purchase of anything. field for the energy example. consumption is a national problem. it has life affects as well as does health care. everybody consumes energy on some level. by then, couldn't you require the purchase of certain types of cars or solar panels? once we go down this road, because there is a a health care problem, we are going to require you to purchase health insurance. >> absolutely not. >> and none of those car, theances, the ca food, you have a right to go in there. if you walk campanulas, you cannot say to give it to me. healthcare is different.

it is why his question was correct to say. this is unique. that is what stops the slippery slope. shifting have the cost here have here. >> can congress increases by >> can congress increases by passing a lawyer shop provide health care -- and pass a law providing an healthcare? >> on page 25, they say precisely that in responding to it. if you are worried about it, how can you increase your power to the activity? there will be no limits. that is exactly what this judge said in maxwell one. it took courage congress to paint with a factor brush.

on page 25, it rejects that. it is up to congress. >> let me ask a question about insurance generally. i agree with you that health insurance is unique to the extent that we really cannot predict when someone will need it. i think that it does differentiate health-insurance from other projects such as automobiles and so forth. i am not sure that makes health insurance unique. it isn't that really an aspect of the insurance industry as a whole? flood insurance, fire insurance, home insurance, life insurance, natural disaster

insurance, although those pride for eventualities that are known. >> absolutely. >> how does that make health insurance unique from all the other kinds of insurance? >> there is cost shifting here. someone else picks up the tab when you do not have insurance. that is why it is activity to not be insured. congress found specific findings of $1,000 a year to you and me. when they say it seemed unusual to compel the purchase of a good, i think that is a liberty of market. they did not have a president that says -- precedent that says

the court can mix and match liberty concerns. >> why not? >> i think they both it dealt with that. did they deal with them in separate places. >> the reality is that there is a powerful factual different between claiming there is some liberty interest to grow marijuana in your backyard in california and telling someone they have to buy a product they do not want to buy life insurance. it is critical. >> dealing with the forced detention of individuals after they served their sentence, the court said that is a due process challenge. we will not consider this with respect to it. i think there is clear guidance

from the supreme court. the concerns are off the table. i know they tried to get a lot of rhetorical forest. maybe the argument that violate the attention of ayn rand but not the united states. they also said congress had not done anything like this for 220 years. >> is that accurate? >> i do not want to quibble. >> congress has not done anything at all like this and 220 years. i do not know. is that accurate? >> here are some examples we think are close. the order people to have guns and knapsacks. >> it was not specifically pegs.

this is just a question of books proper. if i could spend a couple of minutes on the conversion. the first point is that even if you think that there is some coercion doctor, this is opposed. >> the supreme court has said there is. this case is not close to the line. did you do not hear a word in theargument about what district court pointed to. >> i do not understand what you just said. it seems to me that the supreme court of the united states says with respect to whether spending

and taxing goes too far beyond the constitutional limits, that a limit provide it. it says we have a four part test that we will apply. what is more on top of that, we are concerned about the problem of coercion. when it morphs into coercion, that may bring a bell that yields the conclusion that the legislation has gone too far. the federal government said he will deprive the status of dakota 5% of the money they would otherwise get. but i think it is forceful.

maybe it is not. there is a specific statute that says congress reserves the right to "alter, amend, or appeal any provision." states have been on notice. congress can change the rule. >> is it your view that all they have to do is to place tax legislation. we are giving you money. we reserve the right to change the terms and conditions and that it can never be the worst? >> that is precisely what they say with respect. they point to the specific statute. he can now change the rules. that is actually happened several times.

conagra said the exact same thing it is doing today. you have to cover patients appeared in 1989, pregnant women and children under the age of sex. same exact threat to the overall brand appeared >> it is not overall relevant to looking at overall coercion. -- the same exact a threat to the overall brand. overall relevant to looking at the overall coercion appeared >> it is the same threat the the -- coercion. it is the same threats. statue to 1396c says that if the state is the not meet the education requirement comment the secretary has a good there a long process over exactly what

she will do. >> i understand this. i thought that what congress said was you have got to increase your coverage to include 133% of the poverty level. in the past, you only had to go up to the poverty level but was 12,000 and change for individual. if you do not do that, we -- the power is there to cut the state's off from a dime from any medicaid coverage at all. what did they fall within the first hundred term or the 33%. -- whether they fall within the first 100% or the 33%. >> it is in the power.

you also have lesser remedies available. >> what to be a lesser remedy? >> partial withdrawals of funds as opposed to full. in the west virginia case, it said we should wait and let that process play out and see what the secretary does before getting into it. that makes sense. these days do not have to spend a dime for the expansion of medicare costs. >> your suggestion is to wait till another day. >> that is part of the answer. this is not even come close. >> u.s. and counsel for my purposes of the question that congress and the secretary says to the state of florida by way of example, if you do not to

raise the eligibility pool to 133%, if you will not get a dime for medicaid. we are cutting out what we did you which amounts to billions you which amounts to billions of dollars. would that be coercive? >> you have that statute. this is about eligibility to a program. it is our program. it is our dollars. >> i want to turn back to the enforcement mechanism.

the government argues it. it is essential to the entire regulation. individuals have a choice. the penalty is $95 to begin with. is this correct? >> yes. >> there may look at i'm not going to buy insurance to pay the penalty. there is no interest that accrues. accrues. there is no levy. my question is how is that penalty even more the medical

bills? >> i do not think it'll be any different. how can that be so essential to reducing unpaid medical bills? it is collectible. it is collectible. >> it'll cost more to pursue the lawsuit. >> we will make sure that the statute does not say 695. sometimes it can be more or less. >> for most wages adobe $6.90 -- it will be 695. >> this is the appropriate way of enforcing it. it would reduce days that are

uninsured by millions and millions. >> the cbo says even with this mandate 8 million will be exempt. out of that 8 million, only about 4 million will pay the penalty. that is how it works. >> i'm not sure if that is correct. it is a substantial number. there is no distinction in the wall that is more essential than the difference between a constitutional argument in a policy argument.

much about what we heard about today, it they turned out to be policy arguments. and do not think they go to the commerce clause. commerce clause. if they say congress cannot regulate, then on the grounds that it is not interstate commerce, i wondered what the limits are in future cases. >> thank you. i want to take this opportunity to thank all of you lawyers. this was very helpful to us. it was a very difficult case. it will certainly affect all of the citizens of our nation.

thank you very much. we are in recess. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2011] >> on tomorrow "washington journal" the center for american progress on legal challenges to the affordable care act. the president of the national association of manufacturers and a look at nation-building efforts and that getting rid of afghanistan. this begins live at 7:00 a.m. span.n c- >> this weekend on american history television, more than 20 years after the end of the cold war, a panel reflects on ronald reagan. there are wrist during --

restoring civil war. calf's -- civil war photographs. you can also give their schedules e-mail directly to you. >> he is succeeding justice elena kagan as u.s. solicitor general. listen to him argue. he is one of the 100,000 people you can watch for free any time on line at their c-span via library. >> president obama has nominated robert crocker to be the ambassador to of can stand. he previously served as ambassador to pakistan. at his confirmation hearing he

talked about the effort to return this over to the afghan government. this relations committee hearing is two hours.

>> thank you all very much. we welcome our friends and our colleagues. we are delighted to have him. we are here today to consider

president obama's nominee for a bastard to afghanistan. i think we are very fortunate that the president has chosen one of america's most able to pull months to serve in kabul. we are fortunate that he has agreed to serve. they are happy to welcome him again before the foreign relations committee. he has served as ambassador to five countries. immediately after the ousting, we reopened of for the first time since 1989. this is a man with experience in the region.

obviously, you will arrive on this post at a pivotal moment. we have a critical planning window. this is a critical moment. we have the ability to read calibrate if that is what is needed. we can redefine and do the things necessary in the wake of the successes that we have had against al qaeda. that is the reason for being in afghanistan in the first place. in order to ensure a transition, i think there are a number of things that need to be thought through.

we understand all the assumptions. we can address congressional concerns as the president decides how many troops to draw down starting in july it to be very helpful -- in july. it be helpful if we can move this through. i will truncate this. i think we ought to be guided by certain truths. while the united states has security interests and afghanistan, our current insurance -- interest is sustainable. our military has made significant gains, clearing and holding in the south. as the president has said, if they are fragile embers a toe.

we have not made sufficient gains where they continue. this still lives in pakistan. we can create a regional free more with the risk -- framework with respect to this conflict. i want to emphasize regional framework. only a political settlement will resolve this. every military leader has said that. there is no military solution. reconciliation is not a silver

bullet. we will need to support them as they try to engage those willing to make some sort of acceptable agreement. we need to reexamine the current plan. there are serious questions about size, capability, sustainability. we need to examine them very carefully. also today, the majority is releasing a report regarding assistance. this is a report meant to be constructed. it is a report with critical observations that are made in the best spirit. we appreciate them. we appreciate the demonstrations cooperation with us to address the concerns that we have. they argue that they need three

basic conditions before that money is dispensed. they have to be necessary, achievable, and sustainable. there is a lot on the table for the congress and for the president. ambassador crocker will have a critical role to play in making sure we get it right. >> thank you. i join me in welcoming our very distinguished nominees. he returns from well current requirement to apply his unsurpassed experience at managing sobel military collaboration and the dynamic conflict environment. i thank you for his commitment. i know he will bring the insight and judgments. as you pointed out, this is the

six committee. we have explored not just what is happening but whether our vast expenditures represent a rational allocation of our military and financial assets. our interests are threatened not just by this but by economic competition and food prices. solving these problems will be much more difficult if we devote to many to another country that has frustrated spirits. the question the president must answer is whether we can achieve this. special for banning the taliban from taking over the government.

