if you are conservative, -- i really feel that argument can be hideout in the public's fear faster, and i do not have a problem with that. in terms of and by how much do they lag tell they continue? are they moving faster towards the rest of the society? i don't actually like it when i see people screaming about a super bowl commercial. i don't disagree with your comments but i stand by my initial premise that it can get better over time and it should be watched.

the >> i am with the peterson institute for international economics i and i was involved in helping to start the institute 30 years ago. you raised a very interesting issue but i have to admit and bat and this discussion reflects what the problem is. that is that in with what we call research has really changed at the past few decades. we have moved a lot into commentary rather than research. there was a difference between advocacy research and

independent research and now that has been devalued further. and fat -- in fact, that was appointed as a problem when it was asked if anyone has any facts. you are raising the issue for me which raises a lot of questions. if this is the case, if there has been a change in the nature of the output from think tanks what is the implication of that? those things you might not able to test empirically the weekend test is quantitatively -- we can test it quantitatively. has there been a shift in the nature of foundations? 30 years ago the federal government got out of the

business of doing policy research. the government has done a advocacy research. if we wanted to fair evaluations of policies, who does it? what has happened to government research on policy? what is happening to the composition of funding in the private sector. we had a tax rule on this that they had to disperse 10% of their earnings. they had to put it somewhere. we have had changes in the stock market now and some are not doing as well as before. we have seen a shift towards private money. there is the empirical question. does this have an effect on the nature of these organizations? i think that these are

critically important questions. there was a major policy issue here which you raised but no one really focused on it and that is that we get a tax exemption to this. to what extent, how serious is that tax exemption? we can judge that empirically. how much federal revenue are we losing by allowing organizations to put out blogs or daily news letters that look very much like a private organization.

i just want to end very briefly. that is a serious policy question. every year when they put out a survey of the salaries of the top people at these think tanks i have to say that i am appalled when i see these incredibly large salaries at what is called a nonprofit who are getting tax exemptions. i think that we should come up to the bar and ask ourselves the real question. people used to think we were above the fray because international issues are not as partisan as other things. that is no longer the case.

we are looking at what affect the debate had i certain policy which is trade policy and globalization. to what extent have the think tank's who were throwing around the numbers, to what extent has the debate itself affected public opinion forced the issue? we might be in a situation where the internal washington fight has turned against us and public opinion is moving against globalization of the because of the food fight that people saw all and that becomes a serious question. >> i want to respond to a few things that you said and raised. first of all, on salaries, i a can tell you that mine is not

anywhere close to million dollars. i urge anyone to look at that. you raise a serious issues. it is critical to have diversity of funding. there are interests alive with funding and it is important to balance that out. one type of funding can and that speaking to that funding. i would very much disagree with this idea about the research world declining.

i am pushing a lot of teams to focus more on analysis. there is an incredibly vital to government policy makers to depend on their research and analysis of outside think tanks and that role has not declined or increase in the last 10 years or 12 years. you still need that research and it is taking place and i think it is to dismiss if he thinks that they are not offering that analysis and research and new policy ideas and that there is a new vital role taking place.

it is to paint with two baht of russian that that research world has declined. information changes has change so quickly in governance and the number of issues that pop-up issues pop of very quickly. you need lots of sources for analysts and research. this is a grown and importance information has grown.

>> to not lose the distinction on the policy paper and everything derivative of that. some things that sometimes the derivatives did not -- sometimes a derivatives did not look at it original. it will yield all kinds of media appearances that drive the findings and ideals in that find nationalfoundational paper. i think that that is essential to the integrity and credibility of the think tanks. we have about 700,000 donors. that gives us independence. we have money that comes in from individuals. we get some money from

foundations and a very small amount from corporate sources. that gives our scholars and independence when they approach issues that might not be there if you are getting a lot of your money from this one source. that is part of it, you have to have the independence that can yield the products that we generate. >> i think you put your finger on the problem that is both the number of and tanks. it is a crowded marketplace and there is a premium on a boiling them down. that is pressure on the primary research and analytical basis. we are all facing that pressure and we're all competing in that marketplace.

and the digital scribbler can be a think tank unto himself or herself. you can put it on the footing with the mighty heritage foundation. the think tank's play and in portugal of validating ideas and lending weight to them. there is a fascinating question about the tax deduction. -- the think tank's play on important role in validating ideas. my guess is that the same people who find it most of the think

tanks would find a way to fund them even if they could not deduct their donations. any of us who have worked in c- four organizations have found that it is the same donor universe. i don't think that that is inseparable. >> there is a public role for these institutions. i agree with what they did on reform. it is not just a structured. we are particularly interested in it. we are wrapping an impact on public policy and changing the debate and providing ideas to policy makers which is an important public service. >> i don't think it makes as much difference as perhaps you

think it does. lastly if you want to get rich, don't go in a think tank. >> i agree that the tax exemption is not important. i think the institutions would survive. the cost to structure is a little bit different and the nation come of the new republic, the national review, the weekly standard are all for profit taxable organizations. not that they have ever made any money. >> i am wondering the elephants in the room aren't just whether

it is seen as a marketing organ but a bid valuing of the research they produce and the actual analysis they produce in the service of the mission. two years ago or in your coat wendy karadzic delegation released its analysis of the rhine budget. this was widely mocked. -- two years ago when the heritage foundation released its analysis of the wry and budgetryan budget. this is the advantage of the think tank over the academic institutes, you can have more academic freedom. i am wondering how you see think tanks as resolving that conundrum. >> robert was widely ridiculed

when he argued that if you have work requirements and other types of personal responsibility injected into welfare, you might see the rules come down maybe by 30%, 40%. they came down 70%. we don't have the ryan budget. it is important to look at large complicated proposals and analyze them and offer up what you think is your best analysis of it. i don't see how you can criticize something that never came to pass. >> i disagree with the notion that 10 year leads to academic freedom. -- that tenure leads to academic freedom.

this is not exactly a bastion of liberalism. one of my fellow graduate students came to me and said, is it true that you've written for the "national review." he said, i am a conservative, too, but i don't let people know. >>there is a sense it even if you could get tenure first of all you might not even get it if you are of a conservative bent. they talk about the perception that these are acceptable positions and if you go outside of that rome, you will be ostracized even within the department even if you have tenure. think tanks have given people with a different point of view the opportunity to express themselves. "i don't think this is about

academic freedom. -- >> i don't think this is about academic freedom. i think that this is middle age burnout insurance. i think this is going the way -- we will actually see the think tanks were in the avante garde of that change. >> i am michael horowitz and i want to enter and tutsiinto the debate about whether progressive liberal think tanks tend to s pike the guns when they are talking about their friends in power. i work on a a variety of human

rights issues -- trafficking north korea policy, internet freedom policy, and i find it easier when i want to show coalition support what i want to get the reform jews and southern baptists and i find a progressive think tank joining a conservative think tank. think about the vice president china. a great question about whether some of the activists in jail, religious and other activists should have been spoken out for. once again, there was a letter cosigned by the national letter of evangelicals and reform jews. i could not find anyone to take that sort of thing on. on trafficking issue, i was able to find the national organization for women and the national foundation for women.

i could not find any progress of think tanks. in turn of credibility in terms of smoothing the hard edges of the debate, i think you have a lot more to do. i want to raise one other question that probably touches on it which is that in my experience, i find the left much more reluctant to criticize their friends in power than the right has been. do you think that is true? i have never seen a think tank take a bigger pounded from their fans then will marshall and al fromm. >> floor where you stand is

where you sit. -- where you stand is where you sit. in terms of our positions and guidelines we have internal policy which is that we are a thing takes so we don't signed as many letters as other people but on the actual substance of human rights in china, we have written extensively on this, we have pushed the administration on the issues of human rights all of the world where the administration has taken a different position than what we would support. we have written on that extensively. i think that there is a challenge between when you have a progressive -- when you are the administration in power which shares the broad ideology. you perhaps will not see as much criticisms but i can attest to the number of times that we have been criticized for taking

of a tick of the senators to democrats, members of congress who were democrats, and this president. now, we are a progressive organization and so in many ways, there were many instances where the president has taken a progressive policy stance and we have argued for those positions he has taken. we certainly will not criticize him as much as heritage. we are a normalization that has to stick to the reviews in policy and where we disagree, we say, where we agree, we say. >> i would like to talk about the donor a think tank, particularly the research program. this may be that the think tank

has hundreds of thousands of donors put all not created equal. some get much more money than others and they have what i believe is a precipitous in impact. two examples, they might be the tip of the icebergs or isolated. david frum was dismissed because he wrote a couple of pieces that were critical of the extreme- right. i had a conversation with a man who told me that he was dismissed because his book on reaganomics which is critical of it was not well received. thank you. >> i will adjust the donor

issue. the way we handle things is that we have solicited support from somebody, we sell our mission. we sell our approach to the world. any individual donor will have interest in one area that another. it will show the work in that area but we never except money on a contract basis. we don't say we are going to publish a paper specifically for that donor with a certain conclusion. if they agree with that and they want to affiliate with us we welcome their support. there are examples where we have lost six-figure donors because we publish something they did not like. don't do this because if you do, we will review the funding. we wrote it, they published it,

then they with -- we wrote it, we published it, then they withdrew their funding. >> this idea of donor control at all of the major establishment think tanks, this is this is baloney. no donor has more than 1.5% of the donations. we lose donors all of the time. never at aei, i have never seen anyone hired fired, a paper buried because some donor was upset. >> we have a policy, a very clear policy, that no corporate or individual support will support individual research for this very reason. i do think it becomes a challenge for folks but we are

clear that no paper is written because of a contribution. >> in the article i of mentioned this incident and i don't know what happens but i do now that norm was at aei and the things that he wrote in pursuit of the health care bill were much more damaging to the republican cause then anything that was said by david. i just those see that as the cause but again i was not in the room. "she could have asked david --

>> you could have asked david f rum and i think he would have a different view. >> on the point on tenure, i was thought that meant never having to say you are sorry. what i want to ask is that there has been a very good discussion. you have highlighted a lot of issues. eventually you have a shoutfest between the left and right on issues on a panel. do you have any suggestions on how you resolve this? bipartisanship is in the eye of the beholder. to you have any proposals on how you get past this?

>> people have asked me this. first of all i don't support any government policy that is the outside of the government issue. i think is great thing that there are a lot of think tanks. the way you get to be a think tank is that you get the designation. and, you call yourself a think tank. there are many that have the same status but to do other things. the universe we're talking about is the outside government from the -- outside determination from the government. some places will be public policy research organizations and others have taken names. there is a distinction perhaps

people in the journalistic world and the outside world might making -- might start making that distinction. >> one last question. >> to some extent, what you are articulating is the found the debate about whether an institution can take the place of a virtuous individuals. when i came to washington in 1986, i was working for the claremont institute. through a series of serendipitous a sense i got to talking to claris -- through a series of serendipitous events, i got to talking to clarence thomas. it was not policy-oriented or

very specific at all. he deepen his understanding of american political principles, and then he could go out and choose among what the real think tanks were actually doing. i guess i am asking, who reads your stuff what effect does it have? and thomas acknowledged his debt to those of us who work in think tanks in his autobiography. >> ask a question that goes to the heart of any think-tank scholar, who read your stuff and is there any value to this? it is an existential question that is challenging to all of us. one of my former bosses said in that world you are only good as the last piece you write.

