questions in a single argument setting so there is just a rather extraordinarily intense process of asking questions. i think it is, while lacking in political governmental experience, is extraordinarily sharp intellectually. i doubt if we have ever had a court that is the equal of this one in terms of intellectual firepower across the board. i think ted is shaking his head in agreement i know arguing before justice sotomayor i was arguing a case on behalf of north carolina. justice sotomayor's first term on the court, term before last and arguing against an excellent advocate carter phillips and he had a rebuttal. and he made a point that sounded really good.

unless you knew that there is was a response to it, very very deep in the record and i was kicking myself for not anticipating the fact that a skilled advocates like carter would do that in rebuttal. is going to have no opportunity to point out what i thought the flaw in this excellent point was. he is halfway through and justice sotomayor says but in the third counsel to the second appendix -- [laughter] i said whoa this is not with all due respect to north carolina one of the cases that was the headline case of the term and yet she was so down into the weeds in the case. just an example of how extraordinarily well prepared this court seems in people who haven't argued before or seen the court are really stuns to go through a couple of cases that aren't the big cases everybody has been talking about and how extraordinarily well prepared the court is on these matters. justice sotomayor is it very

intensive sharp questioner. justice kagan seems to be a very strategic question her. i think she has brought a sort of taking sense of the court's dynamics to bear. when she asks a question it seems to go right to wear the critical decision-making point is going to be in the case. she doesn't us the first questions. that honor usually goes to justices ginsburg or sotomayor but the question she asks is often one picked up by other justices who may be relatively undecided in the case. i want you to go back and finish her answer to justice kagan's question so i think she has shown herself to be, the skill she brought to bear in bringing together a fractured harvard faculty. [laughter] i was skeptical as to whether those would translate very well to the supreme court but i think they may have.

>> i was talking to one of her colleagues just last night who said she is is the nature of a already. walter mentioned a number of questions. you said 60, 70, 80, 90. there has been over 130 questions during a one-hour argument so you are talking sometimes two questions per minute and they don't wait for you to finish answering the question. [laughter] they sometimes don't wait for their colleagues to finish asking the question. so it is going full speed and as you all know they are all asking questions except justice thomas who just finished his fifth anniversary without having asked the question and his explanation for that is because i like to hear from a have a good. that is what you are up there for a not that my colleagues show off. [laughter] probably they are asking lots and lots of questions and walter that is absolutely right. each new appointment is for the

justice on the court who is more active during questioning. one of the factors might be that now three of those four last justices that argued cases before the court, roberts, alito and kagan of course had argued cases, all three had been in the solicitors general office. i think they plus justice ginsburg argued possibly 63 cases before the court so they have had experiences. they know what it is like. >> you would think they would show more sympathy for their colleagues. seriously, think of the 17 chief justices. john roberts is the first one who comes to that position from a career in which what he did for a living was being one of the best if not the single best advocate before the u.s. supreme court. so he made his mark as a professional, figuring out how

to come up with an argument that five justices would agree with and i think that brings them to the chief justiceship within extraordinarily well developed skill set that i think over time will make him an extremely influential chief justice. okay, what are we turn now to some of the cases they work has heard this term and decided. last week the court issued a decision that i know has disturbed a lot of people in the country and it involves a group of people engaging in a very hateful ugly protest at the funeral of a soldier who was slain in iraq and by one vote the court held that these people were shielded from tort liability in a suit brought to the father for the attention of infliction of emotional distress. walter what were the courts thinking there? >> this case involves marine lance corporal snyder who was

killed in the line of duty in iraq. his father selected the catholic church in their hometown of westminster, maryland as the site for the sons funeral and the funeral was posted in the papers. this was yet another instance in which the westboro baptist church from topeka kansas picketed and protested at a funeral. they had done this hundreds of times all over the country. their view seems to be that began a is overly tolerant of sin and that god kills american soldiers as they deserve it punishment. signs include, god hates the u.s. and thank god for 9/11, america is doomed. thank god for ieds. thank god for dead soldiers. god hates you and you are going to hell which was a sign that seemed most directed at lance

