audiotapes of the arguments the same day the arguments take place. one of the pivotal questions this court will be considering and we'll have to answer to decide the case is whether the insurance fines that are linked to the original mandate are just a tax. the court already hit on that issue today. let's take a listen. >> this is not a revenue-raising measure, because if it's successful, they won't -- nobody will pay the penalty and there will be no revenue to raise. >> now, what we have here is something that's in a different statute that doesn't use the word "tax" once except for a collection device. >> now, that might sound like some legal jargon, but the point is whether congress has the power to make you buy insurance. a decision is not going to come until later this summer. now, we begin our coverage of this big day with nbc justice correspondent pete williams on what happened and what we can expect when things really heat up in the arguments tomorrow. >> ari, a blus terry day here at the supreme court.

a lot of people outside. inside, arguments of the first day that they have to consider this week. it has to do with a 150-year-old law that says you cannot challenge a federal tax before it goes into effect. here's why that's a question. the health care law says if you don't buy health insurance, you have to pay a penalty at tax time on your tax form to the irs based on your income. some lower courts have said, therefore, this is a tax, and the courts can't hear this until it takes effect, until the insurance mandate kicks in in 2014. so that was the question today, but it seemed quite clear that none of the justices believe it's a tax, none of them believe it's a showstopper, so it seems quite clear the court believes it can go on with the main event. that starts tomorrow, at issue, the individual mandate? and on wednesday, if the supreme

court were to decide the individual mandate were unconstitutional, could you carve that out, and would the rest of the health care survive? and on wednesday afternoon, a challenge brought by the states who are challenging the expanding medicare requirements that will have to fall under the health care law both the number of people covered and the additional coverage they'll have to provide. it seems clear we're on to the main event, ask that wi and tha tomorrow. ari? >> thank you. tickets for this were some of the hottest items in d.c. they were about 400 total. the first 60 went to the public in a flash this morning, and some were waiting all weekend to get inside. one person who did not have to wait and who was in court for today's oral arguments is a man who sued to overturn the health care law the very day it was enacted, texas attorney general greg abbott. thank you for being with us. >> absolutely. >> mr. abbott, we do know what you want to happen here. in your view, though, what do you think is the strongest ground for the supreme court to

overturn this law? >> it's clearly the individual mandate that compels all americans to go out and purchase a product. let me give you a couple reasons real quick why we think that's so compelling. first, the supreme court will not have to overturn any precedent, so agree with us that obamacare should be stricken down, because this is the first time in american history where this kind of mandate has been imposed. second, if the mandate were to be upheld, to allow obamacare to live on, they would have challenges about where the limits are about where the line is drawn in congressional power to mandate that other things have to be purchased. the third thing is this law is unnecessary. there are constitutional ways that congress could have passed this law to expand health care for everyone through the tax and spend clause. congress did not choose that constitutional pathway. instead congress chose an unconstitutional pathway through the way of the individual mandate. >> so mr. abbott, let me pick up on the first point you made, which is this is the first time

this happened. obviously, it's an issue any time you go to court. but don't you think the argument the court has seen before, congress has the power to make regulations that involve activities? if you have social security, which has been upheld as constitutional, that requires you to pay into something whether you use it or not, whether you choose to use it, whether you live long enough to use it. how do you distinguish this between the arguments you and your team are ultimately making. >> right. there are constitutional ways. the congress can completely redraft and reconstitute the health care system in this country and achieve exactly what they sought to achieve through obamacare through the tax and spend clause. on the activity/non h-activity, this is the first time that congress has tried to regulate inactivity, and then regulate them.

that's why we feel we're on solid ground, that the state can up hold this without overturning another precedent. >> so let's do a hypothetical. you talk about the first time they're forcing you out of inactivity, but all sorts of laws exist that say you have to wear clothes in public, right? that means as a practical matter, you have to buy clothes. isn't that taking inactivity and slapping a cost on it? >> you're actually making my argument. there are things in life that people access more than health care: food, water, clothing and shelter, and yet congress has not required all americans to go out and purchase those items, and congress does not have that authority. if you were to go back to when, moving the mandate is just not that simple, and the housing would solve homelessness. he obviously had to change his tune after he got elected and