>> we have come to the end of our discussion, and i would say that one piece of evidence of the value of think tanks has been these wonderful presentations. thank you very much. [applause] [captions copyright national cable satellite corp. 2012] [captioning performed by national captioning institute] >> tonight, the world economic forum at 8:00 eastern here on c- span. >> hi, lcv means local content

vehicle. the purpose is to collect local programming outside of washington, d.c. . they are able to produce and at it from the road, said that is what we are doing with the lcv's. we are doing what we are calling lcv city tours. one will do historical programming, and community relations events. these are important because we work with our cable partners. the last thing to know is goes on the air, but also goes on the air at this c-span video

library, and we are also doing extensive social media, you will see as on facebook, you will see essonne forswear -- see us on foursquare. it is a chance to get our message out through on-line and social media as well. it is important why we want to get out of washington, d.c., and make a commitment to getting outside the beltway. >> watch the local content vehicle's stop at shreveport louisiana. >> supreme court added another 30 minutes to upcoming arguments over the new health-care law. the sessions will now spend six session over six days. recently neal katyal and paul

clement faced off over the new health-care law. they were at the national press club. this is an hour and 35 minutes. >> good morning i am pleased to welcome you to the supreme court argument briefing, co-sponsored by bloomberg law. we are approaching the two-year anniversary of the patient protection and affordable care act. since the president signed it, it has been challenged numerous times, culminating in a case now before the supreme court. this morning, we hope to export the arguments underpinning that case. i now have the distinct honor of introducing lyle denniston of scotusblog. he has been covering the supreme

court for 54 years. in that time he has covered one- quarter of all the justices ever to sit on the court and has reported on the entire careers on the bench of 10 of those justices. it is also pd -- to be noted that he is not an attorney. he is an author. i would like to and welcome lyle. [applause] >> good morning, everyone. on behalf of bloomberg law i am glad you are here. contrary to the perceptions of some of my colleagues in the press room, i was not around when this demote case was expiration of the commerce clause, and there was one case

in which paul clement did not appear. [laughter] i was not very far behind when fear rose about began exploring the possibility of a national health care law in the early 1900's. my task is not to discuss the case but to give you some outlines of the logistics of what is going to be happening. the first thing that i would tell you for sure is settled is that justice kagan and thomas will participate in the case. there have been repeated discussions about whether one or both of them should disqualify themselves. there is one case urging justice kagan to refuse.

there have been opportunities for them to refuse and they have not done so. they will continue to participate. there will not be in aarguments in late march. there is a request. i do not believe there is any possibility that there will be live coverage. one other thing that is settled is the court has completed the briefing schedule but not all are in yet. i did a count last night in the pressroom. there are 93 briefs.

come including tomorrow i think it is due tomorrow on the server ability question. some issues that are almost settled are how much time there will be for the oral argument. they are committed to pipeline five hours but the parties have asked for another half hour. we presume we will see an order from the court asking for the competing allocation of time request. there probably will not be a safe date release of the audiotapes made. the current chief justice has a policy that he prefers not to release any idea taste on the same day of the hearing.

now the common practice is to release all of the audio tapes on the front of the argument. the daily press has lost interest by that time. there could be a change in policy for that case. it treats this case differently. the court has some of the filings in the case of the website. the court also has set aside 5.5 hours of argument for this case. i would urge you to not overlook the anti induction

issue. this is one of the issues for the main street press. it tends to fall over division. there is a mandate. i would like to take up a few issues. most importantly, the birth control mandate is not an issue before the court now. if you wish to see where that currently stands as a legal regulation region where that stands as a legal matter, if you wish to see where they stand on the legal matter, they publish the regulation where it stands

as a legal matter. it will require insurance companies to provide care. i would also like to address one major issue. this is the equivalent. it has been suggested that perhaps i should offer a prediction as to how it will come out. i will not do that. i am not in the business of making predictions, accept that the following panel will be very informative. thank you very much. [applause] >> thanks so much.

my name is akhil amar. everybody understands the significance of the case that the justices are about to hear on the patient protection act. both with respect to the fate of health care reform and the fate of the structure of the government. there are well-meeting people on both sides of the case. one small point of privilege is i have a dog in this fight as a lawyer in a brief and want to make clear that my job here has nothing to do with that. it is to facilitate the discussion of the folks who will do the talking. i want to introduce them. we have produced a media guide for the folks who are here, and you can find their biographies at the back of that. let me just -- so we can move

quickly to the substance -- give you a little background about each of them. paul clement, the former solicitor general, is the principal lawyer representing the state plaintiffs in the case. roughly half the states have challenged the constitutionality of the statute. he has the distinction of arguing every case in the supreme court this term, or nearly so. depending on how many cases you count, you can count at least 10 oral arguments this term. he is widely regarded as the most distinguished and best player a as a chorus of his general ration. michael carvin is a partner at jonesday. he is the former deputy head of the civil rights division the office of legal counsel in the

department of justice. he is the principal lawyer for the private plaintiffs and has been involved in formulating the theory and strategy in the case, has been involved in a massive amount of litigation and is regarded as the best legal thinker in litigation involving the business community and a lot of conservative issues. to my left is neal katyal. he argued most of the cases in the courts of appeals as this question was being litigated against the united states. he is now co-head -- is an international law firm. he is regarded as among -- as he and paul r. of the same generation -- the leading

democratic lawyer of his generation. [laughter] akhil amar is professor at yale university both in a law school and in the eda frederick college, with a specialty in both constitutional law and criminal procedure. regarded fairly as one of the five most distinguished legal thinkers in america today, and in my own view, a legal thinker in academia who rather than gravitating toward the esoteric and incomprehensible, gravitating towards the important and that clear has written and spoken about health care litigation. so we are here obviously the purpose of talking about the case as a whole but in the time available, our goal is to focus on the heart of the case, which

is the challenge to the individual mandate. we will have a question time at the end, and if folks want to ask about another part of the kids, they're welcome. it has been suggested by the justices that you could talk about this for 5 1/2 hours. we have less than that, so we will focus right on the core of it. i encourage the panelists to engage each other to not hold back. none of them are known as shrinking violets. to cut to the heart of the matter and what the central arguments are about the constitutionality of the individual mandate. i will start because for a lot of folks in this room who know of a town about of the case, they will not know about and the people watching it will not know a lot about it, so if i could ask paul clement to set the table with a brief description of what the individual mandate

is and what the heart of the constitutional challenge is. >> sure, i will give it a try. the key provision here that has generated the most controversy and the central constitutional issue that we are here to discuss is the individual mandate, which requires with one or two minor qualifications every individual in the country to obtain qualified health care insurance. this is something that the framers of the act when they were put it together thought was critical. they have looked at some states that have tried to do other insurance reforms, including trying to make sure that insurance was available generally to everybody and you would not be denied because you had a condition. states had run into problems.

there were earlier versions of the act that more affirmatively established the taxing authority, but it was settled that the health care act would pass and would include this individual mandate. what i think rises to the issue is the starting observation that this is unique, depending on your perspective. there have been a lot of crises in this country of the years economic other, where congress might have thought that forcing individuals to purchase a particular good or service might be a useful means of government action. but the government never did.

to take an example a case that resonated with me, so obvious that a compelled purchase would have been a more effective regulation. there was the cash for clunkers program in the -- program which it bought the car industry by giving them an incentive to purchase cars. it would have been more efficient and effective for the government to accomplish its objective of boosting the automobile industry to say that everybody over a certain income level at to buy a car. much more direct way to accomplish that objective. the government has never seen fit to do that kind of direct requirement that individuals engaged in commerce, said that is what gives rise to the basic issue here, i think. the government's -- the federal government on its behalf suggests, although they concede

it is an unprecedented action they suggest it is a fairly straightforward regulation of commerce supported by the commerce clause. the challengers would point to both the unprecedented nature of the imposition and the government's seeming inability to articulate a limiting principle, so that if he could engage in this regulation, where regulation could not the government engage in what commerce could not force you into. in a nutshell, i hope that is responsive in setting the table, and i am sure i said one thing that once that onceneal clarify. >> thank you for this wonderful event. i am here and represent the government, and am not here representing the government, and here speaking for myself. i agree with a large what paul

said, but let me flesh out what congress is doing. i did not understand why this individual mandate existed until i started getting really into the weight in arguing the case. they are reacting to a problem in which there are 50 million people who are uninsured. they are priced out of the markets. a large part of that has to do with discrimination against those with pre-existing conditions, but if you are in one job and try to switch your job, you cannot do so because your other employer looks at you and says this person has all sorts of -- has all sorts of high-risk, so the insurance costs for them are too high. 50 million people are uninsured. congress comes along and says we are going to eliminate discrimination against those with pre-existing conditions, and insist everybody be rated at a certain level in the community so that you cannot stick to

build too high to a particular individual. the problem with that is what insurance companies are told you have got to ensure folks and -- at a fair cross-section, then everyone could wait to buy insurance until they got sick, you could wait until you got to the hospital before you had to sign up for insurance, and that way you would and economize on cost until you got sick. that obviously would create massive selection problems and did in the six that tried to reform the insurance markets to pre-existing discrimination bands. what congress did is they are run to have an individual mandate so everybody has to have a certain amount of insurance to avoid that adverse selection problem. right now congress -- every american family who gets health insurance pays approximately $1,000 extra to pay for those who are uninsured and those

costs spread across state lines. that is really what congress was saying and that they were saying this is their commerce power. this is a comprehensive regulation of the health insurance market. paul says that the example that resonates with him is that if the government -- why does the government do this with his back to the automobile industry. that industry is different. it is not a situation in which can show up at the car lot drive off with a car and stick your bill to your neighbor. that is what is going on in health insurance market. that is what congress found that the uninsured are going into emergency rooms and you and i are effected the pain for them, and that is an economic effect that is real and present right now. >> assuming you are not persuaded by that, is health insurance foundation only

difference in a way that explains why congress could impose the mandate here but not in some other context? >> no, neal is wrong for three independent reasons. the first is press -- congress' purpose. neal and the government tried to pretend that what we're trying to do is prevent the insurer from subsidizing the uninsured. it is the opposite. they're trying to insure that a lot of help in divisions -- and a lot of individuals to do it. the reason you're doing that is because you have required companies to get interest to all of these sick people, so you counterbalance that by bringing in a lot of help the people who the insurance companies take a lot of money on. this is not me talking. this is the congressional budget

office. it is scored. $28 billion to $39 billion per year. it is being reduced because you take a bunch of help the 30- year-olds who have no need for insurance, except for catastrophic insurance, and the only people -- the only kind of insurance you would want as 30 years old would be if you were to be hit by a bus and congress says he cannot buy it. you have to buy the conscious -- you have to buy the contraceptive and the wellness programs, and why do we do that? we want the insurance money to lower insurance premiums. as to the adverse selection problem, it is also factually wrong. there is an 11-month waiting

period. what kind of person is going to sit there and say i need insurance, i am risk adverse but i am going to become a casino gambling because maybe during the one month when icahn by my insurance i will be able to buy insurance on the way to the emergency room. cbo did not score in it. there was not an ounce of testimony trying to document what caused this is for adverse selection. the second big point is, neal and i can disagree about the policy, but what difference does it make? the court is not going to second-guess congress''s policy about what is beneficial for commerce. congress is the one the mix of policy. they can come up with that of her policy difference is important or unique aspect there is of health insurance but once

