instead, alito drew a distinction between short-term and long-term surveillance. he said when you track someone 24/7 for a month, you can learn so much about this them. the people they associate with, the meetings they go to, their bars, the abortion clinics, their hopes and fears that we do have an expectation of privacy in the whole of our movements. and then challenged by and scalo identify the precise point, alito said it's true that you don't need a warrant to track someone for 100 miles or a day because the cops could. plausibly put a tail on you, but to track you for a month you'd need a thousand cops, and, therefore, no one expects that degree of tracking. alito refused to specify the exact point, but he said monthlong requires a warrant, daylong does not. but if cops are unsure, they should get a warrant. this is just the most dramatic grappling of the effort that this whole book is about to translate the constitution in light of new technologies. i think both decisions, frankly, were helpful. it was good for scalia to recognize that property can sometime

scalia and alito and roberts, this is bound to make their head explode. to them roe v. wade is the root of all constitutional evil. who says rome must pay loughner, robert orrick and for them they won't have any of this. that's why we are we are talking about other subjects and i have got out of the prediction business when it comes to the supreme court but given the fact that scalia roberts and alito have embraced a rather raw edition of congress's power, allowing the federal government for example to overturn medical marijuana laws, i wasn't surprised when two of the most respected if conservative appellate judges in the country run silverman and jeffrey sutton upheld the mandate under the commerce clause without any trouble. they just dismissed rarely the challenge and as long as the supreme court sticks to the commerce clause challenge and doesn't impose these privacy issues, then the decision upholding health care by comfortable margin would not be a surprise. >> in fact scalia has not only compared to locker but has compared rocha dred scott. i want to give the au

and also alito did not express as much scepticism is a would have expected and i think alito's vote isffrey toobin is an excellent commentators. but his declarations of the death of this are premature at this point. meg thomas gold sign said even though he thinks it went poorly today he thinks once they get behind closed doors the liberals will find that fifth vote. i want to play a little bit of justice kennedy. here is justice kennedy. the man everybody believes it will come down to. let the viewers hear whether they find scepticism in this questioning. i think this is him questioning the government's lawyer. >> the reason this is concerning is because it requires the individual to do an affirmative act. in the law of torts our tradition and law has been you don't have the duty to rescue someone if that person is in danger, the blind man is walking in front of a car, do you not have a duty to stop him absent some relation between them. and there is severe moral criticism but that's generally the rule. here the government is saying that the federal government has a duty to tell the in

everybody is going to be buried or creamated at some point. >> stephen: well said, justice alito. and since it is the same thing, why shouldn't we have mandated burial insurance? because let's just say somebody dies without burial insurance? and i'm talking about really bad, chronic, incurable burbial. if he doesn't have burial insurance, we're all on the hook for his continued long-term cemetery stay with round-the-clock, 24-hour dirt. ( laughter ) well, once again, this decision comes down to justice anthony kennedy. he was the swing vote on some big cases -- "citizens united," "bush v. gore," "alien v. predator." ( laughter ). , a landmark case that found you could not burst out of someone's chest without a warrant. and this time, it looks like kennedy is swinging to the right. >> here the government is saying that the federal government has a duty to tell the individual citizen that it must act, and that changes the relationship of the federal government to the individual in a very fundamental way. >> stephen: yes. i mean, if they can tell to us buy health insurance, that comp

we definitely have jisties alito who asked serious questions about the issue of taxation this is the equivalent of taxation, a lot of the justices were concerned about that point. their body language showed they are deeply concerned about thet case. if it proceeds beyond today, as justice alito said, today you are here arguing that this is not a tax, tomorrow you will be here arguing that it is a tax. no one disagreed with that so. there is a problem already in def 6s. in which definitions apply. but we are united in this. whether catholic, whether evangelical like myself, whether protestant, we are in agreement that this is a fundamental violation of the freedom of conscience, when the government compels an individual to pay money for something that violates a fundamental principle such as the sanctity of human life and we would agree, we would agree with you on that, and you would agree with us, so thank you for being an advocate. well, you will hear from that. >> let me make three quick points. first of all -- ezekiel emmanuel from the center for american progress. first of all, l

back to a justice alito or nn said. this fundamentally changes the relationship between the people and their government. and that is why this case is so i don't know if there are time for any questions. >> actually, we are going to be at the florida house at 2:00 p.m. for media. general who are here. there's approximately 20 of us. you're welcome to come over key questions, even if you have individual questions or interview requests for specific t 2:00 p.m. >> just on the back side of the supreme court,he>> thank you. >> do you think there needs to be health care reform? >> urse. like all americans, i perceive that there are probliss unlike those who voted to pass this, i believe that theenties power to enact legislation, sweeping legislation deal with rnment. these issues are states. >> these, after all, states that and hospitals and clinics. regulate insurance companies and come up with a system of tort laws that determines how medical malpractice suits operate. regulation, f those drivers are not federal regulation.

