medical science that americans can produce and that turned out to be very expensive. i have kids. i have done the you can have whatever you can have at no cost. you should see my daughter's closet. you say, you have to stop. that violates the pressure of the beneficiary because they do not get everything they wanted to hear. the only way we saw that is to put these programs on the budget. we say to the beneficiaries, this is it for this individual, do something sensible with it. develop the kinds of efficiencies and a coordination of care. take advantage of information technologies. build a business model to do this right. we have not done any of these things. what i am looking for is a real effort to develop private sector standards to pursue those kinds of strategies.

then we will have made a big change that we need and we will be successful. in the process, we will shed an enormous amount of affordable care act. we cannot afford them. we will shed many of the bureaucracies, which in one of the best reports have -- i have seen, the crs said were uncountable. i love that. there is some evidence that could be beneficial. one is the exchanges by whatever name. insurance -- we need to make good choices. you could lower the cost of -- they should be the goal, to develop a better insurance market for americans. it is delivered in short supply.

most of that is the government to tackle. we need to set rules in a sensible fashion. that is enough. i think you for your patience. i will answer your questions. [applause] [laughter] >> i want a picture of this, my first and only standing ovation ever. [laughter] >> thank you. we have one question. the question is, what do you estimate the overall cost to study, implement, and run the changes will cost? >> you're looking at $100 billion.

i am not sure we can do that. i am quite sure that we cannot -- that that cannot be done as written by 2014. there is a legitimate case to be made that they may not be doable as written. here is why. we are asking hhs and the irs to each month, in vans, identify out of the 300 million americans, those who are eligible for an insurance subsidies, calculates the correct amount of that subsidy, deliver that subsidy to their ce andt state resident there is no way we can do that right now. that is not doable. we have. send payments on much simpler programs. -- we have. send payments on much simpler programs. i do not think that can happen

right now. you can draw a lot of money at it and cannot get it right. the intrusiveness necessary to get it right may not be acceptable to the american people. we are going to have situations where suddenly an employer will find out that one of his workers has sent his bows to the exchange and he is going to say what is up? he will have to say my wife off to -- lost her job. congress has a limited way individuals who get subsidies. they will not have to pay it all back. i yet to figure out what happens if i get my money in virginia and then i decide to go to massachusetts and file their, out -- how they will reconcile across states. i am wondering --

i think the budget cost is the tip of the icebergs. the kinds of money they have are not even close to what is necessary. thank you. [applause] [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2012] >> we take it to the supreme court where two groups facing action and christian defense coalition are holding a vigil. this is a day before justices will hear oral arguments on the affordable care act. the media is gathering here as the court gets ready to hear these arguments starting tomorrow. [inaudible]

>> taking the scene outside the supreme court struck a day to day here on c-span and looking back at coverage of the challenges to the health care what. on march 23, 2010, president obama signed and the care act

into law. a democratic lawmakers can vote for the signing. this is 40 minutes. -- adies and gentlemen [unintelligible] [applause] [applause] >> thank you.

[applause] >> q. i very much. -- thank you very much. [chanting] [applause] mr. president, i think we have a happy room. [laughter] it seems ridiculous to say thank

you all for being here. [laughter] ladies and gentlemen, to state the obvious, this is a historic day. [applause] in our visits, we use that phrase a lot. i do not think of a day that it is more appropriately stated. this is a historic day. history is not merely what is printed in textbooks. it does not begin or end with the stroke of a pen. history is made. history is made men men and women decided there is a greater risk in accepting the situation that we cannot bear them in stealing our spine and embracing the promise of change. that is when history is made. [applause]

history is made when you all assembled here today, members of congress, take charge to change the lives of tens of millions of americans through the efforts of those of us lucky enough to serve here in this town, that is exactly what you have done. you have made history. history is made with a leader steps up, stays true to his values and charts a different course for the country. isn the leader's passion matched with principal to set a new course. ladies and gentlemen, mr. president, you are that leader. [applause]

>> you deserve it. mr. president, your fears advocacy, the clarity of purpose that you show, your perseverance, the star, in fact -- these are the reasons why we are assembled in the room today, together. but for those attributes, we would not be here. many men and women are going to feel the pride that i feel in watching you shortly, this bill -- knowing -- watching you shortly sign this bill. mr. president, you are the person that made it happen.

[applause] mr. president, all of us assemble in this town over the years and we have seen some incredible things happen. mr. president, you have done what generations of great and -- great men and women have tried to do. republicans and democrats. they have tried before. everybody knows the story starting with teddy roosevelt. they tried. they were really bold leaders. mr. president, they fell short. you have turned, mr. president, the right of every american to have access to decent health care in to reality for the first time in american history. [applause]

is the president, i have gotten to know you. if you want me to stop because i am embarrassing you. i am not going to stop because you have delivered on a promise he made to all americans when we moved into this building. mr. president, you are to repeat myself, literally about to make history. our children and grandchildren will grow up knowing that a man named barack obama put the final girder in the framework for a social network in this country to provide the single most important element of what people need and that is access to good health.

[applause] and every american, from this day forward, will be treated with simple fairness and basic justice. look, the classes -- the class a poet once said that the greatest wealth is health. the greatest wealth is held. today, america becomes a whole lot wealthier because tens of millions of americans will be a whole lot healthier from this moment on. ladies and gentlemen, the president of the united states of america, barack obama. [applause] >> thank you, everybody. thank you. [applause]

thank you. thank you. thank you. thank you. [applause] thank you, everybody. q i come everybody. please, have a seat. thank you, everybody. please have a seat. good to be with you. today, after almost a century of trying, today after over a year of debate, today after all the votes that have been tallied health insurance reform becomes

law in the u.s. [applause] today. [applause] it is fitting that congress passed this historic legislation this week. pressly market the turning of spring, we market a new season in america. in a few moments when i sign this bill, all of the overheated rhetoric over reform will finally confront reality. [applause] while the senate still has the last round of improvements to make on this historic legislation and these are improvements i am confident they

will makes lifting -- swiftly -- [applause] [laughter] the bill i am signing will set in motion reforms that generations of americans have fought for and marched for an unheard to see. it'll take four years to implement fully many of these reforms because we need to implement them responsibly. we need to get this right. a host of desperately needed

reforms will take effect right away. [applause] this year we will start offering tax credits to about 4 million small business men and women to help them cover the cost of insurance for their employees. that happens this year. [applause] this year, tens of thousands of uninsured americans with pre- existing conditions, the parents of children who have a pre- existing condition will finally be able to purchase the coverage they need. this happens this year. [applause] this year, insurance companies will no longer be able to drive

