what you're saying is that, well, there may now be something to the outer bounds to the commerce clause but not tax and spend clause. what chief roberts is saying is true in this respect. no one campaigns on the theory of kicking the bums out of congress because they exceeded their commerce clause powers. people will campaign and you will hear beginning today through the election in november that congress has put an unprecedented expansive tax on you and small business men and women across the country. the president promised he would not tax people who make less than $250,000 a year and yet he has now imposed a tax on the very people he promised he would not tax. you will get to hear campaign themes like that that you would not have been able to hear had the case been decided on the commerce clause. that goes back to the earlier comment and that is whenever congress does pass a tax, it is incumbent on american citizens to fight against them taxing and spending more. it goes back to the challenge that karen was talking about in our frustration coming out of the case and that is that the

the congress acted in violation of the constitution in opposing the individual mandate and the commerce clause, i thought this is going to be a dramatic victory. then when he began to explain in more detail about the necessary and proper clause, you begin to say this is going to be not only a great victory, but a tidal wave movement that's going to change constitutional history. and it turned out to be right when the chief justice then pivoted to talk about the tax component of obamacare and suddenly recasting obamacare into a tax and spend provision, and you could tell as he began discussing the tax component of the decision, there was a palpable movement in the courtroom, where people from row to row were suddenly in a state of confusion, shock, uncertainty and disbelief about what exactly they were hearing, and then you could tell some such as myself were dismayed and disappointed about the decision whereas others were overjoyed. well, there is a lot of take-aways that we can draw from the decision yesterday and what happened. what i want to do in the few minutes allotted to me is to quickl

he said the commerce clause does not apply, it would be unconstitutional under the commerce clause, and he concocted this idea that the mandate is a tax as a way to uphold the law, and that it does not invite the objection of this partisan court acting on ideological grounds. >> i do not know what the chief justice said about roe v wade, whether he took that into account. i do not even know if the chief justice concocted the argument about that tax. if you look at what was filed on behalf of the government, there were two approaches to upholding the individual mandate. one was the commerce clause, the other was through the tax code. it was stated, this is the position advanced by the government, and the chief justice acknowledged it. yes, that is the correct position to take for this action we are taking. i do not see the big mystery there. >> mark? >> my take is two fold. first of all, for those of my friends who respect and rear the constitution of the united states, we have three branches, the legislative, congress, the executive, president, and the judiciary, supreme court. all thre

, under the commerce clause, the mandate is unconstitutional, unless congress decides to assess a penalty on that mandate and call it a tax or even not a tax, the judges can interpret it as a tax and therefore, it is constitutional, so, that would seem to essentially eviscerate any limits that they have imposed here on the commerce clause. >> i would say so, paul. i mean, there's much about this opinion by john roberts, i mean, as we said in our editorial. usually it's a 5-4 opinion, this is a rewriting the statute as james was suggesting, that mandate tax was not in the statute. he basically has had to rewrite the statute to arrive at this decision and the question is why did he do that? why did he pull out an argument, that basically no one had-- virtually not been made in the oral arguments before the court. >> answer that question, dan, why do you think he did it? >> i think because he was intimidated by the idea that if after citizen's united which the left described as a purely political decision, he went 5-4 with the majority that the left was going to attack and try to d

the individual mandate may be upheld under a narrow reading of the constitution, not under the commerce clausealking about the taxing clause, wolf. very important distinction here. this is very thick and we're reading through it. it's very legally dense. i'm going back to find out about the rest of it. >> yeah, because there were conflicting assessments from the obama administration whether in fact this is a tax or not a tax. the penalty that would be imposed on those who have the ability to buy health insurance would be required to buy health insurance. but still decided not to do so, whether or not that would be a tax or not a tax. so you just heard kate say that the chief justice, john roberts, saying that yes, under the tax provisions, under the tax writing provisions of congress, and the president would sign it into law, that this would be allowed. that was not necessarily the argument that was made by the obama administration. they didn't necessarily say it was a tax, they thought it was a commerce clause provision, which is different. john king is joining us right now. excuse me, kate b