ambassador crocker would be assuming his post with the obama's a administration review of the afghan policy, and has anticipated a result of some level of troop reduction. this opportunity should be used to do more than just withdraw an arbitrary number of troops. rather, the president should put forward a new plan that includes the definition of success in afghanistan, based on united states' vital interest, and a sober analysis of what is possible. such a plan should include an explanation of what metrics must be satisfied before the country is considered secure. it said also designate and eliminate those activities that are not intrinsic to our core objectives.

the administration's ambiguity on our goals must be eliminated in order to move effectively, and to address our national security interests, and vain to afghans the relationship -- conveying to afghans the relationship we will maintain. despite 10 years of investments and intends to better understand the culture and their regions actors, we remain in the cycle that pursuit -- produces relative progress. in afghanistan, measuring success according to relative progress has very little meaning. i doubt we will make even some process when we are spending more than 1 $90 billion a year in that country. the more important question is whether we have an efficient strategy for protecting our vital interests that does not involve a vital open-handed -- open-ended investments. i will appreciate hearing the

nominee's 1 oppressions of the obama administration's strategic review, and how we can review -- improved afghanistan's capacity to defend and governance of derek i applaud and? -- governance. i applaud ambassador crocker's and look forward to his testimony. >> thank you. it is a privilege for the committed to welcome senator john mccain as the ranking member and chair of the armed services committee, there is now ready with more experience on these matters or who pays more attention to them in the senate. i appreciate his taking this time to be here to introduce an best aircraft. >> thank you, mr. chairman, and thank you for indulging me as to introduce this great american. senator lugar, and members of the committee, it is an honor to introduce the president's nominee to the u.s. ambassador to afghanistan.

ryan crocker, a man and stellar record of service to seize an and speaks for himself. i joined the committee and recognize two members of his family who are joining him today, his niece, catherine, and the dedicated woman that is then by his side ever since they were young officers working together in baghdad, ryan's wife christine. i understand the challenges of being a foreign service as koppell, and i know that ryan could not have enjoyed many successes atop the support of christine. they make the task of introducing ambassador crocker quite easy. the u.s. senate has had the wisdom to approve him to the post five times already in lebanon, kuwait, syria, pakistan, and iraq, and this is only a fraction of ambassador

crocker's story. when the u.s. embassy in beirut was bombed, ryan crocker was a young officer who helped pull colleagues from the rubble. when the united states needed to reopen our missing afghanistan after the taliban was driven from power, the secretary of state sent ryan crocker. a few years later, facing the same challenge in iraq, once again ryan crocker was the only man for the job. it is nearly impossible to find other american diplomats who can match his record. i had met ambassador crocker in his earlier post, but where i really came to know him and respected him most was during his amazing tour in baghdad. it is difficult to remember what he was getting himself into. the violence in iraq was

spiraling out of control. dozens of civilians were being killed every day. the ethnic and secretary and battle lines were being -- sect but terry and battle lines are being drawn, and america faced the possibility of being driven from the country and defeat. fortunately, president bush adopted a new policy, and of all of the consequences of decisions he made in 2007, the change of strategy, the surge of forces, the nomination of seven -- general david petraeus, one of the least appreciated was the nomination of ryan crocker. i am sure if you ask the ambassador crocker, he would just say he was doing his part to serve this country. heroes always say that. the truth is what ambassador crocker accomplished in iraq was nothing short of a miracle. general petraeus has received huge praise for the role he played in iraq, and he deserves every bit of it, but as general petraeus to be the first to a

firm, our military shed aegean iraq would never have worked without ryan crocker -- our military shed aegean iraq would have never worked without ryan crocker. he established a seamless partnership with general petraeus and his military leaders, which set the standard for several military partnerships at every level of our effort across iraq. he also established a relationship of trust with prime region with the prime minister and his government, and then you -- with the prime minister and his government and unused that relationship to support the iraqis in saving their country. ryan crocker perform his duties with courage, poise under pressure, a unique ability to marry strategic vision with tactical effectiveness, and a relentless work effort that literally almost killed him. i commend the present for

recognizing there is no better man for the job of ambassador to afghanistan and ryan crocker. i also commend ambassador crocker for answering his country's call to service. in afghanistan today, a new generation of americans, both military personnel and civilians, is writing the inspiring next chapter to the history of our great nation. the challenge to all of us in our time of service is to strive to be equal to these fell americans. -- fellow americans. the president has chosen a man who was worthy. i hope all of you will reach a similar judgment and blow him out of committee quickly, so the full senate can -- vote him out of committee quickly, so the full senate can affirm and as quickly as possible. we have had the great privilege

of having someone else standing americans serving our diplomatic service. americans are probably not appreciative of the enormous sacrifices they make. there is no greater example of that kind of service than the man who is nomination -- whose nomination is before you today. i think the chairman, an apologist for the length of my opening statement. >> senator mccain, and no apology needed at all. i think it is an important statement, and i appreciate the white and the thought that went into it. i think it -- the length and the thought that went into it. it is helpful, and it is important for the record.

it really states, and inarticulate, clear way, dss that ambassador crocker brings to this but -- the assets that ambassador crocker brings to this desk. it is important that i've said those things and you have said those things so the message goes clear that this is a serious person that we all have confidence in bed, and brings a great deal of experience. i think your introduction was frankly superb, and really want. thank you. >> thank you. >> and bessemer crocker, you are flying alone how, -- ambassador crocker, you are flying alone now, but you have done that a lot. we are delighted to welcome your testimony in and you to the committee. you know how it works. you want to put your full record in the statement, it will be placed there, and if you want to summarize, we could have a good dialogue and look for to the questions. >> thank you, mr. chairman, senator lugar, members of the committee, i appear before you today as president obama's

nominee to become u.s. ambassador to the islamic republic of afghanistan. i am grateful to senator john mccain for his most generous introduction, and for his recognition of the foreign service of my colleagues over the years. they have labored hard on behalf of america's vital interests, and sometimes paid the ultimate price. i am also grateful to the president and to secretary clinton for placing their trust in me. if confirmed, i look forward to cooperating with you to advance america's interest in afghanistan. i had the privilege of opening the embassy in kabul in 2002, and as you noted, i worked closely with president carter got -- karzai in those early days. if confirmed, i look forward to renewing the relationship, and working together toward that vision. i also have the honor of serving as the u.s. ambassador in pakistan from 2004 to 2007,

which developed my understanding of the region, and which, if confirmed, i hope will be a useful asset as we work with our regional and national partners. as we know, our core goal in afghanistan and pakistan is to disrupt, dismantle, and defeat al qaeda, and deny it safe haven in those countries. osama bin laden's death is an important step. much work remains to be done to ensure that al-qaida can never again threaten us from afghanistan with the taliban providing safe haven. our efforts to pursue this goal are focused on free military, civilian, and diplomatic services all aimed at stabilizing afghanistan so it will not become a safe haven for terrorists began. military and civilian surge as the president obama announced in 2009 still momentum from the taliban-led insurgency.

today, more and 1100's civilian experts are serving alongside our troops to help establish conditions for sustainable and irreversible security responsibility to the afghan government. if confirmed, it will be an enormous privilege to serve with this -- with these courageous and committed americans. working together with the government of afghanistan and our coalition partners, we have made significant progress, but as you and the present have noticed, this progress is still fragile and reversible. enormous challenges remain -- governance, rule of law, narcotics, sustainable economic development, including the employment, increased revenues along with the capacity for the government to provide basic services such as education and health care -- fell year in some of these areas could mean the failure of the state, and a

creation of an environment where strategic enemies can regroup. making progress on these issues has been hard, and it will go on been hard, but hard does not mean impossible. secretary of defense robert gates has noted that we walked away from afghanistan once in 1989 with disastrous consequences. we cannot afford to do so again. ultimately, all of this will be an afghan responsibility, realized through irresponsible transition. a key u.s. priority in afghanistan as supporting the afghan-led transition process that was agreed upon by the afghans and nato partners at the november, 2010, nato summit at lisbon.

this process will enable afghanistan to systematically assume full responsibility for their security across afghanistan by the end of 2014. the transition process will begin this july with a transfer of lead security responsibility to the afghan security forces in seven provinces and municipalities, which scientists can contain roughly one-quarter of the afghan population. -- which i understand, contain roughly one-quarter of the afghan population. i will continue the responsible transition.

alongside this transition process, the afghan government has launched a peace efforts to reconcile insurgents. president karzai launched a high-piece council. the united states supports this effort. or the last two years, we both have laid out -- over the last two years, we both played out our outlines -- renounce violence, abandoned alliance with al qaeda, and abide by the constitution of afghanistan and as protection for all afghans, including women. those are necessary outcomes of any negotiation. a former militants are willing to meet these lines, they would be able to protest appeared in the political life of the country.

if confirmed, i will work closely with ambassador grossman and embassador -- ambassador munter to continue support for an afghan reconciliation process. i will continue to support reconstruction, economic development, and the strengthening of key institutions critical to ensuring the present transition is sustainable and irreversible. we look forward to a long-term relationship with afghanistan, and have initiated negotiations on a strategic partnership declaration with the afghan government in march of this year. this political framework document will help normalize our relationship, and provide a road map for our political and security cooperation. we respect afghanistan's proud history of independence and do not seek a permanent military base in their country or a presence that would be a threat to any of their neighbors. in closing, i want to think this committee for the support it has provided and continues to provide for the vital europe -- vital work of the u.s. mission in afghanistan. as you know, mr. chairman, you have held a series of hearings over the past several months to examine our policy in afghanistan and pakistan. if confirmed, i will listen to your guidance and continue a

dialogue with congress on our progress. in that context, i would note i have just received a copy of the report you cite. if confirmed, i think i know where that dialogue is going to begin. i will also ensure that the precious u.s. taxpayer resources being used in afghanistan are applied effectively, transparently, and with an eye toward long-term sustainability of these efforts by the afghans. as the secretary said at the asia society, the united states is not walking away from the region. we will not repeat mistakes of the past. our commitment is real and enduring. as we approach the 10th anniversary of the horrible attacks of september 11, it is a time to remember those who died and honor the sacrifices so many americans have made, military and civilian, to make sure afghanistan never again becomes a safe haven for terrorists from which they can attack america. thank you, mr. chairman, members of the committee.