people's coverage when they get sick. [applause] they will not be able to place on limits -- place limits on the amount of care they can receive. [applause] this year, all insurance plans will be required to offer free preventive care and this year, young adults will be able to stay on their parents policies until they are 26. [applause] this year, seniors who fall in the coverage gap known as the doughnut hole will start getting some help. they will receive $250 and pay

for prescriptions and thou wilt, over time, fill in the doughnut hole. i want seniors to know, despite what some have said, these reforms will not cut toward guaranteed benefits. in fact, under this law, americans on medicare will receive free preventive care without co-payments or deductibles. that begins this year. [applause] once this reform is implemented, health insurance exchanges will be created. a competitive marketplace where the uninsured people and small businesses will finally be able to purchase affordable quality insurance. they will be able to be part of a big pool and get the same good deal that members of congress get. that is what will happen under this reform. [applause] and when this is up and running, millions of people will get tax breaks to help them afford coverage, which represents the

largest middle class tax cut for health care in history. [applause] that is what this reform is about. this legislation will also lower costs for families and for businesses and for the federal government, reducing our deficit by over one trillion dollars in the next two decades. this is paid for and is the irresponsible and it will help lift a decade's in drag on our economy. that is what is part of the problem -- the plan. our generation is able to succeed in passing this reform and that is a testament for the persistence and the character of

the american people who championed the cause, who organized, who believed the people who love this country can change it. it is also a testament to the historic leadership and uncommon courage of the men and women of the united states congress. they have taken their lumps during this difficult debate. and [laughter] >> yes, we did. [laughter] you know, there are -- [laughter] there are few tougher jobs in politics and government the leading one of our legislative chambers. in each chamber, there are men and women who come in different places and face different pressures. to reach different conclusions about the same things and feel deeply concerned about different things. by necessity, leaders have to

speak to those different concerns. is not always tidy and it is never easy. perhaps the greatest and most difficult challenge is the sense of common interest and purpose that is required to advance the dreams of all people. especially in a country as large endeavors as ours. we are blessed by leaders in each chamber who not only do their jobs very well, but who never lost sight of that larger mission. they did not play for the short- term. they did not play to the polls or for the politics. one of the best speakers of the house of representatives -- is nancy pelosi. [applause]

[chanting nancy] [applause] one of the best majority leaders the senate has ever had the is mr. harry reid. [applause] to all of the terrific committee chairs, all the members of congress who did what was difficult but did what was right to and passed health care reform, not just this generation of americans will thank you, but the next generation will thank you. of course, this victory was also made possible by the painstaking work of members of this

administration including our outstanding secretary of health and human services, kathleen sebelius. [applause] and one of the unsung heroes of this effort, an extraordinary woman who led the reform effort from the white house. [applause] today i am sending this reform bill into law on behalf of my mother. she argued with insurance companies even as she battled cancer in her final days.

i am sending it for ryan smith who is here today. he rents a small business with five employees and he is trying to do the right thing by paying half the cost of coverage for his workers. this bill will help them for that coverage. i am signing it for 11 year old -- for any 11-year-old who is also here. [applause] he lost his mom to and illness. she did not have insurance and could not afford the care that she needed. in her memory, he has told her story across america so that no other children have to go through what his family has experienced. [applause]

i'm standing in for a person who had to develop health coverage after rates were jacked up by more than 40%. she was terrified that an illness would mean she would lose the house the apparent built the so she gave up her insurance. now she is lying in a hospital bed, as we speak, faced with just such an illness, praying she can afford to get well without insurance. her family is here today because she cannot be. her sister is here. stand up, please. [applause] i am sending this bill for all the leaders who took up this caused the generations from teddy roosevelt to franklin

roosevelt. from harry truman to linda nansen -- linda johnson and hillary clinton to one of the deans who has been fighting this so long. [applause] to senator ted kennedy. it is fitting that his widow is here. [applause] it is fitting that his widow is here and his niece, caroline.

his son patrick whose vote helped this form become a reality. [applause] i remember seeing ted walked through that door one year ago and one of his last public appearances. it was hard for him to make it. but he was confident that we would do the right thing. our presence here today is remarkable and improbable. with all the punditry and double the lobbying and all of the team plane that has happened for government, it has been easy to doubt our ability to do such a

big thing. such a complicated thing. to wonder if there are limits to what we as a people can still achieve. the two-seat -- it is easy to succumb to cynicism about what is possible in this country. today, we are affirming that the central truth. a trip every generation is called to rediscover for itself. we are not a nation that scales back its aspirations. we are not a nation that falls prey to doubt or mistrust. we do not fall prey to fear. we are not a nation that does what is easy. that is not who we are. that is not how we got here. we are in nation that faces its challenges and except his responsibilities. we are a nation that does what is necessary. what is right. here in this country, we shape our own destiny. that is what we do. that is we are.

that is what makes us the united states of america. we have now just enshrined thomason is a sign this bill, a core principle that everybody should have a basic security when it comes to their health. [applause] this is an extraordinary achievement that has happened because of you and all of the advocates all across the country. so thank you. thank you. god bless you. made -- may god bless the united states of america. [applause] >> congratulations. >> thank you. >> thank you. all right. i would now like to call up some of the members of congress who helped make this day possible in some of the americans will benefit from these reforms.

and we will sign this bill. [applause] >> this is going to take a little while. [applause] this will take a really long time.

i did not practice. [laughter]

[applause] [applause] [applause]

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>> outside the supreme court, two groups are gathered around the building and they're holding a prayer vigil the day before the justices hear oral arguments on the affordable care act. take a listen to the comments. >> we have come here to seek died and to ask him to -- seek god. we have asked him to initiate any kind of health care legislation that embraces religious freedom, that honors our constitution and does not provide public money for abortion. are we playing against health

care legislation? we are praying against any thing that would stand against justice in the heart of god and we are affirming what god says. this is what's god says in isiah -- this is what i have chosen to share your food with the hungry, provide shelter. to lose the chains of injustice. and said the oppressed free. we see above us on the court's fesai dick equal justice under law. facade equal justice under

law. we are praying for health care that will protect this principle, will not crash in this in riots and will respect our constitution. -- will not crash in the civil- rights and will respect our constitution. >> these flowers symbolize the number of abortions performed in the u.s. we have a web set up with links to a special twitter feed. ahead of the arguments tomorrow, andrew cohen tweeted about nsa that is on the historic ramifications of the affordable care act. we are checking the scene throughout the day here on c- span and looking back at c-span coverage of the challenges to the law. one of those challenges was posed by ken cuccinelli and here is a portion of his recent appearance on "newsmakers" talking about the health care law. >> we start health care and i am

going to ask you to give our viewers a sure hand view of our -- of your issues with a lot. >> this is coming before the supreme court at the end of the month. the centerpiece issue is the individual mandate, the requirement in the bill that every american by government approved a health insurance. this is done under the commerce clause and was commonly talked about as a 10th amendment case. it is a commerce clause case. the question there is, is the congress's power to regulate interstate commerce allowing them to compel you to purchase health insurance? and our side says no. the federal government says yes. there has ever been a case like this ever before in the over 200 years since the constitution was passed. the federal government has never compel people to buy a product under the guise of regulating commerce. that is the centerpiece of the case.