and what was interesting in part in this decision, tom, was how hard the court came down on the commerce clause argument which was what they spent all their time on virtually at the oral argument, the government saying we have the power to regulate interstate commerce. people sitting on their couches affect interstate commerce when it comes to health care whether they know it or not, and a majority of this court said, no, and clipped congress' wings on what has previously been read to be a very expansive power, the commerce clause power. >> right. this was another big 5-4 fight in the case in which the administration and congress lost. they had asserted the power to require individuals to buy a product as part of a larger regulatory scheme saying it affects interstate commerce. but the chief justice writing the controlling vote there said, no, that goes too far. the power congress has is to regulate commerce, and we agree with the states that you can't create commerce, you can't force someone to buy something. but in the end that's really going to be one for the history books unless congress wa

>> in my opinion, no statute violates the commerce clause. to be fair, the concern has always been that in an effort to save, folks would stop in acting mandates that affect cross-subsidies in an effort to avoid as the problems and not be able to raise taxes. it is to stave off future problems that this was waged. ought to take down the existing statute. to take down the existing statute. let them run things indirectly. they can raise taxes to 99% and have lead wonderful lives. euro shows us what happens. it is not a constitutional problem. the federal government cannot do it itself. there are not enough bureaucrats to do this. they have to throw in the states. it is only that part. >> ok. here is a question over here. >> hello. i am from the u.s. government accountability office. i have a question about medicaid. specifically, congress chose to make a mandatory medicaid category and an exchange beyond that. the question becomes when estate talks about opting out. can congress look out -- look back into account for a different amount of unins

new law was created where as with regard to the commerce clause, they made clear this far and no father. it helped the ground with regard to the spending clause. they develop some new laws. we may see additional challenges arising from it. it is interesting to note that on a question where before the court ruled, the expectation is that he would see as many as one of vote in favor of the position that there are some limitations on congress's authority under the spending clause. you saw seven votes. this is something that transcended the traditional party lines on the court. in this case, the court rewrote the law to prevent the coercion which could occur if the state had to forfeit all of the medicaid funds if they did not agree to all of the new requirements and regulations. the next silver lining is one that starts to bleed into the darkness of the cloud. they twisted the statues more than the constitution. it is fair to say they flipped the penalty provision on its head to declare it a tax rather than taxing in support of the general welfare. the majority should have had some sense o

>> there were five justices who said that it did violate the commerce clause.vative justice of the supreme court. but that has no practical effect at all. >> right. right. >> because the question is did congress have the power and chief justice roberts found a different power. >> now, on the medicaid question, how does the vote break down? >> the vote there is that the medicade provision is constitutional if it's read narrowly and that, too is i think going to be 5-4 in the end. what the xoort said today is that the big expansion of medicaid, congress can give the money to the states but what it can't do is the big things the states were worried about, if the state didn't comply with the conditions on getting the money, congress or hhs would pull out the rug on all the medicaid money. the supreme court said that was unconstitutional, not a big deal, i think, to the administration because it has never exercised that threat. what it really wanted was to be able to put the money thought with some conditions and the states are going to have to comply with the new c

he's embraced the commerce clause all along.allenges on the commerce clause because it's expansive. roberts coming back and potentially saying there is a limit to what the supreme court will allow under the commerce clause in terms of expansion of government. the government in that sense may have gone to the future of roberts court. now, while liberals may be celebrating today. may rue the day because they find that roberts now says they found the way we were thinking previously, that commerce clause is not to be taken as opening the door to any federal action. >> bret: do you agree with that? up side for conservatives down the road? >> i think so. the people will say government will expand, no longer on the grounds of commerce clause, which is restrained by roberts. but it will expand as a tag. there is a political difference between fine and tax. people don't like taxes. they accept it here and there to get a speeding ticket. as you heard earlier in theshowe the democrats presented the mandate, as a tax? it would not have pass