i look forward to your questions. >> thank you very much. that last sentence hit me and i want to come back to it in a minute. let me say first of all that i support and agree with the transition process that will begin this july, with the lead responsibility going to afghan security forces in seven provinces, representing 25% of the afghan population. clearly, the taliban are trying to disrupt that with increased violence in the last days, targeting governors and high- level officials. i also am particularly supportive of the afghan- initiated peace process, the reconciliation president karzai has initiated last year, and the things coming out of it you

mentioned. my concern is a little bit in pinning down our own definitions here. the breadth of some of what you have said, particularly this notion, "ensure afghanistan never becomes a safe haven for terrorists from which they can attack" -- i think we have to bear in on this question of what that really entails. what is a safe haven? how much guarantee is there? to the degree there is a safe haven, if that is what we are worried about, and we want to spend dollars most efficiently, the safe haven is the western part of pakistan. we are spending $120 billion in a country where there is no safe haven, and $2.80 billion where there is a safe haven. today, there is a safe haven.

there is a network. these folks are the problem. they are the ones responsible for most of the violence taking place in afghanistan. i think the question is how do we get this right. what i saw when i was there a few weeks ago convinced me that if all we do is the current paradigm, where attacks are launched out of western pakistan, we are not going to find a very successful road here. i would like you to comment on that. >> thank you, mr. chairman. these are very important points. i have said in testimony before this committee, during that brief but have the interlude when i was out of the service -- you cannot really succeed in afghanistan without a fair measure of success in pakistan.

that is why i think your legislation, the kerry-luger- berman legislation, a multi- year commitment, was so important. these are hard problems to solve. i have wrestled with them as ambassador to pakistan. i had numerous meetings, as you have had, with the pakistani leadership to press on niihau, network -- on the hakkani network, clearly with limited results. i think that is why the administration has been right in talking about the two

nations together, and having ambassador grossman succeed ambassador holbrooke so you have an approach that crosses the border. certainly, that is what the militants are doing. how to crack that conundrum -- sir, i know you have made huge efforts in recent weeks. we will have to see whether the pakistanis do take these efforts. i look forward to working with ambassador munter because we face a common problem. the last thing i would say is, quite frankly, the reason most of the problem is in pakistan and not in afghanistan at this time is because we are in afghanistan.

as we go through a responsible transition, it has to be, as the president and others have said, conditions based to ensure that as we draw down our forces -- and i am keenly aware from my consultations of the mood and both here on the hill and publicly. there has to be a transition. but at the end of the day, we have to be sure the safe haven does not then relocate from pakistan to afghanistan. >> i have said that. the question is does it take 150,000 troops to guarantee that does not happen. >> mr. chairman, that is again a question that the president will speak to. i am not part of those

deliberations. >> that is an unfair question. it is a question that is on the table, but i understand you are not part of those deliberations now and do not expect you to answer it today. in your testimony, you say enormous challenges remain, including corruption which undermines economic growth and credibility of the afghan state. there needs to be sustainable economic development, including employment capacity and the ability of the government to provide basic services. failure in some of these areas can mean failure of the state, and the creation of an environment in which our enemies can regroup. can you narrow that down for us? in which of those areas would it bring failure of the state? what is essential to the accomplishment of our goal?

>> i think clearly the issues of governance, rule of law, and corruption have to improve if afghanistan is to go forward as a stable state, charging its own destiny. >> are you saying this has to be part of our strategic goal? >> i think corruption -- i draw on my erotic experience. -- iraq experience. unchecked corruption becomes a second insurgency. it undermines confidence on the part of the people in their government. it makes groups like the taliban look attractive.

mr. chairman, we are not out to clearly create a shining city on a hill. that is not going to happen. that would apply to all the sectors i mentioned. but there needs to be progress. we went through the same thing in iraq. we chipped away at it. over time, we got them to take some measurable if partial steps on the issue of corruption. you have a situation in iraq today that is not, again, a city on a hill, but where they have a good chance of carrying forward without u.s. forces on the ground. it is the same kind of dynamic that i think we have to go through in afghanistan. >> do you think that billions of dollars coming from america

that are spent through contractors which do not have adequate oversight contributes to corruption? >> it is certainly something i will take a careful look at. i have met with the state department's inspector general's. they did a recent report. we have your staff report. i have spoken to colleagues in government. it is clear there is a need for more contracts and officer representatives. state and ade recognize this -- and a.i.d. recognize this. as the staff reports note note, there is an afghanistan initiative for transparency. there clearly have been problems. equally clearly, there is a recognition that we have to be part of the solution, not part of the problem.

i am encouraged by what i have heard of the steps that have been taken. >> ambassador crocker, we discussed, and you said in your opening statement, there was a possibility for passing over control of military and police functions in seven provinces, 25% of afghanistan. this is the first of such transitions in the coming years, hopefully occurring before 2014, i believe, in the current plan. i want to ask about the whole conduct of the afghan state, and how the budget of afghanistan is put together, how this is paid for. in the case of the military and police, training has been paid for, largely if not completely, by the united states and its allies. the sustenance of all of that

will be expensive. beyond that, i would like to know more about the commerce in afghanistan. that is, how do ordinary people make a living? what industries are there? what investment has been coming into the country or generated by profits or success in the country? the reason i ask the question is that many stories about afghanistan's economy indicate that the income coming into that government is pretty low, given the ambitions of afghans and the united states and its allies. on the military side, expense has been accounted for. with regard to the civil side, the thought has come from president karzai himself in personal visits with congress that afghan has remarkable -- afghanistan has remarkable

natural resources that might be found, exploited, and sold to others in due course, but that would require investment in the safety. -- in the safety of investors. some of them may not be friends of ours or may have typical -- different foreign policy views. as you survey the scene, how is afghanistan going to raise revenue? secondly, if afghanistan is not able to raise revenue, are you, in preparation, working with our state department, our officials, on some estimates as to what obligations the united states may have for many years to come? not the military idea of 2014 or thereabout, but we have said as a matter of common sense our

obligations will last for a long time, a decade or decades, as the case may be. this has to be an important part of our calculations as members of congress working on budget plans for the united states. this could be a major factor. if we do not get it right, it could have very grave consequences on afghanistan, it is very important, and as you

note, a very complex set of issues. again, at this point, i have, shall we say, an imperfect understanding of exactly how afghanistan works. i have not yet been confirmed and have not gotten out there. i did note employment and economic development, because i think these are critical factors. how does the economy work now? services are an important part. agriculture is an important part. i am told that the agricultural sector accounts for 80% of employment in afghanistan, which is why i think we have to continue to support its development in a reasonable way that leads to, ultimately, and afghan capacity to carry forward. >> what part of that is drugs?

>> i am talking about the part that is not drugs, primarily wheat. we would like to see them move into higher yield products, such as fruit and pomegranates, which afghanistan used to be famous for, and which provide a better return to the farmer, i am told, then poppies -- than poppies. based on what i know, i think the administration is right in dealing with the narcotics issue not to emphasize eradication, but economic alternatives that cause afghans themselves to turn away from these kinds of things. i would make a couple of other

brief points on the afghan economy. as you know, there are substantial mineral resources. over the longer term, these can be a significant benefit to the state. but this will take time to develop. as you point out, it will require security conditions. the development of a robust private sector is going to be important. i am pleased to learn that opec is significantly engaged in afghanistan, working on upwards of 50 projects. i would like to see u.s. private investment come into afghanistan. i worked hard on that in iraq, with some success. customs revenues have to pick up.

i know there is a major effort underway from our trainers. the department of homeland security are working with the afghan border police. corruption gets into this. they have to increase their revenues. the final point i would make is afghanistan is a country centrally located in an important region. i think the afghan-pakistan trade and transit agreement was important. i understand president karzai will be visiting islamabad in a few days, i think the day after tomorrow, which is good in and of itself. the leaders of the country's talk through their issues, but i understand one of the issues is to lay out the implementation of this agreement, because afghanistan as a trade and

transit center through pakistan into india, up into the former soviet republics to the north, with iran -- i think all of that can provide a major difference for the afghan economic future. >> my time is expired but i want to underline the remarkable fact you have presented. 80% of the employment in afghanistan is agriculture. that is huge. the success, obviously, of that is paramount. i get back to the fact that you are talking about the development of resources. most estimates made in graphs to congress -- it would appear the revenues are a very small percentage of the obligations, from a security standpoint as well as a commercial standpoint.

so i get back to my problem. how long a stream -- how long will a stream of income from the united states of america to afghanistan have to last? if the military collapses, we are back to square one, whatever the effort to provide that security. we know that as you get out there you will have more to say. >> thank you so much. i recognize senator kasey and pass the gavel because i have to go to another committee. ambassador crocker, i hope you will forgive me. i appreciate your testimony. we are going to try to move your nomination as rapidly as we can and get the full senate to move on it. we look forward to getting you there.

