was passing out this chart. the dark blue is market share, the two biggest companies, that is 80%-100% in my home state. do we have to private companies -- two private companies and one that is consulate, a combination of our medicaid recipients? it is just from the medicaid population. we have three. they have between 80% and 100% of the market. some a 9% of the market is from kentucky and arizona. . .

>> if this was the marketplace of large insurers, this would be a bigger program. this is very close. i agree with sen. whitehouse. >> sen. ensign? >> i have to talk about the -- enzi. >> i have to talk about the example, the reason that this change to a completely private

market, this was so bankrupt that first this had to have money in this. this did not control the price of doctors, this did not even control which doctors you could see, and the doctors were very upset that people could see doctors out of state. we are talking about making certain that there are providers, and the largest companies -- what this says is that we need more competition, won government plan does not provide this competition. i hope that people are looking at the other suggestions that are being given out to increase competition across the united states. that is what we did with medicare -- there were two providers in wyoming. they had everything that people were giving them, but once there was this opportunity for more

business, which is what we are providing with health care reform, there are more providers. there were 49 providers and the cost came down 37%. competition is working if you consider -- if you are concerned about two plans for the market. we need to have a much greater health plan. this is the problem that we have, we're trying to save the biggest companies when the smallest companies are providing the difference. we cannot do this with a government plan, these will come in and we will not know the difference. >> let's talk about big government. the government run health care. i do not want to surprise everyone here, but the veterans

administration is a socialized health-care system. socialized medicine, this is not public insurance. >> this would not be my description. >> they have their problems, but we go home and we talk to the veterans, they feel pretty good and the staff is usually dedicated to them, they are not out raising money and charging money, at least in the state of vermont, people want more of this and not less of this. that is socialized medicine. does anybody want to bring up an amendment to stop this? in the united states we have a single payer system. if anyone is wanting to go out to compare the attitude of the people of the country to medicare, that does not throw

people off for pre-existing conditions or off of the program because you are sick, contrast this against how people feel about private health insurance. i predict that those of us who want to improve medicare, rather than provide -- support private health insurance will do this. i know this is surprising, but the function of what we are trying to do here is provide the best quality health care in the most cost-effective way. in 2007, 64% of the people responded say it -- say that is the responsibility of the federal government to make certain that all americans have health care coverage. 65% in a yahoo! poll said the

united states should have a universal health insurance program, and this is run by the government and financed by the taxpayers. in every gathering in the united states of america, most people think the government should provide health care to people, except in the united states said. this may be the only place where they think the private insurance companies should dominate. i want to get in the details of this. it does not make a lot of sense to defend how wonderful the private insurance companies are. that is not what i here in vermont and all over america. we should improve public health, but i would say that the job we have is not to provide -- is not to support insurance.

>> that was an elegant defense of a single player actions -- i will give you credit. you made that position clear on a number of occasions. will you be voting for this bill? >> i will be voting to get the bill, based on the amendment coming forward. i will be voting on this to get this out of committee. how high will vote on the floor, i am not certain of that decision. >> just to finish, it makes no sense to me, that we would pattern a government run plan, off of medicare, when we admit that medicare is a broken system, this is quickly moving to insolvency, and i welcome any

of you to come up to a state like alaska, where medicare is the death knell. people learn that they have to go on medicare. one amendment i will introduce this afternoon was requested by my constituents, that had paid into the medicare system. they turn 65 and they cannot find a provider and they say, there has to be another way to pay for the care out here, that do not have to go on medicare. they said that they will take care of you, when you turn 65.

they say that they will have a government run plan patterned after the system that is failing, that is clearly broken, that is what does not make sense to me. i would ask for a roll-call vote. >> we had a good discussion of this, i would just say that, since i am in a dark blue state on this chart, where all the health insurance is covered by two companies, i think that this amendment is going to lock in a system with a higher reimbursement, will continue to get the higher reimbursement, and the lower rating will continue to get lower rates.

what we wanted to do was shift reimbursement, so we to base this on quality rather than quantity. if you're going to base this on the reimbursement, this takes us away from the quality outcome. and we can focus this based on the quality, this is also moving us away from even now the disparity in the country, the states with a higher reimbursement rate, that is why it seems like is logging this in place. the clerk will call the roll. >> harkin? >> no. >> no by proxy.

>> reed? >> no. >> sander? >> no. >> sen enzi? >> aye. >> byrd? >> aye by proxy. >> hatch? >> aye by proxy. >> sen. roberts? >> 10 ayes, 13 nays. >> this is not agreed to. you have sen. whitehouse? >> i have proposed some language on this amendment and we may be able to come back and propose a

resolution meeting her needs. on what we have just voted on. we will continue to work on this to accommodate her concerns. some of this is very inappropriate and i think that we could find a way through this. >> i understood that all of the amendments had not been filed as of last week. >> i assumed it -- >> you should have worked on the modification of this. >> we will work on this and we will work something out. >> i think that sen. rakowski -- casting -- mukowski and roberts would work on this. sen. reed has abn ammendment.

-- amendment. >> i have five overall. one of them is a grant program, and the other is the information to obtain -- i can have the first one, i can simply wait for my term and i can do that. >> if there is no ejection -- >> this is 200? >> as the amendment is passed out, let me briefly describe this. this would authorize $50 million in grants for a coordinated

service through the location of primary behavioral health settings. -- health centers. this would be used for laboratory services and screenings, and the reality is that the individuals with serious mental illness, will die 25 years before their fellow americans. this is a provision for legislation that was introduced separately by senator murkowski, and this has been supported by a wide portion of the mental health -- the american association of psychotherapy, the health council, and this would be a very small program

and this would allow for us to have primary care in mental health facilities. >> mr. chairman? >> i agree with a concept, but this issue -- we tried to pass this a number of times. the people will want to take away one piece of this, but they need to reauthorize everything. this is a disservice to the people living with substance abuse disorder. if you would like, let's bring the draft from 2007 and vote on including this, were meant europe -- the amendment to do this. i'd vote for this as is, but at

some point we have to address this and there are difficulties which is why we never made it through the process. i am against taking up the pieces of this. >> i have no objection to the comments about this, but this was not an attempt to cherry pick the mental health reauthorization bill. we want to demonstrate the effectiveness of having the location of the primary health services -- this may provide the opportunity to do this, we certainly provide inside when we finally get the reorganization. i am not trying to cherry pick

legislation. forestalled the mental health support. >> how many authorization programs are there in the bill? >> there are very few in title 1, i would rely on the other staff members, if they have an accounting on the other. >> there were 54 new programs of the rise? is that the number to use? >> do we know the total amount of authorized programs, that those 54 programs amount to? >> i do not know this. >> would this be billions? >> some of them have a specific amount and some did not have an authorized amount.

