of the supreme court and how it compares to past courts. "washington journal" is next. ♪ ♪ host: two years ago, president obama signed into law the patient protection and affordable care act. today, the highest court in the land will begin oral arguments for three days. the nine justices will hear three days of debate. legal scholars on the right and left see this as a momentous case with its decision not only impacting millions of americans, but in industry that makes up 18% of our economy president obama's re-election chances are also affected. our coverage begins this morning on the "washington journal" and

continues throughout the day. c-span will release audio from today's oral arguments at about 1:00 p.m. eastern time. interact in real time with what you are hearing from inside the court. groups of all stripes have been blanketing the court. we will talk with those gathered on the court steps and throughout the capital on today's "washington journal." first, some of the headlines for you this morning. here is "the pittsburgh post gazette" with a picture of president obama. he is therefore a nuclear summit. "the wall street journal" has this headline. that is in "the wall street journal." on the domestic front, the house is expected to take up a short- term extension of the highway transportation bill, as a report

is released that 1.9 billion gallons of gas is wasted and traffic congestion. you heard the news yesterday about vice president dick cheney. here is the headline in "the washington post." there are a lot of questions about obamthe supreme court and what they will be doing today. we have david savage, "los angeles times" and "chicago tribune" supreme court reporter with us to help us answer questions. the networks are planning to be camped out overlooking the capital. is this unique? is this momentous? >guest: as you said, it's been since the 1960's since the court has devoted that much time to a case. as you said in the opening, health care is about 1/6 of the economy. when congress wants to regulate

an industry like that, it's a big deal. since 1936, the supreme court last struck down a major federal regulatory law on the grounds that congress did not have the power to enact it. this was a big deal in the 1930's. after the 1930's, the supreme court took the view that congress could essentially decide for itself what was commercial economic, whether it was a huge corporation or a local coffee shop, the federal government could regulate it. they could say, you have to pay minimum wage, you have to serve black customers as well as white. there was a regulation of commerce in any way, congress could regulate it. in some sense, that's why this is a big deal. congress did take on a very big topic, health insurance. that is very voluminous regulatory law. now we are confronted with

the question, did congress go too far? is the supreme court willing to say that congress could not mandate this? it is sort of a moment this clash on the constitution's power that the federal government has to regulate all of us. host: you are referring to the commerce clause of the constitution. first, let's talk a little bit more about the president. what about a face-off between the executive branch and the judicial branch of our government? can you think back to a historical precedent? guest: the only obvious one is the roosevelt era. roosevelt came in after the stock-market crash and his government was determined to regulate business, regulate the economy to help workers and what not, and it ran into a clash

with the supreme court. no, the federal government cannot dictate local economies. they cannot tell businesses what they have to pay. that is the obvious pre cedent. i cannot think of another one like that. there have been clashes with president nixon and the tapes. we remember other times. harry truman and the 1940's. this is the -- i should say, the early 1950's. this is the only time since the 1930's where there has been this kind of clash, where congress and the president can regulate. host: what about the timing of this case? why the oral arguments now? guest: there were suits filed the day the bill was signed in march 2010. the challengers -- it sort of group.

the national federation of independent business. they thought the law was entirely constitutional in should be stopped. they went into court in florida and a few other places. to some degree, the obama administration agrees with the challengers on one point, which was they wanted to get these constitutional questions resolved and decided. in other words, they did not try to drag it out. reason being, everyone knows the law goes into full effect in 2014. the notion was, the challengers wanted to stop it. the state said, we should not have to implement this. the obama administration said, we need time to implement it. both sides wanted to move the case along. in terms of constitutional litigation, it has moved along pretty quickly. host: let's do an overview of the next three days. guest: today is sort of an

interesting question on whether this case has arrived too soon. it is sort of the contrary of what i just said. there's an old block in the books, 1867, that says essentially, no one can go to court to contest a collection of any tax at any time. i think the theory of the law was they did not want federal courts tied up with taxpayers complaining about taxes. the notion is, you have to pay the tax and then challenge it. this issue came up relatively late in this litigation. everybody was sort of charging ahead. host: the anti-injunction act. guest: correct. the fourth circuit court in richmond agreed with that view and said we do not have jurisdiction to decide this case because the tax has not been paid. that will not be until april of 2015. the supreme court took this

seriously enough that they will devote today's argument to that question. i think there's an outside possibility that they might say all of this is premature, at least on the mandate question, because no one has paid the tax. host: who do you think might be the votes that say this is premature and when would they decide that? guest: i do not know the answer to either. i think john roberts is a possibility. he has been wary of the court deciding big, broad questions too soon. he has not wanted the court to decide abstract question firsts. this is sort of in abstract question. i would not be surprised if john roberts is one that thinks there's some merit to this. as to when we would know, they

will meet friday morning to go over all the issues and go then. if there were five of them to say the anti-induction act stops us from deciding this, i think they would take some time and write an opinion to explain that. it may not come out until may or june. the other tricky thing, the third issue, the medicaid, which comes up on wednesday, there's no tax involved in that. they could still go ahead and decide that case. i do not think that next week or three weeks from now the supreme court will say never mind, we will not decide anything. first, they have to decide the anti-injunction act and then decide on the medicaid question. host: and then to stay? gueuesday? guest: tuesday is the big event. they will decide if the so-

called individual mandate is unconstitutional. that has been the rhetorical issue. it has also been the big issue fought out in the lower courts. the law says two things in two different parts. it says everyone must have minimum, basic coverage. another part of the law says if you do not as of 2014, you have to pay a penalty on your taxes. it starts out very small, $95. it goes up to about $700 per person. the government's argument is that the only way to regulate health insurance and require insurers to take everybody, even if you are sick, even if you have cancer, even if you have something that will be very expensive, is to first make sure everyone that can pay participates. i think the other a strong argument -- if i said to you i

consider myself a healthy person and i do not expect to spend a lot, so i will not have insurance. then i'll leave this c-span studio and i get hit by a bus. i could run up $50,000 in bills. i cannot pay that. i do not have insurance. the hospital, other injured people, and taxpayers would pay. the other a strong argument is the free-rider question. if something bad happens, someone else is going to get hit with the tab. the contrary argument is that the challengers say sure, the government can regulate commerce, but they cannot tell someone you have to buy a product. we have never gone that far before. you can regulate people engaged

in commerce. if i run a business, the government can regulate my business, but they cannot tell me -- the fellow sitting in his living room is perfectly healthy. the government cannot reach into his ligament and say, "buy insurance." paul comments is now representing the 26 states essentially challenging the law and city in the mandate is unconstitutional. host: paul clement and the lawyers from the other side will be heard on c-span3 when we released the oral arguments. we will also release them on our radio and c-span.org. we have done a poll to see who is interested in the next three days.

95% of you said you were interested in the supreme court's decision. 83% said the supreme court should allow cameras. on our facebook page, last night, we posted this question. how interested are you on the supreme court oral arguments today? 91 people said very interested. seven people said somewhat interested. about four people said they are not at all interested. the majority people on facebook saying they're very interested in the supreme court case. guest: assuming they decided, this is a very big question about the powers of the government. down the road, if the law is upheld, i think there will be a lot of other conversations where congress will have to regulate in the health-care area. this will give the government -- essentially, it will be up to

congress. it will be up to the elected officials of congress to decide how are they want to go. . host: lee roy is a democrat in baltimore, maryland. you are up first today. caller: good morning. he's sort of said something i would have said. i'm talking about the person who walks out, the person who says he does not need any health care at all. he goes out there and all the sudden he gets hit by a bus, and then he goes to the hospital. because he does not have insurance, now, everyone bears the brunt of him not having insurance. i do think that everyone who can pay, no matter how little it is, should try to contribute to the system. even if they are contributing $5, $10, that's better than nothing. unless you are living in a bubble where nothing can happen to you, which is impossible -- we all the health care. we all need health care insurance.

yes, we do. guest: a very good argument for the government. host: who is the person who will be are doing just that? guest: the solicitor general. he represents the government. one of the jobs of the solicitor general is to defend it. his briefs had made a lot of those arguments. health care is not a discretionary choice. it's not like going to buy a television or some sort of other products. you are insuring yourself against the risk of a serious illness. host: on the commerce clause, let's just read. "the congress shall have the power to regulate power." which justices will you be

listening to today that may indicate that they may say congress has the authority to do this? guest: let me divide them up. before on the left -- justices ginsburg, breyer, sotomayor, and kagan. they have the view that congress has the power to regulate anything that is commercial. there have been a few cases in the last 20 years where the supreme court said you cannot regulate gun possession near a school. that's not commerce. anything that is commercial or a market, they cannot sell. i would say those are four that will start out agreeing with the government. on the other end is clarence thomas. thomas has the people we said that he think the supreme court has been wrong for the last 60 to 80 years. he would go back to the pre-new

deal. it says commerce clause is about goods and products that cross state lines, not within a state. there has been a lot of debate in the 1920's and 1930's, for example. what is mining? mining takes place in: one state. there was a time where the supreme court said it's an in- state thing, it's not part of the commerce power. thomas is on the side of not going along. you asked the question -- who to watch closely. the obvious would be john roberts and anthony kennedy. they are the ones that will probably cast the deciding votes. it's very hard to read both of them. i could imagine them going either way. kennedy has taken the view in the past that the constitution does put limits on federal

power. he has also said we're not going to go back and re-fight the new deal. he is a hard one to read. host: david savage will have one of the hot tickets in town. he will be in the court listening to those oral arguments. john, an independent. go ahead. caller: yeah, i hope they uphold the decision and that will be over and done with. one of the key ingredients that no one seems to be mentioning for the last year -- what if it is overturned and then we go back to square one, back before obama's elections and we have 50 million-plus people without insurance, and also we will go back to $2,000 per month for insurance policies? what are all the genius republicans going to do then?

host: david savage? guest: i'm probably the wrong person to answer that question. host: it does bring up the question of severability. guest: he was asking the political question if they strike it all down. in the third day, they will hear arguments on what lawyers call the very unhelpful phrase, a severability. if the court says the mandate is unconstitutional, can you separate that out and leave the rest of the law intact? the challengers are saying strike down the entire act and that comes to what the caller said. then what? host: brooklyn, republican, go ahead. caller: good morning. i think we should have health insurance all across america for everyone. i am a veteran.