i think you again for being willing to come in and do this. >> and thank you very much and thank you for this hearing. ambassador crocker, it is good to see you again. we are grateful for your public service and your willingness to commit yourself to another very difficult assignment. i know you are not only prepared, but i have total confidence you will be confirmed and should be confirmed, because we need you there. we need you on the ground. i want to raise a couple of questions. i also commend the commitment your family makes when you take on a tough assignment like this. but i wanted to bring you back to a meeting that you and i had. i have spoken about this a number of times. but i keep coming back to it because i think it has a lot of

relevance to not just our policy in afghanistan, but where we are now, this year, this summer, making some difficult decisions, congress, the administration, and the american people. the setting was in iraq. it was a small group of people. you were there. it was august of 2007. i was complaining at the time, very bluntly, about the language used to describe progress in iraq -- victory and defeat, win or lose -- all language which i thought was inappropriate and sometimes misleading, i hope not deliberately so, at the time in washington. i will not cast blame on hewitt -- on who used the language, but a lot of folks did. it was wrong then and is wrong now.

i asked you at the time what language you think is appropriate to the mission. you said at the time, and you gave a very cogent answer, but what i remember most is you said two words -- sustainable stability, which has stayed with me ever since. i would ask you in light of this mission, which is frankly more complicated and difficult that iraq, with a different set of priorities and challenges in afghanistan. but i asked you in light of some of the real numbers that folks have estimated, comparable numbers around the country -- we are at about 70 killed in action. 69 is the last number i saw, but it could now be 70. that is a third of where we were in iraq.

we fell just short of 200 there. we are about a third of the killed in action in iraq in afghanistan. my my numbers in pennsylvania are again about a third of the number in iraq as it relates to the wounded. what the people want to know, taxpayers and the families that have loved and lost, or families that are contributing the time and sacrifice of their loved ones, is what is the mission and what is the goal. i ask you to comment on that, in light of the discussion we had in 2007. >> thank you, mr. chairman. i do clearly recall that

conversation. that was shortly before the september 2007 hearings that general petraeus and i took part in. as you may recall from that conversation, i was not among those who have ever used the words of winning or victory -- not then, not now, not in iraq, not in afghanistan. sustainable stability were words or a concept i stood by then and would stand by now in the case of iraq. another way to put it is "good enough governments," governments that is good enough -- governance that is good enough to make sure the country

does not degenerate back into a safe haven for al qaeda. that is what i was attempting to get at in my conversation with chairman kerry before you arrived. there is no intention i see in any of my consultations here -- i did not come with an intention to produce the perfect society. we cannot. but i think by judicious use of resources and conditions-based redeployments and transfers of responsibility, as we will begin this july, we can get to that sustainable stability. i have always been and always will be frank and open with this committee.

it is my responsibility as an official, if you choose to make me one again, but even as a citizen. as i look at afghanistan's past, the 50 years of relative tranquility from 1928 to 1978, afghanistan did require outside assistance. we provided some very important contributions to their economic development that are still favorably remembered, through the program which later became usaid. i am not well informed enough to lay this out as a thoroughly considered view, but i would anticipate, and this gets a bit into what senator lugar was touching on, that beyond 2014 there will be a requirement for

outside assistance from the international community. i think part of our obligation is being sure that the international community continues to understand they have a great deal at stake. this is not an american problem only, or an american obligation. that is how i would do it. it is going to be incremental. it is going to be issue by issue, case by case, as to what sustainable stability and good enough governments -- governance is going to look like. >> thank you, i am overrun my time. i will ask you a the second round how we measure that. senator mendez? i am sorry, senator ben cardin? senator ben cardin, state of

maryland, class of 2007. >> ambassador crocker, thank you for your service. you have served our nation with great distinction, and thank you for that. thank you for your willingness to come back into public service. i can think of no one who is more qualified for the position then you, and a tough situation. as everyone is suggesting, afghanistan needs to change. the role needs to change. we talk about military aspects and the fact we're looking at redeployment of combat troops starting in the next month or so, and we expect that we might be able to accelerate that considering the current status of terrorist organizations operating in the region. having said that, i want to concentrate on the other part of our role. we have had the military presence.

we have also had the opportunity to provide economic development assistance to the people of afghanistan. you just recently got the report commissioned by this committee, but let me just share with you some observations-not be a surprise. it is rather critical of the efficiency of the deliverance of the aid to accomplish any long- term economic stability for the people of afghanistan. it also questions as to whether we are really operating with a leadership team in afghanistan that can deliver the type of economic promise for the people. probably worse than that, we're creating an arbitrary economic activity in the country based on an economy that will not be sustainable, and we are in fact creating an inflationary situation within afghanistan that will cause a serious

problem as we transition to a country that can take care of itself, admittedly with international assistance. and i don't deny the long term need of humanitarian and economic assistance for the people of afghanistan. my question is one of how you see your role as ambassador to assist us in being able to evaluate how we can transition the u.s. role and be as helpful as we can so the afghans can take care of their own people and the rate -- and that we have at least a strategic ally in the war and terror. how do you see using the information that you have learned or will learn or no from the region to assist in helping us, the u.s. senate, in transitioning to the next phase in afghanistan? >> thank you, senator.

it is clearly an important question. i see my responsibilities at a number of levels. first, it is ensuring that we are properly organized as a civilian mission, as an embassy to ensure that our assistance is accountable and effective. effective, for me, means it has to be about transition, building afghan capacity, helping the afghans carryforward without assistance at this scale in the future. i know that the administrator and the deputy secretary have provided some responses already to this report.

i have not had a chance to go through it in depth, but i know that it will be useful to me if i am confirmed, looking at how we are structured and deployed, looking at our programs, and being sure they are effective. to this end of sustainable stability, but the afghans increasingly taking the lead. obligation begins at home. within the embassy. the second thing that i clearly would be focusing on is developing a partnership with the afghan government. our programs have to support their mission and have to be sustainable by them. i know that we already have in place several mechanisms, formal mechanisms that focus on

transition. this is a major concern of president karzai. he has chosen a person to head this up from his side precisely so that we do not create that unsustainable wartime economy. i understand that usaid and other donors have taken steps to ensure they are not in fleeting salaries -- that they are not inflating salaries. that is important. the worst thing we could do it is be competing with the afghan government for talent. it needs all that it can get and a lot more to function as a government. that would be another key part of it. it is their country.

how it moves forward is ultimately the responsibility. i want to establish myself as a reliable partner, but keeping the emphasis on sustainable development and transition, which is what they themselves seek. third, i would say, again, after being in consultation with ambassador grossman and others, we have a lot of international partners engaged in afghanistan, nato and non-nato, the united nations, the representative to the secretary general. i cooperated closely with him there, look forward to doing the same in afghanistan. as i said earlier at a slightly different context, afghanistan is not a uniquely american problem. it is a threat to international

peace and security and requires an ongoing international commitment. what role i play and that -- what role i play in that is something to be sorted out, but clearly i have a role to play. i hope that gives some sense. >> i thank you for your answer. it will be a real challenge. we are not necessarily paying salaries or competing with the afghan government, we're paying salaries that looked like we are getting cash bonuses well above reasonable salaries to make friends with afghans, which ends up supporting a corrupt system. thank you, mr. ambassador. >> thank you. i am here out of respect for you as a person, the role you have played in much of your foreign policy. we have had an extensive conversation in our office.

general petraeus has asked that we support efforts in afghanistan through this the fighting season, and i think people generally speaking have been willing to do that, but i think you sense in our conversation that probably among the numbers of people here, we're expecting dramatic changes at the end of this cockfighting season and expect and know that you will help guide those changes into a different place. all of us know the model that we have in afghanistan is not sustainable. for multiple reasons we have talked about in detail and private, and i am just here to thank you for your willingness to do this. i don't know why you would come back and do this other than your a great american and we thank you for that. again, without belaboring, there are a number of questions we could ask that you cannot answer yet, but i think you all know

that a great degree. it is not in patients, a great degree of cost knowing what we are doing is not applicable is changing the character of the country that your knowledge there will hopefully help us and the partnership that does not exist in the way that it should. it again, we thank you for that and i look forward to talking to you on the ground in afghanistan and i thank you for your willingness to do this. >> thank you, sir. >> senator web? >> thank you, mr. chairman. ambassador, you are a national treasure. we are happy to see you going over into that part of the world. i think what my major concern is, and we had the opportunity to discuss this when you visited with me, is how we really define our strategic objectives in

afghanistan and how that matches up with what we are able to actually accomplish in a cost/benefit way, quite frankly, is one thing you are hearing. how much do we actually need to achieve in afghanistan with respect to our national interests, how much do people want to achieve that may be above what we need to? are we getting into this area of nation building? how much can we achieve, and how much of that actually benefits our strategic objectives? that is what i have been struggling with for more than a year now. i don't know if you solve the column -- i don't know if you solve the column in the wall street journal. she clearly is not a radical. she is one of the bright lights

of the administration, under which i was proud to serve. one of the strong comments she was making is if there is any nation in the world that needs nation-building, it is the united states of america. when we are putting hundreds of billions of dollars into infrastructure and another country, it should only be done if we can articulate a vital national interest. quite frankly, we need to be doing a lot more of that here. can you -- time is short, obviously, but could you please articulate for us your view of the strategic interests of the united states in afghanistan and how the current military policy can help bring us to an end point in the strategic objective? >> thank you, senator. that is, of course, the essential question. as i said in my statement and as

the president and others have said, our ultimate strategic objective is to disrupt, dismantle, defeat al qaeda. in the afghan context, to ensure that afghanistan never again becomes what it was before 9/11, an area in which al qaeda can reconstitute itself under protection of like-minded elements. >> i watched your opening statement from my office. i don't disagree with the objective, but you can pretty well fight international terrorism without remaking an entire societal structure, it would you agree? i watched your comment about how they are not in afghanistan now, but you could end up in

that region planning whack-a-mo le. the real question is, what is the ultimate objective with all of these ground forces and these infrastructure programs in terms of the long-term advantage? >> again, it an important and multifaceted issue. what we have seen with the additional forces and the effort to carry the fight into enemy strongholds is, i think, tangible progress in the security on the ground in the south and west. this has to transition. again, we're seeing the transition of seven provinces and districts to afghan control, to sustainable afghan control.