there is another constitutional issue, that is the tax argument. that arose after the case began. when we file our case on march 23 of 2010, this was all about the commerce clause. if you go and look to the press coverage there in that first month, a lot of criticism about what we were doing and why and a lot of questioning. there was a lot of predicting the federal government would win. we just kept making and we addressed the limited size of government. this was to much power. as he kept making the case, gradually, it became very clear that the other side begin to get worried that they could lose. they started out saying this is a slam dunk and we will never lose. of course, we won in the district court. about a month later, in april 2010, if you read the account, you'll start to see this tax arguments arise. what is is that the fine you

have to pay if you do not purchase the mandated health insurance, which is called a penalty in the bill, is in fact a tax. that is important because congress has very broad taxing power. it my prediction of the -- at the outset was that no judge or justice anywhere in america would agree with that argument. so far, i have been wrong by one. out of 16, one found it to be a tax. he sits in the fourth circuit in virginia. he will be there for a long time. this is a radical position. the government can order you to purchase something and find you if you don't end because they can find new, -- fine you, they can order you to do anything . >> let us turn to questions. >> first of all, the texting issue was raised in the beginning by the justice

department, right? >> when they filed the briefing, no. this is a complete reversal. when the bill was being passed, they said this is not a tax. judges in courts -- how my supposed to do with this, they would say. >> the first it was as a much is this a tax and therefore it should be unconstitutional, it is does the anti-injunction act apply which means you cannot sue before a tax is levied. >> right. interestingly, both sides agree that the anti injunction act does not apply. there is a liar -- a lawyer that is arguing that it does apply. i do not ever remember a case they have appointed two lawyers. they have appointed two and one to argue about the remedy.

i jokingly tell people that the first day is the boring day. the anti injunction act is in place so that the tax revenues keep flowing. this makes sense. if you want to challenge a statute, you have to pay your taxes to do it. that is just a policy decision that the federal government has made it okay, we may get something wrong but we will not let the courts to interrupt the flow of tax dollars that we need to keep the government running . on the first day, you will hear the appointed lawyer in a difficult position. frankly. >> putting aside the tax issue, the virginia case is not what is being heard by the -- is the florida case. are you frustrated by that? do you see any hope that the virginia case will be revisited in any way? as the hours is being held by the supreme court. -- ours is being held by the supreme court. obviously, the element that is

common to all of these cases is the individual mandate. the heart of all of the cases. our goal is to see the results favorably. at 100 years from now, what matters is that the federal government has this power or not. it is important that the government not have that power. that is our focus. whoever wins it is quite secondary, which set of -- we have another matter with our case that is of concern to me. that is that the fourth circuit for the first time in the history of this country for any court said that virginia did not have the standing, the right to sue to defend its own law. we had a separate law, unlike a lot of the other states that said you cannot be forced to buy health insurance against your will. their decision that we did not have standing is an absolute liar in these cases. there are now five states where

if that panel's position stands, states do not have the authority to defend their own laws, among the other 45 states. >> where do you see that going? >> of the supreme court applies -- if the supreme court applies the ruling to our case, they will be overruling the fourth circuit as it relates to standing because that is jurisdictional question. for viewers, if you do not have jurisdiction, you did i get to the other questions. they will have implicitly overruled that position on the fourth circuit. that is what i'll hope for . >> if they -- >> -- >> why would that be to your steny? >> if they apply the ruling to our case, as well. our case is before the supreme court. that is not being argumentative -- that is an being argued. that is not all uncommon for them.

i do expect the ruling to be applied to the other cases. that happens all the time. i think of menendez in virginia. they had 15 of them sitting on hold and they applied the ruling to all of them except virginia's. we argued and said that menendez covers this. why the overall look at it, right -- why they overlooked it, i do not know. >> on the individual mandate, your opinion that justice kennedy is the swing vote? >> i do not think there is one. i think and justice kennedy, everybody per resumes -- presumes he is the swing vote. he is a proponent of structural federalism. that means the separation of some realm of authority for

states versus the federal government. were the state cannot invade federal authority and vice versa. if we lose this case, a federalism is dead. that is very inconsistent with justice kennedy's very consistent prudence in this area. i view a ruling that the individual mandate -- mandate is constitutional. there are other people who do not is substantial, justice scalia, which was the last commerce clause case in 2005, that is a cause for concern. it is a unique case in that it it wasn't as applied challenge. it is the only commerce clause case like that and that was a case about marijuana. certain justices will extend themselves to bring anything drug-related within federal

power. and then justice roberts, some people think that his majority in the comstock case the week before, may 17, as a harbinger of doom for our side and. language for the comstock case, the majority of the opinion brings broad language through a very thin funnel. the federal government cannot get this bill through that tunnel. i am confident, but there has not been enough time since the comstock case to assess. >> and this is as it applies? >> two christian outreach groups are gathered and making speeches. the supreme court will be hearing oral arguments tomorrow

on the constitutionality of the health care bill. >> jesus is hungry to be fed. thirsty to be satisfied. naked to be close. jesus is the homeless to be taken in. jesus is the lonely to be loved. jesus is the unwanted to be wanted. he is the leopard to wash his wounds. jesus is the banker, to give him a smile. -- bagger -- begger, to give him a smile. jesus is the cripple to walk with him. jesus is the drug addict, to be friend him.

jesus is the prisoner. -- >> we have a special web site set up that c-span.org for those who will be involved in the supreme court argument tomorrow, as well as links to a special twitter feed. ahead of those comments, andrew cohen just sent a twitter on the historical ramifications of the act. you can find the link on the bottom left of our special supreme court page. >> they cry out for god's justice. >> the 11th circuit also held that the rest of the law could continue, despite the ruling against the individual mandate provision. this is the first appellate ruling against the law. this is two and a half hours.