congress has the ability to sit a compelling commerce is compelling need to buy a product is regulated by congress, there's no reason it has to be limited to the context because congress has the power. the court defers to the policy judgment, and that is the proper role. while the government tries to make all these reasons why allowed this case in this one context is not -- is unique, what the cannot do is articulate a constitutional principle that says once congress has the power they can not require you to buy a car for the same reason. we impose all kinds of restrictions on the car companies, environmental regulations, that drive up the cost, just like the so-called nondiscrimination provisions drive up the costs of insurance. if congress can force strangers of these transactions to subsidize the compromise -- the

companies, there's no reason in the world that they cannot do it in the cash for clunkers situation like they can do it in the health care context. as everyone has pointed out, and the justice department has been unable to show, there is no limiting principle. congress has the power to serve the public welfare, to improve some of the game over. >> i know you have a third point, but akhil among your reactions, he has said there is no limiting principle. is there one, or does it not matter that there is one, because this is within congress' power? >> the most important decision the supreme court ever issued on the scope of federal power mcauliffe purses merit. if you take it seriously everything michael said is

clearly wrong. here's what john marshall said. the argument is this creates a corporation, and that is special to the individual mandate. marshall said that is wrong. corporations, marshall said it has been created in other clauses, why not here? george washington signed his name to an individual mandate. we had mandates before the end of today. what john marshall said about the limiting pressure -- principal. and the government tax me put it can money and buy stuff with it? yes. once it has bought something? can it give it to me? yes. why can it not say by it yourself? when either of them have a one

sentence or one paragraph argument to a basic logical government can tax me. here's what john marshall says about that. mccullough vs. maryland. the power of taxing the people and their property is essential to the very existence of government. may be legitimately exercised on the objects to which it's applicable to the utmost extent to which the government may choose to carry it. the only security against the abuse of this power is found in the structure of the government itself. and imposing a tax the legislature acts upon its constituents. this is in general a sufficient security against erroneous and owe preff taxation. if you did not like this, vote the bums out. i personally don't much like many aspects of this law. as a matter of policy. i personally would have preferred to see a lot of tort reform and malpractice reform in the thing. my wife is a physician.

and we've been sued in malpractice. my brother is a physician and he's been sued. my mom's a physician, my dad's a physician, i don't like major portions of this as a matter of policy. if you don't, vote them out. but we voted for president obama and his party in the last presidential election and they said they were going to do this. and that's what they did. if you don't like it, then we're going to have another presidential election on this. the security, the limiting principle is that they are taxing us and making us pay. and if we don't like it and think we're not getting a good deal, if they do a cash for clunkers i don't think they will because there's no need for it. and we don't need constitutional lawyers and judges pulling principles out of thin air to limit in the ability of congress to pass silly laws on cash for clunkers, requiring you to buy a car. congress won't do it and hasn't done it because there isn't a need for it. but if they do do it, i want to

see why they did it. and there might be a reason for it. just as there was a reason to have a -- an individual mandate in the militia act of 1792. mike talked about conscription. actually the government can conscript you. jury service is conscription. militia duality is conscription. and let me just read you the language of a law that george washington signed his name to in which every citizen shall in six months provide himself with a good musket or fire lock, a sufficient bayonet and belt, two spare flints and knapsack, a pouch not containing less than 24 cartridges and on and on and on. and mike says you don't need if you're 30 years old health insurance policy unless you're going get hit by a truck. and they're subsidizing older folks. and i say, welcome to the social security act. in which younger people might be paying in for older people. and there's nothing unconstitutional about that

unless we're going to roll back 07 years of progressive -- 70 years of progressive legislation. and conscription, the next attack could be biological. germ warfare and what we need to prevent that is everyone is going to need vaccines. because viruses don't respect state lines. they don't stop at state lines. 200 years ago national security meant everyone had to have a musket. today, national security means everyone has to have vaccines and they're more likely to get vaccines if they have, if they are required to have insurance that they will actually go and get the vaccine when they need it. >> so i want to do is i do want to make sure so this -- there are two arguable constitutional bases for the statute that's been discussed. so far the three of you all alked about -- of you all talked about the commerce clause.

and there's another power that could be used to justify the statute that's discussed by the government. and hot and cold about it. but paul, can you address the question of whether this is a tax so that even if it weren't within congress' commerce clause power it's within its taxing power? >> sure. and in the process i'll make a couple of points in response to akil and mike will probably supplement them. there is this argument that even if -- the individual mandate isn't valid under the power that congress expressly said it was exercising, which is the commerce power that it nonetheless might be supported by the exercise of congressional power, that at leetch the president expressly said was not being used here. and that's the taxing power.

in some relationships p respects -- in some respects the simplest answer to that argument and i embrace mccullough and might quote that passage in mccullough in my reply brief, here's the thing. the simple reason why the mandate is not a tax is because it wasn't labeled as a tax. it doesn't operate the way that a normal tax does. it's clearly something different. >> can you pause for a second? we haven't described how the tax does operate. could you just -- >> there is no tax. so what this does is the mandate is an -- is a requirement that every individual -- people who are incarceratesed or native americans and have a separate plan and one or two others, everyone else has to get health insurance. now, there is a separate provision which is the penalty that operates as a penalty against those who do not buy

complying insurance. that penalty, which is a little closer to a tax than the mandate, doesn't apply to everybody to whom the mandate applies. it has a separate set of exemptions that are much broader. there are a lot of people for example, virtually all the low income people, that are subject to the mandate so they have a federal obligation to obtain complying health insurance. but they're not subject to the penalty if they don't. and the penalty does -- like any penalty has the compast to raise some -- has the capacity to raise some revenue it's not the principal focus of the challenge and not the mandate that has everybody upset. so that's why i think you need to focus on the mandate. and this gets to akil's point for mccullough. what the chief justice said in mccullough is that the taxing power is a broad power and that once you have the government exercising its taxing power, there aren't going to be a lot of mechanisms for the court to limit that power and say the

tax is too high or this excise tax on this product is inpermissible. and all that's fair and that's why chief justice marshall, wise man that he was, said the principal limit on the taxing power has to be structural and has to be and essentially the people who are the taxpayers saying we don't want any taxes. and of course that's exactly what the people said at the time that this health care law was being debated. and it's precisely why even though an earlier version congress contemplated doing something quite similar by express use of the taxing power. and they backed away from it. and the people did speak. the massachusetts election, among others, senator scott brown, and the people who passed this law in congress knew full well that there weren't the votes to do this directly as a tax. so they used the mandate. and the mandate has -- effects that are similar to a tax. it avoided the tax label which

the president himself was critical to get this passed and clear to everybody this is not a tax. but as michael alludes to, it really is a tax. it's a sneaky tax. it's not a tax that is on any group of people you would otherwise rationally say should be subject to a tax. like people who are high income people or people who raise -- engage in certain transactions that are risky, all of that might make sense from a logical taxing policy. it taxes what i would think are people that you wouldn't logically really want to tax otherwise. which are reasonably healthy reasonably young people who don't have a lot of spare income. and so they're inclined to maybe save their money by not buying a health insurance policy that they don't want. so it has a lot of the invidious aspects of a tax. but it doesn't have the one thing that chief justice marshall said is critical for a tax. which is the kind of up front accountability that allows the

structural process of government to work. and so let me just finish by saying, akil said we could start a serious conversation if we had an answer for why this is different from just taxing people and then taking things from some people and giving them to others. and i think -- i think the short answer is this is completely different from that. from one way that's critically important and that's accountability. there's a lot of accountability in taxing people. there's a lot of accountability in being very clear about who's getting the benefits of those taxes. what happened here is that the group of insurance companies who otherwise would have protested long and hard against the new impositions that are implicit in the health insurance reforms that neal described, they were basically quieted because an effective tax subsidy was devised where they get all this money on the backs of relatively healthy individuals. and i think if you tried to do the same thing through taxes

and subsidies, it wouldn't have happened. the act wouldn't have passed. and that's accountability in action. >> let me begin by agreeing with akil. i absolutely agree with every word he said. his platology anything that congress can tax and take and give to an individual congress can require one individual to pay for another. since congress can pay for somebody's insurance premiums through the tax dollars it can require you to pay for this person's insurance premiums. so we all agree there is no constitutional limiting principle once we give congress the power to take property from a and give it to b. they can do it in any circumstances they deem advisable. and the only check we have against this is the honesty of the political process. so for example, if somebody ran for president and said hillary clinton and the democratic primary, i'm absolutely opposed to an individual mandate. and if he promised each american that he's not going to raise taxes on anybody making less than $250,000 a year, he

couldn't turn around and endorse an individual mandate and impose taxes on people making less than $250,000 a year. but the big difference wholely apart from the honesty and accountability of our political process is the tax system does apply to all americans or should. and if we want to accomplish social goods if we want to conscript insurance companies and say look there's all these sick people out there we know it's going to cost you a lot of money to ensure them but we need to do it for the greater societal good. as the supreme court said in armstrong, if you're forcing people to engage in a public good, the public as a whole should pay for it. that's how we've done it in all other circumstances. if we require hospitals to give a as much as to poor people, because -- to give service to poor people, because we -- if congress wants to force one

praoist citizen i.e. insurance companies, to help other people for obvious charitable reasons terrific. what you don't do is then not pay for it. you don't conscript some person who's not in any way responsible for the problems of either the insurance companies or the sick people and make that subset of the american citizenry take the entire tab. if we as a society think it's so important to give protections against insurance discrimination for pre-existing conditions, terrific. that's a policy choice that's open to us. but we've got to pay for it. you can't conscript somebody to say i'm going to pay for this other person's insurance premiums. >> so in contrast to my dear friend paul, i think you can read mcculloch until you're blue in the face and you will never find the principle he's trying to tease out of that case which is that congress has to somehow say it's a tax in order to invoke the taxing power. rather, the whole point of what chief justice marshall in mccullough is saying is that

the great checks against a lot of these hypotheticals that were worried about is the political process generally. now, with respect to the tax power itself, i don't think anyone was fooled that this was a tax. a constitutional point of order in the senate after all was defeated in part on the ground that this was a tax and therefore constitutional. the way that the act works if you don't sign up for health insurance, you have to report it on your 140 tax form and pay a penalty. every april 15 you were reminded that this is a tax. and indeed the way that the tax is calculated is it looks to a percentage of your adjusted gross income and that's what you pay. which makes it look and smell very much like a tax. and indeed congress found it functions like a tax. we'll raise money. and the c.b.o. found that it will raise $19 billion a year in putting it in the federal covers. -- coffers. it's within the heartland of

the tax power but i don't think akil's point about mccullough is not about tax power as what is the real check in our government against these worries that my friends pointed to? and i have to say i grew up -- law school and early 1990's and thought the great conservative idea the great idea was that the political process and not unelected judges was the way we get this stuff done. and i am struck by the change in the way that debate has unfolded over the last 10, 15 years and it's now -- it's now striking legislation down after legislation as unconstitutional because they couldn't get their victories through the political process. >> and if i would just ask if the challenge has been laid down by paul and michael on one very particular point. i want to make sure whether we're agreed on it or not. and that is they say that under

the view of the defenders of the statute there is no nonpolitical limiting principle. that is, other than the significant, no doubt, ability to vote out the president and congress and that sort of thing, you can't -- there's nothing that you can go to a judge and say this mandate is unconstitutional. is that right or -- >> i think that's absolutely wrong. if i could just -- could i flesh that out? >> sure. >> first of all, i think it's important to appreciate the role of government lawyers which paul certainly does. the government not going to come in and say well, here are our limiting principles and foreclose a future congress from something that they might decide is really necessary on all sorts of situations that we can't anticipate right now. and so the government's job is often to say here is what the heartland of our claim is. those cases are for down the road and a different thing. if they wanted to, the limiting principles are fairly easy to articulate.