if you are a veteran, you are entitled to health care throughout your life. i believe that should be all of america, also, the same way. [inaudible] they should facilitate it for everybody in america. i like to add a lot of things i believe in my heart [inaudible] i believe listening to c-span and and other programs -- lawsuits -- to add to an analogy, they have a god complex. lawyers [inaudible]

in new york city, a lot of homeless. this is a fact. in new york city, any time an ambulance or a fire truck response to medical assistance for somebody in the street, a taxpayers $500. host: we will move onto an e- mail from a viewer in seattle. it says -- host: david savage? guest: that is the arguments that the opponents make, that there has got to be a limit. if the government can do this, they say there's basically no limit. they could have said when the car companies were in trouble,

we're going to mandate that americans buy new general motors cars. i think the counter argument to that is that it is still a matter of something that would be put in the hands of congress. it is hard to believe congress would pass some laws -- the extreme examples. you have to eat broccoli or you have to join a gym. congress is not likely to pass a law like that. it would be a pretty important presidcedent. host: ronald, democratic caller. good morning to you. caller: good morning. can you hear me? host: we can. caller: we all know that government is a contract. so is capital. the unintended consequences of not being injured would lead to wealth consolidation. as we know, capital is the

lifeblood of the country. if the people are -- everyone is going to get sick. there's no doubt about it. everybody would risk their entire fortune to save one particular family member. i see this as a genius part on the president by being able to foresee consequences of wealth consolidation. weld consolidation only means -- wealth consolidation only means of wealth depreciation among the people. guest: that is another pretty good argument for the plan. i do think the democrats started off with the idea that they would have liked to have had some sort of national universal health insurance.

several callers have brought that up. i think that's where this began. most other industrialized nations -- britain, france, canada -- have national insurance. i think they thought that was too far. they could not go that far. what the democrats and president obama settled on was sort of a two-per way to get the last 30 million, 40 million, 50 million people injured. one was to increase medicaid -- 17 million people, and adopt this mandate to say everybody who can ill afforafford insurant purchase it. if you cannot, we will give you a subsidy. the administration and the democrats settled on a private enterprise version of getting the national healthcare.

i think a lot of democrats now sort of regret the fact that they were not able to or did not push harder to have a true national health insurance. now they are fighting over all insurance regulation. host: david savage, lots of chatter on our twitter page. monty labban says -- guest: let me take the first part of that. everybody's special interest -- your interest are special and minor public interest. that's the way people tend to argue these things. the court, in a big way, is a politically driven institution because presidents pick justices who they think will agree with them on a big, a philosophical question. bill clinton picked two

justices in ruth ginsburg and stephen brieeyer. george bush picked john roberts and samuel alito. very smart, a veritable judges, but quite different from the clinton and now president obama's judges. it's true that on the one hand the court is supposed to decide legal and constitutional staffed,, it but it is in part, because they had philosophical and ideological ideas that were closer to the president. the court is, in that sense, a political institution. host: today's "washington journal" dedicating our full three hours to the supreme court

oral arguments. people are lining up on capitol hill. interest groups, protesters will be up there. we have our cameras out there to bring you the sights and sounds of this three-day, six hour debate over the president's health care law. our coverage here on "washington journal" continues after the show. we will be bringing you the oral arguments at about 1:00 p.m. eastern time on c-span3, c-span radio, and on the computer, as well. david savage, i want to continue on the theme of politics. that brings up cameras in the court. as many of you know, c-span has asked for our cameras to be in the court we sent a letter on march 16 -- in the court. we sent a letter on march 16. if you are interested in that letter, go to our website, c- span.org, and our facebook page,

as well. many of the justices said that would bring politics into these proceedings. guest: as you know, this has gone for a very long time. i remember when the top first started in the 1980's that the supreme court should allow cameras in. they have been resistant to that all along and still are. from talking to them, i think the strongest argument against cameras -- there are a lot of good cameras for it. educational values would be wonderful. they think it would likely change the nature of the arguments. in their view, what they want is an attorney to come and address them and answer their questions. they do not wants somebody to come up and give speeches. or arguments are unlike anything

you've seen. they're very fast moving. a lot of questions 3. . very little time for answers. it's a very fast moving -- host: and not necessarily letting you finished, like i just did. guest: that's why the lawyers rehearse so much. you have one sentence, maybe two sentences before the cut you off. that's the way they want oral arguments to work. the attorney is talking to them and nobody else. i think their fear is that if oral arguments were on tv, it would be very tempting for lawyers in some cases to get up and essentially give a speech to say why the court should protect the environment, protect abortion rights, the death penalty, or any issue. they will use the example of what has happened in the senate.

30 years ago, senators could stand on the floor and talk to each other the way we're talking right here. now they stand on the floor, look to the cameras, and speak to the wider world. the analogy is not perfect. i think that is their concern, that the cameras would change the nature of the presentation in the court. host: jim, independent in florida. thank you for waiting. caller: thank you for having me this morning. i have one question. if this law is ruled unconstitutional, how about the mandate? the mandate in the medicare part d drug plan put in under the republicans. it is required that everybody over 65 have a drug plan that is

mandated. host: you think this could bring up legal questions about the part d part of medicare. host: david savage is not a health care reporter. have you heard that legal argument? guest: no. it sounds plausible though. thata plausible argument somebody who does not like part d could to easily bring the same claim -- could presumably bring the same claim and have a chance of winning. host: good morning. caller: good morning. thank you for c-span. i have a question about demand a part of those law. we have a requirement in illinois that anybody who owns a car buy automobile insurance. i'm wondering if the supreme court decides that the mandate

for health care is unconstitutional, whether that could also call into question whether the illinois law to require insurance for automobile drivers, whether that might also be unconstitutional. guest: the legal answer is no. as a matter of common sense, it seems like it is very similar. the same notion applies. if you get in your car and cause an accident, caused a lot of damage, you need insurance. the legal answer is, states can do things that the federal government cannot. states have a much broader power. the other argument you hear -- you don't have to have a car. legally, i think it will be viewed as different. the states can do this even if the federal government cannot. i also think there's a matter of common sense.

and lots of people say, it seems like if i'm required to have --o insurance, why can't host: that is an argument being made by a bunch of economists who have submitted a brief to the courts. in fact, 136 greece have been submitted. talk about that. precedented? do they read them? guest: yes and yes. i do not know if they read them all. but the clerks to read them. they get memos on them. you cannot lobby the supreme court. the closest thing to have is the

briefs. if you have a group of a lot of smart people that say here is how the court should understand something, you shoulcould file a brief perio. argument on why obamacare will destroy the united states economically -- i do think health care will be very expensive. the democrats got into this because the cost of health care was going up. it appears it will continue to go up. this law, over time, is supposed to put some restraints on them. i do think down the road, whether the law is upheld or not upheld, the overall cost of health care will continue to be a big problem for the federal government down the road, just because more and more people are retiring and costs keep going up. host: david savage saying outside groups cannot lobby the

court, however outside groups have spent $262 million on tv ads to try to influence the debate over this health care law. many of those interest groups coordinating their efforts today on capitol hill outside the court and around that area. many people trying to get a ticket inside the court. there are about 50 seats reserved for the public. guest: that is right. i thought it was 60. in any case, it's a small number. they're a lot of lawyers and guests of the justices. host: 400 seats total. guest: the court is not a very friendly place in terms of visitors getting in the court. it is a small courtroom. there's an enormous number of people interested in a very small number of seats. host: people start lining up on friday. here is an article in "the wall street journal."

"john winslow said he was filling an increasing number of inquiries." democratic caller, robert, go ahead. caller: i believe it is mandated that we as american citizens pay federal income tax. also, i would like to know -- justice roberts, i believe his wife is a lobbyist for one of the health care institutions. i am wondering why he is able to rule on something that he obviously derives some part of his living. i'm sure his wife contributes to the family fortunes. guest: i do not know that to be

true. i do not want to comment on it. his wife is a lawyer. i've never heard heard described as a lobbyist or an advocate. host: i wonder if he is mixing up with justice thomas and his wife. there was some debate over her views over the health care law. guest: virginia thomas was the head of a group called liberty central, which was strongly opposed to the health care plan and thinks it should be repealed. some people said since the justice thomas' wife is participated in that, he should not. the court's view is the spouses can do whatever they want and it does not prevent the spouses. host: about justice kagan? guest: that issue was that she was the solicitor general on the day the bill became law. very shortly after that, i think the bill was signed in late

march of 2010. early may, she was appointed to the supreme court. her view, and she said it at her confirmation hearings, is that she would not participate in any cases where she did any legal work on the case, where she signed a brief, approved a filing. if she did legal work, she set out those cases. she said she did not do any legal work on a challenge to the health care. it was just getting under way. her view is that if she did not do legal work on the case, she could participate. there's no rule that says a new justice cannot participate on laws that came out or that were supported by the administration that he or she came from. host: american hero on twitter said this. guest: all of us are select citizens who are allowed to go in. we take notes.

host: you are referring to the reporters? guest: yes, and i think the lawyers can also set and take notes. anybody in there can scribble down notes. i will be scribbling furiously. i'm not sure what you mean about the transcript is wrong. i've seen errors in the transcripts or errors in my notes. for example, getting the name of the justice wrong. i don't think there's any big, substantive changes. host: how many reporters are allowed in? guest: i should know the answer to that. on a normal week, there are -- it must be 24 seats. there are a lot of seats behind the big columns on one side of the courtroom. i have no idea how many they will pack in. 60, 80. they put a lot of chairs in what

is essentially a hallway. a lot of reporters will be sitting in these little shares in the hallway behind the columns. i did that as a young reporter. when i was starting out, you will always get the seat way in the back. you could hear, but you could not see much. my guess is 60 to 80. host: what high-profile people do you expect to see in the court today? guest: i think people from the administration. a lot of the senators who were involved in the debates said they would be there. a lot of people in the administration. the sleek, prominent lawyers, senators, and members of congress that were involved either arguing for or against the law will be there. my guess is they will come tomorrow and not today. the anti-injunction act is a little less interesting to people. host: we will be talking about

the anti-injunction act at 8:00. ray, independent coll. aller. caller: good morning and thank you for c-span. i believe when the democrats passed this law, it was known as the affordable care act. i would like to address the word "affordable." if you're going to base it on affordability, can you tell me what it will cost me, the average individual, for health care premium monthly. i will give an example. the only way you will be able to do this is based on what a person earns -- family income. let's say i'm 35 and single. what is my health care gwine to be monthly? if i'm 45 with children. they just smile at me.