corporal snyder. the family brought an action for various support liability claims including intentional affliction of emotional distress and prevailed in a jury verdict including an 8 million-dollar punitive damage judgment that was remitted to $2 million. the supreme court held that action was hard by the first amendment. the opinion by chief justice roberts. events as the court sense of sympathy for the families. the chief justice says that the record makes clear that the applicable legal term emotional distress fails to capture fully the anguish westborough's choice

added to mr. schneider's already incalculable grief, but on the legal question of whether the first amendment prohibits holding westborough liable for its speech in this case, the court held that it did prohibit liability for that speech. a bipartisan group of senators led by mitch mcconnell on the republican side filed in support of the families. one of the major motivations for filing that brief was to try to defend from many collateral damage in this section the federal military funeral statutes that protect, that attempt to protect funerals of our arlington national cemetery and other military funerals from

disruption and to try to distinguish that also to side with the family in the case. i think what the case turns on and it is important -- in one instance it is the waning endorsement and the faithfulness of the setting makes the courts first amendment endorsement even more striking, even stronger. it shows chief justice roberts to be firm and a very strong first amendment can't. justice alito once again as he was in the animal brutality case is the outlier who sees more interest in privacy and other concerns than in the first amendment. this was a very strong reaffirmation of first amendment bias. it is possible is also a narrow decision, however. this is a jury tort verdict. and that raises very serious questions if you allow tort

verdicts in circumstances such as these. as to whether the punishment will have a lot to do with hostility towards the ideas or positions of the people who are the defendants in the tort case. and that is compared with other kinds of statutory framework make sit of great concern and one of the points that is hard to answer is the point that chief justice roberts made in his opinion where he said that had everything been exactly the same, but the sign said god bless america and god loves you instead of god hates america and god hates you, the defendants would not have been subjected to liability. it was what westborough said that expose it to tort damages so the chief justice use that to show the case turned entirely on the content of what was said.

the possibility of a jury of awarding punitive damages can punish not just the interference but whether they agree with the message or disagree with the message being conveyed. what i want to emphasize is i think to those of you is that the court, this is what we hope to do by filing an amicus brief for members of the senate, the court said we are not deciding and not passing on the fluidity of the 44 state statutes which attempt to protect funerals of protest or either of the two federal statutes in question. and i think it might be well to take a careful look at your state statutes and at the court's opinion and to see if there was even a possibility of expanding the statutes. that is, of creating a larger buffer zone than the 100 or 150

seats that is in some of the state statutes which of course you are talking 33, 30 or 35 yards, not very far for a family having a funeral or a time, place and manner. no matter what your message, even if it is god loves the deceased are god hates the deceased. you may not without the permission of the people having the funeral come within that distance. if you think for example, it views as a model the statute in frisby against schultz, some years back where the supreme court upheld a ban on residential picketing an opinion by justice o'connor. a ban on residential picketing that was aimed at a doctor who performed abortions. others have been aimed at public officials picketing outside of their residents. at least picketing in front of a particular individual's house even though it is on a public sidewalk, a public place, that is one of -- because it is not a

jury verdict in and it doesn't depend on what the messages. if you look at frisby against schultz and what you can do to poor habits residential picketing i'm not sure why the same for larger considerations would not apply if you are trying to create a neutral time, place or manner, content neutral time placer manner, a persona or whatever beyond funerals, so as a look at some of the statutes i thought, i think they could go further and still passed -- pass muster on first amendment grounds further than they do both in terms of their content and in terms of distances if it is time place and manner so take a look at this and think about whether there is more that might be done to protect a funeral service while allowing whatever messages there are to be expressed at other times and other avenues and other venues in your cities, towns and states. >> i think that is true. in fact the court mentioned that maryland had passed a statute,