>> no, i don't think so justice alito, for the reason i just gave. i think that the answer in that situation is that that person, assuming that person -- that person eligible for medicaid may not be in a situation where they're going to face any tax penalty. >> they're not facing the tax penalty. so the hospital will have to continue to give them care and pay for it themselves and not -- >> right. >> -- require them to be enrolled in medicaid. >> right. >> will they be able to take this out and say you really should, you have a moral obligation to do, the congress of the united states has said you have to enroll? >> i think it's certainly fair to say that congress wants people in that position to sign up for medicaid. i think that's absolutely right. and i think the statute is structured to accomplish that objective. but the reality still is that the only consequence of noncompliance is the penalty. >> general, i thought the people who were eligible for medicaid weren't subject to the penalty. am i wrong? i could be just factually wrong. >> the penal

but not the expertise that justice alito's question suggests we much make? i don't understand your position. >> because i think this court's function is to look at the text in structure and legislative history of the law that congress enacted, not the financial, not a financial balance sheet which doesn't appear anywhere in the law, and just -- >> you're relying on congress' quite explicitly tying these three things. >> we do. that's -- and it's not just the text of the act but the background of the act, with experience in the states, the testimony of the national association of insurance commissioners. that's the problem congress was addressing. there was a shifting of present actuarial risks in that market that congress wanted to correct, and if you took the minimum coverage provision out, and left the other two provisions in, there would be laid on top of the existing shifting of present actuarial risks and additional one, because the uninsured would know that they would have guaranteed access to insurance whenever they became sick. it would make the adve

>> well, the people in that class get benefits, too, justice alito. they get the guaranteed issued benefit they would not otherwise have, which is an enormously valuable benefit and in terms of the subsidy rationale, i think it's, it would be unusual to say that it's an illegitimate exercise of the commerce power for some people to subsidize others. telephone rates in this country for a century were set via the versus of the commerce power in a way in which some people paid rates that were much higher than their costs to subsidize -- >> only if you make phone calls. >> well, right, but everybody, to live in the modern world, everybody needs a telephone, and the same thing with respect to the, you know, the dairy price supports that the cord upheld and wright with dairy. you can look at those as forced transfers. i suppose it's theoretically true you could raise your kids without milk, but the reality you have to go to the store to buy milk and you're subsidizing somebody else. >> this is especially true, isn't it? because in this context, the subsidiz

justice alito: why is that? justice ginsburg: if that's if that's the problem, it's easier to amend the complaint. they can just take that out of the complaint. so it can't turn on that. mr. long: well, yes, i mean, it's or another complaint would be filed, but, still, i think that's a serious problem. but even if they had filed a different complaint, i don't think you in this case i don't think you can separate the minimum coverage requirement from the penalty because the penalty is the sole means of enforcing the minimum coverage requirement. so so, first, i mean, i think these plaintiffs would not be satisfied if the court were to render a judgment saying the minimum coverage requirement is invalidated; the penalty, however, remains standing. anybody who doesn't have insurance has to pay the penalty. then they would have to pay a penalty equal to the cost of insurance and they wouldn't even have insurance. so i don't think that would be - justice alito: well, they say they want to obey the law, and they say t

. >> that was justice alito. >> ifill: they were arguing about what happens if you go to an emergency room and you qualify for medicaid. you're not on medicaid. does someone force you to do it? >> that was another kind of confusing moment. justice alito said if you're eligible for medicaid and you're not enrolled in medicaid but you go to an emergency room when the law is in effect, would the hospital have to enroll you in medicaid? that's literally what he asked. solicitor general said no. it seemed as if he thought he was being asked about the penalty. the actual facts are under the law you are obligated if you are eligible for medicaid, you are obligated to enroll in medicaid as of 2014. you would not have the pay the penalty, however, for not being enrolled. those people who are not paying taxes, are not tax payers, technically do not have to pay the penalty. >> ifill: employers are watching this closely. this is already law, something they're supposed to be implementing. they're not waiting for the supreme court telling them what to do. >> everybody is watching this closely becau