>> none of them score because they are of the rise. >> when they tell us that this cost $610 billion and does not account for the medicaid expansion, which may be another 500 or $600 billion -- the cost of this is over one trillion dollars and there is no number for the 54 and the new initiative programs because they cannot get a score. >> this does not score of us in the mandatory scoring. >> the answer is -- if this was funded and one presumes there would be funded, otherwise why would they be put in? if they will not be funded than it makes no sense to put them

in. this is an area where we do not know how much cost will be generated until the funding. >> those decisions are in the hands of the appropriations committee. >> we know that most people do not of the rise of program unless they expect to get appropriation. i would say that this is a flat of concern, on a very expensive bill, that there are costs the have not been accounted for yet. >> i might ask the author, what you are trying to do is promote the co location in primary health care, of mental health,

and physical health. and this is the right way to go. so many times in my discussions with the medical community, so many people that have mental health problems, that have a physical illness, these have their genesis in mental health problems. if you do not have the people to understand this, to work with people -- you can treat the physical problems without getting to be cause. i think about integrated medicine, i think part of that is to bring these things together, so that in primary

care, you have the same focus on mental health care problems that you do on physical problems. and that is the thrust of the amendment. i would move past this, but not need to have a recorded vote. >> i would like a recorded vote. >> the roll call vote has been requested, the clerk will call the roll. [reading roll] >> aye by proxy. >> murray? >> aye by proxy. >> sanders? >> aye by proxy. >> hagan? >> aye.

>> merkley? >> aye. >> whitehouse? >> aye. >> enzi? >> no. byr>> byrd? >> no by proxy. >> sen. murkowski? >> no by proxy. >> roberts? >> no by proxy. >> chairman kennedy? >> aye by proxy. >> the vote is 14 ayes, 9 nays. >> reed 200 is adopted. he has to relieve sen. dodd, and

he will assume the position. are there any other amendments? sen. enzi? >> i would call up 204. >> enzi 204. hatch >> the purpose is to allow individuals eligible for medicaid to enroll in a qualified health plan. expanding the program to 150% of the poverty -- this will bankrupt the states. if we want to expand health-care coverage, medicare is a bad place to start. according to the washington journal, medicaid beneficiaries

have more poor health and their friends with private insurance, many of them cannot find doctors and cannot get the care that they need. 51% of the family physicians participate, in michigan this is 64%, this is in 2005. i cannot believe that this forces them to stay in a dysfunctional system without allowing them to opt in the health care plan provided by the exchange. my amendment will allow them a choice to enroll in medicaid or unqualified health plan. page 50, says that the choice for individuals eligible for the children's health insurance program -- under title 21, may

enroll in a qualified health plan. my amendment inserts the word, medicaid, with the medicare program under the social security act. this is simple in nature but will have a profound effect in every state. we're just amending the text of the bill, in the argument would be that we cannot afford this, and that this will drive up costs. i do not believe that it will. in wyoming this works through private insurance, and this is less expensive than most of the state's running a distant government insurance. i think we would see something similar, with this. and this eliminates the stigma.

this also allows the combination of the plans -- so the number of children in the program getting insurance could include the parent's for the same cost. why not? this is one in this may come down. i would ask for your support. >> i think that he was -- he was right in suggesting that the main objection would be the cost. i would say that the more people that we put into the subsidy regime, we are providing for in the bill, taking out of medicaid -- the higher the cost of the legislation. let me ask if my understanding

of that is correct. is that what they have testified to? >> i believe they discussed this in the session, and other conversations have said that this would be a significant cost. >> and the decision about what level of income, medicaid would cover, when it comes to adults, this is something that will be a subject of substantial debate and discussion, in the finance committee. for us to say in this legislation, to say that regardless of the level of subsidy and the income -- anyone covered by medicaid could go into the gateway and obtain subsidies. this will add to the cost -- and

i will have to oppose the amendment. >> can i ask -- the staff a question? i believe that he has correctly stated what the analysis was, but wasn't -- the logic behind this analysis was that medicaid is not paying enough and therefore, when you move some money off to the exchange, and you end up with a reimbursement that will be higher because this will be more accurate to the cost of the service if they underpay the service, if this is what changes the story. >> did take into account that the medicare payment rates are less than those typically applicable under these plans.

>> the reason that you get a better story is because the cost is cheaper, because the private markets -- they are reimbursing and a higher rate -- as medicare is reimbursing at less than the market value of this service, and that is what some many doctors do not anticipate. >> they take into account that these numbers are higher. >> if we accept the logic -- and these will be more aggressive, in getting people to be rewarded for healthy lifestyles and preventative and mission test, the logic of the bill is that a person going to the exchange, will get a policy that will bend the cost curve. this policy will be more

competitive, the person will be obtaining health care, in a more preventive way. >> if i am understanding your question, legislation tries to build in methods that will improve the quality of coverage. i imagine that the finance committee will try to incorporate -- and corporate a similar measure as well. >> wouldn't we want people to have the ability to choose medicaid, or the exchange, if we think the policies will encourage them to live a healthier lifestyle, with more preventive care? >> this is a value judgment. what i would say, technically, is that there is a very great

difference between the range of services provided for those at the lower income, the actual value is far higher, for them to take into account. >> why shouldn't we have this option? >> this is a value judgment. >> we know that medicaid is a cost shifting exercise because of under funds the reimbursement rates, it is shifting the cost of the care to the people who pay for the full cost. the doctors have to get full reimbursements from the private clients, they know they will not get this from the medicare companies. there are a lot of studies that say this. >> how you characterize medicaid depends on your perspective.