but it had passed it after these events had taken place so the court wasn't going to consider them. just a couple of other aspects of this case, it was a church but a small group and their basic as this was to draw attention around the country and the people that were protesting were members of the church but it was the founder of the churcd for the grandchildren. that was a. they were utilizing the funeral of the service person to draw attention to their message, so they were appropriating the private act to get their message out and they have been very successful. i saw one of the daughters was on chris wallace's show this sunday. a pretty gruesome thing, but the courts, they were on public property. they were complying with laws. they were a thousand feet away

and the bereaved could not see anything other than the tops of the signs, so it is a very fact specific case but it is still significant because it is an 8-1 decision, protecting disgusting, distasteful speech and it was an 8-1 decision a year ago when the supreme court struck down the federal statute prohibiting the distribution of videos or films of cruelty to animals, the crush videos, awful awful stuff 8-1 again written by the chief justice in each case it was justice alito. so the supreme court is making a very strong statement with respect to first amendment rights, and we talked last year about citizens united case, so there is another one where the supreme court, that was much more closely divided that the supreme court is going to be very robust to protect our first

amendment rights. >> this will be the last of i think it very compellingly written conclusion to the chief justice's opinion. speeches powerful. can stirred people to action, move into tears of joy and sorrow and as it did here inflict great pain. on the facts before us we cannot react to that pain by punishing the speaker. as a nation we have chosen a different course to protect even hurtful speech on public issues to ensure that we do not stifle public debate. ..

let me turn to the other first amendment case that the court has already heard argument in involving the state's california was very concerned about violent video games children were playing some in which the child actually play the role of torturing someone, reaping someone in the video game itself. the ninth circuit held that law which you need your parents' permission, the store, before they can sell it to the child violates the first amendment so ted, that me ask you this the first amendment gives children the right to obtain without their parents' consent these sort of video games? >> we will see. [laughter] >> i have to disclose a bias, i didn't file the case but i had

the entertainment software association on behalf of my client, microsoft in the mid-court for the lawyer did argue the case. and i wasn't able to get to the argument that it sounded like the court is going to be very skeptical of statutes like that. one of the reasons is it is very, very difficult to draft eight and meek lines and be specific. this statute said violent video games had to be labeled as violent and if they were labelled as violent if they couldn't be sold to persons under 18, 17 and lower and violent video games it's very difficult to define what that is in the statute used in connection with pornography and obscenity and the hope by

california was that violence in and of a self might be put in the same category as pornography and obscenity isn't entitled to protection. because the violent video games were defined in terms of material which did not have any redeeming social largest scientific historic cultural value, the question is what does or what doesn't and if it doesn't have any cultural value, doesn't have any cultural value to be two-year-old and people under 17 seóul kind of ways in which the statute is very vague. second, the court seems unlikely to sing about violence. it's all around us, it's in the bible, it's in the greek tragedies, kids playing -- blease to play cowboys and indians but he probably can't do that anymore.

but that sort of thing, children engage in the second games. they are not expressive activity as i read the briefs california didn't contest the fact that its activity and expressive activity is going to be under the rubric brick of the first amendment. you're not going to be a will to distinguish because they are interactive which these games are. technically all the media is getting to the interactive. we are living in an interactive world. and the concern that the supreme court had in the united states versus stevens case which was the cruelty to animals of video is the same kind of concern i suspect the majority of the court is going to have with respect to this statute. are we going to discourage activity which is whether you like it or not is a part of our

society and something that might be protected by the first amendment. >> this case is not about whether you can make or sell these violent video games or what their children can view them or play them if their parents purchase them for them. it's about whether they can be sold to minors. maybe the court got off on the wrong track we back in des moines or something i understand the role of first amendment rights but i don't understand why the state can't say you can't sell anything to a minor without your parents. >> of the supreme court has the same arguments on the internet case a couple of years ago, the ashcroft case, a lot of cases and ashcroft of course but this was the protection of internet protection of children so you'd have to have filters before