they have no idea. part of the argument in this whole thing will be affordability. they should have had a structure as to what it was going to cost, some idea, before you put somebody into a product. host: david savage, i just want to show our viewers this image. one of the people in line holding a red ticket and showing that off to somebody with an iphone there. is that what they look like? guest: yes. host: do you have a red one like that, or is it different for the press? guest: i have a regular pass. i can get in the building. sometimes they give us a little card to say said in a seat a-7 or whatever. host: he is apparently number one in line with the red ticket to get inside the court. the public line.

as i said, people started lining up on friday for those tickets. guest: i think the caller has a good question. congress did not get involved in saying -- what are the rates going to be for insurance? as i understand, the way this scheme is going to work is there will be state exchanges. you will be able to get information in your state on the policies and what the rates are in your state. i do not think the federal government is going to get into too much of setting those rates. you are quite right to say it. i have had friends that have gone through this. insurance is extremely expensive. the hope was these rates and with some regulation, they could hold down the price.

there's nothing in this law that says here is how much i can buy insurance for once this law goes into effect. it's not that kind of detailed regulation. host: jonathan, a republican. good morning. caller: i'm not sure to many people on the far left really care about the cost of health care. my personal opinion. president obama three and a half years ago, when he was talking to a group of supporters in support of the single-payer system, he said we will now be able to eliminate employer coverage immediately. there will be a transition period. in my opinion, that's what this "affordable health care act" is designed to do. host: david savage? guest: designed to eliminate

employer-based health-care? is that bad or good? it is true that after world war ii we got an employer-based health-care system. i think because wages were frozen during the war. the one thing you could give employees were benefits. one benefit was health insurance. we have this system that i think it's unusual around the world. your insurance comes from the employer. i do think a lot of people, over time, thought there should be some kind of national health care system that did not depend on employers so when you move from one job to another, you would not be in danger of losing your insurance. i do not see a big move to end employer health insurance. the final bill tries to build on the employer-based system. who knows what will happen five years or 10 years out. there's nothing that ends i employer health care insurance on this law.

host: here is a very direct question on foottwitter. guest: no. i think it is possible, but unlikely. the reason i think it is unlikely the court would declare the mandate unconstitutional is the 60 or 70 years of precedent that i mentioned. there's so much precedent on the books that says that if its economic, if its commercial, the government can regulate it. there's another part of the constitution that says congress has the power to pass all laws that shall be necessary and proper to. those powers into execution. the government's second part of the argument is, we can regulate health insurance and it is necessary for that to work to make sure that everyone participates. otherwise, i could say i'm not going to get insurance until i get sick.

the only way for it to work is to have the mandate. it is possible, but i would be surprised if the court declare the whole lot unconstitutional. host: when folks are listening to oral arguments, they may hear a reference to the militia act of 1872. why? guest: the militia act has been brought back from history because that law required able- bodied men to go out and get themselves a rifle, ammunition -- it was quite detailed. for the person who says the federal government has never before in history required anybody to buy a product, the obama lawyers and some people on the other side will say, "what about the militia act? " that is why it is cited.

filbrn?icker versus phil bo guest: one of the animal acts put limits on what farmers could grow. a farmer had grown extra week for his farm animals. he said he was not selling it, but using it for pigs and farm animals. the federal government cannot stop me. the federal power to regulate commerce cannot affect homegrown wheat. the supreme court said it can. that surprised some people at the time. they said the only way to regulate the market is to regulate all of the market. there was a decision in 2005 where they said the same thing for homegrown marijuana.

the federal government had the power to go into the house of a woman in northern california -- medical marijuana was legal in california. she made the argument, how is that part of commerce? 6-3 decision with the majority saying congress can regulate the market in illegal drugs. that means even the drugs that are not being bought or sold commercially. host: things are getting busy on the court and on capitol hill, as the line has moved up. people are getting ready to go in. by the way, interest groups are holding press conferences today. those for it, those against it. we have learned that rick santorum will come off the campaign trail. he, too, will be outside the supreme court holding and health care event.

carol, democratic caller. you are on the air. what is your question or comment? caller: i am very interested on this violation of the constitutional rights thing. we are forced to buy retirement insurance, medicare, metical, and the states force us to by unemployment insurance. they force us to buy auto insurance. host: you got to turn your television down. i think we got your point. david savage, talking about other mandates? guest: it is true that medicare is a mandate. there are a lot of mandates. that's what this debate is about. since she mentioned medicare, one of the interesting oddities of this is if congress had said everybody must -- we're going to charge you 2% for health

insurance, and if you have health insurance, you will get a refund. if you do not, you will have to take. everybody agrees that would be constitutional. in other words, the social security act requires you to pay a tax for a pension plan medicare requires you to pay tax for the idea that down the road you will have health care. congress could have mandated this through a tax. the issue here, can the mandate it in the reverse way? host: here is a tweet. angela, an independent in cape cod, mass.. go ahead. caller: good morning and thank you for c-span. i have a couple of questions this morning. when this was foisted on us, the public, why aren't the members of congress required to

purchase the same insurance? they have a different insurance plan. two, how come the president issued all these waivers to different countries and also to unions. i think that's terribly wrong. 3, what is it going to do to the seniors in this country? it is going to be an astronomical problem. host: all those health care questions, we will tackle later this week. we will have a health care lawyer joining us to work through what congress has done already on this law, what is working, and we will talk about all of that. today we're talking about the supreme court oral arguments beginning this morning at 10:00 a.m. eastern time. they're taking up this issue of whether or not the individual mandate is attacked. first, ben, a republican in

oregon. are you with us? you are on the air. caller: this is dan. host: ok, go ahead. caller: i do find the mandate kind of frightening. like he mentioned earlier, congress would not make you buy broccoli. i'm not so sure as time goes on, because it was pretty obvious that this was not a popular law these democrats were passing, but they did it anyway. as they seemed to get more and more power in this area, it is like they could tell us to buy a gm car or whatever, whatever the main body of congress is. host: richard, a democrat in louis.ouit.

go ahead. caller: if this goes through and everybody has to have insurance, if i called my insurance people, and let's say i have a heart problem, can they say we will give you this insurance, but you have to buy a different policy for your heart problems. that will cost you $1,000 per month. are they allowed to charge you what ever they want to cover the pre-existing condition? host: david savage? guest: my understanding is the answer is no. -- first of all, they are required to sell you insurance. secondly, without regard to a pre-existing condition. as i understand it, that's one of the reforms that goes into effect. it is the reason why they need to have everybody else participate in the insurance. that, obviously, is expensive to

the insurance companies. insurance companies say we can only do it if we get more help the people paying into the insurance system. my understanding is in 2014, they are supposed to not charging more for the heart condition or some other pre- existing condition. host: daniel, independent, bloomington, indiana. caller: good morning. a gentleman called about wells consolidation to save a family member. i would say go ahead and consolidate your money. basically, if you are denied the coverage from the government, how is that treatment going to be provided from that family member. say your family member or your sister were told they could not get a bone marrow transplant because they had a problem. what are you going to do?

are you going to suffer or get the treatment? host: david savage? guest: i'm not sure i understand about wells consolidation. in other words, if you have the money, you can pay for special treatment on your own. that's certainly a reasonable way to approach it. insurance, under any situation, does not cover everything. some people do have one of those extreme conditions where they need some special treatment that is quite expensive. it would obviously be worthwhile in that situation to have the money to do it. host: let's talk about law itself as it was written by congress the court did wednesday the takes up the issue of the individual mandate. if it's ruled unconstitutional, this that invalidate the rest of the law? some have said it's unusual that congress did not include language. guest: my understanding is that was sort of a glitch. it was in one version, but not

the other. ended up passing -- the senate agreed to the house bill. the c-span viewers probably no more than me. i think it was in one version but not the other. you're right to say that usually in a big bill they include a severability clause. frequently, congress says striking down one provision should not invalidate the rest. generally, congress wants the law to survive. i've written about stories in the past where some provision of a big law has a first amendment problem, a free speech problem. somebody will sue and the court will strike that down. it's only that one provision. the rest of the law survives. there is no severability clause in this bill. that's why the supreme court has to think hard about what is the right approach, if we say the mandate is unconstitutional?

host: that is the debate for the court on wednesday, along with whether or not states have to provide medicaid under the expansion in this health care law. deborah on twitter has this to say. james, a republican in florida. you are next. good morning. caller: good morning. thank you for being on here today so we can get more information on this new health care law. you mentioned earlier that there was a law that required all americans to purchase guns and ammunition, get that law has now gone away. are you saying that this health care law would pass and then go away? same as that. the other question, it requires everybody to participate. why were there so many waivers handed out to a lot of the democratic constituent areas, such as the unions and some of the ones in nancy pelosi's

state? guest: i cannot answer the latter question. my understanding is they said certain plants could qualify. i do not understand the waiver point. the militia act was in effect for a short period of time and had these requirements to it is cited because it's a classic example from 200 years back of the government telling everybody they have to do something. it has no continuing attack. host: burlington, ron, democrat. caller: good morning. i am worried about the mandate thing. if the mandate is there to provide health care for everyone, which the intention is good, but it seems like incrementalism for more medical mandates, such as -- ok, we want

everybody to be healthy, so everybody must take vaccines and this is how many. if your head is shaved in a certain way, now you're going to be lumped into some type of mental health thing and mandate a certain type of treatment. it is it is a slippery slope for may. guest: the view your expressing is shared by many americans. i do not know what the polling is on this. you liked the idea of a government mandate. no. there's something about the government telling you something that a mandate you can see why people think it is and unappealing idea. none of the callers have made

this personal. if somebody calls in and says, i am opposed to the mandate, i do not think i should have to have insurance. what are you going to do if you have an auto accident? it is sort of hard to think of the contrary -- if you did not have insurance and you have a good income, you're basically saying, i could have saved a lot of money. or you could say i will let someone else or about it if i have $100,000 from an accident. what do people do if they don't have insurance and you get a serious illness or you have an accident? host: here is a poll ofor you. let the law stand?