the first one is of course the bill of rights cuts against any structural power in article one, section eight. so the example can congress force you to eat broccoli because broccoli makes you healthier and it will reduce health care costs? well, the right to privacy and so on will preclude the government from acting in that way. the second principle is that lopez and morrison themselves are limits. these are the supreme court cases in 1995 and 2000 that were -- would restrain the ability of the government in the commerce clause area. those are true limits. and the government takes them seriously. the most important limiting principle that you can get out of those cases is this -- that when congress is acting to solve a truly national problem that is one in which the states aren't separately competent to solve, that's when its power is at its apogee. so here congress found that when any individual state like massachusetts tries to reform the health insurance markets

what happens is that the uninsured from other states will come in and swamp those insurance markets. and, therefore in the state knowing that, often will not enact legislation to deal with the problem. because they don't want to become magnets for the uninsured. the only way to solve this health insurance crisis is a truly national solution. >> so limiting principles, i read you a passage from a mccullough where he was talking about the tax power. but as neal has said, there are other powers and the political constraints kick in there as well. so there's two different bases for why this constitutional -- why this is constitutional. taxation and interstate commerce. on taxation, they have to be right about both. we just have to be right about one or the other. i think we are right about both. and there are three -- at least different commerce clause arguments. but on tax first of all the constitution doesn't use a magic word a tax. sometimes it refers to taxes and sometimes duties and sometimes imposting and

sometimes excises and sometimes revenue. and he is -- the word revenue is actually in the individual mandate section. it's part of title 26 which is the internal revenue code. it's enforced by the internal revenue service. the c.b.o. says it's going to raise $100 billion with a b overall and it's going to bend down the cost curve by $100 billion and be revenue positive. that makes it like a tax. the constitution has said -- uses the word revenue. it's passed by the house -- by the house and senate under specific internal rules that only apply to revenue measures. and by the way if you don't have to pay income taxes at all, the mandate doesn't apply. it's enforced on april 15 through the tax form. and the tax code. and if you want to look up the word tax, and think that's important, people aren't fooled on april 15 when they have to pay the thing. they understand it's a tax. the word taxable tax taxation taxpayer, appear 34

times in section 26 5000-a which is the relevant section. that's on a tax. so what are the limits on that? it has to be a revenue measure and it is. and people who understand that, the political safeguards kick in on april 15. they understand what this is. now, on commerce, it has to actually regulate the act as a whole. not each section but the act as a whole has to be trying to solve and a problem of interstate commerce. it has to be an interstate spillover problem. there are several interstate spillover problems. one is the welfare magnet problem that neal pointed out. another is the lock-in problem. you have a job now. you're worth more to the economy somewhere else, and they're willing to pay you more but you can't go there. because they're -- they don't want to pay your health care costs but you have to be paid by the system anywhere and locking people in to their less

-- not their highest and best use. people are afraid to travel interstate. and if they fall sick, you go into an emergency room. and if they don't pay for you then you aren't going to want to travel. and if they do pay for you they're paying for out of staters. so at any given moment, what proportion of people are out of state? i don't know the answer. but i would suspect it's more than 3%. probably less than 30%. and when, everybody monday, friday i live in connecticut if i fall sick they will take me to a new york emergency room and i hope to god they will take care of me there. but new york is paying for a connecticut person in that case. and it won't be fair unless i actually have insurance. because new york taxpayers won't be paying for me as a connecticut person so you need to provide for emergency room care so that people will be -- feel free to travel interstate. and you need in order to do that to make sure that people

have insurance so that some states aren't taking advantage of other states. because it doesn't all even out. this individual mandate itself need not actually regulate interstate commerce. it just needs to be a part of a comprehensive scheme that as a whole regulates interstate commerce. that is what justice scalia very scomplistly said in the gonzalez vs. -- explicitly said in the gonzalez vs. ray case. the law as whole tries to solve an interstate problem. >> that puts handcuffs on congress, doesn't it? we've been list tong 20 minutes of this. and you know what congress has to do? it has to find that it's a problem. and the regulation doesn't have to do anything with commerce. but as long as you attach it to a bill that has something to do with commerce that's ok. and neal has -- has said it's national problem. michael, come on. >> give it its due. and that is i think we can

agree that health care affects interstate commerce as does so many things under the modern conception of -- it's not just attached to something. it is part of an integrated scheme. that doesn't make it constitutional. but is it fair, and obviously you think it is, but explain why it's right to say there's this bill that has five pieces that work together. one of them is an individual mandate. and so what we do is we assess the constitutionality, the individual mandate as opposed to letting them get away with the statute as a whole. >> i think it's a fair question. i'm sure michael has a great answer to it. before we leave completely the limiting principle, can i just say two things? i'm not sure i really heard one, particularly -- i think akhil gave a great defense for why this statute would be -- it was a great argument for why the statute might be an interstate commerce. but doing so, he laid out an argument that i think would apply to almost every

commodity. because -- >> the limiting principles -- >> ok. look i arc you'd -- i argued race and on principle i pointed to lopez and morrison. this power is unique which is the power to compel somebody in the commerce to more efficiently regulate commerce. and that power is precisely what doesn't have a limiting principle. there's really no commerce that i can't force you to engage in on the theory that it would then be easier for the federal government to regulate the resulting commerce for the broader commerce market. >> an argument by pun. the basis for the regulation is not the individual mandate. there's an interstate problem that pre-exists the individual mandate. this is one way -- hang on. >> maybe we should transition to the question that tom asked mike which is your point here, i think, is that you don't have to show really anything about the interstate commerce. individual mandate. as long as it's part of a broader regulatory structure that regulates commerce.

and i think we take issue with that. >> and in your initial statement of the facts twice you said not just a part, you said, quote a. critical part, we have -- >> mike and i will -- >> it is a critical part after comprehensive scheme, plan, to deal with a genuine interstate problem that no individual state can handle on its own. and john marshall would have had no problem with that. >> every word you emphasize in that sentence genuine interstate commerce, are the kind of words that the supreme court will always defer to congress on. and so when congress in this context says it's genuine and in the next context all caps, exclamation point genuine the court is going to defer. and that's why -- that's no limiting principle. >> interstate. >> interstate. let's start there. i'm sitting at home in my living room. i'm not buying insurance.

i'm not engaged in commerce. local, intrastate, interstate. so how can they force me to enter into the stream of commerce? this is not like mr. wicker or fill burn growing wheat where he is producing a product that is indistinguishable from the interstate product. and which greatly hampers congress' ability to regulate the interstate commerce. how am i a problem when i make a perfectly sound economic decision not to buy insurance? what of the scheme have i screwed up? they keep saying this is an integral part. they can still require insurance companies not to discriminate against people with pre-existing conditions if i don't buy insurance. here's my role. i'm the solution to the cost problem that congress has created. so every time congress as all regulation does drives up the cost, when you regulate a company, they can say that's solving an interstate commerce problem.

i don't want to pay for it with tax dollars. you, go solve my problem. go buy a car from g.m. go buy broccoli. maybe i have a right not to eat broccoli under some penumbra of the privacy thing but i can make you buy it. so i'm making two points. one is again the no limiting principle point. but this is unique in our jurisprudence. every other person that's been regulated under the commerce clause is impediment to the congressional scheme at the interstate level. and i agree. they've abandoned the distinction between interstate and intrastate given how related those markets are today. terrific. but what they haven't done is said if somebody is not engaged in commerce at either the local level or the national level, somehow they're within congressional reach. they can get a boot will goer whose liquor never crosses state lines but can they get at tee totalers?

i want no part of the liquor business but you're going to help the liquor business if we make you buy wine that you doesn't want because that subsidizes them for all the taxes we impose on them. go ahead. >> here's the problem with that. when mike sits in his living room, and doesn't buy insurance, he is actually doing something that affects the national economy. that's what the government is saying. that's what congress said. that the failure to buy insurance is different in this circumstance than other things. that everyone -- judge sutton's point in the sixth circuit -- you can interject. >> i just want -- but why does that give rise to a limiting principle? and the problem in 2008 was that people were sitting in their living room and they weren't buying cars. that was the problem. >> here's the difference. what congress is saying and what judge sutton is saying is health care is different than the buying of cars. everyone is going to need health care and those costs are

externalized on people right now. now, maybe you can make that argument with other markets. but i don't quite think so. because as judge sutton said, you can't predict when you're going to get struck by cancer or a heart attack or get appendicitis. you can budget for things like buying the cars or other things, buying broccoli, whatever. this is something that -- wait paul. let me finish. this is something, this is a product that everyone is going to buy. and what congress is reacting to is not the failure to buy it's the failure to pay for it. health care is going to inevitably going to be consumed by everyone including mike as he sits in his couch on the living room. and congress found that that -- those costs aggregated mean that each american family spends $1,000 per year extra and that is across state lines. maybe you can tell that story with some other market and we'll deal with that case then. but i don't quite think so. >> even if you're right, and we could debate the factual

premise, but even if you're right, that the health care market is different in that respect, why does that suggest any limiting principle? it suggests why this might have been the first market that congress regulated. but if the supreme court says -- accepts the government's argument which is you can regulate this under the commerce power because the decision not to purchase health care has a -- has a profound impact on the health care market, why is the fact that everybody prsms health care mean that the next time congress tries to do this with the exact same theory which is people's failure to buy a product is really making it a pain to reck late, that particular market, so we're going to make you buy that product. the next time it will be cars. some people don't buy cars. they walk. why is that going to make a difference under the structure of the commerce clause argument that the government is making to the supreme court? >> because, paul what does the work in your argument and you are truly the best lawyer of a generation and if you can't win this case no one can but i don't think anyone can because

of the following -- because the power congress is seeking here is -- what doesn't work in your argument is congress is forcing someone to buy something that they wouldn't otherwise buy. but what the congress is saying is no. everyone is going to buy health care. they're going to use health care or they're going to consume it. what they're doing is regulating the financing of it. now, i think the court can easily write an opinion that says health care is a market that is different potentially than any other market. because of that and because of the demonstrated costs that occur across state lines. if you can tell that about some other market -- >> health care is very dwid distinct because everyone needs to -- is very distinct because everyone needs to have it and that's not true of other things and here's the second limit which weep saying and they don't want you to hear but i want you to hear, it has to solve an interstate spillover problem. there are cases which the supreme court said congress went too far. and established a limit and we are on the correct side of

those cases. lopez and morrison were cases where there was no interstate problem. people in one state weren't imposing costs on those in other states. and congress therefore had no power to regulate because it wasn't an interstate problem with people in one state imposing costs on people in another state. >> let me try asking you all to respond to this version of the argument. and that is what congress is doing is saying that you can't pay for health care with your own money. that you have -- you are going to have to pay for it with insurance. that when michael says you make a rational economic decision not to buy health care, he's talking about an economic choice that are being made -- is being made by individuals. and that fundamentally unlike the decision to be a tee totaler which might be a moral decision or something like that, but the decision not to use insurance, but to self-insure, is what's being regulated by congress here. and is that a limiting

