. >> stephen: right, and fidon't buy broccoli, it doesn't raise the price of your broccoli. >> right. >> stephen: and if we don't buy into the broccoli pool it doesn't get rid of all broccoli eventually. and we aren't the only industrial country that does not provide universal broccoli care. >> right, right, exactly. >> stephen: another but i'm glad you and i weren't there to make that argument or else he might have won. >> he might have. it would have been good if someone could have just killed the broccoli argument right there. >> stephen: is it nice to think that we're smarter than solicitor general? >> it is nice. i don't even i feel that way, but i bet you might. ( laughter ). ( applause ) >> stephen: you-- you've watched this show. if obamacare goes out, if it's dead, have we finally killed the socialist pipe dreams of keeping poor people alive? ( laughter ) well, we're still going to have social security. we're still going to have medicaid. we're still going to have medicare. in those cases the government takes in taxes and gives a benefit and no one is arguing they can't do th

i even heard about broccoli. and this is the broccoli talking point has a long lineage. it goes back to 2010. >> well, what the broccoli argument is seeking out, and i think this really gets at the ways that this isn't just partisan etiology. it's seeking out the limiting principle. and i think a lot of the constitution as something if it created the government and the government should go arnold and try to solve the problems that it can solve. now, you know, i'm phrasing that in a lib rat way. i think it's not something that limits if government's power power, but it's the only source. if you say that the government does have the power, what is the limiting principle? and so the broccoli question is saying where -- if even if you're going to say the government can't forks you to buy broccoli, why can it force you to buy this and not that. >> i wanted to put a pin in that air yeah of pursuit of this. that's the heart, right? we're going to get to the substance. ewe said you wanted semg about the corlett and whether the court's legitimacy and sort of politicalization. >>

is that in the market for food which broccoli is just one part. indeed, the market for food is even more difficult to avoid in the market for health care. just tried avoiding it if you don't believe me. you'll be able to do so probably for very long. and similarly you can use the same argument for mandate to buy cars. nutter butter uses cars that everybody participates in the market for transportation. therefore, a car purchasing mandate could be justified and pretty much any other mandate the same way. the federal government also says this market is a special case because in some instances health care providers are required to provide free service to the indigent, those who cannot pay for health care. the question however arises why is this different constitutional a significant? the answer seems be if you don't have a health insurance mandate, then the pre-health care requirement creates an adverse economic impact on producers. this is true but it's also true pretty much any other market conditions or government regulation that might reduce the

broccoli. so tomorrow is the big day by every measure. >> what is the broccoli argument? you have been referencing this in our columns for "slate".com. >> the argument at its core is if the government can force you to purchase something that you don't want to purchase, and that's the argument here that has been made by the challengers, what's unprecedented here is not the government is regulating activity but for the first time they are regulating inactivity. you want to be in your house, left alone. if your kidney fails, you want to pop it back in, sew it up yourself and be left alone. no insurance for you. and the argument is if you don't want to buy something and the government is forcing you to buy something than what's to stop them from forcing you to the buy broccoli. because after all, broccoli is even more highly correlated with good health outcomes than health insurance and if they force you to buy broccoli, the next step is the general motors car to boost the economy. it is a slippery slope argument that persuaded some of the lower court judges in the case. >> t

okay. >> broccoli. it was justice stephen brier trying to put an end to the broccoli talk. every time somebody said broccoli in these arguments, you'd have to drink. i have to see what sort of shape she's in after broccoli was brought up eight times in the oral arguments. here is the overall political context for this big high profile case. heading into this big high profile, very partisan inflected court case on this big achievement of barack obama's first term in office, bloomburg news polled americans on how they would decide this case. 17% said the justices would decide this case solely on its legal merits. 75% said they thought the justices own politics would influence how they ruled on this case. 75%. in other words, after bush v gore, after citizens united, we don't expect much as a country anymore from the supreme court. we do not expect they are out there neutral, calling balls and strikes fairly. if you go by what people tell pollsters, we think they are partisans, at least we think the majority will do anything to help politicians who are on their side and hurt p

a car or broccoli aren't purchased for their own sake either. they're purchased for the sake of trps or broccoli covering the need for food. i don't understand that distinction. >> the difference mr. chief justice is health insurance is the means of payment for health care. >> that's a significant -- i'm sorry. >> broccoli is not the means of payment for anything else. >> it's the means of satisfying a basic human need just as insurance is the means of satisfying -- >> i do think that's the difference between existing commerce activity in the market already occurring, the people in the health care market purcha purchasing obtaining health care services and the creation of commerce and the principal that we're advocating here under the commerce clause does not take the step of justifying the creation of -- >> can we go back to, justice breyer asked a question and kind of interrupted your answer to my question. tell me if i'm wrong about this, but i thought a major, major point of your argument was that the people who don't participate in this mar