only that, he -- he felt that the government didn't really make its primary argument about the commerce clausep them essentially write their paper for them. and came up with the tax clause. i mean, that -- he went the extra mile to make this happen. >> he did. and he said in the opinion, that's the supreme court's job. he quoted oliver wendell holmes. he said it's our job to find the constitutionality support for it, even if counsel does not make the right argument. >> right. he does not like the idea of universal health care. i don't think in the past he's cared much for obama. president obama did not vote for him under the supreme court, and chief justice roberts messed up his oath of office on the opening day. but i just think, you know, this should just, this victory, i think, really should be a mandate for all of us now to just keep moving forward so that everyone is covered and to that private profit making insurance companies are not running the show that piece of it is going to run through the line. it's hurt on some level.ç the division about the bottom line has to be removed. we're

first of all, the commerce clause. we received five votes from the court limiting congress's authority under the commerce clause. this has to be viewed as a victory. this certainly beat the expectations of the academy and the pundits coming at least prior to oral arguments when everyone suggested that there was no there even though a week before oral arguments you had linda greenhouse explaining this was a frivolous argument and in fact obviously that was not true. additionally, there is some fairly strong language as to what sort of limits there are on congress's authority here. throughout the course for those of you who haven't been tortured by undergraduate or law school com law may not have heard about it before the case but you were beaten with it at some point during the conversation. the famous case of whether or not congress could regulate a farmer growing wheat for personal consumption on his farm. wheat that wasn't going into the market. in the 1942 case, the supreme court case yes they could under the doctri

commerce. you see that from the text of the clause. the first kind of commerce congress gets to regulate is commerce with foreign nations. did anybody think the fledgling republic had the power to compel some other nation into commerce with us? of course not. and in the same way, i think if the framers had understood the commerce power to include the power to compel people to engage in commerce >> well, once again though, who's in commerce and what are they in commerce? if the effect of all these uninsured people is to raise everybody's premiums, not just when they get sick, if they get sick, but right now in the aggregate, and wickard and raich tell us we should look at the aggregate, and the aggregate of all these uninsured people are increasing the normal family premium, congress says, by a thousand dollars a year. those people are in commerce. they are making decisions that are affecting the price that everybody pays for this service. >> justice kagan, again, with all due respect, i don't think that's a limiting principle. my unwill

item number two, the commerce clause. y with the mandate. >> basically, can the congress force individuals to engage in commerce as a condition of living here. bill: next clause, severability. can the mandate be severed from the law and then if effect, can the law still stand? . >> does the burden of increased medicaid funding violate the 10th amendment? this is what the states argued, all 26 of them especially to medicaid and whether they have increased funding for it, based on a ruling. >> will congress say to the 50 states, you will increase the taxes and spend the taxes as we told to you do, or are the states soverign or immunity from such a command by the congress. megyn: we are getting news out of the high court. this is the stolen valor act that makes it illegal. they have struck that down as unconstitutional. an unconstitutional part of the first amendment. we are just getting this in now. bill: our fox polling came in yesterday afternoon, some of the findings were fascinating. 49% surveyed oppose the new law still

the commerce clause. it was an unintended by -- unanticipated by scholars and pundits for the past two years. it was a way that is going to give life to future potential legal challenges for acts of congress and hamstring congress in the future with a consensus exercise of authority based on the commerce clause. the ruling yesterday was the first time there had been a ruling that congress exceeded the commerce clause on a safety nets -- shall say the debt issue since the time of fdr . we won on the individual mandate, but we lost as it concerned congress's taxing authority. for me personally, this came as a total surprise. for several reasons. congress did not consider it to be a tax so much so they deleted any reference to the word tax on the legislation. the president insisted it was not a tax. no lawyer or party i talk to in the case seemed to think it was a tax. the obama lawyers had to make the arguments. it seemed like it was a claim that they would throw in, hoping it would stick. as far as i know,

violence against women, is outside the commerce clause power. so regardless of whether it has beneficial bounds, we must say no. congress doesn't have that power. why not? because everything has downstream effects on commerce. and every compelled purchase promotes commerce. by definition it helps the sellers and existing -- >> isn't there this difference between justice breyer's hypothetical and the law that we have before us here? in his hypothetical, harm to other people from the communicable disease is the result of the disease. it is not the result of something that the government has done. whereas here the reason why there's cost shifting is because the government has mandated that. it has required hospitals to provide emergency treatment and instead of paying for that through a tax, which would be borne by everybody, it has required that -- it has set up a system in which the cost is surpttishesly shifted to people who have health insurance and who pay their bills when they go to the hospital? >> that is exactly the government's argument. a