37% said to let it stand. host: that changes along party lines. 21% of all adults said that part should be declared unconstitutional. 10% were not sure in the latest poll. guest: i would have thought the mandate the most people would be opposed to. host: that is tuesday's topic for the supreme court. guest: my impression is that the law has never been popular. the proponents say a lot of the

provisions have not gone into effect yet. most are told that provisions and did co-pays. people may not realize they are not paying copays. it is possible there are some benefits that people are not aware of. host: oscar in new hampshire. caller: you said there were be a fine if you didn't get the insurance. so you have a choice as to whether you get insurance or non. that was one of the comments -- whether you get insurance or not. my son has a selective service mandate. i believe everybody who is 18 has to be registered with the selective service. that's my comment.

guest: both good points. they do not call a mandate. people could view it that way. if i did not have insurance in three or four years, nobody will arrest me. i have not violated the law. i would have to pay $95 on my taxes. i'm helping to contribute to the fund that pays for uninsured people like me. they called the shared responsibility provision. a fair number of americans might say i will pay the small assessment on my taxes rather than get insurance. it would be their choice. host: were promising we would talk about the anti-injunction act.

that is what the court is hearing today. however, our guest is stuck in traffic. we are a few blocks from the supreme court and from capitol hill. there are a lot of people trying to get to the same spots. traffic is treacherous out there. if you can hang with us for a little bit longer. we will keep taking phone calls. john in st. louis. caller: i think the whole thing should be thrown out because they went behind closed doors to pass it. host: are you going to be watching today? or will you be listening to the oral arguments? caller: yes, ma'am.

host: what are you listening for? caller: the whole health care law. it doesn't make good sense. to go behind closed doors to pass something. host: jeffrey from georgia, democratic caller. good morning. caller: i forgot my original question. i do not think -- i think it is fair for everybody to pay at least a little bit --good morning. host: we heard you. caller: i get social security disability and i think it is fair for everybody to pay la little bit.

i'm all for paying a little bit to try to help the economy. guest: the theory of the bill -- health care can be made affordable if everybody contributes something and that there be subsidies for people who cannot afford the full cost of insurance. host: we will keep taking your phone calls, e-mails, and tweets. we're up in front of the court this morning. people are gathering outside the court to express their views. >> my name is pam. i'm here to support the act because it works for everybody. i am a breast cancer survivor. i could not go outside of my network and a wanted very much to go to johns hopkins.

this is opportunity to women to have that choice and not to be subjected to medical care that they may not want or may feel it is substandard. also, i had a college graduate son who graduated in 2003 and was not able to find work, so i had to cover him under cobra. it just doesn't make sense. >> is assigned says -- your sign says, "protect health-care." >> we want to make sure that this works for everyone. this is for us and to let people know that we cannot repeal.

>> will you be here all three mornings? >> i will be here for two of the three mornings. >> thank you for talking with us. give us your name. >> linda from california. give us choice. i will buy my own so that i can work with my doctors. i had breast cancer. my doctor said my charges would have been limited as to how i would have been treated. my sign -- congress voted to include only mammograms. didn't say anything about ultrasound. an ultrasound found my breast cancer.

the government body that tells the government what they should offer americans in health care. no mammograms until age 50. they are looking for a p.r. firm to rework the language. >> tell us your health care situation. >> i am on medicare. i want my doctors to help me make my decision. i do not want a panel to decide if she gets to have the surgery to cure for cancer. let them have a government health care. i do not want it. >> you do not have other people here protesting. >> my two friends from newport

beach are with me, too. make sure you get your mammograms. get an ultrasound if you have dense tissue. >> thank you for talking with us. >> there are more of us. host: outside the court. you can see the protesters. there will be news conferences. they will spend 30 minutes at 10:00 a.m. to talk about the anti-injunction act. guest: 90 minutes. host: you can expect people will hold news conferences. will we hear from the lawyers? guest: i believe so. the lawyers on the other side

will probably come out. it is quite common for the attorneys to come out. host: will we hear from the justices at all/ guest: you do not want to hear the lawyers. you know what they will say. you are interested in most arguments -- you can get a good sense of what the justices are thinking about based on their questions. there are some that you walk away and you were puzzled. quite often you can get a pretty good read after an hour or two about which way they are leaning. this has the potential to derail the decision for a while. the debate is in some ways preassembled.

it is a complicated law. is this a tax law or not? if it is a tax law, then the case should not go forward. the government and the challenges both cite it is not a tax law. this is a penalty provision. there for the supreme court can decide the constitutionality of it. host: both sides are in agreement that the anti- injunction act does not apply. guest: they say the anti- injunction act does not stop you from ruling on this now. host: this will come down to who uses the word "tax" and " penalty" from the justices. guest: it says that no suit

should be brought to restrain -- as i say, they did not want the federal courts stopping tax collection. if you wanted to challenge a tax, you have to pay the checks and seek out a refund. i think the legal question is, if this is a tax law, the anti- injunction act says, hold off. if it has a penalty, that is something different. host: a little more information from "the los angeles times." a citizen who was no health insurance in 2014 would have to

pay a penalty -- guest: yes, that's right. if five justices were to agree with that, there would be saying basically that this legislation is premature. it cannot kick off again until 2015. then they can say it is unconstitutional. host: who collects the penalty? guest: the irs. host: then does that make it a tax? guest: this is something you pay on your internal revenue. it is not a tax in the way normal taxes.

it is a penalty that is triggered by something particular. host: what have the lower courts said? guest: most have said no, it is not a tax. richmond basically throughout the challenge and said the anti- injunction act forbids us from deciding this question now. this is also a wild card. the other way that i could think this could come up is if the court were split and having a tough time getting an agreement, i can imagine the chief justice saying around the table, "how about if ago the anti-injunction act route?" if the courts -- if the situation was a mess, later on

they may decide, why don't we put this off? let congress and the voters take another shock at it -- take another shot at it. host: what has justice kennedy said about whether or not anti- injunction act applies? guest: to my knowledge, nothing. i have been doing this for 25 years and i can remember a case where the anti-injunction act has come into play. it stops cases from coming to the supreme court. there may be some cases where this has arisen. justice kennedy and the others have not written any opinions. host: let's go back to phone calls. noel in alexandria, virginia.

caller: i am enjoying your discussion. one clarification. the case on the individual mandate is being brought by the national federation of independent business which represents small business. that case is being argued by one lawyer. another lawyer is arguing, another portion of the case. both are arguing on the server ability of the issue. to have -- the several abilibilf the case. guest: that is correct. i was curious -- if the

individual mandate is struck down, we're talking about this almost as if health care reform is over. we're looking at all of the complicated issues. let's say today throughout the individual mandate. bedoesn't mean there cannot a national health care reform. it would have to be done in a different way, more of a tax- base system rather than a system of a penalty if you do not get health care. guest: that is correct, as well. but that would have to be passed by another congress. congress could go back and tweak the law. they could say, "we will have a tax provision."

i thought the political reality was that since the republicans are 100% against this effort to regulate health care that they would oppose any provision. if the law was done, it would be unlikely that congress would go back and fix it. they certainly could. host: we will let you go. david will be inside the court today. 90 minutes. thank you for staying with us. coming up, we will keep taking your phone calls about whether or not the individual mandate is taxable. let's go back up to capitol hill and here for more folks better lined up outside the supreme court this morning. >> this is dr. michael newman.

>> good morning. i'm here to support the affordable care act and to help people better understand what the act provides and why it needs to go forward. >> what you think you provide in terms of education? >> there are over 50 million americans who are uninsured. health-care costs account for 80% of our gdp. i want to see all americans to have access to affordable health care. more americans access through medicaid and medicare and it expands medicare and addresses issues in terms of the quality of care provided. it focuses on the most

vulnerable groups -- women, children, and the unemployed. >> we heard from a woman who is concerned about a choice in getting surgery or screening for breast cancer. >> as a practicing physician, i'm not a bureaucrat or a policy person. it in no way restricts choice. you simply do not have a choice. this woman's comments were wrong. it illustrates the problems. many americans don't understand all the benefits. her comments about screening are incorrect. the aca support screening for preventative services including mammograms.

if there's anything abnormal on a mammogram, evaluation will be undertaken, without having been able to have a mammogram, you will suffer. this notion that the aca limits her options is incorrect. i will be out here as often as i possibly can. it is important that americans understand the affordable care act over time is going to improve access, affordability. every piece of legislation requires modification, starting with the enactment of medicare. all these things require adjustments and corrections. this will go through a period of

evolution. that's why americans need to come forward and make their contributions. >> thank you for speaking with us. host: we're back here this morning to talk in more detail about whether or not this individual mandate is a tax. ilya somin is an associate law professor at george mason university. a treacherous drive this morning. guest: i think d.c. has seen better days. host: parking is probably scarce. the anti injunction act. what will you be listening for and which justices will be listening to?

guest: i wanted most listen for if any of the justices think this is a tax at all. probably the anti-injunction act does not apply if it is not a tax. that may knock out one of the federal arguments for why this individual mandate is constitutional. they say it is a tax because it it is a monetary fine. whether the justices believe that the aie precludes this lawsuit in any way and whether they think the act applies to state governments as well as to individuals. usually we don't think of state governments as persons. the lawyer argued that the anti-

injunction act applies and it would preclude the state governments from suing. host: when do think the justices will decide on this issue/ ? guest: most likely by june. that is typically when they issue their last verdicts. host: what if they say it is to mature -- too premature to take up the case? guest: i think it is unlikely that they will reach that conclusion. the fourth circuit court of appeals had ruled that the anti injunction act -- this first day

of argument is more a matter of making sure they are covering their bases. host: let's go to phone calls. bill from georgia. caller: good morning. you're an excellent interview oer. i'm for passage of the mandate. is the u.s. right and the rest of the developed world in having some form of national health care? we would save money. we would partially diminished the v.a., we would diminish the profits of health care. host: all right, bill. bob from wyoming, and in the

points -- an independent. caller: is c-span saying the only protesters are for obamacare/ ? host: no, no, no. caller: why don't you cover them, too? host: we heard from two people on each side of the argument the first time we went up there. caller: they were both 4 obamacare. host: got your point. caller: the surveillance database, the death panels, it incorporates the very cancer that we were suppose like getting rid of what these big insurance companies that your previous guest seem to have sympathy for.