>> those are two different things, justice alito. i think for reasons that justice kennedy, i think, suggested in one of his questions to mr. long, all of the other doctrines that are an exhaustion of remedies and related doctrines would still be there. the united states would rely on them in those circumstances. and -- and so, i don't think the answer is that they can all go to court, no. >> well, why is it - >> two former -- two former commissioners of the irs have filed a brief saying that your interpretation is going to lead to a flood of litigation. are they wrong on that? >> yes. we don't -- you know -- we've -- we've taken this position, after very careful consideration, and we've assessed the institutional interests of the united states and we think we are in the right place. >> but tell me something, why isn't this case subject to the same bars that - that you list in your brief? the tax court, at least so far, considers constitutional challenges to statutes, so why aren't we -- why isn't this case subject to a dismissal for

host: was that satisfactory to alito?toledo guest: the solicitor general's answer was plausible. it does not say the word tax. for tomorrows purposes, it does matter. i do think it goes back and forth to what tony says. there was a real political resistance to calling this a tax. that's having a real, absolutely substantial legal implications in the case. host: some are saying today is the big day. yesterday was technical. today is the super bowl for nerds, as i've heard some people say. on capitol hill, people are up there already. they have lined up to get inside. people are protesting outside, opposed, and in support of this legislation. tony mauro, set up today. guest: today is the big argument. as one of the lawyers is challenging the law said, this is the heart of the law, the individual mandate, the requirement that every american, with some exceptions, must buy a minimum level of health insurance or else pay a penalty. the purpose of that was to sort of broaden the base of revenues so insurance companies will have

as justice alito noted to the solicitor general in the argument today. >> today you are arguing that penalty is not a tax. tomorrow you will be back arguing that the penalty is a tax. >> reference to the government defense of the individual mandate as constitutional under congress' taxing power. issue to be tackled in arguments on tuesday. by contrast, you may remember president obama's response when pushed on the proposition that the penalty is a tax in 2009. >> for to us say you have to ache a responseability to get health insurance is not a tax increase. >> shannon: both sides of the dispute now agree it is time to move forward. the court was concerned enough to appoint outside attorney and give him 40 minutes to represent the position today but the case is not yet right. as attorney bob long worked to convince justices he met with skepticism. >> congress nowhere used the word "tax." what it says is penalty. moreover, this is not in the internal revenue code. but for purposes of collection. and so, why is this a tax? >> shannon: the attorney believes the justices were persuaded th

individual mandate as a - tax and even the government hasn't settled that question - as justice samuel alitoing that the penalty is a -3 tax." a reference tt the government's defense of the individual mandateeas constituuional under congress' taxing power an issue o be 3 tueeday. by contrast you may - reeember president obama's pussed on the propositton that the ppnalty is indeed a tax us to say that youuve got to take a responsibility tt gge health insurance is absolutelyy not a tax increase." both sidds of the dispute the states chaalenging the laa and this oneeissue that it is time -3&pfor the lawsuit to movee forward. tomorrow, the &pjustices ttckle the core of phe case, the individual 3 arguments that will last wo hours. byythe wwy, the line for seats inside the court tomorrow, has already started. -3 in washington, shannon &p3 here's... our... question of the daa. áádoáá you think... hhalth care reform ...is... unconstitutional? unconstitutional??ere's a look at ourrfacebook page.go to baltimooe to join tte piscussion 3 3 yyars before jerry sandusky was harged with child sexual abuse..

