didn't want to make wealth transfers between it easy. they wanted to make it impossible. so it doesn't reflect any flaw in our reasoning. it it it affects that the example of what they were trying to deprive the federal government was wealth transfers among the citizens and that's precisely why they didn't give them the police power. so you can use that as my opinion. have i just wowed you with my

eloquence? with that, thank you very much and enjoy the rest of the day. >> thanks, mike. what a great way to end the day. before we adjourn, i want to remind everyone about the election law seminar tomorrow. it's not here. if people are not coming to the workshop tomorrow, they need to turn their cle forms into ashlee carter before you leave today. those coming to the workshop should keep them and turn them in tomorrow. before we adjourn to the reception, i want to recognize david warrington who is here on behalf of attorneys for ron paul. david? somewhere. general council to the gingrich campaign for lawyers with newt.

then chris landow is here for romney. the great dick wiley. dick? lee rodobski who is here for romney for president. and michael mor lee for council for romney for president. with that, i want to thank -- i'm sorry? there you go. you just did. tune in on fox this weekend on the voter i.d. issues. with that, i want to thank everyone for coming pup i want to thank our