miners could see disturbing adult material on the internet. the supreme court was concerned about the children but sensitive to the fact parents have some responsibility of what their children are seeing or not, number one, and number to come if you enact a statute that is intended to protect children you are going to inhibit the production of the material can go longer be then sold to adults. >> you're going to say you have to put the word silent on it or you can be punished a thousand dollars every time it might be played or something like that. the penalties were quite draconian. the brief we filed suggested that that is going to cause manufacturers of the games to pull back, produce different games which means they won't have access to them or they will over label them as violent, and that will discourage people's use.

it clearly doesn't like the idea that you can produce a game that is handed to 11-year-old with the whole purpose of the game is to torture someone and murder them and to be brutally violent towards them. the court isn't sympathetic to that but is to the ideas and not inhibiting but adults can see. >> to what you say, there was one argument made attacking the law which is parents have to take responsibility for taking care of this problem, not statutes which struck me as an odd argument to make when that is going on that is being, sold to kids behind their parents back and so their parents don't have the option of intervening. but i think the first amendment seems likely here, too. >> why don't we turn to a different part of the amendment, the establishment clause.

the court heard one case this term on the issue of church and state. it involved in arizona statute that provided tax credits for people who give money to organizations that provide scholarships from private schools i mean for private organizations that then give scholarships for children who attend private schools including religious schools. and if i haven't muddied that too much what me ask you, walter, to talk about that case and especially the fact that the most important part of the case might not be the underlying merits of the establishment clause but different aspects of it. >> by far the most important part about errors on a christian school organizations versus them is the standing issue and this is a profoundly important issue and one liberals have always been by my life on the wrong side the why march under that

banner. this involves a tax credit. individuals get tax credits in the amount to make a contribution to a charitable organization which organization provides scholarships to religious schools and the particular organization will be defined by particular collections. so you can get good tax credits for giving money for scholarships to schools, catholic schools or whatever the religious basis is. and this would raise the question whether it violates the dissolution and calls the question is the challenge is brought by another taxpayer who is affected by this respect the 1960's in which the united states held the taxpayer had standing to challenge a federal

expenditure program of aid that included religious schools and a taxpayer had a standing even though they couldn't show his own tax bill is affected at all. this program wouldn't decrease his texas so what is he doing there and i think the iranians theory was that some tiny piece of the tax dollar was finding its way to the university of notre dame or whatever even though a tax bill was affected. i think that was fiction. he had no more stake in the outcome of the controversy than anybody else, and indeed, the money we pay in taxes doesn't get to the federal money.

the can print money and spend it. we pay tax money to reduce the amount of inflation. if a tree that can be trusted to figure out a tax bill, take out cash and burnet you wouldn't have to sit and meet -- >> [inaudible] >> that's right. >> i think what is troublesome about it is that the court felt the only way it could result the establishment clause is by making it the case for controversy and finding the standing so they could announce with the right constitutional rule was. i think that turns madison literally upside down. chief justice marshall justified the fact that the court got to rule on the constitution by a very simple device by saying we have a job to do.

our job is to decide cases. we have to decide between the plaintiffs versus the defendants, the real case and to do our job would have to apply the law, the carter case is the constitution the law? is it unlike the declaration of independence or the star spangled banner or the pledge of allegiance and they answered yes it was intended to be law. we have to apply it. it takes the other wall to do our job we have to interpret the constitution. nothing special about the black robe. >> by the time we get to cohen and chief justice warren our job would be to ultimate kaput planner of the constitution and we have to do that with regard to every issue and therefore if there's not a case we have to make one up and said they did it backwards. we have a lawsuit order to proclaim the constitution and