. >> it seems to me that alito has never overturned a law. >> he's very pro federal government.hink alito may be the strongest justice in the room in terms of going with the federal position. for me it comes down to whether they want to ep teach a lesson about conservatism in the court or in the government as a whole. they will try to restrain this and say that the government is getting out of control. it looks like a montrocity to us but god speed we will go through this. >> this three days of arguments, the supreme court that roberts, in particular, is concerned about protecting the reputation of the supreme court. particularly this is a message to the conservatives not happy with the mandate saying, look, they are allowed to do this. they want to make sure everyone realizes they had their day in court. >> everyone is getting a chance to have their arguments heard. there are more than 125 briefs filed in the case. it would be hard to argue that there's any kind of rush to judgment or unfairness and you think roberts will be working hard to make sure it's not a narrow decision

justice alito, justice scalia, were skeptical.we know his position on the issue. the only conservative justice who looked like he might uphold the law was chief justice roberts who asked hard questions of both sides. all four liberal justices tried as hard as they could to make the arguments in favor of the law, but they were -- they did not meet with their success with their colleagues. most surprising to me perhaps, donald ver rily, the solicitor general, did a simply awful job defending the law. he was nervous, he was not well spoken. the argument got off to a very bad start for the administration. and it was really the liberal justice who is carried the argument much more than the lawyer. the argument that seemed to give justice kennedy the most trouble and he is of course as we know the swing vote in so many issues, justice kennedy practically his first question out of the box was, we know that congress can regulate commerce. but can congress create commerce? can -- and donald verilli had difficult answering that, he said no,

scalia -- not scalia, alito, roberts and kennedy all said what are the insurance companies going to do without the mandate? now, i didn't hear anyone say what are the 30 million people who are going to lose insurance coverage going to do? that was a striking difference of priorities that was evident in this oral argument. but certainly that issue of what's going to happen to the poor insurance companies was very much on the mind of some justices. >> yeah, right. i guess the point i'm making is people who do have jobs and have insurance could -- their premiums could go up significantly. those people struggling to make ends meet as well. let me ask you a quick question. the solicitor general making the case for the white house. yesterday they said he's doing a good job, did a great job, he's able. how did he do today? did he make up for yesterday's mistakes? >> he did better today. he only argued the part of the law which was the challenge to the medicaid expansion. medicaid is for poor people. this law would expand the state's obligation to pay while giving the states a lot more money t

alito is wrong. we got together on both occasions instead, no, no, that was a mistake.at was too bad. we talked about it we both agreed novak had one that we couldn't let that happen. life is too short, the show was too short and the issues are too important. that is not the way it is in washington today. and i think we've got to get back to those kinds of days. one time or early in my career was a lobbyist in sacramento for an environmental organization. now i was in a lobbyist in this sense it is they are trying to get people to vote for our environmental legislation but i didn't have any money. i couldn't write checks, couldn't go to fundraisers or whatever. but nonetheless i'm proud to tell you i was voted one of the 10 most effective lobbyists in sacramento that particular year. i was a lobbyist and the senators who voted for me, republican senators said he knows how to disagree agreeably, which i thought was a real badge of honor. so i would like to hope and think we can go back to the day when you fought like during a political campaign for your site and your peo

and three of the justices, alito, roberts, and kennedy each appointed by republicans actually asked tough questions of the bill's opponents. the solicitor general really was slightly nervous when he came out. one of the more interesting things, one of the things that really struck me here was justice briar's comment about this question about whether somebody could be forced by the government to participate in commerce in some way. and justice briar suggested a situation in which a disease was sweeping the country and the question is if you had some percentage, a population that was vulnerable to this disease, could the government force them to go get inoculated? could the government form them to go out and buy an inoculation. justice briar went back to this repeatedly and actually the bill's opponents were forced to say the government would not have that power. it's interesting. we'll have much more coming up in the afternoon. >> thank you very much. bruce leshan reporting live. you can go to our website wu usa -- on our web site wusa9.com. >>> maryland is closer towards legalizing gambli

it was alarming, frankly, to see roberts and kennedy along with alito and scalia could talk about thisht wing talking point. >> arguing today that there was a similar uproar about social security when it was enacted but it was upheld. listen. >> it was a big fuss about that in the beginning because a lot of people said, maybe people still do today, i could do much better if the government left me alone. i'm going to the private market. i buy an annuity. i make a great investment and they are forcing me to pay for this social security that i don't want. but that's constitutional. >> joan, we're like half way through. we've got more hearings tomorrow. but this was a powerful day. what is your read? and is this just uproar like we head with social security but it doesn't mean we will not in any way be uphold or does it mean this is a forecast problems especially with the swing vote of justice kennedy seeming to ask some troubling questions tore the professive side of this debate? >> well as jonathan said, reverend al, there were tough questions for both sides. if you are reading the tea l