some say that this is a cost shifting mechanism, some say this is a safety net. again -- it is accurate to say the reimbursement rates are lower. >> this is inappropriate safety net for people with a certain income, but the odds are good that a doctor who participates -- is not the inning -- being reimbursed at a rate that is competitive to what the service costs the doctor on private insurance. it just seems logical that he would want to give people a choice between medicaid -- or the exchange. this seems reasonable to me. >> one purpose of this exercise -- is to try to cover americans

with no health insurance. in medicaid, you are covered. i also think about the people with disabilities, who qualify for title 19, and there are provisions in medicaid that provide certain supportive services for people with disabilities, and the private insurance companies probably would not do this. i understand that the senator from new hampshire -- he is wanting people to have a choice. the insurance companies would go after the health insurance people -- they would send them nice little fliers to say that you can come into this company, into this private insurance because you have no pre- existing conditions and you have

no disabilities. and then you leave everybody else -- with the most severe illness and disability, in title 19. what we are trying to do is cover people with no insurance coverage. we are covering that. we're talking about covering the breed that -- -- -- pre-existing conditions. that is why he mentioned this so much. he said this would happen in either bill. this is going to disappear if this provision is going to work. there will not be the discrimination against these areas. >> it is someone in medicaid has the option and someone knows

that -- there is nothing to prevent them from going to the healthiest people and telling them to join the plan, you are the healthiest, and they can give them all these little deals to get them out of medicaid. this is cherry picking. how do you prevent this. >> you can have a risk adjustment where they have to pay into the pool to compensate the people who did not do this, for the other people. >> can i have a brief comment? i appreciate his risk adjustments -- and the support of this, but i have watched for 10 years, the attempt on this on medicare advantage, medicare

plus choice, whatever this was called, we could never keep up with the insurance industry finding ways around the system. their job is to make money for their shareholders, and to be a profitable company. they are good at doing this because they have people finding ways to make the system work for them. it is up to us to write the rules, and i objected to overpaying for this -- this was 95%, as you remember, of what the fee for medicare services paid, and this increased every year to the time when this was 10 or 12%. you just cannot do the risk

adjustment like this so we are making a genuine effort, as the insurance rules -- the insurance company is accepting this with the community rating, on the pre-existing conditions. the rules work mostly, to enforce the rules more honestly. you have this and the competition working that way, and both of these will need to be loved that. i oppose this amendment. >> just a technical question, a technical question -- this would not apply to meditate, so in the circumstances he was describing were the individuals had a choice, and they were able to attract the people who were more healthy, even if this was working perfectly, this would

not apply to the medicare program. >> in other words, the people on the mat -- under medicaid would still be covered. >> they would still be covered, but speaking to his point about whether there would be a compensation mechanism if there was a selection. the answer would be that there would be nine. >> under the bill, we have a requirement for the guaranteed issue so the private plans have to take a healthy and the sec, are we not going to apply that to some of these? that way they have a choice and have to be taken, it is not the insurance companies making the choice, this is the individuals. >> i say that the insurance companies will have phones and mailing and things like that, they will not go after six

people. >> is there any other discussion? >> essentially what has been said here, once you are in the medicaid plan, you do not get any choices. you have to stay there. but the bill says that in the private plan. there is some irony here. you're saying to people with medicaid, you have to stay with the government plan, even if there is a private plan that may do a better job. it meets the test of reimbursement. this is slightly inconsistent to take this position. >> i do not know the percentage -- but we think of medicaid as people getting to medicaid and

they are there forever. many of them are people who are working and they lose their job and they go on medicaid, -- they get new employment and they go off of medicaid. people do this all the time. >> if you qualify for medicaid, you are on medicaid. you do not have the choice to get off of this. you have the choice to disqualify yourself. as long as you are qualified recipient, you will not be given a choice to move to the exchange where you may be able to get a better policy. >> is there any further discussion. if not, we will vote on enzi 204. >> dodd?

>> no. >> harkin? >> no. >> sen. murray? >> no by proxy. >> sanders? >> no. >> casey? >> no by proxy. >> hagan? >> no. >> merkley? >> no. >> whitehouse? >> no by proxy. >> alexander? >> aye. mccain? >> aye by proxy. >> hatch? >> aye by proxy. roberts? >> aye. >> chairman kennedy? >> no by proxy. >> 10 ayes, 14 nays. enzi 204 is not agreed to.

sen. merkley? >> i would call up casey 200 and i would like to be added as a co-sponsor of the amendment. >> this is number 200? i just saw him. >> name the amendment. >> this sets up a commission of

health experts to provide recommendations to the health and human services secretary, with the services that should be provided in the benefits package. it would be very helpful for the secretary to have a commission of nonpartisan experts, to have inside on the elements of this package. second, that having an open and public process would give citizens and interest groups a chance to weigh in and make certain that every prospective is considered, until the secretary reaches their conclusions. this requires that the secretary assess whether the benefits package needs to be modified or

updated to account for the changes in medical evidence and report to congress on this, and to talk about this long after the commission has been expanded. this has been endorsed and supported, with about 70 organizations that i can make available. there is a long list of groups that believe that there should be a commission of health experts to provide advice to discuss the items that should be included. >> may i ask the senator a question? how long will this commission take to do this. is there a time limit? >> there is a time limit and i want to say that this is one year, but i want to make certain

that this is correct. >> with this contributes to -- first of all, we want to have an excellent benefit package. we agree on the public policy. but the commission will take one year, when there is a consensus, about what the benefits package should be. with this delay the implementation when people are asking for access as soon as possible? >> you are asking an excellent question. i understand that all of these groups understand that this would have been on a timely basis, to support the secretary in their decisions, so their work will be tied to the schedule of the secretary.

i am trying to find the exact length of the commission. if anyone else is wanting -- there would be -- they would be in existence for one year, as required by the secretary. >> mr. chairman? >> i do not understand this commission. i thought that we were scoring things that were put in at the moment and now we say that we will have a federal health board of unelected people and we do not know who they will be, they will be able to suggest additional benefits, they will be able to suggest what is

essential, we will have to do this even if this is beyond the scope of the bill. this is atom -- an enlargement of what we are doing, and i know that in the earlier discussion, some of this may have come from finance. he mentioned that is contained this -- there was not a conviction in this. the only thing that i can determine is that this is probably not necessary. maybe they are supposed to displace the secretary of health and human services, but by deleting the commission, this is preventing us from doing anything in the way of amending the commission, and i hope that

this was not the intention for how this was done. if this was part of the original bill, we could have suggested this for limiting the commission activities, whatever people thought was necessary. but now we need a vote on a new federal commission, of unelected people do get to make the treatments, and those should be made by the doctors and families. and this could provide for a huge expansion of what we are doing and huge costs, and i think that this is the wrong way to go about this. >> mr. chairman? let me ask sen. merkley. just to clarify my own understanding.

this is the establishment of a commission to make recommendations. at the beginning of the process, there were recommendations about what should be in the benefits package, is this accurate? >> you have said this very well. what we have under the current bill is a close process in which the secretary is making a decision, and the secretary will be lobbied for many directions, but this is the thought of many participants, in health care -- is more important to have a transparent process, where people can express their recommendations, the commission has no commit -- no decision making authority. we pass the insides on to the secretary. >> let me clarify, one of the

things that we have in the bill, and maybe he could respond, this is a requirement that the package of benefits provided by the secretary should not exceed a certain limit. we also have in the amendment, we have a requirement that the commission -- not only the expansion of the benefits, the addition and expansion of benefits and the reduction of the benefits would reach the actual implementations. there is actually a limit on the benefit package that has to be followed, am i correct in understanding this.