principle? >> no. because they could require you to compel every time you decide not to buy a product whether it's contraceptives covered by health care or books in a school curriculum, or any other kind of traditional thing -- >> mike -- >> purely economic -- you want to make it purely economic i will. cars are an economic -- then i don't understand your question. >> i apologize. >> so you're going to buy health insurance is the premise of the statute. i'll get through two sentences. what i take the statute is saying -- >> that's one. >> no, it's not. [laughter] is that you're going to buy it and we're going to tell you how you're going to buy it. you're going to pay for it yourself and you're going to pay for it this way through insurance which is different than telling you how it is that you're going to -- that you have to buy health care, it's saying when you get health care, you're going to pay for it with insurance rather than

on -- so why isn't that different from saying you have to go buy a car? >> i would rather -- my transportation, you've just -- my feet, i've decided to self-move. or a scooter or a cab or an airplane. what we're just telling you which way you've decided to engage in transportation. it's not lamenting principle. this is -- it's not a limiting principle. food, clothing transportation, housing, communications. the labor market. everyone is going to go into the labor market. so under their theory, they could start regulating college freshmen because it's quite predictable that 95% of them are going to enter the labor market. i can't think of a more constraining, limiting principle on congress. and if akhil uses the word interstate one more time, i just want to make two points. 95% of guns travel through interstate commerce. that was lopez. that was about as interstate of

market as you can get. that wasn't the theory that it didn't have anything to do with interstate market. it was it didn't have anything to do with economic activity. and economic inactivity has even less to do with economic activity than the gun purchase in lopez. and will they defer to congress on what an interstate market is? they've already held in paul's case and in wicker that growing wheat for your own crops on your own land and having marijuana in your own basement for your own medicinal use affects the interstate market. and you know what? they were probably right. because i don't know how you distinguish between homegrown wheat and homegrown marijuana and interstate marijuana and by the way, it would create enormous enforcement difficulties. so if their limbing principle is rationally establishing a nexus to interstate commerce, we lost that battle in the 1930's when wicker was decided. >> this is why your lopez example wack fires. our point is lopez demonstrates

the limits that in lopez the states were separately competent to deal with guns. they connect any number of regulations that there's no spillover effect when an individual state -- deals with the gun problem. by contrast health care is one in which when one state does it, it cauches this interstate spillover -- causes this interstate spillover effect. if you can tell that story about your transportation and food markets and the like in which food expenditures are predictable, and neighbors don't get stuck the same way with bills in the health care market, if congress can tell that story, that may be something that is constitutional down the road. >> the legislative genius to come up with an interstat food market theory. but if i can just try you started -- neal, i'm sorry you started this by saying we're all modeling this after massachusetts. the massachusetts miracle, the thing that worked perfectly. so by your own definition, it's

not a problem that you can't solve at the state level. you're all holding up -- building a cathedral about -- >> is -- as massachusetts told the court their solution didn't work effectively precisely because it wasn't a national solution. >> precisely because you can't have your cake and eat it, too. what you can't do is tell people -- look, let's see if anyone disagrees with this economic rationale. if fire insurance companies have to ensure people after their house has burned down, is that going to raise premiums? yes. and it's the same thing if you have to insure people who are already sick for health insurance. i'm not saying it's a wrong charitable decision to make. but the notion that that won't drive insurance premiums through the roof is crazy. it's called the patient protection and affordable care act. the patient protection was protecting sick people against this discrimination by insurance companies. what made it affordable was conscripting healthy individuals to offset the

insurance premiums that the insurance companies suffered because of. >> you don't like the act vote against it. >> it has nothing to do with politics. what it has to do is your false assertion that this is somehow a unique faxual scenario where congress -- factual scenario where congress is never going to be able to cobble together an interstate nexus similar to this. any time someone doesn't pay something costs are shifted. either the seller or other customers absorb the costs. it's not a limiting principle and you're pretending otherwise because you know there's no linting principle. >> i will not use a certain word that begins with inter and ends with state. massachusetts, they want you to think there's something dangerous or problematic about the mandate to buy a good from another private supplier. how do we test that idea? we don't see in the case law any particular concern about

that. they've come up with that, but we won't find that in any supreme court case that they've cited. it's not in the constitution, that's a special concern. it's exactly like the argument in mcculloch vs. maryland, the opponent says a corporation is somehow very bad and what's the limiting principle? john marshall said there's nothing particularly problematic about a corporation and nothing particularly problematic in principle about a mandate to buy a private good. hang on. marshall proved. that >> give them their due. they said there's not a big concern about this in the case law because there has never been a statute that required somebody to purchase something. >> cars. every state requires you to get insurance, almost every state before you go on the road. because otherwise you are exporting costs. that is a mandate to purchase insurance. it's at the state level. hang on. and this is proof of the

following point. hang on. that there's nothing violative of the bill of rights or anything particularly problematic about this. states do it all the time. they do it for cars. massachusetts does it. connecticut does it. because otherwise when you drive uninsured, you are imposing risks of costs on other drivers. so that proves that there's nothing wrong and that's not -- car insurance it's other insurance, too. states do it all the time. now -- >> look, their point is -- as i take it is this is something the state should be doing. and i don't think that they're going to be persuaded -- they're not going to be persuaded anyway but be persuaded by states do this. is there -- is there a federal statute, to give them their due, is there a federal statute in the history of the union that requires you to purchase a product? >> i read it to you. it's the militia act of 1792. >> you could have been given the guns right? you weren't required to purchase them. >> you don't have to purchase

this. you can be given a health insurance policy. it's exactly the same logically all the way down and making it two-fold point. one, there's nothing wrong in principle with government, forget state or federal, government requiring you to buy something. our governments do that all the time. there's nothing distinctively wrong in principle about that. now, what the federal government can't do everything that state governments can do. it's limited in certain ways. and that's where the word that begins with interand ends with state begins with -- inter and ends with state begins with. and from insurance for cars, and every state and all sorts of other mandates, and now the only question is whether that very traditional government tool that's been in operation for 100 years, is a sensible tool to deal with the distinctively federal problem an interstate problem created when basically people in one state are as a practical matter

imposing costs on people in other states or people are afraid to travel interstate if they fall sick and so on. that's the interstate problem to be solved with this traditional regulatory tool. >> tom, i'm well. how are you? [laughter] >> would you like me to respond to the militia act? i'm happy to. >> no. >> on the question of whether there's a limiting principle i take it that you agree that congress could have done this if it were forthright about it being a tax right? >> absolutely. >> i don't by the way, but go ahead. >> noted. i also get that you agree congress could require that before you actually consume health services you acquire health insurance. that at the point of sale, you're going into the hospital and that sort of thing. does that cut against the concern about there not being a limiting principle if you believe that congress could accomplish this same thing through other means?

>> no. it suggests that there is a limiting principle and the limiting principle is you can't do this through an individual mandate. it suggests that there are in fact other ways that would be more politically accountable for congress to accomplish these objectives. which i think is important. because there's a whole health care policy debate that i'm happy to wade into to the extent necessary to argue this case. but it's really beyond my ken. there are people talking about the health care market and dedicated their whole lives to studying health care. and to the extent they honestly believe that this series of requirements is necessary they could take great comfort from the fact that there is a way for congress to accomplish this. and may not be politically doable in the short run. but there is a way to do this. and you can't sort of have the shortcut of the individual mandate. and i think that's -- that's a really important principle. and just to sort of -- make two points that are complimentary

to that and respond to things that have been said. one is it really is important to distinguish between the mandate and the penalty. because it's true, if you decide that you're not going to buy health insurance, you'll pay a penalty if you are not exempt from the penalty. and a lot of people are. that shows how different they are. and that's something you're going to have to do on april 15 and be reminded that the federal government doing this and will hack you off. but you don't pay the premium which is what congress wants. they don't want you to go to the penalty rout. they want you to get compliant health care. and when you do that you aren't going to write a check to the i.r.s. you aren't going to do it on april 15. you're going to write a check to an insurance company. and to the extent that that is really a tax, then it's really pernicious. because when we try to figure out the huge budget mess that we have in this country we're going to start by looking at what our tax revenues and what rur government expend -- what are our government expenditures? and pernicious to have something that's a tax that's

going to be off that budget. it's going to be -- people are taxed to whatever level they are and then they're forced to buy this product that they don't want but if they're forced to buy it they might as well have it as opposed not have it and pay a penalty that's as large as what it would cost to get it. so this whole thing off budget. and that's something that's very unaccountable and i don't think the framers had in mind. the second thing is -- >> call it a tax. so -- now it's unconstitutional because you end up buying the insurance -- >> you call -- if you call it a tax, then as michael suggests, it's going to be distributed in a different way more broadly. because i don't think congress is going to pass a tax and i'm not sure they could that's limited to healthy 29-year-olds. but even if they did, then it's on budget and that's better. second point and i can't resist saying about the militia act. of 1792. because i do think it's different. which is first of all congress was given specifically the power to raise a standing army

and certainly be argued that the militia act was an act pursuant to that power. that's important for two reasons to me. one, congress is given the power to raise armies. and separately given the power to regulate them. and it was recognized that the constitution itself that those were separate things. the power to raise an army was very controversial. and gave rise to the second and third amendments to the constitution. the power to regulate an army once it was raised was not controversial at all. nobody wants an unregulated army. by contrast, the commerce clause, all it does is give congress the power to regulate commerce. and so i think it's fair to say that it assumes that there was actual commerce ongoing. that congress then had the authority to regulate. that was a power i think precisely because it assumed the commerce to be regulated that was not controversial at all. and i think if you go back to the minds of the framers and you posit the idea that they really thought that the

commerce clause was as broad as it is, and that it included the power to compel people into commerce, in order to regulate them, then our whole constitutional history would be different. instead of vrg the second and third amendment -- having the second and third amendment that responded to the powers to raise armies, the 13th-16th amendments through framing to control this really broad potentially dangerous power to compel people to engage in commerce. >> i want to give neal the chance to put in a response or further thought and then i want to make sure that we have time for questions. >> just briefly, of all the arguments and crisms against the act, the one that there's a lack of political accountability, that this act somehow stole into the unsuspecting night is -- seems to me the weakest. so i think paul's confession here which i understand why mike won't -- concession here which i understand why mike won't concede that if they used the word tax a few more times

that would be constitutional, really cuts the legs out from under them when it comes to this whole point about unlimited government and the like. their confession is that as long as they do it with the word tax i guess more than 32 times in it, and the act that somehow that makes it constitutional. and now we're haggling over how many times they have to say it. >> i'm not saying you can have an individual mandate if you label it a tax but raise the same thing by raising everybody's taxes and a subsidy to the health insurance industry and you achieve the same result and have everybody paying for it. i'm not saying it's mislabeled. >> then i misunderstood you. >> you're arguing that there's no difference requiring people to do something directly and creating financial incentives to do so government will concede error on medicaid because their entire argument is we're not forcing states to do it but giving them strong financial incentives to do it. >> that has to do with