this law got passed, but it shows the impracticalability of this mandate. >> politicians can change their mind and their former position may or may not be constitutional. i want to get to the tax definition. that was a big issue about whether this case should be heard now. putting that aside, due and your husband wonder and they could rewrite this bill and call it a tax from the beginning with regard to the penalty for not being in the system? >> right. our argument all along has really not been. >> covering all the things we

want to. whether there is an individual mandate is unconstitutional. if congress goes back and this law is overturned and congress chooses a different pathway, we would have to go back and rethink our legal situation. but standing alone, thax. >> let me push you a little bit. the question is simply whether calling it a tax has the means to encourage people to get involved. we have a tax structure that can reward you for having a major. we get a sense of, because you've taken on this issue from day one, would it make a difference if you just called it a taxing power and moved forward that way? >> the answer constitutionally is yes. what is so confounding constitutionally about this case, congress could have used

its tax and spin authority under the constitution to achieve what it did achieve in this regard through unconstitutional means by imposing the individual mandate. >> okay. well, thank you for that. let me turn to one other perspective here, which is all these crowds including some presidential candidates around the court. when is the last time you've seen this level of public interest, and as a litigator, what do you make of that? does that have any impact inside the courtroom? technically we're told it shouldn't matter. >> it does have a huge impact. i was here personally to argue in defense of a ten commandments argument. i've been here for second amendment cases, i've been here for all kinds of cases. i've never seen this level of heightened activity outside the courtroom, and let me explain why this is significant. because the united states supreme court wouldn't believe the law was constitutional, i think it would have hesitancy to strike down a law that was pop lateral embraced by all americans. a majority of the americans disagree with the law. a majority believe the law is

unconstitutional. that puts the people on the side of the court decision that would decide in striking down the law. >> does that make you a legal realist? y youment -- if --. i think it would give them pause on striking down a program that already millions of americans are counting on. because obamacare was implemented, but really doesn't go into effect in large part until 2014, and because most of the country was against it, a lot of people have already embraced the law. >> there are a lot of folks who say -- and we're going to be talking about this on this show -- that basically if the court comes in and really does

the most ambitious thing and strikes down this signature achievement of this president, it will feel, to many, like they are getting in the political arena and they are being active as judges. what is your response to that, which is really more about the politics than what happens in the courtroom tomorrow? >> the activism really has more to do with how people talk about what the court does. whether they're activist or not activist depends on how closely they adhere to the constitution. what the constitution does is to limit the court's power. we believe it would be activist if it upheld obama care by outweighing things to do. >> mr. abbott, we know you've been in the mat reason a. >> my pleasure. thank you. we are going to have more of our supreme court coverage, what it all means, how.

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the court's decision on president obama's health care law is not expected until mid summer, but most americans feel the lines have already been drawn.

a bloomberg poll shows about 75% of americans believes the final decision will be influenced by politics. that is not supposed to be the case. now, to make sense of the passion driving this debate, let's bring in our monday megapanel, sam gross, tim kearney and sam steeder. we spoke to a very prominent litigator who is against this thing. dan, what do you make of what we're going to see the next three days and is the public paying attention? >> i was shocked the attorney general in texas thought the health care idea was a bad one and conflicted with the constitution. 17% didn't think politics would influence this. if we should have learned anything from bush v. gore and watching traditional politics in the last decade and this court in particular, i don't want to see it's a charade, but i think we know how the four right wing justices are going to come down, and i think we know how the four

left are going to come down. it's kind of about the theory and the various claims. come on, in the end, the democrats are not going to knock this down, and the ones appoi appointed by bush are not going to vote for this. >> tim kecarney, because you're skrunching your face, i want to hear you. >> there are four conservative justices, they're four liberal justices. maybe briar and roberts are close to the middle and now kennedy gets to run the country because there's a swing vote on it. and while there's politics, there is an interpretation and understanding of the constitution. is the constitution something that grants certain powers to the federal government, which is the more conservative view, or does the federal government get to do almost anything at once with only a few restrictions, which is what's necessary? that's a necessary mindset to believe that the federal government could force everybody