>> we are here in the state of florida versus the united states arm of health and human services. before we put you lawyers on the clock, i will make a couple of remarks about this case and direct you where i think you need to go with your arguments. clearly, we believe the most difficult issue in the case is the individual mandate. equally difficult is the medicaid expansion issue. so, we would ask you to direct your argument there. i would ask counsel but when

you first get up, speak to us briefly about standing. i know that at one point in this case you challenge standing as well as some of the other challenges to standing. it seems to us that there is clearly standing in the case as to the individuals as far as the individual mandate issue and there is clearly standing as to the states in regard to the issue of medicaid expansion. with that, we will hear from you first. >> thank you, chief judge. i would like to claim the meritless used first and then get to your question about standing. after years of study and debate, congress passed the affordable care act. first that the m

including the minimal coverage division, which " regulating activity the this economic in nature about how and when health care is paid for that substantially affects interstate commerce with a substantial part of this economic activity. the absence of which would undercut the health-care market. third, that the act would reduce the federal deficit. those three findings, three each finding becomes weightier still with you -- the view alongside the court's standard rule. of constitutionality. the three arguments are first, that the minimum coverage provision regulates how people finance commercial transactions, namely the obtaining of health care, an area that congress found substantially affects interstate commerce. there is no dispute that the

prevention of billions of dollars of cost shifting and the need to make health insurance widely available to the 50 million uninsured americans are legitimate clause ends. the question is the means to which we get there. the second argument is that the minimum coverage provision assists one part of an act that comprehensively regulates the interstate insurance markets. that part is essential to meet the overall at work. it is part of a larger regulatory scheme. third, the government's broad powers of taxation. >> now tell us whether or not you challenge steny. >> we basically agree with what you said. we said that we do not challenge the district court standing. with respect to the states, we agree that they do have standing

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

question of sever ability only of the states have standing as to the medicaid provision. am i not correct about that? >> that is correct, judge markets. if you believe that the minimum coverage provision was unconstitutional, then he does have a standing. >> it strikes me as a wholly academic question, no matter how the court rules. have i missed something there? >> it is largely academic. in part, we just want to ensure that the court has people guidance of the united states views on standing in general because these issues come up repeatedly. we would not to be in a position where a decision in this court were read to expand standing beyond its conference. >> while we're doing the housekeeping matters, the several ability issue, curly the sake of argument, the mandate itself is unconstitutional, finding nothing else's constitutional, it can be wholly

severed? >> we believe, with respect to sever ability, that the minimum coverage provision is coupled -- this is our second argument on the merit. >> but we go back to the first question. assuming it is unconstitutional, it does not reference any other provision, doesn't it? the statutory language does not reference any other provision? >> the "minimum coverage" provision appears in other parts of the act. >> let me try it one more time. that section is unconstitutional, the government contends the rest of the act stands. i know you have a backup argument to that, but your first argument, you can sever that holy and not touch the rest of the act. am i correct? >> no. our position is that, if you -- if they were to win a challenge, they would win to a part of 5000

a on the coverage provision. alongside that, two sides of the same: are the insurance provisions -- the same coin are the insurance provisions. we do think that -- >> which were identified by congress. i did not see in the congressional findings any indication of other provisions that were tied to the individual mandate. >> it is the finding that i just read to you a moment ago, when i opened the argument, but that was essential. >> we understand how it operates internally. what else did congress say besides guaranteed issue? >> said nothing is anything else specifically besides that. our position is that the court does not need to reach any of these several ability issues.

-- these severability issues. >> our position is that, with respect to this court, yes, that basically is the minimum coverage provision and the insurance provision that most of that the court would reach. >> when you say the insurance provision, just so that i am clear, you are referring to the mandate that congress imposed on insurance companies not to block list people with pre-existing conditions or medical histories from being able to obtain insurance. that is the provision you are talking about. >> yes. >> is that the beginning that of that which is tiedit is those p.

>> there is nothing in the sections that say that. there is no time line. is that correct? >> they were essential. >> there is no statutory language that help you. is this correct? >> that is correct. >> the only health reform that is referred to it is this. i cannot say that is where we are going. i am trying to understand it. >> that is our position. if i could persuade you not to go there. >> let's talk about the individual mandate. let me tell you what makes this case hard for me. first of all, i have read all the supreme court cases from the very beginning that talk about commerce laws. i cannot find any case pretend that is just like this. would you agree with that? >> it depends somewhat beaming

-- you mean. >> they have said in two cases -- and i agree that those cases are different that were in the criminal context -- as a broad and as expansive as the commerce clause power is, and congress is clearly given expansive power, in both of those cases they say there are limits. i do not know what that means. there are limits out there somewhere. if we uphold the individual mandate in this case, are there any limits on congress's power of left? >> absolutely. you are absolutely right.

they established blog cart --- limit. nothing but those in limit. bate said that lopez and morrison implies the non economic situation. lopez and morrison -- our position is that while there is not a case exactly like this one, this falls with in a long line of supreme court authority. we are not saying that congress can force someone to buy something and say a failure to do so is economic activity. people are seeking this already in untold numbers. it is almost a universal feature of our existence.

the failure to pay for that good is what causes that congress made a specific finding. it was occurring because of a compensated k. it decreases the family premium by $1,000 a year. that is quintessentially economics. that is a way that lopez and morrison were not. they were about a change of causation. lopez was a bomb possession -- is that gun possession would be to worse things. >> let's talk about the nature of the conduct that is being regulated. the position seems to have shifted from coverage that is health insurance to now focusing on health care. is that correct? >> i think we have always

emphasize that what congress was doing was regulating the fact that there were a large number of people who were attempting to sell fincher. -- to self insured. >> the uninsured are costing $33 billion in uncompensated costs. is that correct? >> yes. >> let's follow up on that. the supreme court has drawn a strong dichotomies and over time they have rejected them all. they came up with economic non- economics. do you believe that economic activity is a sufficient limiting principle? i know this is a debate. the government believes economic activity is a sufficient

limiting principal. is that your position? it is economic activity. >> i think of it as more than that. >> how about part of your position? >> it is part. it has a substantial effect on commerce. that provides an important touch-tone limits. but cannot add up a bunch of economic content -- you cannot add up a bunch of economic content. we are talking about $43 billion in cost shifting. >> let's cost about this. all of health care is $2.50 trillion. is that correct? >> yes. >> we are costing cost shifting

of 1.7% out of $2.50 trillion. we are also talking about 50 million uninsured. let's put aside the individual mandate. the health care act will take care of that least 10 million of those 50 million by virtue of the medicaid expansion. is that correct? >> yes. >> we also pick up a the other 5 million by a 26. we will get a lot of healthy young people by virtue of the extension of age of 26. small employers will have to offer coverage or pay a penalty. is that correct? >> yes. >> you will have no discrimination based on the help data. -- health data. palm they are voluntarily trying to do it.