i think you can already see what we're trying to do. province by province, district by district, to establish the conditions where the afghan government can takeover and hold ground. you are absolutely right, you don't have to build a whole nation to achieve that. >> international terrorism and guerrilla warfare in general is intrinsically mobile. i fought in vietnam and i have written about this. securing one particular area does not necessarily -- i don't say this critically, just out of concern of where this policy is -- it does not necessarily guarantee that you reduce the capability of those kinds of forces. they move. the reason they are international in focus, they

don't align themselves with any particular government toll structure. i just wanted to lay that out as an area of concern. one more question, i mentioned when you visited my office, we tend to speak of conciliators in the region simply along the pakistan, afghanistan, india axis when i believe there is a role that china could play if they would step up to the map and be more overt and their willingness to participate in the solutions. it clearly would be a benefit if there was more stability in the region. what are your thoughts on that? >> it is a great point, senator. as we talk about the three elements of our strategy, the third one is very much involved

involved in regional engagement. i would join new in including china and that discussion. and the chinese have the proper in afghanistan. that is great. you can only make that pay off for you if the conditions on the ground permit the extraction and transport. >> we also have a long relationship with pakistan. some will say that is overstated. clearly, and they do. when he returned here from pakistan, and he was the prime minister of pakistan. he made a visit to china.

he stated to china. i wish you the best. i am grateful you are undertaking this. i look forward to visiting you. thank you. >> thank you. i join my colleagues in thanking you for your willingness to continue to serve the country. i stand ready. we will be helpful to you as you take on this new assignment. i know you have not had a chance to review the report that was released this morning from the committee. i think it does provide renewed perspective on how difficult the challenges are in afghanistan, partook of the early pc billion -- particularly the civilian challenges. the report underscores the need

for our reconstruction projects in afghanistan to be necessary and sustainable. i know there have been some concerns under this. i thought it was long overdue. he would serve as a counterpart to the military commands. and you haven't gotten on the ground here. i wonder if you can sense -- can

assess what difference that would make and what you expect your relationship to be with those civilians. >> thank you. i join you in a concern for accountability. i was an ambassador in iraq. we all learned a lot of hard lessons. i would hope to see this being applied.

there is accountable assistance. one of my first consultations was with the state's inspector general. i have a close working relationship. i have a lottery guard for. i am pleased that it seems to be moving forward with the real capability. if confirmed, i look forward to welcoming it. all of these institutions all

have an important responsibility in ensuring accountability. you know the phrase. we are hear to help. sometimes help can be painful. i sometimes find that absolutely essential. i employed the same approach in afghanistan. >> are their experiences from your time in their raw that you think can be helpful in terms of coordinating all of these efforts? for those of us looking at what is going on, there are a lot of people they are trying to address over said. how is all of this bidding coordinated?

-- getting coordinated? is there a similar command structure? >> basically, there are only two u.s. commanders in afghanistan as there were in iraq. the civilian commander is the u.s. ambassador. as i had consulted, i feel he has done an amazing job as a ramp up of the civilian presence in ensuring that it has been done in an orderly an organized manner. i will need to make my own assessment.

he has handled a huge challenge. there are micro coordination issues. i have an obligation to see that the entire u.s. mission is effectively carry out the roles. i want to be sure that the accountability element of this are themselves coordinated. they have to wrestle with this in iraq.

i have a responsibility to make sure the whole mission is operating correctly. if confirmed, i have a sense i will be inheriting a growing concern. also on this issue, they are working as a team. >> thank you. >> thank you for your willingness to come out of retirement and take on another vital issue. i am very encouraged by air service and the circumstances.

i began the previous question, and number of us are getting at that question. i am not interested in the structure what looks like. in and paying for it. he made a comment that we are not seeking permanent military bases. i wondered if you a comment on

the importance of cheating -- the importance of achieving it. in iraq you achieved an agreement that allowed for long- term stabilization. what importance is there in afghanistan to our having a long-term u.s. military presence? where do you think we are headed in the term of this this? how stable do you think past 2014 assistance required to support it really is? there are important ones. these are ones i will be focused

on. it is so does the become an al qaeda safe haven. we all would share that. how long does it take? these are questions that we will have to work on. ou.are accountable to yea as he saw in iraq, i do think you cangoing in bakig,

then come out small. iraq's oil. -- has at will. it is always good to have oil. they can pay for things that the afghans cannot. i.t. the process is important. as these strategic framework -- i think the process is important. as is the search -- framework was in iraq. in terms of the old cement in state, the target is to police

and army combined at 3000 level this october. to me that is not a number that is engraved in stone. it will never change. i am speculating here. we have to see how circumstances develop. farther down the road, they may decide that they really do not need a security force. >> another key factor to the sustainable process was not just reconciliation with the reintegration of 100,000. so far it is going quite slowly.

do you think 3 integration will be critical? the size of the afghan security force is directly correlated to the size of the ongoing insurgency or taliban. >> great question. you are right. we have not talked that much about this. the afghans are focused on two balance to bring this to an end. one is reconciliation. the of there is a reintegration which would be a little "r." both are premised on a concept we will all share. he cannot kill your way out of the insurgency.

reintegration is part of it. there are some 2500 former insurgents that are either processed or in process. it is an afghan process. i think the capacity is an issue here. there is another element here that had they give significant. -- that they have that is significant. it is a local police initiative. the sons of iraq was a pretty varied group. some of them were former insurgents. some of them were not. the afghan local police initiative focuses on individuals who want to stand up for their community and you were

not part of the insurgency. i think their numbers were 6000. this happen quite early in the process. the afghan local police have started out linked to the ministry of interior. you have all three of those in play. all three afghans supported. we would like to see the real

integration process move more quickly. that is something that will have my focus. it can be a very important component of a broader process. i think the ultimate solution will come to a successful reconciliation process. we will see what effect the deaths of osama bin laden might have on attitudes, to what extent the linkage is personal. >> i will ask our distinguished ranking member. and if you have a follow up. just one quick question. we can amplify this.

you can amplify this with written responses. i want to ask you about a related question and how the american people view the mission. one way to analyze that for the american people is to have measurements reporting that we know we have had in place. there is probably a good debate about whether they are adequate enough. we learned a lot in the conflict in iraq about how difficult that can be to measure and report. i think we have to have metrics like that in place. i want to get your assessment of how we are in that.

they have some way to measure progress. each is an important point. it is part of that accountability process. how do you measure progress? that can be hard in certain areas. in certain areas it is easier. we know how many afghan kids are in school. 2.5 million are girls. as we consider our cost and their options, -- and our options, i would like to take a minute to comment on girls and

women in afghanistan. one of the first things they did is start educational programs for girls. in january 2002 on a freezing day, i tip senator biden to the school we established. we visited a first grade class whose girls ranged from ages 6 to age 12. the 12 year-olds had to be of age in the taliban did go over. i asked a 12 year old whether it bothered her to be in there with the little kids. she said, i am just so happy to have the chance for an education.

i was touched at the time. i still am. as we consider the options, it is my intention to see that there be nothing in my recommendations and nothing in policy decisions that would put at risk half the population of afghanistan. they still face some significant challenges. they are in school and in government. i am sorry for a slight digression. these are things we can measure. i am not far along into this to be able to give via large quantity -- to give you large

quantities of statistics. that which can be measured should be said the american people and congress -- so the american people and congress and know what is happening out there. >> thank you. thank you for that commitment. that is exactly what i was going to ask as we talk about the potential for reconciliation. how do we insure their bremen's rights -- that women's rights are not negotiated away. for all of those of us that has was what has happened, one of the biggest concerns about what i think about what happens is what happens to have with the population. and very much appreciate your commitment to ensure that those rights are protected. >> thank you.

i have one last question. this is about pakistan and the disproportionate or significantly different investment we are making in afghanistan and try to sustain this uneven partnership relationship with the people of pakistan. i just wanted to ask your input on how you see the prospects of our being successful in persuading them to change their relentless focus on india as the primary source of fat. -- of that. and what initiatives you think we can and should be taking to

help realign the strategic calculus. >> this is an important question. the pakistani lists have been engaged to militants on their soil. they have lost a large number of portions fighting them. there are questions with the network. in recent weeks since the death of osama bin laden, we have had

a number of senior visitors who have engaged the pakistanis including the chairmean. they have made some statements. it will clearly be important for them to follow through. with respect to india, i am pleased to see that the dialogue between the foreign dignitaries has resumed. i think that is an important step. i hope they sustain it and broaden it. clearly, the degree to which india and pakistan started to see some capacity to work together, it is to the benefit

of the region and it to us. that falls to the purview of others as its rebates to india. >> thank you for your input. >> thank you for your willingness to take on a. >> thank you. i am going to be the thing. i will be turning the gavel over to center and i am going to be leaving. i will be turning the gavel over. with this i will turn to senator mendez. >> thank you for your service.

i wonder what your role will be in terms of the information's to the congress. i wonder if we would be more successful by reducing our present and the south. -- our presence in the south. it seems like a counter terrorism strategy purses a counter insurgents strategy -- reverses a counter-insurgency strategy would be a considered policy. that has had an enormous toll on american lives. i do not think we have learned the hearts and minds.