to buy private health insurance. >> you heard attorney general abbott on the last segment. did you agree with anything he said? >> the only thing i disagree with is, not being a lawyer, i look at it in a way that some of the precedents the lawyer is saying, well, that precedent doesn't apply. i think some of the precedents are horrible. the farmer was told he was not allowed to grow weed for his own consumption because that was interrupting state commerce because he wasn't selling the weed. i don't argue this like a lawyer. i don't think the government has that power and the power they do have is already too much. >> i'm going to put up a quote here because you mentioned the new deal, and there is this idea from michael waldman who now runs the brendan center at nyu, and he talks about the notion that you have a congressional president and a congress facing off against a conservative judicia judiciary. that was the first time you really had that since '37 and he talks about how republicans used

it to cry activist judges, but we may see more and more liberals saying, hey, keep the courts out of this because they like being in charge. >> well, the texas attorney general described what judicial activism was, and basically it was whenever the judges rule against the constitution as i happen to interpret the constitution. that's the problem with this judicial activism. i think the president is there as to why this is an active clause. from a political standpoint, there is something i'm attracted to, the idea that the mandate falls and it's going to have to, i think, ultimately something like that leads to single payer, but the fact of the matter is there is precedent there. in this country we do follow case law, and i think the question of activity/inactivity is not the issue. the issue is, are these people who do not get health insurance, are they part of the health

insurance market even if they don't buy it? it's clearly yes. their activities, assuming everyone gets sick, affects. numbers. >> the only way the insurers would accept this, no preexisting conditions, which everybody wants to keep. and even romney comes back with preexisting conditions aren't covered. of course, when republicans controlled the legislators, they never moved -- >> they're saying don't forget about me, i don't like this. by impl indicatio-- implication romney's idea. >> rick santorum has basically lost the republican nomination, but the one interesting detail about massachusetts, i know i

was reading through some of the amicus briefs, the friend of the court briefs, and one to fail in the nation was blue cross/blue shield. they're now saying, we want this to apply on the whole national level, blue cross/blue shield does, because they want to force obama to buy their product. >> sam, can we get obamacare without mitt romney? what do you think? >> i don't appreciate the fact we're being forced to buy this corporate product, but basically, this is what republicans were campaigning. i think it's quite possible that romneycare, call it romneycare. the fact is there's going to be a very tough time politically to

deal with the implications of this if is -- you get a ruling in june. more or less we expect you to come to the end of the race. then you have the campaign debates then you say from june to october, and then it's over. this could be a. where one issue come natures over everybody else. who is that good for? >> just like the financial cries, i wouldn't have expected the party who did the pass the bailout through congress to be one that benefited from bailout anger, which is what happened in '08. i think anyone who says they know now the political fallout, i think they're wrong. i think it could easily break one way or another.

>>. >> then they've been playing chicken because you have a part of the obama defense being, we need the whole thing. so if the whole thing falls, like we said, going into those debates, who wins? >> the pundits will say this is really bad for obama. this is his signature achievement and here it's being pulled out. on the other hand, the components have comment of force. no preexisting conditions, and you can keep your kids on your insurance into their 20s, are incredibly popular. you can point to hundreds of thousands of people who are benefiting from this. you can see those ads being done on line of gmc. i think it would be horrible for tend not to work out so well. >> yeah, i don't understand the idea that this would fail with

obama in. the court found unconstitutional, then the system worked the way that they wanted it to. plu pluss health insurance in this country is a failed product and i don't know who is going to defend that you could be denied health insurance with three preexisting conditions, or that you could use it if you got sick. >> i'm going to say sami is right, danny is wrong because i get to do that -- >> not coming back. >> what do you think is the most controversial case? >> sam v. row. . they want to come back, they want to win. so i think that can be a big win

for the president on politics. now, straight ahead, we are going to keep going into another important story, an afghan soldier turned his gun on nato tropical storm -- nato troops. we'll be asking again, why are we still there? our medal honor recipient is up next. and hurtle us all into space, which would render retirement planning unnecessary. but say the sun rises on december 22nd and you still need to retire, td ameritrade's investment consultants can help you build a plan that fits your life. we'll even throw in up to $600 when you open a new account or roll over an old 401(k). so who's in control now, mayans?