health care is not broccoli.merican uses, period, end of sentence. >> but i just want to weigh in. outside of hospitals and insurance companies who would benefit enormously from the cash flow from the mandate, so many businesses, first of all, have already asked for waivers and received waivers. they don't want to pay the higher insurance premiums. so many of them are going to put their employees into this so-called health exchange pool because they believe it's cheaper to pay the $2,000 fine than it is the $10,000 or $12,000 premium. premiums are going up because they front loaded a lot of one size fits all benefits, including the most difficult of all, which is the precondition, the illness problem, and that's very expensive and a lot of businesses don't want to go there. they'd like to get out of the insurance business altogether. >> larry, you say the case is thin, and that's where i beg to differ, because it just seemed like it should have been easier for the solicitor general to make his point yesterday. >>

must eat broccoli. it is the same in wicker where he would say, i don't want to grow wheat, i don't want to be regulated. >> you can choose you want to eat broccoli and the government says you can't. that is the same. >> no, it is not. >> it says in wicker, the stimulation, that prohibition equally are available to congress' regulatory authority. >> i would say that that would be is congress forcing people to consume wheat. congress forcing people to build a particular product because it is good for the market. that is an unprecedented reach over congress where congress would force individuals to purchase or consume a particular product. that is opposed to -- >> we would have to hear due process before we heard anything about commerce laws. >> your honor, i would suggest that there is -- we haven't heard of that because it is beyond the outer reach of the constitution. >> i want to be sure i understand what you are saying again. you acknowledge that the prohibition of transfat was not always the counter

>> i'm obsessed with broccoli. the argument at its very core if the government can force you to purchase something that you don't want to purchase and that's the argument here that's been made by the challengers is what is unprecedented here is not that the government is regulating activity but for the first time they are regulating inactivity. you just want to be in your house, you want to be left alone. fp your kidney fail t you want to pop it back in, left alone, no insurance for you. the argument is if you don't want to buy something and the government is forces them to buy you something then what's to force them to buy you buy broccoli because it's even more highly correlated with good health outcomes than health insurance. the next step is the general motors car to boost the economy. it's this slippery slope argument that really did persuade some lower court judges in this case. >> the counter failing argument, what my impression is that health care isn't just like any other market. it's not like the market f

therefore, you can make people buy broccoli. >> this case is really about broccoli.hy is the government trying to make us eat it? next they're going to make us eat the rest of our vegetables including the lima beans. and they'll make us give our grandma a kiss even though she smells like old tupperware. i'm not going to have my decisions made by barack obama, or should i say broccoliobama. >> broccoli brought up a total of eight times at the hearing. >> has anybody wondered what it's like to be backstage with president obama. they were smashed when he brought his stand-up routine to a fundraiser. here he is telling jimmy fallon about it. >> i expect him to be like, thank you for your time, here's your photo. that's what i'm expecting. he comes back and says, this is the roots. how's it going, y'all? he's like, aziz, how you doing? what are you blowing up to? i'm like, huh? why are you talking to me like my little brother aniz? don't you have the nuclear codes? this brother acts exactly the way i would act if i was the president. >> i don't know if that's true. anyway

for instance, there is the broccoli argument.if the government can force you to buy insurance, they can force you to eat broccoli, too, or at least purchase it. this has been a very popular argument on the right. senator tom coburn made essentially the broccoli argument during justice kagan's confirmation hearings. >> if i wanted to sponsor a bill and it said, americans, you have to eat three vegetables and three fruits everyday, and i got it through congress and it's now the law of the land, got to do it, does that violate the commerce clause? >> sounds like a dumb law. >> justice kagan pointing out to senator coburn precisely why the broccoli law is silly because it's hard to imagine congress passing the amendment. and it worked its way to the popular venacular, if it can force you to buy insurance, what can it do and lo and behold was the supreme court. >> so you define the market as food, therefore everybody is in the market and therefore you can make people buy broccoli. >> it wasn't just brock col i. it was the length in pa