do you believe we are making sustainable crowd pressed? i know we are hoping. that is not sustainable for us to be able to stay. what happens? >> thank you. thank you for the time you gave me in your office. that was very valuable to me. us try to get my mind around the big issues. -- i was trying to get my mind around the big issues. we are clearing and holding in the south and west. we are also going to be transitioning. we use this to afghan security control. i do not have the list right in front of me. some of those are in those areas. it will be an important step.

that is ultimately our goal for the entire nation. they are assured that they can do this. i am understand that we are confident that they have the capability to do it. if successful, that will be a not bad start to the transition that we and they are committed to to cover the whole country. >> what role will you play in helping to win over other groups in the south? >> again, at this stage in the process, i cannot answer that with exact certainty. it will be part of a process of

consultation with others. -- who are involved with this matter, particularly with ambassador grossman. he is a friend and colleague. as the afghans move toward a concentrated reconciliation effort, i would see a role for the in working closely as we already do with pashtuns in the south. my position in iraq was basically we would talk to anybody who would talk to us and not ask a lot of questions as we entered those conversations, at least initially. whether i can get away with this in afghanistan or not, i do not

know. i think it is important that we know what the southern pashtuns are thinking. we know what they are looking at, especially as a tricky reconciliation process moves forward. >> let me turn to wakefield i think you have a lot to say about. -- to a field i think you have a lot to say about. that is the continuing use of u.s. taxpayer dollars for an assistance mission. my understanding is that the president's goal is to transfer from a military mission to a assistant -- to an assistance mission. that is to create a punch in the government. we have done it before, but we have done it with more progress from my perspective we have spent $19 billion in assistance.

much of which is not sustainable is subject to indic corruption. i know there is a report about to be released suggesting we have had only limited success, that this huge attempt at nation-building may not survive eight u.s. much role. -- a u.s. whaithdrawal. is this a good use of taxpayer dollars? >> i think we have had some significant successes with our assistance. i understand the report touches on some of those. that would certainly include education. before you came in, we were talking about the position of basic health services. what i can tell you, senator, i

am committed to ensuring that the assistance we provide a, makes an important positive difference, b, can be implemented and, c, can be explained. i agree with the basic positions i have seen in the report, which i have not had a chance to fully steady, that our assistance project should be necessary, achievable, and sustainable. i know that administrator shaw and debt -- and the deputy secretary responded on behalf of their respective offices. they are the ones to speak

authoritatively on the matter. if i am confirmed, going forward our assistance has to make a difference and it has to be sustainable. >> he said we had some successes. quantified with me in the context of $19 billion what is a consensus. -- what is a success. >> clearly, in education, which was an early priority for us. the successes of getting over 7 million kids into school, at 2.5 million of those being girls, that would be a metric of success. >> if we put a dollar figure on that what would that be? >> i can certainly get that for you. >> i would appreciate that. i consider that a success, but not at $19 billion.

i admonish the audience that we appreciate your attendance, but we are not subject to comments. my point here, ambassador, is not your nomination. if you are going to be in a role that is, yes, diplomacy, yes, for policy -- right now i do not believe from this side of the legislative process that we are being good fiduciaries to the american taxpayer at this point. moving forward, do you believe that the karzai government is doing what it needs to do to be an effective partner for us? to be a transparent partner?

>> there are several elements, again, to a very important question. i will start with the last. i noted in my statement that i got to kabul in january 2000 to just 10 days after president karzai had been named by the conference as chairman of the afghan of 40. i worked very closely with him during those early days. i believe he is committed to a unified, stable afghanistan. i look forward to reviewing -- renewing their relationship. i will certainly make every effort as ambassador to have a productive working relationship with the head of state. had we had differences -- have

we had differences? whether things we wish he would or would not have done? are there things he wishes we would or would not have done? of course. one key issue is corruption. for the sake of the state of afghanistan, the afghan government is going to have to do more. we saw the same thing in iraq. you do not get positive change overnight. prime minister maliki in iraq talked about the problem. incrementally some steps were taken. we have seen president karzai make the same commitments. words do count. these killed more. -- these count more. if confirmed, i will start from

the assumption that we do have partners in the afghan government. that is what i hear in my consultations. some effective gubernatorial appointments in the provinces. some effective members of the karzai cabinet -- that is a critical part of capacity- building and transition. i would see that as, again, a key responsibility to help them develop the capacity. >> i will just say that when i see the reports, both public and private, about where our money has gone, where the corruption is at -- and when i see karzai talk about the united states as an occupying force, i have real problems having american lives shed, having them continue to be shed.

my understanding is that from fiscal year 2002 until 2010 we spent $19 billion on education. that is far from $19 billion of success. what is the united states' position on the efforts to alter under the proposed plan, two separate this would be created. one for each militant organization. this would provide the afghan government with a much better it say over which taliban would be on the new list and possibly allow them to remove more than 100 people from the 450 person lest that exist with freedom to travel, access to the banking system -- do you support that effort of who will ultimately

stay on the list and who gets off? are you concerned that potentially dangerous individuals will be removed from the list? >> senator, this is one of many issues, frankly, that i am not fully up to speed on. i am aware of it. the policy of the administration has been that for reconciliation to take place, insurgents, the taliban have to renounce violence, break with al qaeda, and agree to respect the afghan constitution. i cannot speak for the administration on this matter because i do not know if they have a position. i would be concerned about individuals who have a record of extremist violence against us and against the afghans.

having freedom of movement and an ability to kind of do what ever they want. again, i cannot be authoritative on that matter. >> i will look forward to pursuing that. thank you for your answers. >> thank you, senator menendez. mr. crocker, thank you for what you'd do for america. your qualifications are impeccable for this job. i do not envy what you are about to take on. i had been following this hearing electronically because i have had other things going on. let me just say that i share some of the skepticism that -- in fact, that is probably an understatement. i share a lot of the skepticism expressed here this morning. this is a messy situation.

it is not getting any better. since i had been elected to the u.s. senate, people back home keep asking me, "what is going to happen? how is this going to end? what kind of progress has been made?" certainly, militarily, we have done it well, i believe. but beyond that, this is very difficult. to articulate what our objectives are and what our goals are and how this is going to end it with us achieving those is very, very difficult to grasp, let alone to convey to the american people. i wish you well. the problems here are very, very significant. i am glad you are the one going there because i think you're the right person to do this job.

but again, i am very skeptical about how we are going to handle this. thank you. >> thank you, senator. i am under no illusions of the difficulty of the challenge. if iraq was hard -- and it was hard -- afghanistan, in many respects, is harder. all i can promise to you and the other members is, if confirmed, i will give you an honest assessment of what conditions and situations are and what are our achievable waste forward and what is not achievable. that much i certainly undertake to do. >> i appreciate that. i think your observation involving iraq and afghanistan is appropriate. too often people try to compare the two.

the comparison is apples and oranges. what we are trying to give the afghan people and have worked at for 10 years, you really really wonder whether they want what we are trying to give them. if they do not want what we are trying to get them, it will not work. that is where i am on it. thank you again for your service. i wish you well. take care of yourself over there. >> with that, the record will remain open for 48 hours. we will ask the ambassador to respond to any questions as expeditiously as possible. the hearing is closed. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2011]

class when do we get a chance to speak? 10 years. iraq, as far as i understand, was a disaster. it led to the death of about 1 million iraqis. [unintelligible] 10 years of fighting.

>> let's clear the room, please. >> at the daily state department briefing, reporters asked about the nearly $19 billion in aid to afghanistan that the u.s. government has spent over the last 10 years. here is that part of the briefing. >> the committee released a report overnight about the spending in afghanistan programs to the state department. it made it a bit awkward for ambassador crocker at his hearing today. beyond the promised that it is trite to overhaul the way it

disburses money in afghanistan, what more can the state department say about the very profound concerns the centers have about what is going on there? do we actually approved a $3.20 billion apportionment for afghanistan in the coming fiscal year? >> it is a long question. it has a lot of elements to it. i will try to go through all of them. ambassador crocker, i do not think, was at all uncomfortable in his confirmation hearing. he said that if confirmed he will look at the issues more closely and take the issues raised in the report very seriously. also, he said he is concerned about the course of corruption

and said he would seek to address that if confirmed. also, the deputy secretary as well as our administrators are given the opportunity to review the report in advance. my understanding is that they did respond in the form of a letter to the committee. we will try to see if we can make those letters available to you. it would constitute a detailed response to some of the concerns raised by the report. by speaking more broadly, we welcome that you do not endorse all the conclusions in the report. we believe the present implied by the washington post article that our systems have contributed little and that afghanistan has made no progress is, frankly, and correct.

we believe afghanistan has made great progress. as president obama said earlier this week, we are broken the taliban's momentum. we need to continue to train afghan forces and we are preparing, we believe, to turn a corner in our efforts. civilian assistance represents a small percentage, but it is an essential component of the national security strategy in afghanistan. despite the many operational challenges, we are seeing progress on the civilian side. >> do you come to the conclusion that once u.s. forces leave in 2014 that the impact on the afghan economy would be such a shock that it would go into a depression because it is not

robust enough right now to stand on its own two feet? >> obviously it is a key part of the integrated civilian and military plan for success in afghanistan. what is important is to recognize that there is going to be more afghan-led efforts in the military side as we head towards 2014. on the civilian-assistance side, we are going to continue to put in place programs that we believe are sustainable. i believe u.s.a.i.d. is addressing many of the things in the report. we have undertaken in the past years some good efforts to change the way we do business. >> on c-span tonight, lawsuits

against the health care law. president obama talks about job training programs and the senate judiciary committee considers extending the term of fbi director robert milleueller. >> tomorrow on c-span, the senate confirmation hearings for leon panetta. you can watch live coverage of the senate armed services committee beginning at 9:30 a.m. eastern. also, the senate subcommittee hearing on how the government should dispose of underused federal properties. that gets underway at 2:00 p.m. eastern also on c-span. >> to connect with c-span online with the latest schedule updates and video on twitter. continuing conversations on facebook. political places in washington and beyond with forswursquare.