-- they are voluntarily trying to do it. it'll take care of that. out of 58 million, at the end of the day the major reform will reduce that 50 million to probably around 10 million without the individual mandate. i am not saying it is not important. i am just trying to understand how it relate. >> i'm not sure about the numbers. i think it would reduce it by something like 16 million. i cannot remember exactly. >> over a 75% of the uninsured will now hold coverage by virtue of the major healthcare reform and the public health section of the code without even looking to the end of it. >> i disagree with that. congress thought of this as a comprehensive package. >> we understand your sever ability argument. when you look at the terms of

the act, the reality is that it will occur. >> i do not think that is right. what congress found is that you cannot ban pre-existing condition information with out a minimum coverage probation. they have eight states that try to do this and banned this. >> that is because the insurer's left that state. >> exactly. >> there are lots of studies from the cbo and other experts with regard to what will happen under the act. you are familiar with those. i did not see in anybody's brief any objections to the other parties and citations or reliance upon the studies. am i correct? >> that is correct. >> we should consider them as part of this case. >> it is under a rational basis

standard. >> i want to make sure we consider these studies. >> i suggest they stay with that the individual mandate. these people will get in shirt and get coverage anywhere. whether insurers will leap -- will get insurance and get coverage. whether insurers will leave the market remains in question. i try to find out how anybody that tries to analyze the national market based on these reforms, whether insurers will lead the market. there did not seem to be a steady on that. is that correct? >> there are several studies. when the seven states were formed to without a minimum coverage provision, the insurers did leave the state. congress made a specific finding saying that the massachusetts experiments works because a couple the insurance reforms to

the minimum coverage provision. i think it would be a deep mistake for this court to read the lines from a cbo report that says you can do some of it through the other mechanisms. congress found specifically you could not. you cannot solve the bulk of the pre-existing discrimination without coupling it into the minimum coverage provision. >> that is the congressional signing. >> it is. even if it is only 1.75%. the only thing we talking about is whether this is economic or not. a small percentage of goldman sachs still is economic. it is fundamentally economic. this is substantial. >> is it fair to call it an economic mandate? that is to purchase as a mechanism for paying for health

care? >> it is all about financing. >> it is the purchase of health insurance in order to pay for a health care that the government says you either are consuming were certainly will in the future. will that claim with the activity is from the government expected? >> i would add one more thing. every single person cannot guarantee that they will not need help care. some can walk out of this courtroom and get hit by a bus or get struck by cancer. just like in maxwell 2, there is the potential that any of us will enter the market. >> is it fair to say it is an economic mandate? >> this is exactly what the word means. i use the word that congress

uses. the reason is that it may be similar to economic standings. it is about financing. it is about whether they were paying credit. this is not unusual. >> that is true. i would like to go back to where the judge began. is there any case out there that you can cite two main, i cannot find any, -- site to me, i cannot find any, that involves a court of the supreme court having sustained a mandate telling any private person to purchase any product? i framed that narrowly. i know you have challenged the framing of a question. if it is framed in that way, is

there any case out there that has sustained the power to compel the purchase of a project on the open market? >> that is not the power we are asserting. >> i understand. your answer to me is that it is irrelevant because it frames the question so narrowly as to mistake what congress was trying to do. i accept that. i want to know, going back to the first principles, is there anything out there that actually suggests that congress can compel a private party to buy a private project on the open market if they are not disposed to do so? >> i will answer your question. i want to talk about the framed markets. suppose there was a president calling obama and bush vs.

florida saying the government cannot compel someone to buy it under the commerce clause, we think that would be irrelevant to the question you had before you. the question you have before you is not the government saying by this. we are saying everyone is invariably consuming the good. it is a question of who will pay for it. it is about the failure to pay and not the failure to buy. one should look at the solution. look at the problem. >> i would still would like you can give me an answer to my question as i framed it. i take it the answer is no. >> it is that, specifically in those terms. -- it is not specifically in those terms. it is not one in which congress is forcing people to enter the market. >> they have entered the stream

of commerce to offer this. it'll offer rooms to people. and they can sell hamburgers. no one is compelling them to enter the stream of commerce as a burger flipper. >> i do not think that matters. i understand your making a liberty mark. >> the trouble is that while at the exact point congress does compel that, they only do it once you have entered the stream of commerce to sell a room or hamburger. >> that is a crucial point. my friends in this court and page 31 of the brief and in the district court conceded that if the congress legislated that the point of sale that is with the moment a person sought medical

service, that to be constitutional. what i understand that. -- that would be constitutional. >> i understand that. those cases involve acts. it may be closer because wicker argued in substance by limiting how much i grow up force me to buy a product i would not otherwise want to buy at a time and a place i would not have to. even there, you start with the practice in which they have chosen to enter the stream of commerce to produce wheat. it to be closer if the government had said you go by in so many predict it would be close to the government -- it

would be closer if the government said you go by a certain amount on the open market. >> you cannot find this in the commerce clause. our point is that this is similar. if i could go back to what i was saying about point of sale. if you ask congress to pass a lot to say hospitals will only to people if they have lined up insurance ahead of time, they think that this constitution. did they think that is constitutional. -- ahead of time, and they think that is constitutional. they are asking the congress to do what they did. this is about timing. they want timing down the road. >> does this case boils down to eight temporal question?

-- to a temporal question? they compelled the consumer to have insurance and otherwise penalize him in one form or another if he doesn't and therefore congress has jumped back earlier in time. >> absolutely. it is about timing. >> accepting that. i want to come back to the essential question. this seems to pervade this whole thing. what could be liable -- >> what limits are there if the courts could say this passes constitutional muster? >> they limited the text to the constitution.

they established the following. they developed factors that when the activity is non-commercial, they can take no jurors additional requirements. congress has made no requirements. the statues resumption of constitutional is likely to overcome. -- the statutes of constitutionality is likely to overcome. there are a number of limits. this has to solve a national problem. cannot solve a local problem. there is not a barrier to national solutions.