the cannot seem to pony up the money themselves but they are willing to force us to purchase insurance. this is not my concluding point. host: ok. caller: where is the processors that are against the affordable health care act in total? did elena kagan recused herself? i want you to hold your guest to these answers. now that mr. savage is gone, who i call to speak to, i would like to illustrate the obvious difference between auto liability insurance being mandated and then mandated

payments to insurance companies by law, which is all done through the 14th amendment of the dread stock -- dread scott decision. they took the 3/5 of a human concept. that is how people are trapped by the obligation of contracts that they did not know. host: i will leave it there. we have been covering both sides of this issue, all hearings leading up to the signing of the law and the news conferences by all the interest groups. we're showing you the sights and sounds before oral arguments begin at 10:00 a.m. this morning. guest: some people have argued that elena kagan should recuse

herself. the government will be putting forward but she is not recuse herself. host: charles from connecticut. caller: good morning. as far as the mandate thing, social security was originally this thing called social security contributions just to get around the tax angle. i would like to knowthe argument is always used about the automobile insurance. everybody does not own a car. is the next thing going to be an affordable dying thing? everybody does have to die. who else is going to afford it?

once you're dead, you cannot pay for it. what follows next -- affordable transportation? affordable diet? guest: the issue with auto insurance is it is imposed by state governments. state governments are not limited to a list of enumerated powers. they are not constrained in the same way. if an individual mandate is upheld, then it is likely the same logic could be used to uphold a car-buying mandate. the defenders of the law say it will use health care at some point but we do not use the other products.

i think that oversimplifies someone. host: mary in seattle. caller: my name is larry. host: i apologize. caller: the caller earlier said everybody does not drive. those that do not drive do not have to pay for auto insurance. everybody has health, whether it bad.uld badgood or i think it should be mandated. you have to pay for it. host: if it is mandated that you have to get health insurance and you do not, d.c. that as a penalty or a tax -- do you see that as a penalty or a tax?

guest: i agree to take a penalty rather than a tax. anti-injunction act would probably not apply if it is 8 tax and that would be a problem for the government's argument. host: you talk about what you'll be listening for by the specific justices that you think could be injecting for our viewers when the supreme court releases its oral arguments. -air them.ar th which justices might be interesting? guest: a couple of justices might be interesting are chief justice roberts and justice kennedy, who are potential swing voters. it would be in choosing to see if they tipped their hand about whether this is a tax -- it would be interesting to say.

justice scalia has sometimes taken a hard line. does he think the argument has any traction at all or is he prepared to hear this case on the merits? host: independent caller from seattle. caller: i do not believe people should be required to have health insurance. if you do not have health insurance or if you do not have the right financial resources to pay for health treatment, then i think that treatment should be denied to you and you can suffer the consequences of it. it is simple enough. we have a terrible health insurance policy in this country. it will not copy countries that are much better than ours.

if you don't have insurance, you can take your chances. if you get sick, tough luck, charlie. host: or in kentucky -- roy. caller: i am calling this morning. they should let this alone like a should have. we can drill oil -- everything is going on right now. it is terrible. we have a president that should be running things. we should have more jobs in this country. taxes should be going down. america should be stable. if i was the president, i have

more jobs on the map and i will make foreign people -- if you talk about my country -- host: james in michigan. caller: good morning. i'm hearing this caller talked about obama. this affordable care act is a good thing. most people cannot afford to get insurance on their own. it is a good idea for them to pay something, even if it is a fine to insurance. none of the republicans helped obama pass this. everything he has tried in the congress, they have been against. they should be on their senators and representatives about not coming to the table.

thank you. host: i want to ask you about the individual mandate on tuesday. guest: the key question, will get an indication of what justice kennedy and chief justice roberts thing? there probably two of the most important swing voters that could go either way on this issue. caller: i have a simple question for you. is everyone coming to the united states with their visas, are they going to up to pay, too? people with resident status -- is this a tax on the american people/ ? guest: the individual mandate would not apply to people that are here on a temporary visa.

host: louisville, ky, pat, a republican. caller: good morning. thank you for taking my call. here in kentucky, we have a minimum you can pay and then you go on up and you choose how much you want to invest in auto insurance. but the other point i want to make is this was negotiated by the democrats. they did not have much republican input. republican bipartisan history but not bipartisan in theory, limited. what will happen if it is debated? they can do it like they did in the old days.

the compromise after putting forth ideas. the senate either accepted i.t -- the one back to the house --- they went back to the house and it would pass again. host: what did you hear? guest: this is an interesting political aspect of the case which legally speaking not be relevant. it shouldn't matter whether the act had bipartisan support or not. the court is not insensitive to political dynamics. it is unlikely the justices would be willing to strike it down even if they thought it was probably unconstitutional. the justices did not have had-on confrontations.

in this case, with the individual mandate be very unpopular, if the justices believe it is unconstitutional, they probably would not be stopped by ruling that way. host: our coverage continues here on "washington journal." we are" new lineo-- talking about oral arguments at the supreme court. we will talk about the individual man debt itself on tuesday -- mandate itself. the expansion of medicaid on wednesday and if that violates state rights. that is the time line for this week's oral arguments before the supreme court. we will be releasing each day's oral arguments the same day

around 1:00 p.m. eastern time. you can listen on c-span3 and interact on your computer. we are bringing you the sights and sounds this morning from capitol hill with any press coverage is going on outside the court, protesters for and against the accord. then you have -- protesters for and against the acourt. then you have some getting a ticket into the court. senator hatch and senator baucus have a ticket inside. there are about 50 to 60 seats available. there are about 400 seats

available inside the court to listen to the oral arguments. mike from ohio. caller: you keep hearing from these politicians. and from huckabee -- a lot of these politicians say they voted for it and of against it. the act like it was done in a sneaking way. i was wondering how it was voted on. insurance companies have their own panels that they go by. i got severe arthritis and i pay money out of my own pocket through my work. i have been turned down for two drugs from arthritis because they said it would be too expensive to pay for. i was given another drug. thank you for taking my call.

caller: good morning. -- as i recall when this passes problem was going on in congress with his bill -- first call, they never read it. it was never indicated it was a tax. it was a fine. that is what i heard during the discussions. it is challenge and out it is a tax. i guess wording is a challenge. i did not have the time to sit around with 2000 pages of the bill. guest: there is a long and complicated legislative history. the supporters of the bill including the president generally describe this as a penalty and not a tax. i think partly that was for

political reasons. how they talked about it doesn't settle whether it it is a tax or non. the supreme court has come up with an objective definition of a tax any ppenalty. in theory this is a tax. i think this falls within the definition of a penalty. host: davis from madison, florida. -- david. caller: i cannot think of a less effective act to demonstrate in front of the supreme court. i cannot think of a group of people less affected by public opinion. host: why do you say that?

caller: they have no fear of re- election. i honestly don't think that you can screen and incorrect thing over and over again in front of the supreme court and they would listen to anything except the law. i am a conservative who believes that all of this could have been avoided with a single payer. host: let's take your point. what are the justices listing to outside of the court, if all? what are they doing before today's arguments began? guest: the main thing they are likely to be doing is reading the briefs. outside groups have tried to weigh in with the court. i did not think the court is

completely impervious to public opinion. the court does not like to strike out major legislation that have broad bipartisan support and is supported by the general public. there were if it does that there will enter into a confrontation that they cannot win. in this case, the individual mandate is very unpopular. i doubt that will be a major issue and that the court will be influenced by demonstrators outside its doors. caller: yes, thank you. i've heard several comments from republican callers that there were no republican ideas in this. the independent mandate was originally a republican idea. it was proposed by the heritage

foundation and charles grassley. mitt romney said the same thing in massachusetts. i would much rather have a commission of medical experts looking at peer-reviewed research and making decisions on what practices should be paid for rather than having corporate profit-oriented insurance people who are responsive more to their shareholders then the patient making medical decision for me. there's no way i want corporations -- guest: it is truitt that 20 years ago many republicans favor the individual mandate. mitt romney adopted one at the state level in massachusetts

when he was governor. the republicans have changed their position, many of them. there have been changes on the other side. in 2008, candidate obama was opposed to the individual mandate when hillary clinton proposed it. he said trying to solve the health insurance program is much like trying to solve homelessness by require people to buy a house. this is an issue where politicians have switched over time on both sides of the aisle. host: thank you so much for talking to our viewers. guest: thank you for having me. host: next we turn our attention to inside the court. we will be talking about all nine justices as well as chief justice roberts.

we spoke with a reverence with the national pro life center about his views on the health care law. >> we are outside the supreme court. tell us your name and where you're from. .> i'm father paul shank i am a program administrator there. capacity as a member of the national clergy council. we have a keen interest in the discussion of the court today. >> what do hope to hear today -- what do you hope to hear today? >> this is thorny for the church at the moment. it has been proposed as far back as 1913. they have been a consistent

advocacy group for this kind of universal access. the hhs mandate, which indicates that the insurance companies must provide birth control, which is a violation of the conscious of an individual catholics as well as the churches of free exercise of religion. so in this sense, a poison pill has been introduced. the argument today is a larger one. i want to get a sense as to where this is all going to go. >> you're here with some colleagues. you are the third person in mind. you did not have to sleep out overnight -- you are the third person in line.

court.e neighbors to the it doesn't give us any privileges. we had to be here when the sun was rising. hopefully we'll get a chance to sit in. what is most concern to me as a catholic clergymen is that this hhs mandate will be taken out. i think it presents a sorry state of unnecessary idea in our society. by safeguarding that religious liberty, i think we garner more concern and support for universal access to health care. i will try to see it everyday. host: you have folks holding

your place in line. is there one day you're watching for in particular? >> no, which is want to get a sense of the whole thing. >> thank you for talking with us. host: our live coverage continues here on c-span. day one. the court begins at 10:00 a.m. eastern time for 90 minutes. we will release the oral arguments around 1:00 p.m. eastern time. you can tune into c-span3, c- span radio or go to c-span.org and you could interact what you're hearing from inside the court. we will turn our attention to the roberts scorecourt. we're joined by jonathan turley,

a professor at the george washington university law school and james simon, a law professor from new york law school. talk about the identity of this current court. guest: this is still a deeply divided court. you have four jesses that often a vote on the left side of many issues -- you have four justices. justice kennedy has remained a swing voter in many areas. the court on this question is dynamic. you have some unpredictable aspects. one does not talk about is that justice scalia is very likely in place on this question.