different state-federal relations but i'll defer to questions. >> so we have 20 minutes left. let me make sure that we have the opportunity to ask questions and i think before -- we have microphones available. here we go. so if you'll just bring it around, please. so folks can see you and introduce yourself. >> i'm nina totenberg from n.p.r. i have two questions that have not been addressed by this rather lively debate. the first is if you -- is the question of if this is a tax, if it's collected by the i.r.s., and can be characterized as a tax, then why is it not in fact covered by the anti-injunction act? and therefore putting the case off until 2015 or something like that? and my second question is

whether -- i would like you each to -- or at least one of from you each camp to address the question of severability and if you lose any part of this case the rest of the statute should stand or should not stand. >> ok. so on any injunction act, let me ask neal first. -- on the anti-injunction act let me ask neal first. >> it might be better posed to those two. >> i'll take a stab. the first problem with the question is you referred to it as "it." but it's important to again to distinguish between the mandate and the penalty that enforces the mandate. the penalty that enforces the mandate does look a little like a tax. it's what's collected by the i.r.s. but the problem is the challenge focuses on the mandate. and the mandate most people i think if they were rationale if the mandate is constitutional, they're not going to stubbornly say i won't buy health insurance anyway. because the tax penalty, the

penalty is sort of key to the amount of the premium you would otherwise pay. and so i think most people are going to make the rational choice that if i have to buy insurance, or be assessed an equivalent penalty for not buying insurance in which case i'll pay and i won't have insurance, i might as well get insurance. so people are going to pay. and that's what congress wants them to do. >> i think the question asks you to assume none of that is right. so assume that the statute is upheld. under the taxing power. does it then run into the anti-injunction act? >> well, ok. i'm trying to explain more broadly why i don't think the anti-injunction act is not a problem. it's not a problem because the principal challenge is to the mandate. and that creates an important difference for purposes of understanding the anti-injunction act. the anti-injunction act is not a crazy piece of legislation. it basically says if you're a taxpayer, and you're hacked off about a tax and think it's unconstitutional, you have an option that most people don't in most litigation. most of the time you face an obligation from the government.

and your choice is either comply in which case you can never sue, or you can bring a preenforcement challenge. and that's unconstitutional, don't do that to me. in the tax context it's different. i can pay the taxes and i can go get a refund and i can litigate that way. that doesn't work for the mandate. because once i pay my premiums, to the insurance company, i can't go seek a refund from them. it doesn't work that way. so the anti-injunction act is really a nonsequitur for the mandate. but even if somehow it's a tax there's still reasons why the anti-injunction act wouldn't apply. and one of them, just -- i'll give you two and there are probably others, one is a long line of supreme court cases interpreting this thing that don't interpret it in a way that make it seem jurisdictional. they make it seem like it's basically a defense that the government can raise. but they can also waif the -- waive the case. and the government and the

private parties and the state all agree that the anti-injunction act should apply. they don't have to reach the anti-injunction act if the court all agrees that it's nonjurisdictional. the other thing is we have arguments and i won't belabor them but we have arguments as to why the anti-injunction act wouldn't apply to the states no matter what. >> so the second question is if the individual mandate goes down, does the rest of the statute logically have to fall apart? >> the government has taken the position in this case that if the individual mandate falls only some -- a few provisions of the act fall. that is the insurance market reforms on guaranteed issue and community rating and their theory is what i outlined at the beginning of our hour together. which is that the reason why the individual mandate was put in was to deal with the adverse selection problems from the community rating and guaranteed issue provisions in the act. some folks have come in and said well, all 2,400 pages of

the act has to fall. including things like funding for abstinence education and the like. that debate many people think is a very tough argument to have the entire act fall. it's true that there is no severability clause in the legislation. and so that's what gives that argument some teeth. but i think the court has said a few times that the absence of a severability clause alone isn't disposs active. -- dispositive. >> neal is right. no -- i don't think any reasonable people can disagree that the individual mandate is tied inextricably to the -- what we call guaranteed issue and community ratings provisions. that is the heart of the act. it's called the patient protection and affordable care act. the two provision that is gave the patients the most protection were the guaranteed issue and no ban on pre-existing conditions thing. and the thing that made it

affordable again was the individual mandate's massive subsidy. so once you've taken away both pillars of the entire act once you've ripped the heart and lung out of a body, it doesn't matter if the fingers can continue to actually move. what matters is if they can move in the way that congress intended. and there's no way when the two basic pillars of that act are ripped out of it that you could possibly say the rest of the act is ok. i suppose you could take the anti-competitive provisions out of the anti--- the sherman act and still have an antitrust division at the justice department which could function but what it couldn't do is function in a manner that congress intended. and this is particularly true of this act. because we know that it was a series of compromises and pulling out any one part was doom the whole if you pull out the biggest part it would doom the whole. >> a more modest view of severability and killing the thing and the heart and lungs

of it, if ts all about the fact that they used the word revenue rather than tax and the supreme court could simply say if it did say tax it would be ok, we in effect rewrite the statute so that wherever it says revenue, it says tax. and people now have -- there's a political accountability and you might say well, that's weird but that's what the nunendo case and marbury vs. madison, the statute doesn't have a certificateability clause and marshall rewrites one class of section 13 of the original judiciary act of 1789. so you could -- if the whole point is people need to understand that the tax -- the supreme court can make that clear, and by the way paul said one other very important thing. we talked about individual mandate. but he said strictly speaking, you don't have to buy the insurance. you can simply pay instead. and when you do, you have not violated the law. you aren't a law breaker. if you choose for philosophical or other reasons not to buy the

insurance, that's fine. then -- >> the -- and the statute is actually structured in such a way that paying the penalty is not compliance with the mandate. and the mandate continues and you are under federal mandate. and you can say that, well, -- >> strike that one part and read the statute so that it's clear that as long as you pay the man, you pay the penalty you're in compliance. if that's -- if that satisfies everyone, that's a very nicely small severable holding. >> not a labeling issue. i don't care if they called it a tax a. penalty or a banana. what it is is a mandate to do something and if you don't do it, you are in violation of federal law. they attach a monetary penalty to that. that's not a tax. if they ban cigarettes in the united states tomorrow, and said that enforcement mechanism is a $4 penalty for every pack you sell, everyone in the world knows that's different than a $4 tax on a pack of cigarettes.

and the government conceded that if there's any distinction between a tax and something else, it's that it's not a payment for an unlawful act. and we all understand why that is so. if in lopez, for example they had said, you can't have guns within 1,000 feet of a school, and the penalty when you do it is a purely monetary penalty could congress just have said that's a tax? no. because they have made the act of having a gun near a school unlawful. and it's not only from the citizens' perspective that this makes sense. it's from congress' perspective. congress doesn't want anybody to pay this penalty. they want them to buy insurance to solve all the problems that these folks have been articulating all morning. so it doesn't work from their perspective if you have massive noncompliance. which is why they mandated the purchase of insurance. it's not semantics. it's a fundamental distinction between being a law breaker and being a person who complies with the law but decides to pay

their taxes. >> all right. >> the government -- >> you are. >> russell mokhyber. the government's position to reach its goal of universal coverage it's necessary to require people to buy private health insurance. earlier this week, 50 medical doctors who support single payer filed a brief in this case saying that they believe that it's unconstitutional -- the mandate is unconstitutional because the government missed an alternative. which is single payer. which most western industrialized countries have. and as both of you gentlemen what you think of that argument. >> look, i'm a libertarian. but unfortunately, i don't think the supreme court should judge the validity of congressional action by whether it's more or less libertarian. than options particularly options about -- adopted by western europe. they should ask themselves the legal question is this

regulating commerce among the states? and since for all the reasons we've already articulated it's not remotely involved in commerce much less commerce among the states not to buy a particular product and that should be thethe powers to congress are completely irrelevant to this decision. >> there are other options including single payer that might be scored differently by the american libertarian association. the fact that they are doable is not irrelevant. this is not an unsolvable problem that this is the only way to go. this is one way to deal with it and it happens to be a way to do it. if the argument is that they could have called this a tax rather than congress, what is the big deal? who cares if we went on the commerce clause? you should grant us this power

because it will not hand as the ability to achieve your policy objectives. really what you are saying is that this is just a two over for congress and this time they have to be honest with the american public during the legislative process and say this is attacks. what is the big deal? i don't happen to believe that, but if that is their position, that seems to be a strong strike against their argument, not in favor of it. >> another question? >> barbara perkins, crs. what is the basis of the argument that the mandate is unconstitutional? >> the court has made clear that you have to go back to first principles. federal government is inherently different from the states because the federal government is one of limited enumerated powers. if you enter the commerce power to essentially give them to brett of power that the state's -- breadth of power that the states have come out that in

power is to say that the standing alone is wrong. much greater than the commerce power -- i start with the text, saying that this is not regulating commerce. even if there is ambiguity with that, we know that is going to be wrong, because if anything is visibly truth from this month, is that there is no limit in principle. congress can treat citizens like they treat militias, which is not a whole lot of limiting principle, and bill of rights would prevent states from doing this. that just means that the feds and states have precisely the same power. that is what the limit in principle conversation is so important. >> as the court has said you should not get up to on on whether the limiting principle -- the court has said repeatedly it that as long as it is within the enumerated powers

the ends are legitimate, there is a means by which the court will defer to congress. why not have a $5,000 minimum wage and punished if you don't pay it by the death penalty? you could come up with a certain samples -- with absurd examples. every government power can be taken to the extreme. do you really want the federal court to be adjudicating these questions on the basis of observe hypotheticals? the court said from mcculloch on no, absolutely not. >> you can to the same thing with the income tax. they do not concede that there is a living principle. mike said that, i emphatically disagree. he does not want me to keep repeating it. the limit in principle on the commerce clause is about

whether commerce among the states -- congress has to be legitimately trying to address a genuine problem between the states where no single state can actually solve the problem on its sound because of spillover effects of one the state passed a policy on another state, positive or negative. you give insurance to one state with health care and you become a welfare magnet. we have one system to deal with the welfare magnet problem certain social security, other state workers' compensation. the limit in principle under the commerce clause is that congress has to act to be tried to address the problem that individual states are not able to handle on their own.

>> i just want to make a comment, because when i went to law school in the 1980's, i spent a lot of time talking about that, and i don't remember ever talking about no limiting principles other than interstate constraints and the bill of rights. how can the supreme court decided based on its president? >> there is an obvious distinction between regulating small producers of the product and the congress that passed the law in the 1930's, instead of telling mr. silver he could not grow wheat, if they told every american to buy wheat. that would have addressed the problem and not more directly than harassing poor mr. filburn. the fact that congress has never done this before, even during as tall pointed out, at times of extreme national emergency, standing alone it is the indication that they never had the power, and the difference between filburn and my clients is the difference

between a local bootlegger and teetotaler. it is far more to require somebody to purchase a product than it to limit their ability to produce the product among interstate. >> in wickard, these were situations where people are not doing anything at all. she was not engaged in interstate commerce when she was trying to grow marijuana in her backyard. as justice scalia said, as long as that regulation on marijuana was part of a comprehensive national solution, it would be constitutional. here the same structure of the argument applies, that there is this one apart, the individual mandate, a overall reform to the health insurance market, and it is constitutional, and you cannot slice and dice and say

that that little provision is unconstitutional. you have to look at the overall structure, figure out what congress is reacting to, and defer accordingly. that is what the supreme court has done and why they have an extremely hard case. >> you offered -- you have heard all this talk about the limits lopez, morrison, we think we are on the correct side of these cases. they basically draw the line between congress and trying to solve a problem that really does spell over across the state's, an economic problem and congress can regulate that. there really is an interstate market in drugs. situations where congress was intervening and there was no interstate problem to be soft, of violence against women and guns in schools.