the would-be useful for the court to say some questions are not for us to decide and that's fine. other institutions of government will in some instances be the final constitution decisionmaker and a useful modesty on the part of the court to understand there's nothing special about their ability to proclaim the constitution. particularly in the court that is too seldom differential to the constitutional role of congress order of the president to say to themselves look we get to be that programmers only because we have a job to do in resolving the disputes and she doesn't like this law that she is challenging. she's got no stake in this case and this case ought to be dismissed it >> i think you make very good points although it is true justice marshall also medicine

decided the law that gave the distinction to the case was unconstitutional so he performed a little magic himself. the unconstitutional statute allows me to decide the unconstitutional statute is unconstitutional. but i did here in a recent case i had a judge lets just say in a federal circuit talking about the standing issues the supreme court is making up all these standing things preventing judges from deciding cases. preventing us from deciding what call is and i don't know why the supreme court is inventing all of this to keep us from doing what we want to do which is to decide whether things are constitutional or not. >> i'm guinn to be ruling that the designated rule is unconstitutional. [laughter]

>> let's turn completely and looking a little of criminal law. the court has served cases, to confrontation clause and a miranda case so an act to amend the criminal procedure. the one the courts decide so far as the confrontation case on the michigan versus bryant. ted, here to talk about that? >> i want to talk about it just to make one point about the dynamics of the court which i think is kind of interesting. it's not a big specialty into law but it's quite active in the recent years because justice scalia particularly feels the right in the constitution to confront the witnesses against one in the sixth amendment means what it says if you can't have someone coming into court we aren't coming into court and giving testimony to someone

beazer confrontation cases that have all come up in the past years. the opinions by the corps have all been written by justice scalia. he really feel strongly about that. and now the situation comes to the court, in this situation is there had been a person that

was at a filling station mortally wounded. he was still alive when the peace -- police got there. during the course of the questioning, he said rick did it. that statement was against the defendant, the person was dead by this time, and that statement to the police officers was as getting a conviction. the question before the court was that of a testimonial statement that would be prohibited from against the defendants when the witness was not there. the court came out the other way this time. this time. the second newest justice, justice sotomayor wrote the opinion and was six to two, justice scalia and justice ginsburg and the purpose for which the statement was elicited

the person who shot the sky was still on the loose and a dangerous situation and the public from someone who was out there with the gun during the violence, they were not doing that to get evidence to put the guy in jail said the purpose for the interrogation was a testimonial purpose is it was safety purposes. justice scalia went completely ballistic and now he is a writer as i think you know he doesn't hold back and he didn't hold back. he was being strangled by the spread of justice even though the brand new justice had five other votes with her on the finger and so i wanted to read i think it's kind of fun just decided some of the language on which justice scalia would use in an opinion and get away with it and still be friends the next day i hope.

>> today's tale which is the condition of the police case is so transparently false and professing to be the that to mean this institution in its attempt to make the incredible plausible perhaps as an intended second goal today's opinion distorts the confrontation to the spartans and we sit in a shambles and this is perhaps intended second goal. in other words, you are intending to wreck everything i wrote in the confrontation clause. you're not going to stand for it. he said instead of clarifying the law the court makes itself the obfuscate of last resort. [laughter] then if you haven't had enough that is just the first few pages. [laughter] he says these things, the court wrings its hands of the only

virtual if it can be misnamed a virtue a final word about the court's active imagination the court in vince the world and were used the court's opinion he says is dystopian and then he puts a foot note defining of opposite of utopian in case the jury didn't know what he was talking about. [laughter] he says it presents a distorted view, and in field of view and offers a revisionist , for the emergency, discredited logic, patently false, misunderstands the road map, 1,000 on principled distinction, but could he leave out? after coke in the decision he finally says short on the facts its short on wall. so i don't know. sorted said don't do this to me again. >> your view if he disagrees.