>> i am a-2 -- in 1-2 ana-2 and, there is the certification that this would be met. nothing in the amendment by merkley would affect this, this is an advisory council. >> the limit of the size of the benefit package, this is tied to the benefits provided by the typical employers, the typical employer sponsored plan. i support the amendment, and i think that is useful to have the benefit of this device, i think it is very clear from the amendment that this is all that this is, to make the decisions

about what is in the benefits package. the general language that we have in the bill, appropriately is general and does not get into details. the secretary will have to get into more detail, and it is important to have this advice before taking on the job of defining what is intended. >> i am inclined to support this, i wonder if he would be open to an amendment on the amendment. on page 3 at the bottom, there are the qualifications, that this will be composed of 70 members, and the membership of the commission shall include

individuals with recognition for clinical medicine, primary preventative health care, and benefit the design. i would like to suggest that we add after the preventative health care, the words integrative medicine. >> you have to ask for this. >> i would be very amenable to this. >> you can ask for this to be selected. >> he can modify the amendment if he chooses. >> i choose to modify the amendment in the matter that has been suggested. >> i want to follow up -- we appoint a commission, and they

can provide information to the secretary, and then the secretary begins the process of regulation that she will have to do, or we will open this up to the public, haven't we delayed the effect one year by doing this? i am also concerned about the doctors and the other professions, that will be on the commission. this will be the effectiveness of the benefits covered. this seems like rationing and as always concerns may. i recognize that this will have to go through the secretary, but will we delay this by one year? >> if i can respond to this, i will direct you to the guidance on page two, the commission will

hold public hearings, no less than 10 times and take the -- take this as the commission feels advisable. the last thing they would want to do is have a protracted time line. the modest amount of public input, with three public meetings, can be taken under a time line in close coordination with the secretary. we have to get this to the desk to make useful. >> a further question? first of all, i like the idea of opening transparency, but i do not like the [unintelligible] you have spoken about peolpe in oregon waiting for coverage.

they think that by the time he gets to the state of the union, we will be ready to go. i am concerned about this, and that the membership is appointed by the controlling general. what does the comptroller general no about appointing people to the commission to define the era -- their health benefits. this has a completely different function in our society. >> let me address the time line, i agree with you that there should be no delay for this kind of input. they will have to seek a device that can occur in any nonpublic forum, or can occur in a public forum, it is only fair to the public that we have, with a public opportunity. those meetings may be held in

the course of a two weeks period on whenever time line is available, to pass this on to the secretary. in regard to your question about the individual who was appointing the members, i would be happy to take a break from the amendment, to bring the question back to you. >> we agree with the policy of the discussion, i would order you to limit the time, in terms of making certain of the proper functioning. the second thing is the appropriate person to. -- to appoint. >> this is a good point because

the g.a.o. would be appointing the board. they have a two year backlog on the courts. as far as holding three quick hearings, my experience is that if you give them oen year, it w ill -- one year, it will take them a year and a half. the funding will be gone hand -- transparency is great but this will take time. >> i want to talk about sen. roberts. this will take about five minutes and this will be in effect after the passage of the bill and this will be done concurrently, we will have to wait until this is implemented,

and then another year after this. this is done right away. there will be no delay in implementing the bill. i think that this would run concurrently. i have to recognize sen. roberts and en. hagan. >> -- sen. hagan. >> it is on this amendment, i have a short statement, we can deal with this in an expeditious fashion. it seems to me that this amendment is adding back in the federal health board that was taken out, prior to the mark-up. this is like med pac. i am concerned that the provision was taking out, that

we had some amendments that we would like to offer on this, and now we are trying to basically add this back in. . .

[captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2009] i don't know if we have an estimate but we will have one very soon, in the context of what we have been expecting, and we're going to be holding down costs, and this will be used to pay for the bill -- and there will be a need for a rise in revenue as well, and the ways and means committee is providing this because this is in our jurisdiction. >> it seems that you must have some idea about this, since you are showing this to the public can you give us some idea about this? >> i would not want to speculate

on the amount because the official score is what we abide by, and we should get that very soon. >> they say the only proposed legislation -- what you see is the role of the president in helping to get the votes in the house and helping to pull the senate to your vision in the house >> my colleagues would like to address this. >> his leadership is essential to the success of this legislation. people were calling out for this and he has called on the congress to improve health care and give better choices and to improve the quality of life of the american people.

lowering the cost is essential. health-care reform is entitlement reform. a great deal of the fiscal health, is dependent on the bill being paid for, with prevention and wellness initiatives, to take down the cost of health care, reducing the entitlements and lowering the national deficits. the president in his statement of about what this means for the health of the american people and to the economy, this is about the economy as well. his leadership will be essential as we go forward, and this will continue to bring us together. we have three people working in harmony and we know that this will continue as we move to conference with the senate and

his role will be essential in this, if this is speaking to the audience or the american people about this or the congress in general or the individual members or the aspirations of the american people to put this problem behind them as they go forward. >> i have my answer, what is your question. >> my question relates to the notion that this should be held in the reserve until the recession -- recession is over to reduce the deficits, and to change the way hospitals are paid, dealing with a patient, -- >> we mentioned that the changes in this proposal includes

something on small businesses, to give more small businesses an exemption, and we do that by 250,000 or below, below this we will have a sliding scale. the original draft had about a $100,000 a barrel. the second big change relates to pharmaceuticals. there are ideas about how to hold down the costs from the pharmaceutical science -- we have a requirement that the windfall that they received from categorizing people who were in medicaid and medicare, as medicare instead of medicaid, and losing the rebate that we use to get, this would be reinstated and the money will

help to close the hole that the seniors are facing, and the last major issue is about the changes, this is important to your question. i am not completely ignoring what you have passed. we have changes in this proposal that will hold down the cost of health care, with private projects of accountable organizations that will organize the delivery of care to reduce the individual costs for services, some people say this gives the incentive for more service and more fees, and we will have a greater combination on how to manage the delivery of care, and we will continue to work on other ways to hold down costs. but we cannot hold down the cost efficiently, to do all that we

want to do. we're going to look to increasing the revenue, to pay for this major reform. this is targeted at making certain that health care is affordable, because providing the opportunity to finally get a health insurance policy when they have been discriminated against because of a pre- existing condition or excluded because that night, the person who may cost them more money for the treatment, they would exclude them for coverage. we cannot have insurance reform without making health insurance affordable by helping people to buy their coverage, and this will require the expenditures, not only through cuts in the system, but by bringing in

greater revenue. i know that the chairman was talking about the revenue side, we will talk about this today, and given the speculation of the range, i think that most people expect that the great interest will be an amount that will be filled in later. and this will fill the estimates. >> almost. >> i will go to charlie rangel. >> the congressional budget office is not our friend when answering a question like that, because they do not report the savings that people would be feeling -- trying to get health care paying off bills. but it is -- this is safe to say

as a guideline, when these people can come together at the white house and say that this bill will save the american people two of trillion dollars, those are real dollars even though they cannot be scored by the congressional budget office. i am satisfied that we're saving on the investment that we're making now. >> thank you very much. >> roy blunt responded to the democrats' health care proposal. he is the point person on the issue. this is 15 minutes.