>> you are basically saying that if it is with in the very broad national economy, which almost everything is, and they can as long as it part of a national of economy. the limits to not have to be anything other than the national economy. >> those set out very strong limits. >> i'm trying to understand your argument. those are the limits. >> we do not need an additional limits. part of this is submission from the government's point of view. >> it cannot contribute to another clause. >> we are not talking about due process. we are not telling someone to in

just something. >> let's test the limits. to ingest something. >> let's test the limits. the nature of the case compels you to do this. let me ask the question this way. would congress have the commerce power to regulate the following in the area of insurance? suppose congress were to find the fact that one in three americans will have to consume long-term care of some kind or fashion, maybe institutional or in the form of a nursing home. it were to find that the cost associated with doing that are extraordinarily high.

we know it consumes a huge part of the budget. third, congress would observe that the number of americans who actually hold long term care insurance is very small. it is less than one in 15 or one in 20. one in three will consume the service. could congress under its power to compel all americans to purchase long-term care insurance? >> i think the answer is probably no. is the end -- is congress legitimate? you have to show some sort of cost shifting and can to the cost shifting that occurs here. -- akin to the cost shifting

that occurs here. >> therefore they could not do it? the cost is borne by the thannal government rather by those who actually have insurance. why is that not enough? >> the power that the congress is asserting is one they were dealing with. money comes out of one person's pocket to pay for another. whether it may qualify might be a bit more a chain of causation. >> some have rejected it as a requirement. >> not at all. i do not think they did. that was about this. >> i realize they said it was there. at the end of the day they rejected its as shown.

>> because it was attenuated. they accepted cost shifting. i am having difficulty understanding why this is different. >> it will depend on the findings congress enacted with respect to the end. then we have a question about the means. you have said that congress is entitled to a substantial difference. i do think that the congress picks something -- >> part of my question to make it as parallel as i can make it to this case, if congress chooses to mandate the purchase of care and imposes some form of penalty financially for the billiard to do so. >> -- for the failure to do so, what findings would be pivotal

in deciding whether it passes? >> there would have to be cost shifting shown from one person to another. >> it would have to be cost shifting of the kind that goes to other private people. >> that is right. the second and that there has to be some sort of barrier to state-by-state solutions akin to those here. the solution congress chose is one that is necessary and proper. that is a very different standard. congress is inventing something that other people are not doing. it is the dominant way people pay for health care. there may be an argument that this is not necessary and proper. >> he mentioned necessary improper. when we come to the substantial effects, the supreme court has invented a case for 50 years.

aubrey yardy in the territory of the necessary and proper cause ariosto purely in the commerce clause? -- are we in the territory of the necessary and proper clause as its purely is in the commerce clause? >> i do not think it matters. >> my question is, the substantial effects, is it derived in part from the commerce clause? is it derived in part because of the necessary individual interest rate activity? >> it is correct to say that school tse's it as a necessary and proper. predate that judges scalia -- to

say that judge scalia saw it as necessary and proper. the safest course of action will be to follow the majority and see them as two separate things. i would like to turn -- >> one last question. the government's position is you do not need to look to the necessary and proper cause. you can sustain this regulation of purely interest-rate activity under the commerce clause? is that the government's position? >> we dio not think it matters. >> you can sustain it under the commerce clause. >> yes. >> you are running out of time. why do not you go to the tax incentive issue. >> ok.

>> tell us why this is a tax. >> i want to get out the second argument for the commerce clause. this is an overall comprehensive regulation. even if you do not see the menem coverage as economic, it is still constitutional. -- the amendment coverage as economic, it is still constitutional. it functions like an act. -- asa tax. cbo found it would reduce the deficit. >> the problem you have is when you look at the text. that is not what congress said. congress said they were imposing a penalty. they did not use the word " penalty" only once. they use the term "penalty"

repeatedly. they did not use the term "tax ." when they wanted to tax and they knew how to do it and used the term repeatedly. beyond that, they pegged the power to craft the mandate precisely to their commerce power. q l.i. been to ignore the repeated sexual references -- who am i to then ignore the repeated textual references? you really were opposing it. >> i think it refers to tax alone about 34 times. penalty has been meant to mean tax. there are other provisions in the affordable care act that use it.

they often use them interchangeably with the word "penalty>" ." does it function like a tax? hear it and natalie functions like a tax. -- hear it absolutely functions like a tax. if you have not met the requirements, you have to pay. call me with one thing. you have to check off a box on your 1040 income tax return reporting whether or not you have insurance, right? if you do not have insurance, then the penalty kicks in. >> correct. >> is there any enforcement mechanism in the statement?

where would i find it? >> it details it in a supplemental briefing. it is two things. the secretary of the treasury would be able to offset future credit against any unpaid taxes. united states could bring a suit against the person for the collection of the taxes. >> it to be clear that the irs could not do under this statute could not do under this statute what it here to fore can do if i have a problem with my taxes. they came garnish. they can do all kinds of things. it is that she says they cannot do any of it. -- this statute says they cannot do any of it. >> that is correct. they said they do not want this part to be there. the rest was. findings.may find hint

i think he answered that. you had findings of the commerce clause. they said it doesn't matter if congress goes there so long as it is justified by the copyright powers. here it is undoubtedly justified. this raises billions of dollars a year. it is about taxes just as the overall structure is. wasan we stiltell whether it the intention to generate revenue as opposed to compelling compliance? >> i do not think anyone can tell their intent. i think the practical up? congress knew very well. that is the relevant text. >> is the primary purpose to propel conduct or to raise revenue?

