below cost insurance to sick people, when we've done that kind of thing, when we've required hospitals to provide care to sick people, we don't conscript some other group of the citizenry and say you pay 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 exemptions to hospitals or give them medicare payments or the like. if congress can get away with this notion, not only have they violated the terms of the constitution, they given congress a brand new power where they can continue to spend well beyond their means and never have to face the political accountability of raising taxes. they can just scapegoat certain people in society, call them the problem and make them buy the products in order to offset the costs of their burdensome regulation. the government's basic response to all of that was to say, yeah, but health care is really different.

it's unique because there's a lot of free riders out there who are not paying for their doctors and our point was if you want to regulate free riders, regulate them. but there's the vast majority of the uninsured pay their doctors, they go, they pay it out of their own pocket. it doesn't make any economic sense for them to have insurance, again, if you're a 30-year-old. really, the only economically sensible thing for you to do if you're a healthy 30-year-old is to buy catastrophic insurance in case you become on the public toll if you get hit by a bus or get an unexpected disease. what's the one product that obamacare prevents you from buying? it's catastrophic risk insurance. it requires you to buy the whole boat. the contraceptives and wellness campaigns and all these things

you don't need. you don't become somebody who is a free rider. again, the devout purpose of this is they need the money. they need the money now. if they're going to drive up insurance company costs in 2014, they need an immediate huge infusion of cash from these people so that they can keep the premiums within some relevant range of affordability. the other argument they made was everybody goes to the doctor. that's 100% of the people in the united states will at some point in their lives engage in health care. our basic response to this and all of the other things 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 a limiting principle is where the judiciary can tell congress based on constitutional grounds that they can't do something. all of these economic and policy arguments are by definition committed to congress's discretion and the court is

never going to second-guess congress's policy judgments about what the appropriate course of action is. so these are fake limiting principles and require the same ad hoc case-by-case ajudication of the 1930s and all 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 is nobody said going to the doctor is a problem. they didn't regulate going to the doctor. you only become a problem if you have don't pay the doctor. the amount of people who don't pay the doctor is a very small subset of the uninsured and a very small subset of the people that go to the doctor. the other point is even if you are a participant in a market that everybody participates in, everybody uses phones, but even the solicitor general during the argument conceded to chief justice roberts that even though everybody uses phones, they couldn't require you to buy a

cell phone so could you call for emergency aid. everybody eats food but their constant refrain is they can't require you to buy broccoli. 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 or five bushels of wheat and make purchasing decisions for you that neither serve your needs nor serve your economic interests and again that can't possibly come within the commerce power or necessary or proper power. finally of course and the major point of the arguments i think 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? and solicitor general verrilli has been criticized by a lot of liberals and media commentators for not having a good answer. i think that's more or less killing the messenger.

it's not that the solicitor general is a bad advocate or unintelligent or unprepared guy and i'm prejudiced, but the reason he couldn't give a comprehensive answer to this is because there is no comprehensive answer to this and the liberal intelligentia sort of talked themselves into this notion that our position was this tea party fantasy that didn't make any sense. so when the solicitor-general had a tough time asking the very pointed and obvious questions that the republican appointed justices were asking him, rather than concede they really had a weak case, they had to of course 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 in terms of the outcome of the case given the tone of the argument. i can't say the argument went quite well and it went quite well, mainly for the reasons i just said, solicitor-general was

unable to elani reasonable person's concerns about if we grant congress this power for this particular emergency, what a what's going to stop them from using it for the next emergency or the next time they decide it will be a all right bill better to use the mandate power than the taxing power for all the obvious political reasons. and since he was unable to allay i think in any intelligible way the court's concerns in this regard, i do hope and think optimistically we have a very good chance of having the 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. [ applause ] >> craig? >> [ inaudible ].