>> i would like a quick introduction -- we're have -- to say we're happy to be here is an ostrich. we have a thousand page bill, that we will begin marking up this week. they have said, would you like to hear, there will be competition and choice, and there'll be a number of changes that will be able to see when we have the draft. this is a bill that will kill jobs, and limit the access to health care, will raise taxes and will lead to a government takeover. if this is such a good thing, and we suddenly have a marked up -- one amendment i have to offer

is that every elected official will have to take the option. this should be good enough for the members of congress and the president and vice president. we may add that to the bill. we have to treat ranking members, who were on a moving schedule about whether there will be a bill to mark up. they will talk about what will happen in their committee, but for our side, having the leadership of the wihip, mr. cantor, we will not be forced into voting on a bill we have not had a chance to look get. >> we are in an unprecedented economic times and every community across the country,

most families are concerned about their jobs and what we can see is a political move by the administration and the majority, attempting to deliver on a political mission to overhaul the health care and letting us lurch into a government controlled environment. every man and woman and child in this country is impacted in health care reform, and as we are seeing a loss of jobs, there is no need to rush into a passage of legislation by the end of the month, at the cost of millions of jobs. we are ready to work with the other side, we are very hopeful that we can be constructive in the discussion on health care reform, so that we are given an opportunity to talk with the

constituents and the doctors and health care providers, to make certain that we are doing the right thing that is affecting so many americans. i would like to present the ranking member of the energy and commerce committee. >> theoretically i am is supposed to be in a briefing with the energy and commerce members right now. obviously that briefing is not occurring, because this morning my staff was informed that they did not have a bill that they can score so there was no reason for the briefing. the democrats have released a bill on the web site -- this is out there, this will not be the bill that they tried to mark up, they do not have the votes

for this. they will continue to negotiate as we sporadically move forward with the process, and i think the reason they do not have the votes is because this bill kills health care as we know it today in america. there are all kinds of mandates, and they'd eliminate position own hospitals, which have been -- these have been chosen by the marketplace as one of the most of efficient and in quality ways to get health care. my plan is to ask for time to digest the bill, to have time to create a bipartisan amendment. i was impressed with the letter that was sent last week to the democratic leadership, and there

are a number of discussions across party lines with a number of members to see if there is bipartisan amendments -- there can be a bipartisan amendment. health care is too important to rush this through, and the democrats learned a few weeks ago when the brought through the climate change bill, that there is immediate remorse by many members of their side who were forced to vote for this. some of those members do not want to turn around and vote for it socialization into the private marketplace. the good news is that the latest version of the bill is out, and

the bad news is that this is bad medicine, and hopefully this has a very short shelf life and will not last much longer. this bill has massive spending and a massive increase in taxes, the most difficult is a tax that will fall -- on small businesses. two out of three manufacturers may pay higher taxes on the bill. these will be passed along to each individual this violates a pledge that people under $250,000 will not pay higher taxes. as many as 500 million may lose their jobs. with the national unemployment rate is moving to 10%, michigan

has 14% unemployment. the idea that you spend more money for health care is an idea that we need to reverse. we want to get the cost out of health care. we have a proposal that would do that, you never hear them talk about the lawsuits and the cost that this involves. there is a way to reduce the cost of health care by addressing this issue. why not have small business owners and individuals have the same tax incentives, the same benefits so that they can get together to create insurance and lower costs. and we should do something about the waste in medicare, this is billions of dollars. the taxes are onerous during a

recession and they will cost millions of jobs. i have laid this out and this is the approach that we should take. as the day is moving ahead we will be pushing these ideas on the committee and on the floor. thank you. >> failed you. i am the senior ranking republican and we have had a full plate, not the least of it is the health care bill. like the others i have been waiting for this since friday, this was going to come out monday so we could mark this up -- and i have agreed at the education and labor committee we will have the opening statements tomorrow. the reason is because we need

the time on thursday, to really be able to offer the amendments, discuss this and be able to introduce the ideas that we have because it has been stated that our ideas are not included. there was no blank piece of paper where republicans and democrat -- democrats could work together, the speaker said that she was the winner and she would write this. we are going to do our very best to get the idea is that we have on the table. there are so many things in these pages, we had a hearing, on the 852 page discussion -- and this has grown by 200 pages that we are trying to understand what is in this. this will create new federal

bureaucracy, and health choices administration. you have a very powerful commissioner, this is an entity that will have the government making the rules, playing the game and being the referee. this is not a level playing field or what the american people want. i am concerned about the important mandate, we will get this under the jurisdiction. we are very concerned that we will be pushing out over 100 million americans from the insurance that they have, pushing them into a government program. we have a lot of work to do, and i think the american people deserve more time, they deserve

a better product. we have a lot of doctors in congress, and many of them in the republican conference and they have been working on this for a long time and one of them is my friend and classmate from the state of texas. >> i spent the last year talking to health care providers and they are very concerned about what they see congress doing. he mentioned competition and choice. the competition is from a providers perspective, the competition is very thin and the choice is nonexistent. you will have to except the new government auction. the payment rate will be higher for the first three years, then you fall off of a cliff. this will be created -- and no

provider out there is trust in this congress or this government to do anything in people's best interest. it is important to follow the debate and we need to hear from you. thank you. >> questions? >> can you talk about how you see this? >> i want him to follow this -- we have the tax on small business. over 50% of the people who paid as part owners or investors in small business. the other is cuts in medicare and medicaid and neither of will be held in the american people. but the tax on small business will kill jobs, as will any mandate on business that cannot

offer insurance and will be forced off of that as a prerequisite to keep the door open. the only way to pay for this is to cut back growth. >> as the costs go up it is difficult to provide jobs, this doubles the tax in 2013 automatically. the race that we see right now will be doubled. it will be more difficult for small business to recover, and if you use the economic analysis which we have done, that is where 5 million jobs will be lost because of the costs. >> i was wondering when we could see the legislation -- >> the question about how to pay

for this gets it wrong. we want to get the costs out of health care, and what they are doing is asking how to spend more money, and then find a way to pay for this. we have a number of ideas to offer, we are going to try to amend the vehicle that is being taken through the process and not giving the american people to vote on this. what you will see as -- the only way that we can do this is have an amendment to the bill on thursday. >> thank you.