most people assume he is a solid vote against the legislation. he has said things that would seem to come out of the brief of the obama administration. host: james simon, let me go back and compare this current court with the rehnquist court. guest: the rehnquist court, not too many differences. the most important would be that justice alito has replaced justice o'connor. to the hughes court. chief justice hughes was a brilliant lawyer and had to deal with some very broad economic and social legislation from the new deal. there may be perils with what happens in 2012 and what happened during the 1930's when

chief justice hughes was presiding. host: some have said this could be a defining legacy for the chief justice. guest: this is the most important challenge to broadbased economic legislation in 75 years, over 75 years since chief justice hughes was presiding. in the mid 1930's, the court first struck down broad base legislation and found a constitutional. that legacy continues -- has continued for the next 75 years. chief justice roberts is facing a similar challenge that chief justice hughes did in 1935, 1936, 1937. host: what impact could this

have on the roberts court? guest: this will be a defining moments, to be sure. i think the court realizes the gravity. they are giving this three days, which is an eternity. justice roberts is an interesting person to watch. many of the justices are still sensitive about the fact that the court was viewed as a highly political in the bush v gore controversy. roberts views himself as a stabilizing force. he does stand in the position much like the hughes court. he uses his role as trying to protect the legitimacy of the court.

i have not seen him tack significantly in the middle of defining cases. he identifies himself with a conservative legacy of the court. host: what has he said in the past on the commerce clause? could he be the fifth vote? guest: roberts is closely aligned with the federalism revolution, as it was first called. his starkly -- is starkly -- historically, he was identified with that movement. people are looking for whether roberts as chief justice -- he is wearing two hats.

there is robbers the conservative and roberts the chief justice -- there is roberts the conservative and roberts the chief justice. i think he prefers to see the court speak with a solid voice. people are looking at escape clauses. people are worried. the governments don't believe this is a tax. everybody looking suspiciously at roberts. would he take the escape clause and say we will not have a strong opinion. ? host: some say when it comes to the commerce clause that chief justice roberts may not be the fifth vote.

but he maybe the sixth vote. guest: i would agree with that. i think roberts would like -- to present a solid decision. i think that justice kennedy, who is likely, if it is a", to be the swing vote -- if the justice kennedy votes to find the act constitutional, i would not be surprised if not only justice scalia but justice roberts to vote in favor of constitutionality. for roberts, it has to do with institutional stability and the projection of the court's image as a partial bid that might

weigh upon him heavily. host: what is the role of the supreme court in our society and how does that pertain to this debate? guest: the role of the supreme court in our society is a large and has been for a very long time, going back to chief justice john marshall in the early part of the 19th century. we know that if the court, for example, struck down president obama's signature legislation, it would have a profound effect not only on society, but certainly on the presidential election, i think, later this year. it would not be the first time that the court has had a very, very large role in terms of national politics. it happened in the 19th 37 franklin roosevelt was president and chief justice hughes presided over a divided court.

host: we asked the justice scalia about the supreme court's role in our society. [video clip] >> the simplest answer was to clip i saw where people were concerned about the naturalization test. what is the role of the supreme court? to interpret and apply the laws of the constitution of the united states. in truth, i guess not simple. it is not the scholastic -- in truth, it is not simple. it is not a scholastic process. we have constitution and laws and it they mean something. they do not mean what i want them to meet in every instance. the people of the united states trust us to interpret and apply those laws fairly and

objectively and evenhandedly. that is a great responsibility we have. host: jonathan turley, what did you hear they're from and justice alito? guest: he is viewed as one of the solid votes for states. he is very allied with the states' rights. i would be astonished not to have him out with justice thomas, for example, in support of the states. you capture an aspect of the the courts have- changed dramatically, when marshall handed out marbury v madison, reconstructing the court into a much more powerful image. justice jackson said it best -- we are not final because we are

infallible, we are infallible because we are final. after marbury v madison, they are final. whether you agree with them not, this court renders the final decision on what the law means. justice alito is correct in stating the values that motivate many of the justices. in terms of his own vote, he is a very predictable justice, one of the most predictable. he tends to vote consistently on of the right. justice kennedy is cut from a different bolt. he tends to vote with conservatives in many areas, but he is more of an unpredictable swing vote on issues of this kind. he has gone both ways on that this treaty voted to strike down at two major federal laws. he voted to support, in the rice case, the federal claim. host: we will delve into these in the next hour, but we want to go to capitol hill before the

courts, and congressman rod andrews, democrat of new jersey, is joining us with his take on this week's oral arguments. >> thanks for being with us. what are you hoping here today? >> i am hoping to hear the basis of a conservative and decision, because a conservative decision would say that the courts should defer to the elected representatives of the people who enacted the affordable care act. true conservatism would say that this is a democratic decision with a small d, that should be determined by the election and not nine people. >> you are here at the behest of leader pelosi? >> i am. what i have in my heart is that back at 200 million people should make this decision in november, not nine people this week.

>> you are an attorney by profession -- >> i plead guilty to that. >> what sort of test -- the anti injunction act -- legalese there. >> the discussion will be whether the case is right. the alleged injury the plaintiffs have, this tax penalty if they don't have health insurance, has not occurred yet. one of the basic conservative principles of law forecourts is yet.-- it hasn't happened it is like saying that i think that guy right there will still my wallet so i will sue him for stealing my wallet. and has not happened yet, until it happens, the case is premature. more than prematurity, it is the case of democracy, whether elected people or on elected

people should make consequence of his reasons for the country. we think it should be the elected people and the people will vote in december it should decide, not nine supreme court justices. >> congressman robert andrews, thank you. >> thank you, have a great day. host: you just heard from the congressmen waiting to get in. it sounds like he is the representative from the house democrats this morning. we have an interview shortly with senator ron johnson of wisconsin, who opposes the health care act. we're talking with jonathan turley, law professor with the torch washington university, and james simon, joining us from new york this morning, law professor at new york law school. if i could go inside the courtroom this morning, when they began in the oral arguments at 10:00 a.m., what are some of the traditions that -- cameras

will be in there willv -- butras won't be in there -- what are the conditions that people see? guest: clerks will come in with chief justice roberts, and then the marshall will call to order -- "god help this honorable chief" -- and then she' justice roberts will announce the first argument and the attorney will appear before the justices. my strong suspicion, based on this court and previous courts, is that the justices will be very active in the questioning almost from the very beginning. there will not be a long monologue from the lawyers, but rather, a fairly vigorous

exchange among the justices between the justices and the attorneys. host: justice sonia sotomayor, when she sat down with c-span, weighed in on these traditions. [video clip] >> why our traditions important to families? traditions are very important to me. what i do on holidays, who i spend them with, the roles that each person place. -- plays. i think it is because those traditions and for us in a process that is greater than ourselves. they remind us of the role we are playing, not a personal role. role that has a personal agenda, but one that has an institutional importance, and that institutional importance is bigger than us. i think that is an important

underor tradition, too score that for us. yes, where you sit, how you sit, all those traditions and practices-of our institutional importance, not our individual importance. i like them, i like traditions. i think they measure our history, and they give us history to pass on to others, and that is what has kept us allied as a nation for over 200 years. it is are rare in the history of mankind that any form of government has lasted as peacefully as we have for as long. host: "inside the the supreme court close what is our

discussion here. let me get to callers. thank you so much, margie. you are on the air. caller: 94 is suspended i had an idea while watching thi -- thank you for c-span. i had an idea of watching this, being that obama and others say this the same as senators and congress has, why don't they bag put up a placard that explains exactly what their program is, is,at their health care and how powers would be exactly the same as theirs? that would help, you know, i lovin lot of the naysayers. host: let's hear from joanne next in long island, new york. caller: i get a kick out of hearing people say that republicans don't work with obama, when this legislation was rammed through on a complete

technicality by democrats. somebody suggested that one of the justices should be recused, a woman, the latest woman? host: yes, justice kagan. caller: because she might have or did work on the legislation prior to it being enacted. i was wondering, if that is true, if there's any recourse, because it seems she has not done that. just as a curiosity -- the chief justice, how does he become chief? is he voted on by the other justices or is that an appointment? host: let me turn to you about the kagan question first. guest: there is a serious question about whether justice kagan should have recused herself. i tend to think she should have recused herself. there are legitimate questions raised by the fact that she was solicitor general during the time this case was going to give federal courts.

many of us were surprised that president obama selected the solicitor general for that reason, when there were some critical issues going to the corporate must've is anticipated she would recuse hersel -- bowing to the court. most of us anticipated she would recuse herself. he gets the procession of it pocket court. -- it gives the perception of a pocket court. it was a terrible mistake in that sense. if they win by a single vote, this is going to be a question that is going to be debated for history, about whether that if the vote was tarnished. she did receive e-mails, the solicitor general's office was involved from the beginning of this important litigation. there are legitimate questions here. host: is there, as the caller said, legal recourse with five votes? guest: i'm afraid not.

various people have said, "we think you should have recused yourself." there are also calls for recusal from justice thomas. most of these rules that apply to lower court judges don't apply to them, and this is a major hole that many have criticized it for most of the rules that are binding on other judges, it tends to be discretionary on and them. they make the call about when to recuse themselves, and it has caused discomfort among people. host: mr. simon, how does one become chief justice? guest: the chief justice is appointed by the president -- nominated by the president of the united states and confirmed by the senate, exactly the way the assess the justices a -- associate justices are.