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17 afghan civilians is not the man she knows. the questions we're asking is how did this happen? it's the same question being asked of nato after a nato

soldier turned on afghan troops and another, an american was allegedly killed by afghan local police. it's been dubbed green on blue violence. these so-called attacks have left 15 dead this year alone. joining us is medal of honor recipient and analyst for msnbc. you said not all of this is new, but we're seeing it in a more direct way. what do you make of these most recent disclosures? >> you're seeing it by the amount of combat is down, the direct contact between conventional american forces and the enemy in afghanistan is greatly reduced, and as a result, this kind of activity, which has been going on for a long, long time, is much more prominent. i have a friend who is gunned down by an afghan policeman about five or six years ago who he was training. so this kind of stuff happens all the time. we're just paying much more

attention to it, that's all. >> we mention nd your introduction you're a medal of honor winner, two bronze stars, two medals. you're saying the evidence, and we don't know everything yet, but the evidence seems to suggest it was more premeditated and this puts more pressure on the military. >> everything in my mind point to premeditation, he went out, he came back, he went out again. he had to reload, and when he came back he was allegedly wrapped in a kimaze so he was trying to get back on post. i think it's important we recognize the role of the chain of command in preventing these kinds of things. remember major nadal has sarks

n. his supervisor says do not give this guy any patience because there's something wrong with him. they didn't give him any patience. they shipped him off to texas where he gunned down 14 people. sergeant bales was a sergeant first class who worked for a capta captain. they all lived together. you'll never convince me until i'm convinced otherwise by some evidence that the people with whom he lived 24 hours a day did not know this guy had a problem. >> yeah. tim? >> my first instinct about all of these things asks the question what are we doing there and is it an untenable situation if our allies are shooting us, but a friend of mine said the surge in iraq was largely about building better relationships with lots of iraqi people, iraqi police, iraqi local leaders. is there anything like that that

could be done in afghanistan to build better relationships to make it so that this sort of thing doesn't happen during a continued operation, or is the best option by far to stop having this occupation? >> we have done that and successfully in certain areas, and you could argue strenuously that it took place in this very area where this tragedy took place, because otherwise how is this guy going to wander around in the middle of the night unprotected, unaided unassisted? back and forth a couple of times in an area that was not pacified. we were making great headway with some chieftakins. the question is whether or not general mcchrystal was right when he said, without too much encouragement, look, this is going to take us at least another decade. and everybody said, well, okay, let's carry on. but we don't have the political will to carry on. the american public is not going

to put up with it, i don't think. >> there have been a lot of other incidents of civilian deaths with air strikes or missile strikes. i think there's an acceptance when you do a lot of military activities that there will be a lot of casualties. do we have to accept that when you have people on the ground over eight or nine years and they have weapons that there will be these types of errors or mistakes? >> no, we don't have to accept that. i mean, the law of large numbers, of course, says that the larger the number, the greater the chance there is of something like this happening, but there's no reason to suspect why we have to have this at all. and i go back to what i said earlier. it's the chain of command ultimately is responsible for everything that happens or fails to happen in the unit. when you have people living together, there is no excuse for something like this happening, when you have people close to other people supervising. >> are we looking at this from the right perspective, though? we're talking about a material

difference between whether or not a drone strike kills civilians kills children kills n noncombatants or we're talking about one soldier who basically goes berserk. isn't it at the end of the day from the perspective of the afgh afghanis? >> when you make a strategic decision to carry out a tactical exercise, you have to accept the good guys have guns, the bad guys have guns and the civilians don't have guns. premeditated murder -- >> i'm asking from the perspective of the people on the ground who were convinced that we had a reason to be occupying their country. >> i don't think he's asking a theatrical question, because you can see what this guy allegedly has done, and what we call

collateral damage which is also to the people who lose their children. >> i'm not even sure that's a huge difference. isn't this all collateral damage? from the perspective of the afghani civilians? >> you're asking me whether or not there's such a thing as a just war. if i told you at the beginning of a war, i will guarantee you that women and children who are unarmed will be killed, you then can make a decision based on your own morality whether or not you want to do that. no, that stuff happens all the time. listen, the second world war when we had the objective of unconditional surrender of the axis, we firebombed dresden, we fire bombed tokyo. we killed more people with nuclear weapons expressly for the purpose of destroying civilians so these guys would give up. you can arguing that is an unethical thing to do, which is what you're allowed to do. but you're not allowed to say i want to go in and fight a war

and there will not ever be any civilians killed. >> we have to go. thank you for the input and guidance here because they're important points you're raising. thank the panel for a little health care and a little of the questions that surround this ongoing war in afghanistan. when we do come back, we are going to look at 36,000 feet beneath the ocean. what is really down there? and guess what, it is not the titanic. ok, guys-- what's next ? chocolate lemonade ? susie's lemonade... the movie.