>> next, part of yesterday's confirmation hearing for supreme court nominee sonia sotomayor, then "washington journal" and coverage of the sonia sotomayor confirmation hearing. you are watching c-span. >> this morning, we will talk with theo francis about federal bailouts, then a supporter of the sotomayor nomination, wade henderson. and sen. charles grassley will talk about the confirmation hearing. this begins at 7:00am eastern on c-span.

>> this is funded by taxpayer dollars. >> consumer funded? >> viewer funded? >> private contributions? >> 40 years ago, cable companies created c-span as a public service. no government mandate, no government money. >> now, part of the hearing for sonia sotomayor. she is questioned by russ feingold, john kyle, and lindsey graham. nd telling you how much i'm enjoying listening to you, both your manner and your obvious tremendous knowledge and yu understanding of the law. in fact, i'm enjoying it so much that i hope when you go into

these deliberations about cameras in the courtroom, that you consider the possibility that i and other americans would like the opportunity to observe your skills for many years to come in the comfort of our family rooms and living rooms. i think -- >> you were a very good lawyer, weren't you, senator? >> but i'm not going to ask you about that one now. let me get into a topic that i discussed at length with two most recent supreme court nominees. chief justice roberts and justice alito. that's the issue of executive power. in 2003, you spoke at a law school class about some of the legal issues that have arisen since 9/11. you started your remarks with a moving description of how americans stood together in the days after those horrific events and how people from small midwestern towns and people from new york city found their common threads as americans, you said. as you said in that speech, while it's hard to imagine that something positive could ever result from such a tragedy, that there was a sense in those early

days of coming together as one community, that we would all help each other get through this and it was, of course, something that none of us had ever experienced before and something i have often discussed as well, but i have to also say in the weeks and months that followed, i was gravely disappointed that the events of that awful day, the events that had brought us so close together as one nation, were sometimes used, judge, to justify policies that departed so far from what america stands for. i'm going to ask you some questions that i asked now chief justice roberts at his hearing. did that day, 9/11, change your view of the importance of individual rights and civil liberties and how they can be protected? >> september 11th was a horrific tragedy. for all of the victims of that tragedy and for the nation.

i was in new york, my home is very close to the world trade center. i spent days not being able to drive a car into my neighborhood because my neighborhood was used as a staging area for emergency trucks. the issue of the country's safety and the consequences of that great tragedy are the subject of continuing discussion among not just senators, but the whole nation. in the end, the constitution by its terms protects certain individual rights. that protection is often back specific.

many of its terms are broad. what's an unusual search and seizure, what are other questions that are fact-specific. but in answer to your specific question, did it change my view of the constitution, no, sir. the constitution is a timeless document. it was intended to guide us through decades, generation after generation, to everything that would develop in our country. it has protected us as a nation. it has inspired our survival. that doesn't change. >> i appreciate that answer, judge. are there any elements of the government's response to september 11th that you think maybe 50 or 60 years from now, we as a nation will look back on with some regret? >> i'm a historian by undergraduate training. i also love history books. it's amazing how difficult it is

to make judgmentspi92 >> history allows us to look back and look at the consequences, and then make judgments. as a judge today, all that i can do, because i am not part of the legislative branch. it is the legislative branch to have the responsibility to make the law, that is consistent with the view of constitutional requirements and power, it is up to the president to take his actions, and it will be up to the courts to examine the situation as this arises. >> i can understand but the court is already dealing with these issues and the supreme court has struck down a number of policies put in place after 9/11.

i would like to hear your thoughts on whether or not you see a common lesson, what is your general understanding? >> i understand that the court is doing this task, it is looking in each of those cases, at what the actions are, by either the actions or the millet -- the actions of the military, what congress has done or not done. congress has done or not done, and applied constitutional review to those actions. >> is it fair to say given that line of cases that we can say that at least as regards the supreme court, it believes mistakes were made with regard to the post-9/11 policies? in each of those cases, there

was an overturning of a decision either by the congress or the executive. >> i smiled only because that's not the way that judges look at that issue. we don't decide whether mistakes were made. we look at whether action was consistent with constitutional limitations or statutory limitations. >> in each of those cases there was a problem with either constitutional violation or a problem with the congressional action, right? >> yes. >> that's fine. as i'm sure you're aware, many of us on the committee discussed at length with the prior supreme court nominees the framework for evaluating the scope of executive power, the national security context. you already discussed this at some length with senator feinstein, in the youngstone case and i and others on the committee are deeply concerned about the very broad assertion of executive power that's been made in recent years and interpretation that is been used

to authorize the violation of clear statutory prohibitions from the foreign intelligence surveillance act to the anti-torture statute. you discussed with senator feinstein the third category, the lowest ebb category in the youngstone framework. that's where as justice jackson said, the president's power's at its lowest ebb because congress has, as you well explained it, specifically prohibited some action. i take the point of careful scholars who argue that hypothetically speaking, congress could conceivably pass a law that is plainly unconstitutional, for example, if congress passed a law that said that somebody other than the president would be the commander in chief of a particular armed conflict and not subject to presidential direction, presumably that would be out of bounds. but setting aside such abstract hypotheticals, as far as i'm aware, i'm pretty sure this is accurate, supreme court has never relied on the youngstone framework to conclude the president may violate a clear statutory prohibition. in fact, in youngstown itself,

the court rejected president truman's plan to seize the steel mills. is that your understanding of the supreme court precedent in this area? >> i haven't had cases or sufficient number of cases in this area to say that i can remember every supreme court decision on a question related to this topic. as you know, in the youngstown case, the court held the president had not acted within his powers in seizing the steel mills in the particular situation existing before him at the time. but the question or the framework doesn't change, which is each situation would have to be looked at individually because you can't determine ahead of time with hypotheticals

what a potential constitutional conclusion will be. i may have said to an earlier question academic discussion is just that. it's presenting the extremes of every issue and attempting to debate about on that extreme of a legal question, how should the judge rule. >> i'll concede that point, judge. given your tremendous knowledge of the law and your preparation, i'm pretty sure you would have run into any example of where this had happened. i just want to know, i am unaware and is anybody aware of an example where something was justified under the president's power under the lowest ebb, i would love to know about it. i think that's not a question of a hypothetical. that's a factual question about what the history of the case law is. >> i can only accept your assumption. as i said, i have not had