>> neal's commentary will capture the government's position. the administration like half of justice scalia's position. we have response to that there are other statutes, other cases, where the court has not hesitated to strike down one part of a broader statute that it did not question. i think i can support it to focus on at that part of justice scalia -- i think it is important to focus on that part of the justice scalia's opinion, that what government was doing in regulating conduct involving marijuana was not regulating commerce at all, and that it was necessary and proper to the regulation of interstate commerce. his case rested on the necessary and proper clause, and that is the third clause you will hear about in these arguments. necessary and proper is going

to be at issue. that way of analyzing, that half of justice scalia's opinion, i think is quite helpful to the challengers in this case, because if you focus on the fact that when somebody is in their living room, they are not engaged in commerce. the question is is forcing them into cars to more efficiently regulate commerce -- forcing them into commerce to more efficient at regulate commerce part of the necessary and proper power? it may not be necessary, but in all events it is it not proper, simply not a proper exercise of congress's limited and enumerated powers to force some into commerce and regulate them. you recognize that the interstate fire arms market was something that congress could regulate, but it wasn't necessary and proper to force state regulatory -- state

officials to be commandeered into the regulatory scheme. i think there is an analogy between that and what is at issue in this case. >> these are not commerce clause cases, and paul's is the problem is that when you are sitting in your living room, you are, congress found, affecting interstate commerce. creating infrastructure to deal with the problem that you cannot predict when you are going to get struck by cancer or heart attack. >> i really appreciate it, and thank you all for coming. [applause] national captioning institute] cable satellite corp. 2012] [captions copyright national

cable satellite corp. 2012] [indistinct chatter] >> hi there, i head up c-span's

lcv project. the purpose is to collect programming from outside of washington, d.c. we staff each one of these with one person with a small video camera and a laptop editor. that is what we are doing. why we want to do this is to get out of washington d.c. and collect programming for all of our networks. we are doing an lcv city tour. one vehicle will do historical programming. one will do book tv programming. the third as a community relations event. these are important to us because we work with our cable partners. the last thing that is important to know is all of this can be found on our website. what we are also doing is extensive social media. you will see us on facebook. you will see our cable partners

on facebook. you will see us on four square. you will see us on twitter. it is a chance to get out our message, not only on air, but also on line and threw social media. that is why we want to get outside of washington, d.c., get into places we do not normally do programming. >> watch our local content of vehicles next up in louisiana. the first weekend in march. >> tonight, in about 45 minutes, a look at u.s. power in the 21st century. the white house adviser is at the world economic forum. see it at 8:00 p.m. eastern. arizona and michigan hold the republican presidential

primaries a week from today. rick santorum was in phoenix today speaking at a republican party event. the former senator won a presidential straw poll. his comments are 25 minutes. [applause] ♪ >> thank you. thank you very much. ♪ thank you. thank you, arizona. ♪ thank you for the penn state fight song. thank you for that wonderful introduction, mr. chairman of bank of for the wonderful reception.

it is wonderful to be here with my wife karen and three of our children and we are spending a couple of days -- i wish they were rest and relaxation but thank you for making us here -- feel welcome to the sun valley. it is great to be here and to talk to you about big things. this election is about big things. i am excited to be traveling around this country talking about a positive message of what we will do to replace the man and a party and the movement that is grinding this country into the ground economically and every other way possible that is threatening our security whether it is at the border or overseas. we need someone who will pay a positive vision for america someone who believes in the goodness of the american people and the greatness of the free enterprise system, not make government control and i'm here to deliver that message to arizona and the rest of the

country. [applause] i am excited to be here in arizona with good friends include my chairman in arizona has helped us out. he is a former congressman from california. he and i go way back. we were elected to congress to gather and report -- was part of a group called the gang of seven. you hear a lot of talk about who is the insider and the outsider of this race. it is fascinating that here is a guide that is from outside of washington who is not a senator or congressman but someone who was actually inside washington who was an outsider when he was inside. the have any question about that, ask frank riggs. we came to congress and we shook things up.

we went there and expose the scandal after scandal bipartisan scandals. republicans and democrats were doing things to undermine the credibility of washington, d.c. and the institution. they had a funny bank that was allowing members of congress to kite checks and have loans on the back of the taxpayers. we had members of congress who were using their stamping privileges to make money at the house post office. a group of freshmen went there and found out that this practice has been known for a long time. there was a report every two years but it took courage, it took a group of young folks young members who stood up and said we don't care about the pressure from the establishment in washington. we don't care that the leaders and those who have sway over

your committee assignments and all the other things that in ballparks -- that involve perks. we will do what is right for the american people and we stood up and expose that scandal and there were a lot of reasons for the victory of 1994. one of the principal reasons was that we exposed broad corruption in congress after 40 years of democratic control. we had the courage to stand up inside the institutions and make the changes that were necessary. that is what we need again in washington, d.c. [applause] your senator john kyl is a good friend. john and i came to the united states senate and we were in the senate but unlike some folks who criticize people who get

elected and try to do things, we actually went there and made a difference inside the institution. john and i co-authored a change in the rules of the united states senate among the republicans. for the first time in the history of the senate, we imposed term limits on members of leadership and committee chairman. john and i were the co-authors of that and we fought our own senior members on the republican side and we fought for what we knew was right which is to make sure that power is not concentrated to very few people. we were successful and those term limits survive today on the republican side going in there, not being one of the crowd, not being part of the establishment, shaking things up and making a difference -- that is the record i have. it is a record not just on

reforms within the congress but it is a record of reforms within the united states senate and the congress to cut spending. i will match my record. you see all these commercials that rick santorum is a big spender but they have never once talked about how i voted for any increase or an appropriation bill because i never did. i've always voted to cut appropriations. they never talked about the voting for a tax increase because i never did in 16 years of public life. i voted many times to reduce taxes by step up and voted for smaller government, lower taxes, less regulation, the things we need desperately in this country and not provided leadership in a very important areas. [applause] the leadership is where the problem is in washington d.c. today.

when i was born, a 60% of the federal budget was spent in defense. today it is 17%. some people would have to believe, even some republican candidates, would have to believe that the problem in our country debt and deficit is defense spending. they need to go back and take arithmetic class is again. when you go from 60% to 17% that is not the problem. [applause] the problem is entitlements. the problem is entitlements. when i was born, less than 10% of washington spending was in entitlements. it is growing and growing and will grow dramatically more if that bill that must be repealed by the next president is enacted, obamacare. [applause]

you are looking at someone from the state of pennsylvania, which i know you have had a fair number of seniors in the state but we are second in the percentage of seniors in the state of pennsylvania, second to florida and went out and took on the tough issues, medicare, medicaid, social security, welfare reform. i was the author of the welfare reform bill in the house and managed that bill on the floor of the senate. i did so being the only time we ever eliminated a broad based federal entitlement. we did that with about 70 other programs in washington, d.c. [applause] linney to take everything from food stamps to medicaid to the housing program to education and training programs, cut them friesen, send them to the states as there has to be a time limit and be able to give them the flexibility to do those

programs at the state level. [applause] those are important things we need to do to get this debt and debt as it under control. we also have to get this economy growing. the best way to do that his be leaving in what made -- is believing what made this country great. are we a great country? yes, we are a great country. are we a great country because we have a great and powerful federal government? no. are we a great country because we have three people that can go out and pursue their dreams and build a great and just society from the bottom of? that is really the question in this campaign. it is a question of how we will grow this economy and how we will restore our culture and how we will defend our borders and our land.

would you believe in? do you believe in an all- powerful, all knowing federal government or do believe that america became a great country because we were founded great on the principle of limited government, particularly limited federal government and the idea we could build a great and just society based on this concept that was given to us in our founding documents? there may be some tea party folks here today. i love the tea party. [applause] i want to thank the tea party for restoring knowledge and respect for this document, the constitution of united states, because without them -- [applause] without the tea party, i can assure you have served many years in congress, when you

bring up the constitution in a debate, there would be a snicker. there is very little respect for having government live within the confines of the constitution. that is because there was a perception that it is a new day and therefore we just have to change who we are. you saw this the other day when route to better ginsburg was asked a question whether she would recommend to a country forming that they should adopt the united states constitution as the constitution and she said no. she recommended the south african constitution. this is a supreme court justice. she said the united states constitution is antiquated. that is what the president believes. that is what the left in america believe. that is what progress is believe that this document has lived past its expiration date.

and that we need something new. these old men that put this together made it hard to change so we will use the courts or in the case of president obama, we will run roughshod over the constitution and do whatever we want to do which is what he did with these recess appointments lightly and what he is doing again. this constitution is a great document. it is the operator's manual of america need to get back to it. [applause] this document is insufficient. most of the pocket constitutions

are printed, not just with the constitution. the constitution the operator's manual of america without the of the document printed with it it can be a fairly dangerous document. without the other document, the why of america. who we are. i always talk about how my grandfather came to this country in 1925. he stepped here in america. he became an american. why? because america is not about and ethnicity. we are all hyphenated americans. america is about something bigger, deeper more professional. america is an ideal. where does that come from? what makes us different from any other country in the history of the world? it is the ideal that was established in the declaration

of independence. our founders boldly put forward the very foundational roots of our country. we hold these truths to be self evident, that all men are created equal and endowed by their creator with certain unalienable rights, life, liberty, and the pursuit of happiness. [applause] this is the heart of american exceptional some. this is what makes us different. we are a great country because we believed in the power and the potential and the dignity of every human life. [applause]

and we built this country with the idea that the constitution was there to protect those god- given right. the constitution was not there to give you rights. war for the government to give you right. it was there to protect the rights you already have. because you are a creature of god. you are a creation of god. that is the foundational principle of america. we believe that with limited government and free people who would respect the dignity of all life practiced liberty to pursue happiness, happiness, as john adams wrote all the other founders wrote. they were going to put the word

property in there. that was heavily debated. it was in one of the other founding document. they backed away. why? because property is about stuff. they believed america that the pursuit should be more than stuff. we should not use our freedom just to pursue economic gains or comfort. america had a higher calling. a: to pursue happiness. -- a calling to pursue happiness. the deeper meaning of happiness. it was to do what was consistent with god's will in your life. that is what happiness meant. [applause] that is the answer to true

happiness. it is not doing what you want to do. all of us have done that in our lives. we pursue what we want to do. we find out it is a hollow pleasure. doing what you ought to do, what you should do, it leads to true happiness. it leads to a great and just society being built from the bottom up. our constitution was made for religious people. it is wholly inadequate for the governance of any other. the power of the government was supposed to be limited. to believe in your ability to build strong families, churches, civic and community organizations, all from the local level. those institutions that made this country unique in the world and allow us to remain free from government oppression. our founders came from a country

where the rights came from the king not the people. the king, for the benefit of the people, would allocate those rights. does this send familiar? the government would give the rights, since they are the holder of the right. like the right to health care. president obama says i am going to give you the right to health care, just give me your money in your freedom. when the government gives you rights, they can take those rights away. [applause] when the government gives you rights they can tell you have to exercise those rights. if you are a person of faith and the government says, you will do things, you will provide. what the government tells you

you must provide, whether it is against the teachings of your faith. when they run over the first amendment of the constitution. the media winds at first and then says, there was an accommodation made. there was no accommodation made. not at all. it was a phony accommodation. it was meant to do just that, to divide. not to accommodate but to trample those beliefs because the government knows best how to run your life. ladies and gentlemen, this election is about foundational things. it is about the very nature of our country. it is about liberty. it is about whether we are going to be a free people, economically, whether we are going to have the government

with obamacare, cap and trade dodd-frank, as to what bone you are going to get, what like all you can turn on, what car you are glenn -- what loan you are going to get, what light bulb you can turn on, what car you are going to drive. it is crushing the spirit of america. [applause] the economy is struggling. why? because americans are different than everybody else in the world. your ancestors came here because you wanted to be free. your dna is different than the dna of those who stayed behind. i know, my grandfather came to this country and brought my dad as a boy. i have been back and visited my relatives. they are nothing like my grandfather. he worked for 30 years in a coal

mine. working hard, every single day so he could provide for his son who might someday be able to get a college of education. for his grandson who might be able to run for president. [applause] when you put the yoke of government on people who want to be free, who have a tradition who had an ancestry of hard- working, freedom loving people, who are willing to go out and fight for that. when you put that yoke upon them, they stop. they do not like it. we are different. we do not want to be ruled. ladies and gentlemen you have an opportunity in this election.