hello, john roberts, sam alito. thank you very much for taking our system and screwing it up completely. after that, rick santorum as the argument. if he gets in which's vote, which he will -- gets gingrich's vote, which he will do, t ime to go, newt. >> they cannot overtake him. on the other hand, if you look at what is ahead the next seven weeks, they are going to give delegates to gingrich and santorum. >> he still got the lead, and there isn't somebody else. he had to win oil, or there would have been in a -- talked- about -- he had to win ohio, or there would of been a lot of talk about somebody else. they keep losing more delegates than that they should. >> newt has to win mississippi and alabama. if he doesn't, i think he is gone. then where does he go. >> texas. >> he will talk about texas. he would try to hang in there because it is is a matter of pride and narcissism. in the end he does not have a path and he knows it. >> he has to win in alabama to qualify as a regional candidate. >> i told him twice -- i

and justice alito. we never heard from justice clarence thomas, but what we know of him, we expect him to overturn the mandate. very much in favor was justice ginsburg. also seemed to support it were the other liberal-leaning members. justices kagan breyer, and -- who am i forgetting? one other. today, the swing vote really seemed to be the chief justice of the supreme court, john roberts. he seemed to express that skepticism about just how broadly congress can mandate people to purchase something but he did say that health care is different than buying a car. it is something everybody needs so he could be the key vote. >> we will have much more on this at 5:00. court proceedings wrap up tomorrow. that is the latest outside the supreme court. back to you. >> today's poll question -- should the supreme court uphold or strike down the president's health care law? we want to know what you think. way in on our website. go to wjla.com. >> a lot more news coming up. disgraced former imf later dominique straus

thank you very much for tang our system -- thankhello, john berts, sam alito. for takg our system and screwing it up. tiem to newt. >> i romney does the math, h is right, they cannot overtake him. the other hand, over the nenext several weeks, there are a number of states for gingrich and santorum. >> he still has the lead, and there isn't somebody else. he had to win ohio, where there would have been a lot of talk about somebody else and it open convention. as long as he keeps chugging along, and telegates don't have an organization, so they keep losing momore delegates, he is going to win. >> newt has to win mississippi and alabama. if he doesn't, he is gone. if he wins one, he will hang on and try to win in louisiana. but then wre does he go? >> texas. >> he will talk about texas. he will hang in t there because it is a matter pride and sort of narcissism but in the end he does not have a path and he knows it. >> he has to win in mississippi and alabama to qualify as a regional candidate. >> he is gone but he hasn't been told. i told him twice. i am not goin

the one shannon just discussed, justice alito asked about, you know, today you're saying it's a penalty, but tomorrow you're going to say it's a tax. that helps us definitely tomorrow with the mandate argument. >> greta: we've all been in court and we hear judges or justices ask questions, and you're so convinced they're going to go your way, and then all of a sudden you read the argument and feel like you got hit by a 2 by 4 between the eyes. you think what in the world was i thinking when i thought those questions indicated a particular view. >> that's exactly right. even in murder trials you never try to predict. i never do a head count. i never guess. remember when we were in the 11th circuit everyone kept saying oh, they lost because you have two democrats and a republican and we had the best bi-partisan decision in the country right now out of the 11th circuit court of appeal. you can't do a numbers game. you're right. you can't redict based on the questions the justices asked, but they were very engaged today. that hthat was very encouraging. like you said, they gave us an unprec

exercise of the taxing power whether or not it is called a tax. >> that was of course the justice alito yesterday, pete and that's what was setting up this key argument today over the mandate. >> reporter: yes, and what's interesting about that, andrea, that the tax power didn't come up today. that there was a little discussion of it, but most of the talk today was about the core central point here which is, does congress have the power underthe commerce clause, and that's -- is the constitution saying congress has the power, quote to regulate xlers? what the opponents of the law say is that's one thing to regulate people already in the insurance market, but what congress is doing is something different, it's reaching and enforcing people to get into the market to regulate them. the government's answer is, no, we're regulating the entire health care system not just the insurance market. and i just think that for the majority of the court, for the fibe more conservative members, including justice kennedy, i'm not sure that carried the day. >> and chris cillizza, while all of this has bee