sufficient cases to have looked at what i know in light of that particular question that you're posing. >> in august 2002, the office of legal counsel at the department of justice issued two memoranda considering the legal limits on interrogation of terrorism detainees. one of these contained a detailed legal analysis of the criminal law prohibiting torture, it concluded among other things that enforcement of the anti-torture statute would be an unconstitutional infringement on the president's commander in chief authority. judge, that memo did not once cite to the youngstown case or to justice jackson's opinion in youngstown. we just learned on friday in a new inspector general report that a november 2001 olc memo providing the legal basis for the so-called terrorist surveillance program also did not cite youngstown. now, i don't think you would have to be familiar with those memos to answer my question. does it strike you as odd that a complex legal analysis of the anti-torture statute or the fisa

act that considers whether the president could violate those statutes would not even mention the youngstown case? >> i have never been an advisor to a president. that's not a function i have served so i don't want to comment on what was done or not done by those advisors in that case and it's likely that some question, and i knowome are pending before the court in one existing case, so i can't comment. all i can comment on whether that's surprising or not. i can only tell you that i would be surprised if a court didn't consider the youngstown framework in a decision involving this question because it is that case's framework is how these issues are generally approached. >> good.

i appreciate that answer. let me go to a topic that senator leahy and senator hatch discussed with you at some length, the second amendment. i believe the second amendment grants citizens an individual right to own firearms and frankly, he was elated when the court ruled in heller last year basically what i think had been a mistake all along, did not recognize it is an individual right. the question of whether the second amendment rights are incorporated in the 14th amendment's guarantee of due process of law and therefore, afflicable to the states as you pointed out was not decided in heller. a supreme court decision in 1886 specifically held that the second amendment applies only to the federal government. so in my view, it is unremarkable that as a circuit court judge in the maloney case, you would follow applicable supreme court precedent that directly controlled the case rather than apply your own guess at where the court maybe headed after heller. i think that would be an unfair criticism of a case that i think you needed to rule that way, given the state of the law. but let me move on from that, because many of my constituents

would like to know more about how you would make such a decision as a member of the highest court. i want to follow up on that. first of all, am i right that if you're confirmed, and the court grants cert in the maloney case, you would have to recuse yourself from its consideration? >> yes, sir. my own judgment is that it would seem odd indeed if any justice would sit in review of a decision that they authored. i would think that the judicial code of ethics that govern recusals would suggest and command that that would be inappropriate. >> fair enough. what about if one of the other pending appeals comes to the court such as the seventh circuit decision in nra versus chicago which took the same position as your decision in maloney, would you have to recuse yourself from that one as well? >> there are many cases in which a justice, i understand, has

decided cases as a circuit court judge that are not the subject of review. that raised issues that the supreme court looks at later. what i would do in this situation, i would look at the practices of the justices to determine whether or not that would counsel to recuse myself. i would just know that many legal issues, once they come before the court, present a different series of questions than the one addresses at the circuit court. >> let's assume you were able to sit on one of these cases or a future case that deals with this issue of incorporating the right to bear arms. as applied to the states. how would you assess whether the second amendment or any other amendment that is not yet been incorporated through the 14th amendment should be made applicable to the states? what's the test the supreme court should apply? >> that's always the issue that

litigants are arguing in litigation. so to the extent that the supreme court has not addressed this question yet, and there's a strong likelihood it may in the future, i can't say to you that i prejudged the case and decided this is exactly how i'm going to approach it. >> but what would be the general test for incorporation? what is the general principle? >> one must remember that the supreme court's analysis in its prior precedent predated its principles or the development of cases discussing the incorporation doctrine. those are newer cases. and so the framework established in those cases may well inform -- as i said, i'm hesitant to prejudge it in saying they will or won't, because that will be what the parties are going to be arguing in the litigation. but it is -- i'm sorry. >> no, go ahead. >> i was just suggesting that i

do recognize that the court's more recent jurisprudence in incorporation with respect to other amendments has been more recent and those cases as well as stare decisis and a lot of other things will inform the court's decision on how it looks at a new challenge to a state regulation. >> of course, it is true that despite that trend you just described, the supreme court has not incorporated several constitutional amendments as against the states but most of those are covered by constitutional provisions and state constitutions and the supreme court decisions that refuse to incorporate the federal constitutional protections like the case involving the second amendment, 19th century case, date back nearly a century. so after heller, doesn't it seem almost inevitable that when the supreme court does again consider whether the second amendment applies to the states, that it will find the individual

rights to bear arms to be fundamental, which is a word that we have been talking about today? after all, justice scalia's opinion said this. by the time of the founding the right to bear arms had become fundamental for english subjects. blackstone, whose works we have said constituted the preeminent authority on english law for the founding generations, cited the arms provision bear arms was one of the fundmental rights. it was the natural right of resistance and self-preservations and the right of having and using arms for self-preservation and defense. >> as i said earlier, you're a very eloquent advocate, but a decision on what the supreme court will do and what's inevitable will come up before the justices in great likelihood in the future. and so i feel that i'm threading the line of answering a question about what the court will do in a case that may likely come before it in the future.

>> let's try it in a less lofty way then. you talked about numchucks before. that's an easier kind of case. but what helder was about was that there was a law here in d.c. that said you couldn't have a handgun. if you wanted to have it in your house to protect yourself. it is now protected you should the constitution that the people of washington, d.c. can have a handgun. isn't there a danger here if you don't have this incorporate against the states we would have the result where is the citizens of d.c. have a constitutional right to have a handgun but the people of wisconsin might not have that right? doesn't that make it almost inevitable that you would have to apply this to the states? >> that's the question the court will have to consider. >> i appreciate your patience.