>> so what craig is referring to is obviously what we -- well, everybody in this room knows what severability is. if you strike down one part of the statute, what happened to the rest of the statute. the justice department for the first time in history 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 preexisting condition ban and this community ratings provision, which essentially say that insurers have to ignore the health status of their customers. they were agreeing there were other parts of the law that why so inextricably intertwined with the individual mandate, you have to shut that down. i must say, i think that -- i know why they took that positi position -- i know exactly why they took that position, which is what i was talking about before. the individual mandate was put in the law for a very specific purpose, when was to offset the

cost of the preexisting condition ban and you'd have the worst of all worlgds if you struck down the mandate and left the preexisting ban in place. that tactical discussion created tremendous difficulties for them in explaining if these two provisions go down that add to insurance company costs, what about all these other provisions about no cap on how much you have to pay out, all these other taxes and burdensome regulations on insurers that were also part of the deal and basically the insurance companies, you know, as many rent seekers in washington do came in and said look, we'd like a law you require all americans to buy our products. who wouldn't like that law? and in exchange you can basically do whatever else you want to us, tax us, preexisting condition ban, that's fine. as long as we get this law it's illegal not to buy my product, we can kind of cut any deal you want. once they take out the requirement that 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 that they agreed went down were in any material way different from all these other provisions that added to the insurance company's cost. and the other point we kept stressing was, look, you've ripped the heart out of the act. the whole point of this act, as i say the -- it's called the patient protection and affordable care act, the patient protection part is the preexisting ban and the affordable part is the individual mandate that makes all of these regulations affordable. if you've done that, the tax on tanning salons and toilet papers and stuff may be able to work but it sure can't work in the way congress intended. i was gratified at the argument that the justices were saying, look, sometimes we'll ask the counter facts hypothetical, what would congress have dean if

they'd known this part of the law was not in play. but this kind of hypothetical when you've take the very guts of of the law is like asking what would happen in europe today if hitler had been killed in 1922? you're not -- you're just guessing, you're making all kind of policy judgments, you're creating this law that nobody would have ever voted for or at least we have no idea if they would have voted for it. so they came away with the notion, i kind of call it baseball arbitration, which is if there's no principal ground between striking down the individual mandate and the whole act, if we can't figure out where in between these those two extremes we're going to decide to do things, then the best course, the one most respectful of congress and the most respectful of law making power is to strike the whole act down and let congress figure it out from here. it doesn't make much sense to create this village of an act that doesn't make any sense. 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. [ laughter ] >> i think they'll be hunting him down with dogs in 2018. so, again, i have to put my patriotism before my party but we'll see what happens. anyway, thanks. anybody else? paul. >> [ [ inaudible ] mike. the catastrophic illness issue, when it came up in the argument, justice kagan asking about that, you go to the emergency room and so forth and there's that free rider issue like you said. is it possible that the court, as matter of law, could split the baby in this regard saying that the mandate is unconstitutional to the extent it exceeds

coverage for catastrophic and use it as a severability or is it an all or nothing proposition? >> i think it has to be all or nothing. they're not going to rewrite the law to do something congress didn't intend to do. let me make it clear. i don't think they can require you to buy cough drops. i don't think i can require you to buy catastrophic health insurance or require you to buy anything. when i was discussing this with justice kennedy, he was saying i understand your point about they'll come back and the next argument will be this is unique and this is unique and he's saying isn't this really unique these healthy 30-year-olds can come into the market and all of a sudden be this big burden on society, doesn't that differentiate them? and among the other point i was making was if we're going to create exceptions, sort of compelling needs, uniquely compelling need arguments where we're going to bend the rules and language of the commerce

clause, surely cog has got to show us they are trying to address the union aspects of this, and then i made the point which i made earlier if congress was worried about healthy 30-year-olds all of a sudden become wards of the state because they were hit by a bus, as opposed to con scripting healthy 30 year-olds and lowering everybody else's premiums, they would have allowed them to do the only only sensible option, for 400, $500 a year, i'll take care of all my medical needs except if i get hit by a bus and then if i do my insurance will cover it and i never will become a ward of the state. since they didn't do that, i think that vividly illustrates from a policy and plausibility perspective, a, that's not what they were trying to get at and, b, if you let them get away with this, katie bar the door because then they will have this power and use it in whatever circumstances they can cobble together some equally