you have an opportunity that generations do not always get which is to strike a blow for freedom. you have an opportunity to be stewards of a great inheritance. when our founders signed the declaration of independence, they did so with this closing phrase -- we pledge our lives fortune, and our sacred honor. why? for freedom. for freedom. they wrote about it a lot. they knew that establishing freedom at that time, writing a document, it was bold and courageous. they knew, they were declaring independence from the greatest power on earth. the greatest power in the history of the world, at the time. they wear a red tag country. these are wealthy men.

they were willing to sign that document to give you what we have today. who did they pledged it to? they pledged it to each other. we pledge to each other that as the words of this quake inheritance, we too -- that as stewards of this great inheritance, we too will do what is necessary. i think god every day that there are people who put the uniform on and do pledged their lives every day. [applause] we are not asking you to pledge your fortune. although, if you want to go to buy website after lunch. -- my website after lunch --

[laughter] it is your honor at stake. will you be the generation that let the plane go out -- flame go out? will you be the generation that succumbed to the seventh song that government can do better for you than you can do for yourself? will you be the generation that sat on the sidelines and watched as a candidate after candidate comes up in the national media tries to destroy them in every way possible, as they have done with every republican candidate, and as they will with -- until the election will you say, that is not fair, or will you stand up and fight back for freedom? [applause]

[applause] [applause] you have an opportunity. your moment is coming. it is coming first, a week from today. a week ago is celebrated the centennial of the state of arizona. congratulations. happy birthday. [applause] you celebrated what you were able to build and your best custer's -- your ancestors to

build this great and prosperous state, which is struggling, with high rates of foreclosure and unemployment. with an immigration problem that the government is completely inattentive to. [applause] struggling, but still fighting. you can speak loudly on tuesday. you want someone who is going to stand up and fight the insiders the establishment. who has a track record of doing it. a track record of cutting spending and taking on the big problems of entitlement, a track record and a vision to fight against the radical islamists who threaten our freedom and that of the state of israel. [applause]

someone who has a track record of standing up for the basic foundation of pillars of our society, faith and family. [applause] i am not a manager. i am not a visionary. i am a guy from a steel town who grew up understanding what made this country great. for the years i have been involved in public life, i have put my heart and my effort on the line. to make this country the kind of country that we all want to hand off to our children and grandchildren, something better than what we had. that is what i am asking you to do. someone who has been fighting

across the board, not just on one or two issues, but a conservative believing in the founding principles, a real, authentic conservative, who can not just win this election, but in so doing, do so based on a vision for this country. a vision that is different from the vision of barack obama. make it about big things. big things need to happen. if we are going to be the generation that can say that we gave more, we improved the united states of america we made this a greater country, we got back to our founding principles, we were able to build a great and strong society. [no audio]

the american public went for a rock star who they believed could solve their problems. someone who they believed in to make a difference in their lives. this election, america is going to go back to what we have done in the past. looking for leaders not who we believe in looking for a leader who believes in you. please help us on tuesday. thank you. god bless you. [applause] [applause] [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2012] [applause] >> coming up, a look at u.s. power in the 21st century. saxby chambliss joins michael

frohman at the world economic forum. that is coming up at 8:00 p.m. eastern here on c-span. on [video clip] "washington journal," we will talk about contraception in the presidential campaign. the president and ceo of american crossroads, steven law, joins us to discuss campaign spending. we will look at the article about the 50 most powerful people in washington with redi charlin. live on c-span every day at 7:00 a.m. eastern. >> avoid hard decisions in the delusion that a world of conflict will somehow

mysteriously resolved itself into a world of harmony. if we do not rock the boat, or irritate the forces of aggression this is hogwash. [applause] >> as candidates campaign for president, we look back at 14 men who ran for the office and lost. go to our website, c- span.org/thecontenders. >> this is the time to turn away from excessive preoccupation overseas to the rebuilding of our own nation. america must be restored to her proper role in the world. we can do that only through the recovery of confidence in ourselves. >> c-span.org/thecontenders. >> more from the republican party lincoln lunch.

talking about illegal immigration. he says he will release findings of his investigation. this is 15 minutes. >> thank you. [applause] thank you. it is good to be with a friendly crowd. thank you for inviting me. thank you for the great work the county is doing, and the state. i had the pleasure of meeting all of the candidates running for office in private. i just met senator santorum for about 20 minutes. we had a nice talk. one thing that impressed me is he goes to the grass roots. he goes to the people. he understands the people are

our bosses. i take that very seriously. it is the people who elect you. once again, it is great to have the people behind you. that is what keeps me going. i do have some people taking shots at me. not literally, so far. when you are doing your job sometimes you cannot make everybody happy. the of elected sheriff is a very honorable position. it is a constitutional office. i take it very seriously. you must always elect a person a law enforcement person, official, as your sheriff. it is very important.

i am not going back into my 50 years of law enforcement or my 20 years as your share oferiff. the senator mentioned about his grandfather coming here from another country. my mother and father came here, legally, from italy. [applause] my father worked very hard in a grocery business. i used to deliver groceries olive oil, everyone said, how come you do not look your age? that is because i drank the olive oil. i served as the head of the u.s. drug enforcement. every time i came back, i kissed

the ground. this is the greatest country in the world. [applause] i take my oaths very seriously. i always did that in my 32 years with the federal government. many years with the department of justice. i take my oath seriously. i feel that, when you take an oath, you must apply the oath of office. sometimes i get in trouble. once again being elected makes a big difference. i cannot be fired except from the people. there are a lot of organizations that want me to resign. that is never going to happen in a million years.

i am not going to go into who those organizations are. it seems to be all democrats. i do not know if that is a coincidence. it emanating from the white house down. the illegal immigration laws, those were two laws passed by the state legislature. all i am doing is enforcing those laws. [applause] i am para of the fact sometimes i wonder why this is the only of law-enforcement agency enforcing those laws. it makes you wonder sometimes. i have to thank bill montgomery for prosecuting these cases. [applause] and russell per se and the people of the legislature who passed the laws. [applause] i cannot enforce the laws if i

have no laws. because i am enforcing the laws, i have the department of justice zeroing in on me. it is ok. you do not see me losing any hair. i am not going to surrender. they want to take over the office and put me under some receivership. they are not going to do that with an allotted share of. i am not the chief of police. i and the elected sheriff. i had 250 tea party people signing a petition. i did not know if we have any here. [applause] they came and asked me to investigate obama and the birth certificate. what should i do? throw it in the wastebasket and forget it like everybody else?

i take my allotted status very seriously. when the people ask me to do something, i tried to do it, regardless of the repercussions. [applause] on march 1, i will have a press conference and reveal what we found out during that investigation. [applause] i do not have press conferences just to get my name on television. when i have a press conference, i talked about something. that is coming. i let people know it. it is not a secret. when i took this mission on, i

took it on to be able to clear the president. i was doing him a favor. we will see what happens. i will go public on what we fund out on march 1. i have them coming from all different directions. i know the president mentioned me three months ago at the white house. it was not nice. that is all right. he has the right to do that. we have to make sure that we, regardless of who the candidate is we get behind that person and do what we can to get a new president in the united states. that is very simple. [applause] sometimes, people say, how do you put up with this?

you are not a young guy anymore. i am a senior citizen. sometimes they put in the paper my age. i do not know what that means. if i was 25, the think they would say the 25-year-old -- do you think they would say the 25- year-old sheriff? that is okay. it does not bother me. my wife of 55 years supports me. that is important. to get a spouse who supports you. [applause] without her support, i may have a problem. she has never complained, never nagged. maybe that has -- is why i have stayed married so long. i do get a lot of threats.

i have one coming out again today. that is the way the ball bounces. it comes with the tterritory. to keep my morel up, i need all of you to support me. [applause] i know i could say i do not need this job, which i do not. i do not want to be a governor, which i do not. i want to continue fighting for you and our county, ellis date, and our country -- our state and our country to do whatever i can to make it a better place in my way of doing things. [applause] see what happens. i have to thank the president. i know i did this on national tv, they thought i was flipping

my list. i think the president -- thanked the president on the illegal immigration thing. i think him for going public and saying they are not going to deport 300,000 people. i do not believe that. i thank him for bringing it on the table. every candidate is not talking about illegal immigration. they wanted it to go away. now they are talking about it. i want to thank you mr. president, for putting it back on the table so everyone can discuss it again. i do not usually thank the president. i am them. i do not agree with the policy. i do not agree with many of the policies not only related to illegal immigration, but other

aspects. one way you can improve the problems with mexico i served there four years is billed as the economy, do other things too -- is build up the economy, do other things too. many come here to work. we lock them up in the workplace. the president should be thanking me. every time we made a place we remove illegal aliens. how come the president does not thank me? i never get any thanks. that is okay. it does not bother me. once again, thank you. we have good candidates running for president. they are all nice people. i have met with them in my

office. i am impressed -- their mission is to defend our country, to make this a better country. they all have great ideas. it is going to be up to the voters to decide who the candidate is going to be for president. i hope all of you get involved, make your choice, at the end of this campaign, you will back up whoever becomes the nominee. i know you will do that. thank you. thank you, mr. chairman, for inviting me here. for giving me a few moments to speak. [applause] [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2012]

>> hi, there. i head up the lcv project. it stands for local content vehicle. the purpose is to collect programming from outside of washington, d.c. we staff each one of these with one person with a small video camera, and a lap top editor so they can roll, record, produce and edit things from the road. why we want to do this is to get outside of washington, d.c. and collect programming for all of our networks. we are doing a city tour. we will descend on the city with all vehicles. one will do historical programming. the other will do book tv programming. the third one does community relations event. community relations and events are important to us because we work with our cable partners in each one of the cities. all of this gets archived on

our web site the c-span video library. what we are also doing is extensive social media. you'll see us on facebook. you will see our cable partners on facebook. you will see four square. you will see us on twitter, as well. it is a chance to get out our message, not only on air, but online and through social media as well. that is why it is important. we want to get outside of washington d.c. and make a commitment to getting outside the beltway. >> what a local content vehicles next up in the louisiana the first weekend in march on both tv and american history tv. >> in a few moments from the world economic forum, a disc