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i have two products in front of you. we are going to start with product x.

this is a very affordable product that will help save you a, lot of money. i like it.. i like it too. this is product y. this is a much more expensive product. you will not see a lot of savings with this one... harsh. you chose geico and you did not choose their competitor. was this your first car insurance taste test? it's impossibly high. it's burning itself up. almost as if it aged a century in just the past few minutes. >> from tv land to reality, today we are taking a look at the innovative future of medicine. we don't have a star trek style

triquarter yet, but we do have cell phones and tablets that do have the potential to monitor all our medical metrics. that's why our next guest says the medical field is ripe for innovation. already there are over 15,000 health care apps available on your smartphone. go ahead and download them if you can find them. soon all of us can be checking our vitals on our phones. with us is the author of "the creative future of medicine." it's a big day for health care, but we're going to move on and be more ambitious than insurance mandates and whether you have to eat broccoli. you could have an entire paradigm shift and it could start with the iphone in your pocket. what do you mean by that? >> the digital world is so

incredibly advanced, and for all intents and purposes, it hasn't intersected, and this is where we can have this care of infrastructure. it's totally connected with health care reform today. >> how do you provide actionable guidance for people? you have some examples that you talk about where you could get realtime data on your phone, say, about your sugar rates for people who have certain types of ailments. but how do you counsel them or give them the feedback of what to do with that and not just have that be one more piece of information blinking at them or making them nervous or even make them making bad decisions. >> sure. how about i show you a couple things while we're at it. obviously one of the things i'm not going to show you is sequencing a gmail which can be done in literally hours.

here's a foam on the back of this phone, they're a couple sensors. i just turn this thing on and i get a cardiogram here. i'm loading up an app, and what you see here is going to be the screen. i'm going to put my fingers on those sensors, and you should be seeing here my cardiogram. can you see that? >> yeah. we see it moving up and down a little bit, although you'll have to explain what that means. >> well, this is really helpful because if someone is dizzy or lightheaded, they could just get -- in fact, there is a credit card size version of this you can just carry in your wallet or your purse and you can get your cardiogram. here's another one. you mentioned glucose, ari. this is another phone. i've got this sensor on that you can wear on your abdomen or arm. i turn this sensor on and it's testing my glucose every minute. i just turn my phone on and my

glucose right at this moment is 118. can you see that? >> we're getting a glare. angle it a little more towards the camera. oh, yeah. i see that. so when a patient finds out they're 118, what do they do differently than they wouldn't have done in a 19th or 20th century model? >> we're getting information we never had before for each individual. that is a life changer. so, for example, a diabetic can monitor minute to minute what they're eating, their exercise, their lifestyle. they have so much more data that we didn't have before. imagine for someone with high blood pressure, you don't know your blood pressure during the night or when you're in the middle of an argument or stressed. now you'll have that information. so this is giving people data information and knowledge that we never had before. >> another dynamic that you discuss is electronic communication. we live in a world where people are e-mailing everybody and

they're texting and g-chatting, but i think you pointed out most people still don't actually e-mail with their doctor which is one of the most important people you could communicate with. tell us about that. why do you think that's a problem? >> well, that goes back to that initial point that this medical cocoon or medical world is at a different orbit. now we know still today, in 2012, over 60% of physicians won't e-mail their patients whatsoever. that's why we need a consumer-driven health care revolution because we're not having the kind of digital connects with our physicians, we're still not getting lab tests, we're not getting access to important sensors, genomic data. a lot of things aren't happening that should happen. in fact, it could provide much more care at a much lower cost.