implausible rationale. >> a little off topic but what did you think of the arguments with regards to the fact that the states were being coerced into the medicaid portion? how did that go on the last day? >> in all candor, i was representing the private respondent. while i had an economic interest in the medicaid stuff, it was purely academic. the delem main all of this, as the federal government becomes more and more in what we think of traditional areas of state regulation, mostly health care and the like, the states do become in many ways dependent on the federal government's largeess. there is a case that says, look, you can condition federal monies on the state's doing things. technically, you're not forcing them to do it, you're just

making them and offer they can't refuse, like the godfather. i think paul clement very ably argued for the states, if this isn't conversion, what can be. we're talking about hundreds of thousands of dollars and not participating in this program would create budget problems for the state. i didn't know how to handicap that. i didn't try to. that was paul's argument, not mine. the argument went well and people were asking them a lot of questions. solicitor-general var reallivar seemed very worried about it because he made during that occasion what everybody said was a jury summation speech, men need to be able to pay for wife's breast cancer and people on dialysis machines, as if the issue in front of the court is whether we're going to throw all the sick people out on the streets or adhere to what they were doing.

even the more liberal justices were sort of sitting there with their mouths open, where is this coming from? i don't know if that tells you anything about the medicaid argument but it was a relatively odd moment. >> without asking you to engage in crass legal realism, what are your thoughts on the president setting up the supreme court as a foil both in the state of the union address several years ago as well as his post argument comments? >> look, there's an obvious distinction between the citizens united states of the union and this. they already written citizens united. if you're going to yell at these guys i wouldn't do it while they're writing the opinion. there's always the chance that they might be changing their mind and i don't know -- 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? as if this bill have -- i don't think it will have any effect. if it does, i think it will be negative. we've heard from your solicitor general, we've heard your briefs, we don't need you lecturing us in public. particularly when your lecture was marbury madison was wrongly decided. so -- >> [ inaudible ]. someone in your office graciously guided me to the goldwater institute, which was writing a brief basically on behalf of states that passed health care freedom acts. i want to thank you for your guidance on that and say it

seems to me the tenth amendment is a very important piece of this puzzle because you have to -- like any statutory or contractual construction, you have to read the four corners of the document. if you're asking yourself what are the limits on congress' power under the commerce clause or the necessary and proper clause, the tenth amendment has to go right into that. it's my understanding 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? >> it depends -- in one way saying the tenth amendment won't enter into it is not in any way a criticism of the tenth amendment. the tenth amendment says, as you undoubtedly know, every power got given to the federal government, ie the commerce clause, is reserved to the states and to the people respectively. in my optimistic days i don't think they'll get to the tenth amendment because they'll say this power's never granted to them so we don't need to get to the tenth amendment.

it does come 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 justice scalia emphasized at the argument, it says necessary and proper. even if we thought regulating nonmarket participants in some ways was okay, surely compelling them to transfer their property would be analogous to compelling in this prince case, state government employees to enforce federal law. in prince, they say it, it might be okay, but it's not proper because you've never used it historically and it really does exceed the powers that had gone to the federal government. and the government's response was sort of, oh, that's when you're taking care of states, that's a problem when you're commandeering states. we said, no, no, commandeering citizens is exactly on the same constitutional footing.

the tenth amendment reserves powers to the states and to the people, so that deprivations of individual liberty are just as problematical as interferences with state autonomy. it might come up that way. >> thank you. >> support -- >> to support it? the question is, what would my opinion look like if i was writing something in favor of the law. it would be an extraordinarily short opinion. you know, it's not law, it's not limiting principle. it's not -- i guess it would look not unlike the solicitor general's, gee, people are really sick, we've got to do something, and these damn states can't take care of these sick people, so let's ignore the constitution. usually they're not quite that candid.