c-span and social media -- connect today. >> 26 states are suing the federal government to overturn last year's health care law. the patient protection and affordable care act. today, they heard oral argument on the case that hinges on the constitutionality of the mandate requiring individuals to buy health insurance. a lower court judge has already ruled in favor of the states. this is two and half hours. >> we are here this morning in the case of the state of florida versus the department of health and human services. before we put you lawyers on the clark -- on the clock, we want to make some comments on the direction you need to go in your arguments. >> clearly, we believe the most difficult issue in the case is the individual mandate. but equally difficult is the medicaid expansion issue.

so we would ask you to direct your arguments there. i would ask counsel for the appellants, when you first get up, i would like you to speak to us briefly about standing. at one point in this case, you challenged standing as well as some of the miki challenge standing. it seems to us that there is clearly standing in the case as to the individuals as far as the individual mandate issue and there's clearly standing as to the states in regard to the issue of medicaid expansion. with that, we will hear from you first. >> thank you. if i could, how the two frannie marriage issues first and then get to your questions about

standing. congress made specific findings in the act, including first that the minimum coverage provision "have economic and financial decisions about where medicare is paid for." and second that "is an essential part. and third, "it would reduce the federal dove said." those three findings, three different independent constitutional bases for the act, when viewed alongside the standard rolled out has shrunk resumption of constitutionality. the three arguments are first, that the minimum coverage provision regulates how people

finance commercial transactions, namely the obtaining of health care, an area that congress found substantially affects interstate commerce. there is no dispute that the prevention of billions of dollars of cost shifting and the need to make health insurance widely available to the 50 million uninsured americans are legitimate clause ends. the question is the means to which we get there. the second argument is that the minimum coverage provision assists one part of an act that comprehensively regulates the interstate insurance markets. that part is essential to meet the overall at work. it is part of a larger regulatory scheme. third, the government's broad powers of taxation. >> now tell us whether or not you challenge steny. >> we basically agree with what you said. we said that we do not

challenge the district court standing. with respect to the states, we agree that they do have standing to challenge the medicaid provisions. so we are in agreement. >> so we do not have to reach the issues on standing because there is standing. >> the only way you have to reach for that question is if we get to the point to declare the act unconstitutional. then there's the question about several ability analysis and whether the district court judgment on that was right. with respect to that, we think that, while florida has standing to challenge the minimum coverage provision, they do not have for the rest of the act. >> even accepting all that is true, if accepting the premise of your question, the mandate went down and there is plenty

for this court to entertain that, we could entertain a question of sever ability only of the states have standing as to the medicaid provision. am i not correct about that? >> that is correct, judge markets. if you believe that the minimum coverage provision was unconstitutional, then he does have a standing. >> it strikes me as a wholly academic question, no matter how the court rules. have i missed something there? >> it is largely academic. in part, we just want to ensure that the court has people guidance of the united states views on standing in general because these issues come up repeatedly. we would not to be in a position where a decision in this court were read to expand standing beyond its conference. >> while we're doing the housekeeping matters, the several ability issue, curly the sake of argument, the

mandate itself is unconstitutional, finding nothing else's constitutional, it can be wholly severed? >> we believe, with respect to severability, that the minimum coverage provision is coupled -- this is our second argument on the merit. >> but we go back to the first question. assuming it is unconstitutional, it does not reference any other provision, doesn't it? the statutory language does not reference any other provision? >> the "minimum coverage" provision appears in other parts of the act. >> let me try it one more time. that section is unconstitutional, the government contends the rest of the act stands. i know you have a backup argument to that, but your first argument, you can sever that holy and not touch the rest of the act.

am i correct? >> no. our position is that, if they were to win a challenge, they would win to a part of 5000 a on the coverage provision. alongside that, two sides of the same coin are the insurance provisions. we do think that -- >> which were identified by congress. i did not see in the congressional findings any indication of other provisions that were tied to the individual mandate. >> it is the finding that i just read to you a moment ago, when i opened the argument, but that was essential. >> we understand how it operates internally. what else did congress say besides guaranteed issue? >> said nothing is anything

else specifically besides that. our position is that the court does not need to reach any of these severability issues. >> our position is that, withwe. >> our position is that with respect to this court that basically it is the minimum coverage provision and the insurance provisions at most. >> when you say the insurance provisions, just so i am clear, you are referring to the mandate congress imposed on insurance companies not to blacklist or bar people with pre-existing conditions or medical histories from being able to obtain insurance. that is the provision you're talking about. >> that is correct.

>> is that the beginning and the end? >> and there is nothing in and the sections that say that, no tying language. is that correct? so there is no statutory language that helps you on that. you look solely to the congressional findings for the essential component. >> that is correct. >> the only form referred to is the guarantee issue. i am not saying that is where we are going. i am just trying to understand this. >> that is our position. if i can now persuaded not to go there. >> let's talk about the individual mandate. let me tell you what makes this case hard for me. first of all, i have read all the supreme court cases from the

very beginning that talk about the commerce clause. i cannot find any case written that is just like this. would you agree with that? there is no case out there just like this. >> depending on what you mean, yes. >> what they have said in two cases at least, morison being one of them, and lopez -- i agree those cases are different. they were in a criminal context. nevertheless, as broad and expansive as the commerce clause power is, and congress is clearly given expansive power in this area of the law -- in both of those cases, they say there are limits, whatever that means. i do not know what that means, but there are limits somewhere. if we uphold the individual mandate in this case, are there

any limits on congress's power left? >> absolutely, chief justice. you are right that lopez and morison established limits on the federal government. nothing we are saying here puts those decisions into question in any way. the court said that lopez and morrison emphasized the non- economic nature of the conduct. when a statute regulates commercial activity, those are in applicable. that is the word of this court. while there is not a case exactly like this one, this case and what congress is doing falls within a long line of supreme court authority. we are not saying that congress can force someone to buy something and the failure to do so is economic activity.

our point is that people are seeking this could already in untold numbers, -- this is good already in untold numbers -- this good already in untold numbers. the failure to pay for it is what causes the caution. $43 billion in cost shifting is occurring because of uncompensated care, increasing the average family premium by $1,000 per year. that is quintessentially economic in the way that lopez and morison were not. lopez and morrison more about attenuated change. -- were about attenuated change, about gun possession leading to problems. >> let us talk about the nature of the conduct being regulated.

the government to shift positions seems to have shifted from health insurance coverage to focusing on the conduct of health care. is that correct? >> i think we have always emphasized that what congress was doing was regulating the fact that there were a large number of people who were attempting to self-insure. that is the language of congress. >> the finding was 50 million uninsured causing $43 billion in uncompensated costs. that is the finding, correct? >> i was referring to a different finding. >> let us follow up on that. the supreme court, overtime, and has -- over time has looked at manufacturing and commerce. they came up with economic and

non-economic. do you believe economic activity is a sufficient limiting principal -- principle? the government believes economic activity is a sufficient limiting principle on power? >> that is not our position. our position is more than that. >> is that part of your position? >> it is a part. the words of lopez are a substantial -- are "a substantial effect on commerce." it cannot be attenuated. you cannot add a bunch of partially economic conduct. here we are talking about the opposite. we are talking about $43 billion. the budget of the federal judiciary last year was $8 billion. >> let us talk about cost

shifting. all of health care is $2.50 trillion. $43 billion is 1.7%. >> that is correct. >> we are talking about 1.7% of $2.50 trillion, and 50 million uninsured. let us put aside the individual mandate. in fact, the health care act is going to take care of at least 10 million of those 50 million by virtue of medicaid expansion. is that correct? it opens up another 5 million by the extension of dependents to age 26. we will get a lot of healthy young people by virtue of that extension. small employers for the first time will have to offer coverage or pay a penalty. is that correct? we are also going to have no discrimination based on health status.

we have at least 15 million people last year trying to get insurance who were denied insurance because of discrimination based on health care, correct? they are voluntarily trying to do it. the act is going to take care of that, correct? so out of the 50 million, the end of the day, the major reforms are going to reduce that 50 million to probably around 10 million without the individual mandate. i am not saying the individual mandate is not important. i am trying to understand how it relates to the act. >> i am not sure about the numbers. i think the coverage provision would reduce it by something like 60 million. >> over 75% of the uninsured will now have coverage by virtue of health care reform in the public and health section of the code without the individual

mandate. >> i disagree. i think congress thought of this as a comprehensive package. >> we understand your several ability -- severability argument. in the terms of the act, the reality is that is going to occur. >> i do not think that is right. congress found you could not been -- ban individual restrictions without having a coverage mandate. >> that is because the insurer's left that market. -- insurers left that market. >> there is a lot of analysis by the cbo. i did not see in anybody's brief any objections to the other party's citations or reliance on those studies.