>> and its meaning.@@@@@@ and that is holding and that is the decision of the court and i fully accept this and whatever new cases come before me, that do not involve incorporation as a second circuit judge, i would have to look at those issues in the context of a particular state regulation. >> i accept your answer and we will move on to another area, secret law. this has the direct effect on the rights of americans, and this is done secretly. there are often rulings containing substances interpretations that with very few exceptions are kept from the public. many of them were not available

to the full congress, meaning that the members were called upon to vote on statutory changes without knowing how they would interpret these changes. the justice department issues legal changes that are often kept from the public. i understand that these documents may sometimes contain operational details that would have to be changed. but the meaning of a law like this, could develop entirely in secret and this flies in the face of the traditional notion of an open and transparent legal system. can you tell us about the importance of a lot itself? >> the question for a judge -- is to examine first with the policy choices are that they are

making in their legislation. some of the issues that you are addressing are part of the operation of how they would operate. and as you just said, there's been amendments subsequent to that, and so a court would start with what congress has -- what congress has done, and whether the acts of the other branch of government is consistent with that or not. the issue of whether and how a particular document would affect national security or affect questions of that nature would have to be looked at with respect to an individual case. and as i understand it, there

are review processes in the fisa procedure. i'm not a member of that court so i'm not intimately familiar with those procedures, but i know that this is a part of the review process there in part. and so when you ahave concern, there is always some attention paid to the issue of the public reviewing or looking at the actions that a court is taking. but that also is tempered with the fact that there are situations in which complete openness can't be had for a variety of different reasons. and so courts -- i did as a district court judge and i have as a circuit court judge, looked

at situations in which judges have to determine whether juries should be impanelled anonymously. and in those situations we do consider the need for public actions, but we also consider that there may be in some individual situations potential threats, the safety of jurors that require an anonymous jury. i'm attempting to speak about this as a -- always a question of balance. you have to look at first what congress says about that. >> but the concerns you raised, don't they have to do more with the facts that shouldn't be revealed than the legal basis? it's sort of hard for me to imagine a threat to national security by revealing properly redacted documents as simply referring to the legal basis for something. isn't there a distinction between those two things.

>> it's difficult to speak from the abstract. in large measure, as i explained, i'm never been a part of the fisa court, and so i've never had the experience of reviewing what those documents are and whether they, in fact, can be reacted or not. without creating risks to national security. one has to think about what explanations the government has. there's so many issues a court would have to look at. >> let me go to something completely different. there's a lot of talk about the concept of empathy. the judge's ability to feel empathy does not mean the judge should rule one way or the other, as you well explained. but i agree with president obama that it's important for our judges to understand the real-world implications of their decisions and seek to understand both sides of an issue. judge, your background is remarkable. as you explained yesterday, your parents came to new york from

puerto rico and after your father died, your mother raised you on her own in a housing project in the south bronx. you are a life-long new yorker and a yankee fan, as i understand it, but many americans don't live in big cities. many live in rural areas and small towns and they root for the brewers and the packers. some might think that you don't have a lot in common with them. what can you tell me about your ability as a judge to empathize with them. to understand the everyday challenges of rural and small town american and how a supreme court decision might affect their lives. >> yes, i live in new york city and it is a little different than other parts of the country. but i spend a lot of time in other parts of the country. i've visited a lot of states. i've stayed with people who do all types of work. i've visited and vacationed on

farms. i've lived and vacationed in mountain tops. i've lived and vacationed in all sorts -- not lived. i'm using the wrong word. i've visited all sorts of places. in fact, one of my habits is when i travel somewhere new i try to find a friend to stay with them. it's not because i can't afford a hotel. usually the people inviting me would be willing to pay, but because i do think it's important to know more than what i live. and to try to stay connected to people and to different experiences. i don't think that one needs to live an experience without appreciating it. listening to it, watching it, reading about it. all of those things,

experiencing it for a period of time help judges in appreciating the concerns of other experiences that they don't personally. and as i said, i try very, very hard to ensure that in my life i introduce as much experience with other people's lyes as i can. >> i want to talk about wartime supreme court decisions like cora matsu versus the united states decision in which the supreme court upheld a policy to round up and detain japanese-americans in world war ii. it seems inconceivable that the u.s. government would have decided to put citizens based on their race and the supreme court allowed that to happen. i asked chief justice roberts

about this. i'll ask you about this as well. do you think cora matsu was wrongly decided? >> it was, sir. >> do you think people should resist the wor time fears that likely played a role in the 1944 decision? >> a judge should never rule from fear. a judge should rule from law and the constitution. it's inconceivable to me today that a decision permitting the detention, arrest of an individual solely on the basis of their race would be considered appropriate by our government. >> some of the great justices in the history of our country were involved in that decision. how does a judge resist those kind of fears? >> one hopes by having the

wisdom of a harl em and a plesy. our constitution has held us in good stead for over 200 years and our survival depends on upholding it. >> thank you, judge. . >> thank you very much, senator feingold. i was going to go senator kyl, senator schumer and then we'll take a break. senator kyl? >> thank you. could i return briefly to a series of questions that senator feingold asked at the very beginning relating to the meloni decision, relating to the second amendment. >> sure. good afternoon, by the way.

>> good afternoon. you said if that case went before the court you would recuse yourself from participating in the decision. >> in that case, yes. >> you're aware, there are two other decisions, both dealing with the same issue of incorporation, one in the ninth circuit and one in the seventh circuit. the seventh circuit decided the case similarly to your circuit. the ninth circuit has decided it differently although that case is on rehearing. if the court should take all three -- let's assume the ninth circuit stays with its decision so you do have the conflict among the circuits. and the court were to take all three decisions at the same time, i take it the recusal issue would be the same? you would recuse yourself in that situation? >> i haven't actually been responding to that question. i think you're right for posing it. i clearly understand that recusing myself from meloni would be appropriate.

the impact of a joint would indicate i would have to make the same decision. but it's left to the discretion of the justices because their participation in cases is so important. it is something that i would s discuss with my colleagues and follow their practices with respect to a question like this. >> i appreciate that. and i agree with your reading of it. the law, 28 usc section 455 provides among other things, any judge, magistrate judge of the united states shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. and that raises the judge's desire to consult with others and ensure that impartiality is not questioned by participating in a decision.

i would think, eni would want your responses. i would think that there would be no difference if the meloni case is denieded on its own or it's decided as one of two or three other cases, all considered by the court at the same time. >> that was different than the question posed earlier. >> will you not make a commitment entitlement? >> it's impossible to say. i will recuse myself in any case involving meloni. how any other argument or decision is presented i would have to see what happens. >> your circuit is not involved or the court takes either the seventh or ninth circuit and decides the question in corporation of the second amendment, i gather that in subsequent decisions you would consider yourself bound by that precedent or you would consider that to be the decision of the court on the incorporation

question? >> the decision in helder recognized the right to bear arms as applied to the federal government. >> that was the matter before your circuit. and as a result of the fact that the court decided poet of the other court cases and resolved that issue so the same matter would be before the court, would it not make sense for you to indicate should that same matter come before the court and you're on the court that you would necessarily recuse yourself from its consideration? >> i didn't quite follow the start of your question. i want to answer precisely but i not quite sure -- >> you agreed with me if the court considered either the seventh or ninth circuit or both decisions