>> you can narrow the commerce clause and if you give them the same opportunity under the spenting clause the narrowness becomes meaningless, i don't care whether they act under the commerce commerce or spending clause if they do things that were not delegated to them the role of the court and the chief justice in particular is to say to congress no. if the assumption is right that he thinks this was unconstitutional and found a way to uphold it he really ought to resign because he proved he doesn't have the judicial fortitude to do the job he has been chose ton do. >> any sense there might have opinion last minute change of heart on the part of the justice? mike your sense on that. you argued so many cases over the years. >> i don't know what happened when they voted. a lot of people noticed that the opinions are very odd and that they are referring to the concurrence as the dissent and the defending decision never refers to the chief justice's opinion. there might have been changes in the process. if that happened it would be unfortunate because it would validate the effort to politiciz

this is as significant as lopez, morrison or other cases in the line of new jurisprudence on the commerce clausericts what the clause can do. i want your reaction after we take a break. why not make lunch more than just lunch? with two times the points on dining in restaurants, you may find yourself asking why not, a lot. chase sapphire preferred. >>> randy barnett, i cued up a question about the court's ruling on the commerce clause and what it means going forward. i would like to see you answer that. >> the two choices you gave me was it would only apply to the law so it's a narrow ruling and the other one is that it's really important. i agreed with both of the pictures you articulated. we argued that the court had invalidated the individual mandate it would only apply to this one and would be limited in that sense. but the other time side has argued there is virtually unnecessary and proper claus authority. this decision repudiates the view. it accepts every single legal argument we made about it. >> there is a period in jurisprudence from 1995 a in the lopez case in which nothingç w struck

, as roberts wrote that clause allows a government to regulate commerce.t it surely doesn't allow you to impale or compel commerce, which is what it would do. compel you to buy health insurance. he didn't want to accept that. he didn't want to overturn the law. he feels custodian over the stature of the court. he feels the court suffered decision in 2004 as gore and bush. seen as partisan court. went 5-4 along ideological lines. he was afraid if that happened on obamacare it would diminish the standing of the court, he think he is is responsible keeping it up. he concocted that finesse, allows him to call a mandate a tax, which it's not. and allow him to uphold a law and strike it down. >> bret: what about the expanded medicaid portion not upheld? >> that is a 7-2 vote. that is saying that the federal government cannot coerce the states in doing something they otherwise would do. it can invite them and intyce them and compensate them but it can't coerce them. coercion was severe. it said if you don't set up the insurance exchanges by expanding medicaid to

i think we'll have problems with the commerce clause in the future because of them finding that the commerceto enforce this act. the truth of the matter is republicans were calling this a tax from day one when it was first going through, so it shouldn't be a surprise to anybody. that issue will have to be addressed by the united states supreme court, and they address it on the side of this is a tax and it's within congress' to do this. it shouldn't be surpris surprising this issue was not addressed, many people dislike the policy of this particular bill. the national healthcare reform act people don't like. they don't care what reason was going to be used as long as it was going to be unconstitutional. >> what you said is not correct. patti ann: go ahead, jay. >> the white house defended the action, the statute as a part of the commerce clause authority. republicans said from the beginning, this was a tax. the defense of the act, the statute was not based on the taxing authority, it was based on the commerce clause, and it was the taxing authority was what the supreme court, at least five ju

the commerce clause gives congress the power to regulate existing commerce. it doesn't give the farmer who greater power to compel people to enter commerce to enter the commerce essentially in the first place. now, congress when it passed the statute did make findings about why it thought it could regulate here and did justified the mandate as a regulation of the economic decision to forgo the purchase of health insurance. that is a theory without any limiting principal. >> do you accept the general position that you have conceded that the congress could say if you are going to consume health services you have to pay by way of insurance? >> that's right, just so the am i or. with 220 years of this year's jurisprudence if you regulate the point of sale you regulate commerce that is within the time. >> so what do you do with the impossibility of buying insurance at the point of consumption? >> virtually you force insurance companies to sell that to you? >> there are two points to make on that. one is a lot of the discussion this morning so far has proceeded on