there are no legal argument -- if there were, i sure wouldn't be telling you. there are no legal arguments in support of oba obamacare. and that is why it's not a coincidence that congress for 230 years never tried this before. they've had millions of opportunities where all kinds of crisis, height of the new deal, all -- you know, nobody required you to buy war bonds during world war ii, and 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're merely required to salute and say, yes, sir, particularly when it's the federal government which, by definition, had its powers limited and enumerated precisely because they couldn't engage in this sort of tyrannical police power. that really was the odd thing about this whole debate from the

solicitor-general's perspective. he kept saying, look, the way the act is, is a much more efficient way of getting money into the insurance company's 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 a to give his property to citizen b than the system the framers came up with. that simply reflects the fact that the framers didn't want to make wealth transfers between the citizenry easy. they wanted to make it impossible. it doesn't reflect any flaw in our reasoning. it reflects only the fact that the paradigmatic example of the framers trying to deny the federal government was wealth transfers among citizenry and

that's precisely why they didn't give them the police power. so you can use that as my dissenting opinion from the -- from the -- i just wowed you with my eloquence, there's no further questions? with that, thank you very much. enjoy the rest of the day. [ applause ] >> thanks, mike. i have a little something for you. 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 is not here, it is the great firm of mcguire woods, 2001 k street. if people are not coming to the workshop tomorrow, they need to turn their cl e-forms to carter 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 here on behalf of attorneys for ron paul.

david? somewhere? steffan pasantino, on behalf of lawyers with newt. and chris lan de ahhhh, a partner of kirkland, here on behalf of lawyers for romney. the great dick wily, one of three co-chairs of the romney justice advisory panel. dick? lee rodobsky, deputy general council, romney for president. michael more rally, associate general counsel, romney for president. [ applause ] >> with that, i want to thank -- sorry? >> anybody mentioned --

[ inaudible ]. >> there you go. you just did. tune in on fox this weekend on the voter id issues. with that, i want to thank everyone for coming. i want to thank our sponsors and the gentleman who lent me his iphone charger. we'll see you out in the lawyers for romney reception. thanks again. five states hold primaries today. connecticut, delaware, new york, pennsylvania and rhode island. we're expecting to hear from newt grinniingrich and romney tt live on facebook and c-span.org and how important is the vice-presidential pick. join the conversation on facebook.com/c-span. >> charles colson, special counsel to president nixon who pled guilty and went to prison for his role in the watergate cover-up and later became an

evangelical preacher died. >> the president had the right, although the abused it to come into the oval office or eop office without having somebody announce him. kissinger could just walk in when he wanted to. nixon told him that because of the severity of the foreign policy issues to feel freedom in and interrupt anything. well, henry would do it for trivial things. one day, nixon was ticked off at henry for a variety of things. we were in the executive office building, the far door swung open. i looked at rose henry, caught a glance at him. nixon did not appear to look but i knew he knew it was henry. he said, i think you're right, chuck, i think it's time we used nuclear weapons and everything else has failed. kissinger stood in the doorway

absolutely paralyzed. that's on a tape somewhere, somebody will hear this on tape and say, my lord, nixon really was a madman. colson really did bring out the dark side of nixon. the it was pure humor and nixon loved it. >> read about his time in watergate and book on prison reform online and it's available on your computer any time. tomorrow morning here on c-span3, homeland security secretary janet napolitano testifies on the oversight of the department's operations. it gets under way at 930 a.m. eastern live here on c-span3. tomorrow, the supreme court considers whether arizona has the authority to enforce the state immigration law enacted in 2010, or if the federal

government has exclusive authority when it comes to immigration. you can hear that oral argument on our companion network, c-span, friday at 8:00 p.m. eastern. north korea testified about a long range -- tested a long range missile earlier this month and it broke apart in the ocean within minutes of the launch. the,000 committee held a hearing on it last week and several analysts told the panel they expect a nuclear test in the aftermath of the rocket failure. welcome to my fellow members of the committee and our distinguished witnesses joining us today. after recognizing myself and my

ranking member my good friend from california, mr. berman for seven minutes each of our opening statements i will recognize the subcommittee chairman on asia for three minutes followed by one minute statements from each committee members who wish to speak. we will then hear from our witnesses and i would ask you summarize your prepared statements to five minutes each before we move to the questions and answers with members under the five minute rule. without objection, the prepared statements of all of our witnesses will be made a part of the record and members may have five legislative days in which to insert statements and questions for the record, subject to the length limitations in the rules. the chair now recognizes herself for seven minutes. today, we will examine the tumultuous events that have again consumed the korean peninsula. in a sense, negotiating with north korea is similar to the endless reputation presentedn