(ntsnd)both will force you to to eat broccoli. attorney paul clementtsells his argummnt. legal residents to have health insurance. item number: he-123frslug: scotus healthcare reform preview(sot in paul clement)"these issues are rrally central to whether phe federal governmenttcan really regulaae anything it wants to."trt=:05the so called 'broccoli question' resonates federallgovernment to tell them what to uy. [sot "charlie" ]sot in :32 "obama care. no, i am very oopooed to it. i am very innependent and i want to take care offmyself aad i thinn everybody else should take care oo themselves to."tt=:08 [sot anthony reda]sot in 1::0 "" doo't think anyone has a right to tell you to buy something."trt=:03a new yyrk times-cbs news pool this week found that 47 percent of americans don't ike the aw. vegetables at this grocery - store ttp in both directtons. rachel jones says, as a child, her mother ffrced her to eat vegetables.[sot in rachel and monica]sot in :53 "everybody shoold eet vegetables, everybody should have healthcare."trt=:04[sot in rachel and monica]sot in 1:49 "the

one thing is when we look at broccoli, her question was for broccoli.k at a minimum. and for tea it is three to five cups a day. you can't have a sprig of broccoli and think you're reducing your risk. a very diet of all nutrients will help. don't eat nutrients, just eat foods. but do you have any foods that say i think they help my skin and hair? >> i like beets. >> spinach. >> those are actually two super foods really that do a lot of things. avocado. lots of color. these all work for you. but do you practice variety in what you eat? >> brussels sprouts on occasion. >> only ones that have truffle oil that are really delicious. have you tried those? so good. >> pigs love truffles. that's how they fight. i love truffle oil, you know i do. >> next question from kimberly in angola, new york. does the amount of fat you eat matter as long as you stay within your calorie range? >> main thing is no matter what you eat, if it is too many calories, you'll gain weight. confusing part about fat is all fat has the same calories, whether it is heart health or artery

. >> broccoli, do you like broccoli?m more likely to eat broccoli. >> i'm going to keep this book. i appreciate that you wrote it. but i think this whole idea that we need to practice what we preach, that people watch you, watch me, hopefully they'll start doing some of this on their own. >> exercise is medicine, you know? >> food can be, as well. maybe not peas, but lots of different foods. great tips, obviously, to keep you fit and injury free at any age. i hope you will follow some of them. after the break we have been another inspiring story of a fisher mapp who proves you're never too old to learn. we'll explain. but you can help fight muscle loss with exercise and ensure muscle health. i've got revigor. what's revigor? it's the amino acid metabolite, hmb to help rebuild muscle and strength naturally lost over time. [ female announcer ] ensure muscle health has revigor and protein to help protect, preserve, and promote muscle health. keeps you from getting soft. [ major nutrition ] ensure. nutrition in charge! oh, t

bro broccoli is not the same thing. we have a market. >> don't bring up broccoli again. >> i can bring up gyms. >> let me go back to mary beth, one last shot at you. if you were in a motorcycle accident, and i argue this with my kids, if you're in an accident, you expect from somewhere an ambulance will come with emergency people on board that will take care of you, first responders, they will get you into a hospital room, there will be first class doctors and nurses to attend to you, who is supposed to pay for that if you don't? that's interstate commerce. >> look, if you want to force this to happen, take it back to the state level. right now the majority of americans don't want it, chris? >> i know, you're driving through oklahoma and you get in an accident, who will take care of you if you have a heart attack, accident. you're expecting the hospital to do it for free. >> i'm not expecting the hospital to do it for free. i'm not expecting that and even if you don't have insurance, you still have access to health care

life insurance, require life insurance, require buying a car, eating broccoli. there is no limit to this. >> sean: we are going to play some of this. whether or not the government would require buying cell phones. let me go to this, there were moments when the arguments were so poor and contradictory that the solicitor general was laughed at on two occasions, you could see that the more liberal members, justice cagan and stevens, trying to bail out the solicitor general, as they were laughing about this. but i think that jay hit on the very key point here, and that is the expected swing justice in this case, justice kennedy, saying that this would be a fundamental shift. that seemed to be a very key moment. >> the only thing weaker than that performance were the questions that were come from this bench. the idea -- >> sean: you are going to attack the justices of the supreme court of the united states? >> if you give me the chance, i would love to. >> sean: this ought to be entertaining. >> well, to start with, the idea that there is something unusual or extraor

. >> he can make you buy a cell phone and broccoli. >> no, that's quite different. different and constitutional, says the lawyer. unlike cell phones and broccoli, all americans need health care. >> the ones that don't participate in this market are making it much more expensive for the people that do. >> he's worried about the mandate. >> this is a step beyond what our cases have allowed. >> kennedy is often the court's swing justice. that encouraged obama care opponents, that a court majority will rule the government's mandate unconstitutional. >> granting them that power would be very dangerous. >> but kennedy has months to make his final decision. >> and, now, here's a look at some other stories making news early today in america. in tennessee, it was anything but love thy neighbor. there were small children inside at the time. the suspect denied. the man is facing multiple felony charges. in ohio, brazen thieves rammed the front of a jewelry store with a stolen suv. then they used cameras to smash their way into cases and make their way off with the jewelry. pol