>> i do not think that the statue says anything about a primary purpose. i agree with that. he said they did not say anything either way what is the primary purpose? >> i do not think it specifies what it is. that is my answer. the question is the practical effects. >> there are exceptions in the penalty. is that correct? >> there are three exemptions. they do not have to subscribe to the mandate. you have five exceptions to the penalty. there have been some suggestion that a large percentage of those persons cause problems by the same people who are exempted from the penalty.

what did the government say about that? >> and may not matter. let's take it under the ball. isn't correct that a lot of these people are the larger share of the problem? >> many are exempt. this is going to what i was saying. >> it is because of low income. what congress was doing was there. >> i do not have a percentage. do you know what the data tells us? >> i do not think congress testified. here is the reason why. congress was legislated comprehensively. it was a deep mistake for them to isolate out the minimum coverage provision. they were trying to reduce the

percentages. is this economic or not? they say when they were regulated, and they are entitled to it. >> i have a question about essential coverage. this was used in the health care reform. are you with me? >> i think so. >> it has nothing to do with the level of coverage. is that correct? use a minimum essential coverage. this term is not defined in this way. is that correct? >> it is defined separately. it includes the goal. >> it can be satisfied by a deductible. >> that is correct for the people under the age of 30.

you can purchase virtually any plant that is sponsored by an employer no matter what the coverages. >> i do not believe that is the case. >> large employers placed it on them. then we go to the mandate. the mandate says he can satisfy minimum coverage by virtue of any plan from an employer sponsorship. >> it includes goals. it restricts them. i will give back to you. -- get back to you. >> all of the government breeds, no one has outlined or summarize the contents of that.

it might be helpful if it would go through the act and tell us what is in the pages. i have. the large group employers have very few requirement as to what has to be in their plan. individual markets are totally different. you can satisfy this mandate by purchasing very little coverage. it makes it up. it makes it not affected. do you understand my point? >> i do. >> does the government agreed that you can satisfy it by purchasing very little coverage? >> it is under page 30. i agree with this.

>> how about a large group of employers? are you familiar with what you have to buy it there? -- to buy their? >> i will give back to you on that. congress is entitled to the difference in which it deals with the problem. it is undoubtedly economic. >> we are going to give you your full time. i want to ask you to questions. as you know, this law was struck down in the district court. the to make the argument in the district court that without an individual mandate the whole bill goes down? was that your argument? >> it was not. >> the second question is, i read somewhere that at one point time this law did have eight

clause in it and it was taken out. is that correct? >> there was one in a version of the bill. it became the affordable care act. the supreme court has said that it cannot defer anything. >> we do not grow in the entrance. >> the housing dropped. >> thank you very much. >> we gave you your full amount of time. of time. >> there is a great deal about this place that is complicated. i think the constitutional issue with respect to the individual mandate is quite simple. it boils down to the question of whether or not the federal

government can compel an individual to engage in commerce to better regulate the individuals. we do not have a case that is directly on point. it is odd. we do not have this case. the reason we do not is that for 220 years, congress never saw fit to use this particular power. it is a rather astonishing fact. a.q. think about the federal code which is littered with -- if you think about the federal code which is littered with provisions, how much more of fission can the federal government be to compel people to regulate them? to regulate them? i would suggest that this is the dog that did not bark. >> there are a lot of people

that do not have insurance already engaged in commerce. at some point in time in their lives, unknown to any of us, they will need health care services. >> they are not engaged in congress. beer city in their livings. they are not doing anything. -- they are sitting in their living rooms. they are not doing anything. right now, and they are not. >> so we have clear undisputed facts that as we sit here right now, i am not talking about next week or next month, i mean right now, the uninsured make up approximately 20 each year.

they have routine checkups. 50% have one in the past, too. if you accept this, as we sit here, and of this group of uninsured, a there are bound 20 million to the emergency room each year. if that is true, why would that not be in every classic sense activity? >> that is activity. this is something they can regulate. >> i want to be sure there is no dispute. dispute. it was disputed on all sides.

>> there is no dispute of material facts. there are uninsured people. >> there are large numbers of uninsured americans each year. the study says 20 million a year if you actually go down to the emergency room to consume services -- who actually go down services -- who actually go down to the emergency room to consume services. tell me why that does not constitute an every meaningful sense activity? it has in the aggregate a it has in the aggregate a substantial effect on commerce. >> that is not the market that this statute regulates. if congress wants to pass is that you -- a statute that says

if you pay for your health care in cash it will cost twice as much. that would incentivize them to buy health insurance. it is not sure that that is the market being regulated. the market being regulated is the market for health insurance. the mandate is clear. we must by qualifying health insurance. that is why the question i submit is whether the federal government has the power to compel you to engage in congress. >> we are regulating how and when you pay for health care. i understand the mandate only says coverage. this is to regulate how and when you pay for health care. >> why is that not part of the equation here? >> as saying it does not make it so. if you look at this statue --

>> u.s.a. in the air not regulating the conception of healthcare. >> the first finding says the mandate will have an effect on congress. this is not what they tell you to look at. but there answering this in the first sentence. >> it is the same mistake. the mandate has an effect on how people pay for health care. because of the mandate people will be more likely to pay with it for insurance. i do not deny it. that is not what they are regulating. maybe they do not do what they are saying. what they seem to be saying are two things. two things. they seem to me to be saying "we have a problem with 50 million

uninsured people." what the problem yields, because many of them get sick at unpredictable times and are forced to go to the emergency room and will not be turned away. that six powerful cost to other people who do buy -- that shifts powerful cost to other people who do jack up the premium for everyone else. they are concerned about how and when we pay for it the service that they can stand. it is from the finding. they purport to regulate activities that is commercial and economic in nature. their words are economic and

financing decisions about how and when health care is paid for. i goes to the consumption of the service itself. they seem to be saying "we are regulating into regulated in sure she is -- into regulated insurance is." this is what they say they are doing. do you agree they will have the power to regulate in both areas? but not if it involves compulsion. one in the markets fear regulating is the health care insurance market. they have a lot of authority to regulate health insurers. they have a lot to regulate people that voluntarily purchase

health insurance. they do not have the authority to compel people. >> this is very important. i thought they conceded that congress could regulate under the price of payment at the time of consumption. it can compel an individual who does not have helped insurance to pay a penalty at that time. it coerces the mandate. can they do it? >> in the health-care market at the time of consumption, yes. it is coercing someone that is

already engaged in activity. it feels coercive if you are an innkeeper and to yardy set up the in. >> i just want to be clear that i understand the position. at the time of consumption, the government would have to read power the state of an individual with the conditioning this service upon obtaining insurance without which we can penalize you in one way or another. >> i'm with you entirely. that is not what they do. that is not what they do. under this, all the things u to

not have requirements. you are forced to buy it. they assume everybody will use it. it. there are lots of different ways congress can incentivize people. they can pass a tax and give people a tax credit for paying for qualifying insurance. that is the way the federal government usually operates. >> that is another way of saying they could have done what they did better. it was more directly. it. regulated in if it is rational, doesn't my job stop at the end? they can make these kind of calculations and determinations.