sometimes a justice is elevated, like justice rehnquist. in the case of roberts and chief justice use, they are appointed by the president. caller: good morning. everybody seems to be missing the point here. i have to buy auto insurance because i choose to drive a vehicle however, i did not choose to be born. how can i be taxed, penalized, or otherwise simply because i exist? i had no twice in the matter -- no choice in the matter. it is just not right. guest: the interesting thing about this debate is the disconnect between the arguments you are hearing outside the courts and the arguments you will hear within it. this case has less to do with the merits of national health care reform as it does with

points of arcane and technical questions, such as whether this is at tax or penalty. the 800-pound gorilla in the closet is the question of federalism. it is a question not about the end of legislation, but the means. what is being argued is that the state's reserve the rights to make the decisions, that the battle government has intruded upon the territory of the state. for advocates of federalism, it is a serious question. federalism has lost ground for decades. quite frankly, this is the alamo for states' rights advocates. they have to win here. it is hard to see what, in my view, what would be left of federalism if the court upholds this law, and states' rights advocates now 8. that is why this is so tense. it has greater potential, frankly, for constitutional law

that the health-care law, because there are other ways you could force an individual mandate. when i spoke on capitol hill for this was enacted and i said i thought that this individual mandate was asking for a supreme court review and being overturned by the supreme court, at that time, i said there are plenty of ways to do this. you could have the individual mandate without tripping this wire. they could go back and write this again. for constitutional law, this is going to have a lasting effect. there is confusion in this area. this is a bubble of their making. they will have to bring clarity to this issue, and will take a lot of effort. host: why do you say this is a muddle of their making? guest: the supreme court has gone in different directions on federalism to the point where people don't know where the

line stands. our constitution is based on federalism -- guest: i would like to respond to that. guest: i will just wrapped up. you have cases like morrison, lopez, where it was struck down. in those cases, kennedy voted to strike down those laws. then you had cases where kennedy and scalia voted not to strike down the law, and it has left uncertainty. host: professor simon, go ahead. guest: i take a slightly different view. the modern commerce clause doctrine has been pretty clear for 75 years, congress has a broad authority to regulate commerce going back to a decision that chief justice hughes wrote in 1937. what has changed slightly, as professor turley mentioned, is

that in 1995 and again five years later, the rehnquist court carved out, i would say, exceptions to the general doctrine, making the point that they were talking about non- economic -- the regulation of non-economic cases. this particular act is much more on the side of economic activity than non-economic activity. the 1995 decision had to do with the possession of guns, and justice kennedy, who was the swing vote on that, made the distinction between economic and non-economic subject matter. i think the court, in my view, to be consistent with the decisions going back 75 years, probably will take a broad appeal, but that does not mean

that they will necessarily uphold it. it comes down, i think, to justice kennedy and, to some extent, justice scalia and chief justice roberts. host: one of our viewers who calls itself the right wing on our twitter page says -- william, democratic caller in virginia, go ahead. caller: yes, good morning, c- span. i think it is just a lack of understanding, on the american people. i think the rhetoric that has been put out to make this law look like it is something that is poison -- it is is not. it is for the people. when the government tells us to do a lot of things -- tells us

to drive on the right side of the road, tells us what's needed to drive, tells us you got to have insurance. if you don't have insurance, there is a penalty. you are going to. -- going to pay -- host: william, i will have mr. simon respond to that. guest: well, i think the caller has a point, that the government regulates a number of things in our lives -- tax, licensing, so on. the question is whether this health-care mandate fits in with the overall social contract, so to speak, between the government and citizens. we found in social security that people cannot opt out, the court has gone along with that, that they have ruled that this is a

regulation in which all people, to make the system work, would have to opt in. that is the argument for the health care legislation, that if people can opt out, it would basically undermined the effectiveness of the old regulation itself. host: joe on twitter responding to our previous tweet. mr. turley, let me ask you about the decision making process for these justices. will they be changing their minds based on today and tomorrow's oral arguments? guest: there was a longstanding debate about how much oral arguments change the minds of judges and justices. i have been in oral arguments where i see judges changed their

minds, for and against my client. many of these judges have pre- inclinations, and at least six of them, i would say, it would be very hard to get them to move from those pre-inclinations. for the supreme court, they are less susceptible in cases like this to having their minds changed, but it is not impossible. sometimes you see justice is trying out arguments. one of the things we will be watching closely, for example, is how justice scalia at frames this question. in rice, he had a language that was very strong. professor simon is correct, there is a long line of cases with a broad definition of interstate commerce. in rice, scalia said what must be music to the ears of the obama administration, and yet he is aligned with states' rights

and a general matter. we will see if he tries to read this needle during oral arguments to distinguish it from the current case. the other thing with professor simon where i agree with his portrayal of the cases, the cases generally favored the obama administration, but there are strong cases on the other side. part of the model of their own making is that in cases like wiekert, even with wheat grown in your on state and fed it to your own animals, it is and interstate problem. it became the model of what professor simon is referring to, the brought commerce approach. what you saw with the the rehnquist court is packing back a little bit more. people are energized about health care, and i hate to make

light of the constitutional law -- they should be as exercised about federalism. it goes back to the founding of the republic. that is what you will hear more of, as opposed to the merits of health care. host: joe is a republican in wisconsin. caller: morning, c-span. is there a chance of brian lamb doing just coasting on "washington journa -- doing guest hosting on "washington journal" in the morning? i really miss him. i like to play a game called "king of the world," and i wonder if it is possible whether it would be lawful for our justice system in our service, militia membership, like a some countries, like switzerland, it

is it mandatory that you own a firearm. secondly, will the courts take into consideration what i called the dirty dealings -- whoever was the senator from florida, and arlen specter got dragged into it, and another guy out west, where the administration offered to them all kinds of a their money for medicaid, i think it was, or some type of opt out situation for the health-care law -- will the justices be taking that into consideration? host: mr. simon? guest: let me first, if i could, go back to what professor turley was saying about the oral argument. it is very interesting to see, and it will be interesting to see, how justice scalia will refrain the question, and to track -- how justice scalia will from the question, and justice kennedy in particular. sometimes justices ask questions

in a way to communicate to other members of the court, and eight will be interesting to see the dialogue among the justices on the court. as to the viewer's view on mandates, the government has imposed a number of mandates. taxation, for example. conscription during world war ii. it is not unprecedented that the government really, in terms of uniting the country, and looking to the general will fare of the country -- general welfare of the country, may impose certain regulations on citizens. host: st. louis, missouri. independent caller . caller: first of all, if you have to pay the medicare premium once you are 65 and on medicare,

the individual mandate is a their constitutional on everything, or medicare, or all unconstitutional. secondly, it justice roberts and the other four republican- appointed supreme court justices, they showed their true colors when they voted to had the entire campaign finance system over to the rich and powerful. insurance companies spent over $100 million to defeat health care reform. it took a lot of courage to vote for it. host: mr. turley? guest: i have been very critical of the court on both sides. they will, for example, consider the political aspects that went into the passing of legislation. there are things you are not supposed to watch being made. the supreme court has taken that position historically. the previous caller talks about

ownership of guns -- for a short time people were required to own guns. that has been cited in this debate. this presents a historical question for the court. as professor simon ably pointed out, federalism has increasingly lost yardage. we have seen at state's rights shrinking as federal jurisdiction has expanded trade some justices take a philosophical standpoint that the political system will protect the interests of the states' rights. others believe that the constitution has changed where critical production of states' rights, u.s. senators from state legislators, that requires them to be even more protective. at the end of the day, the justices know that this is sort a historic moment for

federalism. either they are going to draw a bright line finally for states' going to seere federalism die with a bit of a whimper. i think professor simon is correct that people like roberts are not going to be inclined to make a sweeping change. what we're talking about is whether the court will say that this is just one law too far, and that you are requiring something of the state that cannot be a matter of federal jurisdiction. host: gary weighs in on twitter. cecilia, democratic caller in miami. caller: i'm calling because they said that justice take it should step aside. she made an oath to uphold her

job as a justice and i think she would do that. also, they said this should be a state issue. you know it should not. we are in florida, and we are bankrupt because of illegal immigrants coming to hospitals needing care and the poor people going through a recession where they have no jobs. who is going to take care of those people? he was going to give them health care? no one. under this act, these people would have health care. these are people who do not have no health care. these are people who are poor people, and this will help these people have health care. host: professor simon, what is the president of this court on the issue of states' rights? guest: you could go back to the martial cour -- the marshall

court on the federal government's role regulating commerce in 1874, and another decision where chief justice marshall talked about the broad reach of congress and the necessary and proper clause in roughly the same time, and he int that ilo think professor turley did come out that with the states, if there ought to be restraints, it ought to be through the political process. members of congress and the states can put a stop to the broad federal mandate. moving to the 21st century, we have what i would refer to as the modern commerce clause doctrine. professor turley is correct that perhaps this argument puts us at

a crossroads. i would suggest, however, that almost clearly, looking at the most relevant precedents, congress does have the authority to regulate health care in a white. the problem, i think, for all of us trying to figure out what the court is going to do, is that it is evenly divided. there are four conservatives, four centers liberals -- centrist liberals. i think the chief justice, who i would say was conservative, and justice scalia and also justice kennedy, hold the fate of this legislation in their hands. host: which justices asked amoss questions? -- the most questions? guest: [laughter]

you are always good at going to vegas to bet that justice thomas will ask no questions. he has always been the silent justice. he does not like to do this type of exchange. people like scalia relish it. he is a law professor who likes the socratic method. the rest of the justices falls somewhere in between. was what you will see -- host: here, because they won't have cameras -- guest: they have kept the cameras out. what you will see is the insight into how the justices are viewing the question. some of them will be technical and arcane. the question of whether it will

be a tax or penalty. de administration has a dilemma here, because they have used both terminologies, tax and penalty, in their argument. now they are faced with a threshold question. if it is a tax, we have to wait until 2015. nobody wants that. for the administration and the states, it would be a disaster. you have a law that is presumably unconstitutional for some but critical to others, waiting to penalized for a tax, going to court to challenge it. you have this interesinteresting situation where both sides are saying "rule, for god's sake," and the arguments of whether

this is both wrong, it is a tax, see you in 2015. host: we will be releasing oral arguments to date around 1:00 p.m. eastern time. tune in to c-span3, c-span radio, or watch on your computer, c-span.org, and interact in real time to what the justices are saying. we will talk about it tomorrow on "washington journal" and show you what the justices had to say today and get your reaction to all issue of anti-injunction, better known as is this individual mandate attacks? -- a tax? we have about 25 minutes left in "washington journal." earlier this morning, we spoke with senator ron johnson, republican of wisconsin, and got his view on the oral arguments before the supreme court. [video clip] >> you have a ticket to get in.

how did you get that? >> actually got it from senator chuck grassley. >> what is your position on this? >> i believe it is critically unconstitutional. i'm not an attorney, i am an accountant, business owner, manufacturer, legislator. collectively, as united states citizens, we are suffering from stockholm syndrome. we're being held hostage by attorneys and what i would consider idiotic precedent. if you look at the wickard v filburn decision with the supreme court unanimously to citeda wheat farmer could not to feedow muchwhea wheat his chickens -- what is the most basic freedom anybody has, to

grow your own food for consumption. and the court decided that is something the federal government can regulate, i can tell an individual how much -- and can tell an individual, each wheat to grow. we have been held hostage, and the stockholm syndrome, because we are held hostage, we're grateful that the supreme court allows us some shred of freedom. if this health care law is ruled constitutional, we have no more freedoms. congress can tell us what we have to buy. it would be shocking result. >> is your attorney general here? >> i'm not sure. prior to gov. walker being elected, they tried but i am not sure they succeeded being a party to that. >> and will we find out whether the court can go ahead and

decide the rest of the case, i hear it all this week -- is this a big day for you? >> it is a big day for me because i got a ticket for today. the question is the constitutionality of the individual mandate. if they decides it we don't have the jurisdiction, it will be delayed. this is just delay action for my standpoint. the big issue is the constitutionality of the mandate, which i believe is clearly unconstitutional. >> thank you, senator, for talking to us. host: the senator from wisconsin before our cameras on the supreme court. we will continue our coverage on c-span this morning, throughout today's "washington journal" and beyond, and getting your thoughts and comments. oral argument is 10:00 a.m.