the commerce clause leeway that would have been granted, that stood has no sunk. that discussion is over. he went on to say that, from his perspective, his interpretation of the spending clause and of the necessary proper clause, he to the direction that you would have approved a. david said that this has never been about health care. i want to come back to that later and ask the rest of you what you think about that. in the and, as you heard david's ultimate concern that the court very clearly spelled out the strictures that i just talked about were made it clear that the commerce clause would not give birth to the individual mandate, that he did think there was an overall problem with congress -- with court having written the medicaid statute in particular and went through verbal twisting. she felt that, moving to the medicaid portion of the decision, on the one hand, as she pointed out, it looked like the court gave a clear green light to the medicaid expansion. but monkey around with the enforcement standard, the remedies that congress could pursue if they dec

i think there's language both in the commerce clause parts of the decision as well as the spending clausedecision that really do mark possibly a -- a difference between federal state powers and the tightening of the ability of the federal government to act in the way it has before, so there is something, frankly, for those conservatives that believe in limited government to really celebrate here, is the whole decision by chief justice roberts is really based on a limited notion of federal government power, and so time will tell what this decision means, but there is language in there that could blossom and become fairly radical constitutional theory in eliminating a lot of different acts of congress. >> i think that's a really, really important point. i do think it's going to become more clear overtime, neal katyal, former acting u.s. solicitor general, thank you for your time tonight, and congratulations on your part in the winning side of this case. i appreciate your time tonight. >>> all right, we have a really great best new thing in theç world today, which is coming up at the end of

what the individual mandate did in terms of the commerce clause was attempted to regulate inactivity. roberts said there are in m things that people do not do and if the court upheld congress's power under the commerce clause it would open a new and vast area of regulation. >> pelley: but he accepted the that it could be done under tax power. >> under congress's power to tax and spend for the general welfare. >> brown: i want to pull up a line from chief justice's robert's opinion. "whether the mandate can be held under the commerce clause is a question about the scope of federal authority." how surprising was this that he went to argue that argument? it was argued in the... it was heard in the oral arguments but never got much attention. >> well, it was surprising only because most of the commentary for the last two years by legal scholars, by political people, by court watchers, focused on the commerce clause argument and also in the lower court it seemed to dominate. but the government had always argued as a second basis for upholding the statute that the individual mandate was val

if we undermined the infrastructure of the commerce clause, the government would not exist. so i humbly stand here today feeling a sense that my pain has been overcome and my mother who died as a vocational nurse who lived afterwards with a sickness that was kronnic and if we did not have universal medicare for those over the age of 65, they would lay dead in their graves even before they could see their grandchildren. i stand here today in closing by saying that america is a great country. democrats were willing to sacrifice and lose in 2010 because we believe in the humanity of all women kind and mankind. thank god. thank america, thank the constitution and thank the united states supreme court. i walk away in dignity! oh, yes! >> our last speaker will be hanson clark from michigan. >> thank you very much. >> everyone, i'm hanson clark and i represent the city of detroit, one of the most hard hit regions in the country. this ruling is clear, but very simple. it says that health care is a right for all americans and that when more people have health insurance, health insura

while obama's use of the commerce clause to enact the individual mandate is unconstitutional, it canemented under the federal government's tax and spending powers. >> jon: yeah. >> only holy [bleep] it's a tax? >> jon: yeah. >> come on, i haven't gotten that far yet. >> jon. >> jon: samantha bee what is it, samantha bee. >> (cheers and applause) >> harry potter is dead. >> jon: i'm sorry. >> harry potter is dead, he's dead, god dammit, voldemort, you bald bastard! wait, hold on. >> jon: what happened. >> hold on just one second, hold on-- oh, i'm sorry, never mind, no. >> jon: thank you, jason jones, chances are, you're not made of money, so don't overpay for motorcycle insurance. geico, see how much you could save. (cheers and applause) >> jon: welcome back. so health care is not the only life-and-death issue that has america deeply divided. >> 65% of americans believe president obama would do a better job of fending off alien invasion than would mitt romney. (laughter) >> jon: perhaps mr. romney does not want to fight his own kind. (laughter) but i believe a fictional scenario dese