>> so if someone is watching and says, this sounds great, looks cool, what is standing in our way? >> there really is only one thing standing in our way, and that is it's not going to happen through the medical community. that's why i wrote the book, "the creative destruction of medicine" because i recognize there is only one way this can go forward in a reasonable time frame, and that's to get the public, the consumers to drive this. now it's a very powerful entity because we have social networking. we're seeing things we never saw before in terms of people coming together for an important, vital common cause and we can get much better health care, and certainly at scripps we're doing everything we can to lower health care costs and improve outcomes, and these are very simple strategies that can help us get there. >> another question i have to ask you given our news today. we talked about the constitutionality of this health care law earlier, we talked

about the politics of it. just assessing it on your technological agenda, how is -- how does the health care law rate and what would you like to see the supreme court do? >> this is completely removed from the area of access and mandates and insurance reform. while that's all being discussed and debated, then there's this innovation, in fact, hyper-innovative opportunities that we can basically innovate out of this mess or health care economic crisis that we're in today. i just hope that the public will get it, because this is a different agenda completely, and there has never been a greater time in med, athed medicine, an take this a lot further at hopefully less cost. >> thank you for sharing your ideas with us on this important day. the book is "the creative destruction of medicine," and we

will surely be following some of these ideas in the weeks ahead, especially as dylan returns. now coming up on "hardball," health care's opening day at the supreme court. but first we'll look at the trayvon martin case and look at the protest and our own take on the road ahead. budget. she thought allstate car insurance was out of her reach. until she heard about the value plan. dollar for dollar, nobody protects you like allstate. on december 21st, polar shifts will reverse the earth's gravitational pull and hurtle us all into space, which would render retirement planning unnecessary. but say the sun rises on december 22nd and you still need to retire, td ameritrade's investment consultants can help you build a plan that fits your life. we'll even throw in up to $600 when you open a new account or roll over an old 401(k). so who's in control now, mayans?

the only comment that i have right now is they've killed my son and now they're trying to kill his reputation. >> even in death, they are still disrespecting my son. and i feel that that's a shame.

>> moving statements from the parents of trayvon martin today. they are among those marching, of course, right now, as you can see, calling for a full investigation into the killing of trayvon martin. martin's mother, sabrina fulton, was responding today to a report in the orlando sentinel that trayvon was suspended from high school once from marijuana residue that was allegedly discovered in his book bag. local police are saying no one was authorized to release that information, and they indicated there may be a leak within the department. in addition, today marks one month to the day since trayvon martin was killed by a self-appointed neighborhood watch captain who, as of right now, remains free. hundreds are marching to the sanford, florida commission meeting where trayvon's parents are expected to address the commission. for more on the context of this important story, kelly goff is

here on what this means to the family of trayvon martin. >> my sincere condolences, and i want to offer them something else. with regard to whatever happens to their son, his death was not in vain because it will force the country to finally face something it has ignored for far too long: racial profiling. i touch on the racial profiling that i and others have experienced. there are no signs on stores that is no coloreds allowed, but i was followed around a store and even followed out of a store and accused of not paying. for the record, i had not paid because i had not purchased or stolen anything. condoleeza rice was also not

immune. apparently walking into the wrong store while being the wrong color is to black women what walking down the street wearing a hoodie is to black men. for those of you who have not heard, there are those who have blamed trayvon martin's death to his choice of attire. my larger point, though, is when i wrote about subtle racism, there were many who accused me of whining. after all, we have a black president. cry me a river. well, the tragedy of trayvon martin is an example of how quickly racial profiling can escalate to death, which brings me back to his dignity and the lives he will most likely save. we were forced to confront the brutality of jim crowe.

my hope is that trayvon's death will spark outrage and move the action for racial profiling. the fact that people of such diversity are protesting will move this to action. i know some good will come from this. in this case, i believe it to be true. i have to. we all do. ari? >> thank you, keli. very well put. i think what we have here is what is something that a lot of people know about, and that is the idea that race in american life reaches its lowest point in the modern era, not in our politics, not even in our media necessarily, but in our criminal justice system. you look at the statistics, you look at new york where shawn bell took 50 bullets from cops unarmed on his wedding day, we see these cases every several years. what specifically do you think we can do coming out of this case which has galvanized so

many? >> not let this case become like the others where it gets five days of media coverage and we forget about it. that's how i think we can honor his legacy and the price his family has paid. >> what about the leaks supposedly saying negative things about him? not a criminal act, but something at school. >> everything that i've heard so far says very little about the reputation of trayvon martin but says an awful lot about the people who have ultimately played a hand and they're not bringing justice for his death. >> do you see any more for what senator webb introduced which would actually try to gallon -- galvanize this? >> as i said, i think this could put the needed action on this issue. >> i'm ari melber f