am i correct? >> that is basically correct. >> so we are able to consider them part of this case. >> on a rational basis standard, this court has said time and again -- >> i want to make sure we can consider those studies. i respectfully suggest they say without the individual mandate the number of people who will get coverage -- whether insurers will leave the market is another issue. i tried to find a study in the record by anybody that tried to analyze the national market based on these health care reforms and whether insurers will or will not leave the market. there did not seem to be a study on the record. is that correct? >> i think there are several studies. the americans with disabilities brief shows that when seven states reformed insurance

markets without a minimum coverage requirement, the insurers did leave the state. congress made a finding that the massachusetts experience worked because it coupled the insurance reforms to the minimum coverage provision. i think it would be a deep mistake for this court to read the lines from a cbo report that says you can solve some of the problems through the other mechanisms, because congress found specifically that you could not solve the bulk of the problem of pre-existing condition discrimination without coupling it to the minimum coverage provision. >> that is a congressional funding. >> it is. even if it is 1.7% of the market, the only thing we are talking about is whether this is economic. a small percentage of goldman sachs still makes a large amount of money. it is still economic. a small percentage of this market is fundamentally

economic. this is substantial. in the alabama -- >> do you call it an economic mandate? that is to purchase health insurance as a mechanism for paying for health care? >> i think it is all about financing. >> it is the purchase of health insurance in order to pay for health care that the government says you either are consuming right now or will in the future. with that frame with the activity is from the government's perspective? >> i would add that every person cannot guarantee they will not need health care in the future. someone can walk out of this court room and get hit by a bus or struck by cancer. just like in maxwell ii, there is the potential that any of us, even if we think we will not, will enter the market. >> it is fair to say there is an

economic mandate? you brought up economic activity and this is an economic mandate. >> i am not sure what the words economic mandate mean. i prefer to use the words congress used, which are minimum coverage provision. the reason is -- i think it may be similar to your economic mandate in that it is about financing, regulating whether someone will take crash -- cash or credit. this is not unusual. it is in a long tradition. >> all of that is true. i would like to go back to where we began. is there any case out there you can cite for me -- i can't find any -- that involves a court or the supreme court having sustained a mandate compelling and the private person to purchase -- any private person

to purchase any product? i know you challenge the framing of that question as myopic. but if it is framed in that way, is there any case out there that has sustained on commerce clause grounds that the power to compel the purchase of a product -- grounds the power to compel the purchase of a product on the open market? >> that is not the power -- >> i understand. your answer to me is that is irrelevant because it frames the question so narrowly as to mistake what congress was trying to do. i accept that. but i want to know, going back to the first principles, is there anything out there that suggests congress can compel the private party to buy a private part -- private product on the

open market if they are not disposed to do so. >> i do want to say a word about this first. suppose there were a precedent from the supreme court that said the government cannot compel someone to buy it under the commerce clause. we think that would be irrelevant under the question you have before you. the question you have before you is not the government saying "buy this good." everyone is invariably consuming this good. it is about failure to pay, not failure to buy. one should look at the solution. look at the problem being addressed. >> i would still like an answer to my question as i framed it. i think the answer is no. >> i do not think it has come up in those terms. >> there is not a case that says

they cannot do it either. >> i would characterize this -- i would characterize parts of atlanta -- >> they have entered a service to sell rooms to people. they have created a hamburger stand to sell hamburgers. no one is compelling them to enter the stream of commerce. >> but for the purposes of commerce i do not think that matters. i know they are making a liberty argument. >> the only point i am making is the trouble with those cases is that while at the exact point congress does compel that you sell a room or sell a hamburger, they only do that once you have entered the stream of commerce to sell a room or sell a hamburger. >> a crucial point.

my friends in this court and the district court conceded that if the congress legislated at the point of sale, at the moment that a person sought medical services, that would be constitutional. >> i understand that. i am just trying to get back to the first principle. we will move on in just a moment. the trouble with those cases is they involve volition all acts -- volitional acts. wickert may be closer because it argued in substance that by limiting how much wheat i can wrote you force me to buy a product i otherwise -- i can grow, you force me to buy a product i otherwise would not choose at a price i would not otherwise have to buy. still, there was a choice to enter the stream of commerce to

produce wheat. it would be closer if the government had said, "you buy so many bushels on the open market a month." >> this is still about the commerce clause. that principle you cannot find in the commerce clause. our point is that this is similar. if i can go back to point of sale -- if you say congress can pass a lot to say hospitals will only treat people if they buy insurance ahead of time, maybe that is constitutional. and i think it is manifestly proper for congress not to do that, not to say that the rule is if you show up at the hospital, a woman in labor or a trauma victim, that you are turned away. that is far more coercive than what the congress did. hear, the only question is timing. -- here, the only question

is timing. >> in your view, does this boil down to a temporal question? that is to say, congress, everybody concedes, has the power at the time health care services are consumed to compel the user to have insurance, and therefore what congress has done is jump earlier in time? this is simply a temporal question? >> exactly. this is simply about timing. >> i still want to come back to the essential question the judge raised, which seems to pervade this whole thing. what constitutional limits are there if the courts were to say this passes constitutional

muster? >> our answer is the same. the limits are the rock-solid limit of the text of the constitution and the presidents of the court. what this court said in the united states versus peters is that lopez and morrison established the following. it says that the statute contains no jurisdiction or requirement over matters at non- commercial. those indicate congress has strayed out of the heartland of commerce clause power. morrison observe the constitution requires a distinction between what is national and local. that sets a number of limits. you cannot have attenuated change. it must be economic. it must substantially affect commerce. it has to solve a national

problem. it cannot solve a local problem, like guns in schools or domestic violence against women, which may be national in scope, but there is a barrier to national solutions. >> you are basically saying if it is within the ambit of the very broad national economy, which almost everything is, they can regulate it in a way. that is, congress can regulate it, as long as it is part of the national economy. the limits do not have to be anything other than it is part of the national economy and substantially affects -- >> those set out very strong limits. >> i am not arguing with you. i am trying to understand your argument that those are the limits. so we do not need an additional limit. economic activity, part of the national economy, is sufficient. >> and it cannot contravene

another clause in the constitution. the bill of rights cuts across -- >> we are not talking about a due process case. we are not compelling someone to in just something, or what have you. >> let us test the limits. there is always a danger in creating hypothetical to address problems tomorrow -- hypotheticals to address problems tomorrow, but the nature of the case almost compels you to do that. let me ask a question this way. would congress have the commerce power to regulate the following in the area of insurance? suppose congress were to find that one in three or one of four americans will have to consume long-term care of some kind or fashion, maybe institutional in the form of a nursing home or

something like that. and it were to find that the costs associated with doing that are extraordinarily high, and indeed we know it consumes a can't large part of the budget today, up -- it consumes a large part of the budget today, so it would not be hard to make that finding. third, congress would observe that the number of americans who hold long-term care insurance is very small, less than one in 15, one in 20. but one in three will consume the service. could congress, under its commerce power, compel all americans to purchase -- term care insurance? -- to purchase long-term care insurance? >> i think the answer is probably know. here is how i would think about it.

in order for it to be lived in it, you would have to show some sort of cost shifting -- in order for it to be legitimate, you would have to show some sort of cost shifting. >> there is not cost shifting, therefore they could not do it? the cost is borne by the national government, rather than by those who have insurance? why isn't that enough? by your lights, why wouldn't that be enough? >> the power congress is asserting is one in which literally they were dealing with money comes out of one person's pocket to pay for another. whether cost shifting to the government may qualify may be more attenuated. >> both lopez and morison rejected cost shifting as a requirement.

>> i do not think they did. i think that was about the very attenuated form of -- >> i realize it was attenuated. but at the end of the day, they rejected it, as shown in the record of the case. >> because it was attenuated. here, it is direct. >> i go back to the question on long-term disability. i am having difficulty understanding why that is different than minimum essential coverage. >> you have the question about the means. judge marcus, you have said time and again in your opinions that congress is entitled to substantial deference in the means. >> the heart of my question, to make the question as parallel as i can make it to this case, is congress chooses to mandate the purchase of long-term care and

impose some form of penalty financially for the failure to do so. what the findings of fact by congress would be pivotal in discerning whether it passes muster or not? >> i think three things. there would have to be cost shipping shown from one person to another. -- cost shifting shown from one person to another. >> rather than to the national sovereign. >> correct. second, there has to be some sort of barrier to state-by- state solutions, some structure barrier akin to those here. third, the solution is the means. that is a deferential standard. to the extent congress is inventing something that people are not otherwise doing, there may be an argument that is not necessary and proper.

>> you mentioned necessary and proper. when we look at the well established substantial effects doctrine embedded in supreme court case law, are we already in the territory of the necessary and proper clause, clause 18 of article iii? or are we still purely in the commerce clause? >> our position is it does not really matter. >> i understand that. but are we in the territory of the necessary and proper clause? >> those are different things, but i do not think it matters. >> my question is does the substantial effect, or the aggregation document -- is it derived from purely the commerce clause, or is it derived in part from the necessary and proper,

in terms of individual interstate activity? >> justice scalia sees it as the necessary and proper clause. the majority did not. >> i thought the majority saw it as in tandem. >> t is responding to what he thought was a confusion in the majority opinion. >> before you do that, one last necessary and proper question. the government's position is you do not need to look to the necessary and proper clause. you can sustain this definition of interstate activity under the commerce clause. is that the government's position? >> we think it does not matter because -- >> you can sustain it purely under the commerce clause?

>> yes. >> you are running out of time. why don't you go over the tax and spend issue. tell us why this is a tax. >> i want to get out the second argument for the commerce clause, which is that this is part of an overall comprehensive regulation. even if you don't see the minimum coverage as economic, it is still constitutional under ridge. with respect to tax, this looks like a tax. it functions like a tax. it therefore is a tax. we believe the congressional finding that it will reduce the deficit by a quarter billion dollars a year -- >> the problem you have, speaking for myself, is when you look at the text that is not what congress says. what congress says.