[laughter] it's a very interesting dynamic. actually justice thomas concurs in the results of the five including justice sotomayor in the five person majority. what's interesting about this issue is the way the court breaks down. there's a part here you don't normally think of as liberal or conservative or anything like that, but it's between legalistic and pragmatist. it goes back the same term is crawford, the seam split. the cases involving the sentencing guidelines between the justices who thought it was an unconstitutional to give judges the capacity to make the findings not made by attorney that enhance the degree of the that invaded the province of the journey as opposed to the

defending justices who said this colin system doesn't work if everything has to be decided by jury. forget what they thought in 1791 or what they were giving in england in 1412. this isn't a workable system. that group was led by black. here's the breakdown in the cases. the majority to overturn the criminal convictions were overturned the adverse for the criminal defendant, they were the conservative lists scalia and thomas and three liberal legal lists, stephen souter and ginsburg and then the defendants in the cases. she's justice rehnquist, justice o'connor, justice kennedy and justice breyer. and it's interesting to see how that plays out. chief justice roberts and justice alito has taken the pragmatist's seat formerly held

by rehnquist and o'connor said the protest group remains, kennedy, breyer, roberts and alito. what has happened to squeeze a's majority in this case is that he's still got his justice thomas who concurs especially in this case. >> on the same base in these other ones. >> but the -- what he has lost his souter and replaced by a former prosecutor. justice sotomayor and this is the first time my the we've seen what may be a switch and not come perhaps thomas would have made it inevitable in any event. but you see the first switch of the replacement of sotomayor moving and coming out with a

pragmatic wall enforcement result partly as a result of sotomayor coming in. >> you are absolutely right. one thing justice scalia said is when he said of the one virtue that can be called a virtue, misnamed a virtue is it makes us easy to decide the way that we would like to. what makes it easy to come out of the way we think it's fair and that is what you're saying. >> let me turn to a different topic. i read in the paper recently it appears some states are challenging the health care law. [laughter] one day this might think the supreme court. i guess the question for both of you is when do you think will make the court and what are your thoughts on what the court will do with it once it gets there? >> when will be decided by the

supreme court is likely but not certain. it's possible it wouldn't go to this record if the court feels he formally upheld it. they struck down a major act of congress and the supreme court would have taken obviously. uniform among the circuits it's possible they might not but i think at this point the expectations are such the justices will answer it. that means i think we can probably identify with some decision of exactly when it will be resolved and the will be the last week in june of 2012. and i say that because the case is well assuming the arguments in april and may in the circuit that would mean i think a decision of the circuits before they break and lose their set of clerks in august and the decisions than which means they filed in the fall and would go on the argument calendar.

it doesn't matter, jennifer come federick, march because the court will spend the rest of the term. the decision will not be unanimous so there will be back-and-forth with the majority opinions. up until the very end which means the last week in june of 2012. there is nothing magic about that being a prediction. i'm going to make a prediction in front of all of you and come back here. not only will the court uphold it on the don't think it is going to be as close as people think. itt could think chief justice roberts will confine the opinion to himself and. one of the reasons i think that is i can't see the chief justice adopting a constitutional position that 20 or 40 years

giving people an incentive to purchase insurance is a regulation of commerce and the intrusion is not so great as to require the application of the commerce ballot. and i think they are easy answers to the slippery slope problem. it seems to be less intrusive than medicare and social security, which are done under the tax and general welfare costs. when you leave the your place in the woods and go to work of the economy, and only then does it apply to you as far as your income tax. you have to earn taxable income

above 18,000 per couple. that the penalty will apply if you do not have coverage. when you go to work, but you find out that the federal government has three financial impositions on you. one is 7.5% you have to pay to take care of your old assisted on the social security program. program. you have to pay to take care of your health care after you're 65 and 2.5% you have to pay if you don't maintain insurance coverage model you are under 65. nobody is going to look at that and say my god, this third one mean's there's nothing left in america that this third one is in that sense it seems less intrusive in that unlike social security and medicare you have a greater choice. you get to choose among the private market, the single-payer