eastern time. back to a discussion of it inside the supreme court. sumter, south carolina, hanging on the line. thanks for your patience. caller: a way to pay for it, it states rights, federalism -- the state's tax -- can you hear me? host: we are listening, don. caller: 100% paper money -- money supply. step 2 is local government. [unintelligible] religious rights, guns, anything else, individuals -- host: ok, don, republican from south carolina. rose, independent in iowa. caller: yes, i believe it is a

fine and it is a tax. the main reason they gave us for this whole health care debacle was to cover people who were not covered. if we just did that, the problem would be solved. instead, they are trying to create a whole bureaucracy for no reason. host: professor simon? guest: i think you have to distinguish between the policy of the legislation and the constitutionality. i think what we're talking about here is a broad based piece of legislation, not unlike the legislation passed during the new deal. the question for the justices is whether it is constitutional, not whether it is wise or good policy, but whether i guess constitutional. on those grounds, they will have

to decide whether the individual mandate fits within the commerce clause doctrine. as i suggested, the proponents of the decisions would suggest that it is constitution -- the preponderance of the decisions would suggest it is constitutional, although there are some that cut the otherwise. host: let me ask about the dynamics, the personal relationships between the justices and how that might impact the case. guest: well, the justices get along quite well, even if they does agree on the individual cases -- even if they disagree on the individual cases. chief justice roberts has a particularly important role here. he is really the protector of the court institutionally. he is the leader of the court, just as chief justice hughes was 75 years ago. he speaks first at the

conference after the argument. the presentation of the chief justice in the hands of someone as brilliant as chief justice roberts, as was chief justice hughes, it is an advantage for the chief justice. he will say what his views are and how he sees the legal issues. he is not likely to persuade all of his colleagues. they are independent and they don't work for the chief justice. people like justice scalia are on one side and perhaps just as prior on the other -- justice breyer on the other, to take the most senior associate justices on the other side -- they will keep their own counsel. host: mr. turley.

guest: i agree with much of that. do you want area where i would have a slightly different view is that i don't think a -- roberts -- the one area where i have a slightly different view is that i don't think roberts has shown the degree of influence over politics as others have. one of the reasons chief justice earl warren is ranked among the great chief justices is that he had incredible ability to form coalitions. this may have been a reflection of the fact that he was a politician, governor of california. warren southbound to create strong voices -- coming out of -- warren sought out to create strong voices coming out of opinions. also, chief justice marshall was a bit of a strong arm chief justice in that sense. roberts faces a much more

difficult question. i agree with professor simon that he is very, very smart, has a great depth of knowledge of the court. i don't think he has as much influence over some of -- over most of these people. he is not going to change ginsburg's mind, he is not going to change the other justices. they will come to these as individuals. i had the pleasure of speaking to justice kennedy, and he is an incredibly thoughtful man. i don't think he will be influenced. host: mr. simon reference to a conference on friday. after oral arguments on monday, tuesday, wednesday, the justices get together in a conference. what is that about? guest: they make the initial division of the votes, and the key here is that the highest- ranking justice on each side can make the initial determination about who will try to write the first opinion. ractures onfac

major issues in a way that is a bit off-putting. they are often like puzzles, seeing what got a majority vote. this could be such a case. the initial decision is to try to produce two opinions from a divided court. chief justice will make the decision who will write the opinion. there was a strong possibility that he will choose to write the opinion in order to guarantee that it is possible to get a solid vote. host: here is a tweet. democratic caller in new jersey. caller: how you doing? maybe i am not real educated on the whole process, but i find it very partisan. is there any truth -- like

clarence thomas, has he ever wrote against right line sides? i'm just curious, because i'm losing faith in everything partisan. host: mr. simon, let me for that to you. -- throw that to you. the justices read the briefs and hear the arguments and try to get to the bottom of the constitutional issue. the fact is that there are voting patterns among the justices. justice thomas, for example, has the power of a voting conservatively. justice ginsberg and justice breyer, on the other hand, both the more liberal position. i want to go to the point of who might likely write the opinion on the case. if i were to predict, if it were

a very closely divided court, is a five-four, one way or the other, i would suggest it would be just as kennedy casting the decisive vote, and he would probably be assigned the majority opinion, it chief justice roberts is in dissent, it would be the senior associate justice assigning it, and they would probably assign it to kennedy. if, however, there is a larger majority to sustain the legislation, including chief justice roberts, it would certainly be possible, even likely, that he would write the majority opinion. host: mr. turley, at this conference on friday, when the justices indicate how they are going to vote, could that information leak out before may or june? guest: no, at they are pretty good about that.

this is a city that floats on leaks. but the justices themselves tend not to betrayed the confidence of their colleagues, and that is greatly to their credit. also, how they align themselves in the conference is not set in stone. it is very, very common for dissenting opinions to become majority opinions. it is also common for people like kennedy, the swing vote, to write a concurrence that carries the majority on the issue. you have a political dynamic here that professor simon has ably played out. host: it is just the justices in the room. no clerks, nobody else. guest: the junior justice has the unpleasant task of getting up to open the door for anybody who comes in. host: that would be justice kagan. jane, you are up next.

jane, you with us? caller: yes. is there a precedent for this because of the part d prescription drug plan where citizens are required to take health insurance? we pay a penalty. in 2006, the part d prescription drug plan. host: yes, this question came up before professor simon, can you answer that, that if the mandate is decided and unconstitutional, does that decide whether medicare part b, does that make that on constitutional? guest: not necessarily, but it is an issue that could be litigated later on. host: don, independent in new mexico. good morning to you. caller: this is a question a little bit of what you're talking about.

would this be less of a question if we never had hippocratic oath? in other words, it would be just a transaction. if you were sick, you brought in money, you were treated. but we have this hippocratic oath that demands you are treated. if we eliminated hippocratic oath, we would not have a problem. is that accurate? it is not afraid, at i accurate. they really cannot eliminate the oath, which has been a foundation for physicians for decades. there is no easy out like that. this is a very complex case. in my supreme court class, we spent two weeks on this case. they suck the oxygen out of the room. they are somewhat maddening in details, but the key one if the

share powers between the federal government and the states and the constitution, which says that besides the enumerated powers given to the federal government, the rest rests with the states. and, as professor simon says, the newcomers cause it to patients, and broader in that sense. -- the new commerce clause, broader in that sense. nothing affects you greater. many of the framers believed that liberties were most protected when they were held closest to you, and that would be state laws, where you have more direct influence on state politicians. what we're talking about here is truly definitional in terms of what system we have. host: mike murphy on twitter. lee, democratic caller in

georgia. caller: a question is, can an argument be made that this goes to national defense? we have to have a healthy, viable force. the larger issue is to the state -- do the states have to keep healthy people? and the justices with the opinion, instead of like a blank sheet to hear the argument -- i guess i would like to know the quality of the attorney to, again, a friend a question such that it comes across as -- frame the questions such that it comes across as for the good of the people and the nation, but the justices do the right thing? host: two different questions two different questions there.

professor sam, can i have a way and on the argument that this is for national defense? guest: there is ample authority in the constitution, at least there is ample language and the constitution for lawyers and justices to deal with quite aside from promoting national defense. i think that is not going to be relevant to these three days of arguments. host: professor turley, duties justices come into the arguments with their minds made up? guest: not necessarily, but i suspect that six of them know what they are going to do it in almost every detail. i caution the viewers in one sense -- you don't want them to be a blank slate when it comes

to constitutional law. you want them to come with a philosophy that is consistent . they should have a sense of what federal law dictates and does not dictate if they came to these with no opinion, it would be like ignorance. you don't want them to be biased. there is a question of stare decisis, how much past cases will dictate the outcome of this case. many of those justices do not hesitate to drop the hammer on past cases when they is strongly disagree. in a manner like this, these justices are supposed to have a view. it goes to out they to view the country and the constitution as a whole gues. host: virginia, republican in

mississippi. caller: we were talking about the militia act, requiring everybody to purchase a gun. excluded women and children. only men serving in the military at the time. in the health-care law, there aere some that don't believe in carrying insurance, such as the amish and in fact, the koran. it is the same as gambling, so they are excluded from this. guest: the militia act is a bit of a footnote. it will not be significant in terms of the argument. in terms of getting down into the weeds, who is exempted, who was not, you have to start with the question of whether the congress and the president can require this of the states,

regardless of the details. you are going to be hearing a lot about that. host: democratic caller, springfield, missouri g. caller: you referred to several past things where the supreme court had to judge on congress, and i wanted to bring up something i thought about, title 7 of the civil rights act of 1964, where the act specifically said to extend the commission on civil rights to prevent discrimination in federally assisted programs. constitutional rights, which brings us to the point -- congress, with a federal employees of this country, at health care system established in 1960. they are constantly trying to defund something, which goes against my civil rights as a taxpayer. my taxes will also pay for the

upcoming affordable health care. host: i will let that stand as a, because we're running out of time. gina, independent in illinois. caller: good morning, young men and young lady. i'd like to know what happens to senior citizens, 74 years old, total income $11,000 a year, medicare and medicaid [captioning performed by national captioning institute] . how does this affect me? host: professor simon, i know that health care is not your bailiwick, but do you want to weigh in on that? guest: you are right, i am not an expert on health care, but i think that the regulation will affect you as it affects other citizens, through the mandate. i think that if the legislation is found to be constitutional, there will be coverage for you

as a private citizen. host: professor simon -- guest: i'd like to say, if i could come to follow up on what professor turley said as far as the justices coming to the arguments with certain predispositions, that is certainly true, but one would hope that they still look to the case and that act -- and the facts and the precedents in the case, and that is true, that they don't have a particular philosophical minds that necessarily dictates -- mindset that necessarily dictate the outcome of the case. host: professor turley, let me end by asking you this -- six hours of debate on this issue. when did that last happened? guest: they have had