>> absolutely not. they could have done the same thing constitutionally. instead, they took the easy way out. this is chock full of incentives. what you do not see is when congress goes the last mile and say we are not going to rely on incentives to get you to do what we want you to do. we are going to force you to do it. the only provision out there is the individual mandate. >> i think this is fair. >> the government points out that both of the cases where criminal conduct cases. criminal conduct cases. >> the area they were regulating generally speaking was traditional police power areas.

those cases are different. they may give it some principles. >> i do not think there is a single case just like it. >> it seems to me one of the keys that we see is that economic activity can be a very important limiting principle. would you agree with that? >> i would agree with that. it is one of the more important imitating -- important limiting principles. this case comes down somewhat to whether or not the decision -- because if you are making a decision, and let me put aside activity. do not call this inactivity. i consider it activity. it does not help me personally.

i want to focus on economics. isn't it accurate that when i decide how i spend my money i would rather take this trip by duct then buy health insurance? how can that be anything other than an economic decision? that is not an economic decision. >> it to assure other characterization that this is an economic mandate. -- it was your other characterization that this is an economic decision. >> i do not know if it is about insurance or health care. and maybe both. and deciding to pay for my health care because i'm not

gorgeous i am deciding to pay for my health care because i am not -- i am deciding to pay for my health care because i am not covered. >> that is fair enough. mandate should be very far. >> let me go to the economic mandate. i think this has a team of economic activity. we go to the economic mandate. you will tell me how to make that economic decision. you would agree that congress would say if i went to the hospital and did not pay, we now recover you -- we now require you to pay for insurance. you to pay for insurance. i can stand healthcare this past year. >> this one's a little hard.

>> that is why i asked the question. >> i am not sure they can impose a decision based on tax concept. then there is no choice. >> let's focus on the moment of consumption. the uninsured walks into a hospital bleeding from a gunshot wound. has no insurance. never had insurance. does not have a dime. does congress have the power to compel, co-workers as a condition of co -- coerce a condition of treating it to buy insurance? can they penalize you for not doing it? " i think they can. >> can they go so far as to say the mandate of hospitals shall

not treated those without insurance? >> putting aside that might violate somebody's constitutional right to have their treatment refused, yes. >> i appreciate your point. i'm just asking about commerce laws. >> no government would ever do that. they could. the fact that there alternatives, it does not weaken it. you are not talking about a choice among rational means. we are talking about one choice the government said that tripped the wire the we have gone 220 years without any concrete stripping it. we did with out any congress tripping it -- we have gone 220

years with out any congress tripping biit. >> this is all about individual liberty. that is really where you are going. what i find so interesting is that you argue that in the district court. he argued other things. you squarely argued that one of the things francks is that it entrenched on individual liberties. it is made someone buy something they did not want to buy at a time they did not want to. you pegged that specifically to the 10th amendment residual power to the people clause's and to subsistence due process. he made this argument before.

am i right that this argument has been abandoned? i have is thatat there seems to be an individual liberty issue. it is looking behind commerce clause analysis. i am trying to analytically distinguish between the two and it just them plainly and honestly. >> here is why i think that you cannot. cannot. if you look at the supreme court cases, with a horizontal or vertical, almost every one says the reason we do it is to protect individual liberties. it is hard to divide the substance provisions of the constitution's from liberty association. the argument has a home in the text of the commerce clause. it is the word "regulate." compelling someone is not

regulating. it is not forcing them. we all except that due process is sort of a last refuge. it is the argument you make when nothing helps you. i think this is almost a clue here. if they had understood the breath of the modern commerce clause and they understood the commerce clause to include the power to compel, do you really think that we would be a provision of the bill of rights that specifically limited the federal government to exercise the power to compel an to the commerce clause? i'd bet my bottom dollar there be a number of>> the only pointg to get that was when you try to ground that individual liberty,

what you have to grounded in is the testament of due process. if you do not do that, you cut adrift. as opposed to the problem you faced in lopez were you had a clear collusion between the national sovereign and the undeniable state police power of the other. you do not have on the individual mandate, you do not have that kind of tension directly. the tension is between the national sovereign and the compulsion to the individual on the other. >> i tried to distinguish between the due process and the 10th amendment. the 10th amendment is very much in this case. it is a reflection of the limitations of powers.

i think the commerce clause only gives the government the power to regulate and not to compel. the 10th amendment reinforces that by giving power to the states. that is the answer as to why this is an individual rights case and a commerce clause enumerated. >> does the power congress has include the power to stimulate commerce? >> it does. >> you understand why i asked. >> there is a difference between stimulation and compulsion. what was the federal government doing screwing around with these incentives for wheat production? they were trying to preserve, stimulate the price of wheat. the more direct way is to mandate people buying wheat.

>> he makes that argument. he walks in and says, a book, if you penalize me and say i cannot grow more wheat, to consume at myself for my own family, if you do not let me do that, you are forcing me to buy the product on the open market. your compelling need to do it. i do not want to do it. the supreme court says in one word that is tough. we can make you do it because they have the power to regulate. roscoe was taking activity in an economic market. that is what the supreme court reiterated. they also said in the same opinion there is the difference between supply and demand. i bet that justice jackson would have had a differ reaction in that case if it forced

individuals to buy wheat as opposed to put limits on how much roscoe could produce. i think those are different regulations. that does not mean the means is important. >> it was very telling in a case where a homegrown marijuana was just an instant away from the interstate market. this is a temporal problem. we are an instant away from needing health care. this is not come parable. even though you are not currently consuming health care, just like the homegrown just like the homegrown marijuana, why are we not all,

25 million are consuming health care without paying for it. why isn't everyone else an instant the way? >> there is a constitutional difference between being an instant away because you're engaged in economic activity. my problem is, in every market we are all an instant away from participating if the government can tell if you have to participate now. >> we are not an instant the way for making economic decisions not to buy insurance. the uninsured have already made the economic decision. they are operating under no insurance. so it is not a matter of something in the future. it is going on right now. >> the idea that most of the

uninsured already made that decision as opposed to fighting themselves uninsured. >> they have made that decision. that is part of the findings. >> with respect, the way they responded to that promise to say, we will make you make another decision. >> i want you to help me which way you prefer to have it. you say the purpose of the commerce clause argument is that this is not an essential part of larger regulation. is that correct? it is not an essential part of this larger regulation because of the clause. >> i want to be careful how i answer you. >> before you answer, the other part is you say to strike the

mandate. because it is an essential part of regulation. it seems like you have to pick one. >> i am going to try not to. it is not in the way congress used the term in cases like barbie. they're trying to make the argument you can put anything as part of a broader regulatory regime. that escapes the lemon. -- limit. somehow that might be ok. we do not think that is the