medicare proposal has always been the more liberal proposal, the more government takeover than the market approach. >> i don't have any trouble with the limited principal. i.t. to concede that the congress -- it's not so much the regulation of inactivity is an affirmative obligation. in the affirmative obligation is the regulation and activity when the congress in 1792 required everybody to purchase a gun, ammunition and a knapsack nobody said my god this regulation activity. the set know they are using the militia power to the obligation. the same thing with other affirmative obligations like the schools inoculation etc. it's an affirmative obligation to the affirmative obligation where you might want a stronger justification to use the commerce power and to disassembly to the economy and create three products. but unless there's a special

justification here is quite simple. congress creates a disincentive to purchase a product when it's a product that's related to a service no one can be assured they won't use and where the cost of acquiring it is going to be transferred to other persons and you put the statistics on the table. 94% of the long-term unemployed have used the health care system. one third of the overall medical cost of the uninsured are paid by the uninsured and themselves and the effort to or transferred to other people. if hospitalization costs, the uninsured pay 10% and 90% is transferred to other people who are sick or the taxpayer. that means it is to we different from any other part of the yellow pages where none of that is true and a flat screen television, could they have a flat screen television ad? no coming and you know what's different?

amazingly it seems like they might make final and i've been so that they haven't put aside money for a flat screen television i don't get to watch and say you have to give me a flat screen tv and transfer the cost to others. there's nothing like the emergency medical treatment act. there is no flat screen emergency that requires you a flat screen television and make other people pay the cost of it. if there were you could see congress needs to put a stop to this by giving people an incentive to buy their flat screen television at that time. we let people die emotionally because they can't watch their team on a flat screen television. and we are unwilling to do that with health care and this financial incentive claims to be the distinguishable and where i think let me put it on the principle since chief justice roberts will write the opinion what will we with the argument when i testified before the house 17 members said if the

supreme court upholds this there are no limits and congress can do anything it wants to read my reaction is that's right. if the court upholds it the congress can do anything it wants if the opinion says we are not holding it until the following principal. noeth limits anymore. [laughter] but there is no chance whatsoever that is an opinion. they would instead emphasize what is unique about the health care market, its role in the economy and the cost shifting that goes on that creates the incentive to suggest resort to the private market. >> you had me going until you got to the flat screen part. [laughter] >> i did here right before that he said and you heard it here on television walter dellinger said it would be okay for congress to require people to buy guns so they could defend themselves so the government wouldn't have to pay for police departments, pay

less for police departments because you defend your own homes and you have to go out and buy a gun. walter said that so we will have one of those bills pending in congress. [laughter] the other one we will have his -- since we need to have energy independence and one of the way some people say is to have lots of electric cars. you can't have a lot of electric cars a musters a lot of places to plug those in every time you go 40 miles or wherever it is. so we are going to require in order to help energy independence and its commerce and in the best interest of the united states and so forth the next car you buy has to be in the electric car because there's a lot of people out there with electric cars and there will be a lot of people where you can plug them in. i'm offering another argument that there has got to be some limit to what the congress can compel you to do for the general welfare.

now, i know you have a rebuttal but we are also running short on time. [laughter] i'm going to do what carter philips did to you. [laughter] >> one more thing i'd walter is probably right about timing of this unless the court is convinced on the petition of the circuit court judgment to skip over the intermediate courts because 26 states are saying to the supreme court we've got to know, we have to do planning. some states have legislature's every two years. we have to planning for this. congress has to plan for this. to have to resolve that is a significant challenge to a major significant act of congress so let's get it over with you don't need a lot of the advisory opinions from the circuit courts so let's jump ahead of it. and it does come up and it decided in june of 2012. think of what fun that is going to be in a presidential

election, the supreme court does or doesn't strike down the health care law so many people are concerned about and lots of people do not like. so in june of 2012 we will have a really terrific presidential election. [laughter] >> whittled we open up to questions. we have a few more minutes if anyone wants to say hello to walter. >> dewey of microphones or should we repeat the questions? >> do we have any questions? [laughter] >> [inaudible] >> you know, the question is say in the fourth or the sixth or other places delete including the supreme court, mauney hentges is the judges would be hesitant because they know they would be slowing it down and if

any one circuit avoids the review that is the case that will go up. i think sometimes they ordered the review before the argument before the path and that is certainly possible here. i think it's possible to say if they would have review but we are on track for the next term of the court. i don't think the jump over the court of appeals. i hope not. this could use some ventilation and the fact is the provision being challenged and it's not going into affect on till 2014. >> i was uncertain whether mr. olson replied to mr. dellinger's observation of what he thought the commerce clause interpretation would be in the court or whether he is silent on the topic. what is your opinion as to what the court will do with the commerce clause questioned?

>> i haven't studied it and i don't know. i really have to say i do not know. i think there are good arguments and the have been expressed by walter. there are also good arguments on the cover site. if there is no question this is commerce but that doesn't mean that you can do anything in connection with commerce. and i was trying to make the point that the idea of compelling someone -- if the government had decided to call this a tax and use the taxing mechanism, yes, it could tax everybody in the united states for medical cost. there's no question about that, but the administration insisted it wasn't a tax and that language will come back to the arguments, and instead they did it this other way. sometimes when you do something then you can do lawfully into it some other way for political purposes because you don't want the american public to think they are getting the tax you are going to go around it by forcing

people to purchase something that they may not need, many people don't need to buy insurance. and it's not like the insurance that you require year when there's a condition to getting the driver's license and getting out and driving a car on the road you're out there. i make the argument like i did that you have coming back to with respect to the electric car or the gums. there is some limit on what congress can compel you to do when it could do it willfully another way and i think that as a necessary and proper clause doesn't get you there if you can't do it under the commerce clause. >> the argument got complicated by the fact it had been called the attacks throughout the legislative process. they believe to the changed that tax penalty. and what the president said was

it's not a tax increase. people should have insurance, it's the incentive, it's not a tax increase but they did change the word. it remains for the internal revenue code it remains a penalty that runs from $95 to as high as 2.5% of the gross adjusted income capped by the amount that insurance would cost so while even if you couldn't justify the tax the fact remains it is about economics. so unlike the law involving u.s. versus lopez that is where the congress is trying to do your job of dealing with the local crime by guns in schools or violence against women and where the court was concerned about using the effect on the national economy from that education or barriers to entering the

workforce to matters that were not economic and those were off to one site and that this is a financial penalty and black helicopters don't come and people don't force march you get the bayonet point to the insurance agent it is all economic. it is not local, and that those naked. the argument from the parade which can be cut off and distinguished are always made on the issue whether you have jurisdiction to legislate. so if they get $5 an hour the this is the regulation of commerce. the regulation of commerce to say $5,000 an hour this is true. in the social security takes the argument to the supreme court, council said it thickens at the retirement age 65 and require everybody under that to support it they can save 25 or 40. that is the nature of the jurisdiction.

every state has jurisdiction to legislate and to require everybody jurisdiction merely 19 times a day. that is the fact that having jurisdiction. the question is whether it is within the scope of a regulation of commerce and you need a limiting principal i think the court is going to have an easy time coming up with one. >> what scared me. [laughter] >> on that note it's unfortunate we have to wrap this up. we are going to meet debt to:15 at our regular meeting room. i want to thank the panelists for a very interesting discussion. [applause]

you could learn more about the judicial system each week on "american and the courts >" it is on saturday at 7:00 eastern. coming up this morning, the house subcommittee on communications. that is on c-span3 at 10:00 eastern. in a few moments, this morning's headlines in your calls live on "washington journal." the australian prime minister will address a joint session of congress this morning. that is live in about 45 minutes, we will talk about continuing congressional efforts to pass a