back into history and i see it seems pretty clear that if there are substantial effects on interstate commerce, congress can act. i look at the person who is growing marijuana in her house or the farmer growing wheat for selling, is this commerce? it seems more commerce than marijuana. is it in fact a regulation? well, why not? if creating a bank is, why not this. and you say but one thing is different that is, you're making somebody do something. can't congress make people drive faster than 45, 40 miles per hour on a road? didn't they make that man growing his own wheat go out into the market and buy other wheat for his cows? didn't they make mrs. -- if she married somebody who had marijuana in her basement, wouldn't she have to get rid of it? affirmative action. where does this distinction come from? it sounds like sometimes you can and sometimes you can't. what is argued here is there a large group -- what bt a a person we discover that a disease is sweeping the united states and 40 million people are susceptible of whom 10 million will die. can't the federal government say all 40 million g

in other words, the commerce clause allows congress to regulate interstate commerce when people are buying and selling and etc. in this case, congress is saying that the commerce clause allows them to tell you a healthy 25-year-old, to go out and buy insurance, much like states completed by car insurance. but the federal government, supposedly one of limited powers and has never been allowed to do something like this before. you could argue that in this case, unlike maybe some of the other parts of the law that will be challenged in court, but the conservatives -- they have a good argument. when you don't enter into health insurance marketplace, and then, you go to the hospital and don't pay for, you are actually influencing interstate commerce. by not buying the insurance, and then by accessing expensive health care, you are influencing the costs paid by everybody else. therefore, this is not such a stress for the government to say we are going to regulate whether you enter into commerce in the first place. >> how many americans seem to be affected on the court's decision on this particul

back into history, and i see it seems pretty clear that if there are substantial effects on interstate commerce, congress can act. and i look at the person who's growing marijuana in her house, or i look at the farmer who is growing the wheat for home consumption. this seems to have more substantial effects. is this commerce? well, it seems to me more commerce than marijuana. i mean, is it, in fact, a regulation? well, why not? if creating a bank is, why isn't this? and then you say, ah, but one thing here out of all those things is different, and that is you're making somebody do something. i say, hey, can't congress make people drive faster than 45 -- 40 miles an hour on a road? didn't they make that man growing his own wheat go into the market and buy other wheat for his -- for his cows? didn't they make mrs. -- if she married somebody who had marijuana in her basement, wouldn't she have to go and get rid of it? affirmative action? i mean, where does this distinction come from? it sounds like sometimes you can, and sometimes you can't. so what is argued here is there is a large group of -- w

economic activity, namely your transaction in the health care market, with substantial effects on interstate commerce, and it is the conjunction of those two that we think provides the particularly secure foundation for this statute under the commerce power. >> general, you've talked on -a couple of times about other alternatives that congress might have had, other alternatives that the respondents suggest to deal with this problem, in particular, the alternative of mandating insurance at the point at which somebody goes to a hospital or an emergency room and asks for care. did congress consider those alternatives? why did it reject them? how should we think about the question of alternative ways of dealing with these problems? >> i do think, justice kagan, that the point of difference between my friends on the other side and the united states is about one of timing. they have agreed that congress has article i authority to impose an insurance requirement or other -or other penalty at the point of sale, and they have agreed that congress has the authority to do that to achieve the same objectives tha

rather, we go down two or three lines to the interstate commerce clause. nglish and you can't read it, i put it up on the screen and reads like this. congress shall have the power to regulate commerce with foreign nations and among the states. we have a power broadly, broadly defined. through this congress passed the 1964 civil rights act. passed most of the criminal code. regulating medical marijuana. and organized crime. and it's given us the labor laws. now, here's the great leap forward. to those opposed to the individual mandate. this is for the first time congress compelling you in to commerce. requiring action, requiring you to buy insurance. and the justices, guys, asked the government over and over, understanding that this is an enumerated powers constitution, it is limited, if we allow you to do this, what can you not do? can we allow you to force people to buy broccoli or buy burial insurance? tell us how these powers are limited. >> so tell us about the broccoli. >> it is a relative term, right? and it's limited but it's been very expansive up u

thing -- it's a violation of interstate commerce, then he went into the issue of whether congresshere was something wrong with the interstate commerce and then they went off to the races, and our people had it right. >> yeah, no -- jacki schechner -- we -- we got the news -- i'm the run doing the show in a baseball cap here. there's not much of a budget and we got it right. literally all three networks got it wrong. i'm reading here where speaker boehner sent out the memo no spiking the ball. they were pretty confident they were going to win. >> oh, yeah. they were preparing for a victory party. and if somebody would have said chief justice john roberts is going to write the opinion, you would have said oh, my god, they are going to strike this thing down. and i think he didn't want to be the leader -- the roberts court the one that rejected major social policy that several different presidents have tried and failed to pass. >> yeah. >> i don't think roberts wanted that legacy. >> and it may have occurred to him that scalia is a bit of a lunatic. >> yeah, and the constitutional qu

and i know for a fact that a lot of civil rights legislation was based on interstate commerce. berts and the court did not find it under commerce. in fact, there was questions on that which could be troubling on other cases. we'll leave that for a moment. but he found it constitutional based on the law in terms of interfering with taxing, is that correct? >> that's exactly right. the constitution explicitly gives congress the power to pass taxes. though there was a debate in congress. was this or wasn't it a tax? initially the democrats say it was not a tax and the republicans said it is. then as soon as it was challenged in court, they rushed to the courtroom and all the republicans say obama is raising your taxes. and the democrats said it could be justified under the taxing power.ç roberts shifted through those and says as a constitutional matter, this looks like a tax and therefore it can be upheld. >> now, ian, this was stunning that the chief justice john roberts who is a bush appointee actually voted with the four considered liberals of the court. what was it -- you were

the first argument was a question of whether under the interstate commerce power whether congress had the power to force you to buy health insurance. the supreme court said you couldn't, that's not proper. there's a difference between forcing somebody to do something rather than regulating something they were already doing. the supreme court did accept the idea that that was unconstitutional, but what the supreme court did do is they accepted another argument. the other argument was that what congress did was to impose a tax for not having healthcare. in effect, it is pay or play. either you have insurance or you pay for the fact that you don't have insurance, which the majority of the supreme court has accepted that argument. so by nudging you, by saying you don't have to do this but if you fail to buy insurance, you are going to be taxed, in effect, we are in the same place. it's at the core of the mandate for health care being accepted and now in 2014 that's going into affect, but we call it a tax rather than call it an exercise of interstate commerce power. >> i know you are waiti

that we are trying to take the 40 million people who do have the medical cost we do affect interstate commerce and provide a system that you may like or not liked. it's up to commerce at least the commerce clause, so that isn't a limit in principle. second of all -- it is the power to regulate, the power like all others vested in congress has completed a self, made the exercise to its utmost extent and acknowledges know the limitations of the than those prescribed in the constitution, but there is no conscription set forth in the constitution with regulating commerce. >> i agree 100% and that is the chief justice's plight once you open the door to compelling people into commerce based on the narrow rationale that exists in the industry you are not going to be able to stop that process. >> i would like to hear you address justice breyer -- >> the other principals are lopez, and this case is not -- it is a lawyer met on the affirmative exercise of people who are already in commerce. the question is is there any other limit to people who are not and the commerce. so this is the case that asks tha

back into history, and i see that it seems pretty clear that if there are substantial facts on interstate commerce, congress can act. and i looked at the person who's growing marijuana in their house or the farmer that is growing wheat for consumption and this seems to have more substantial affect is this commerce. what seems to me more commerce than marijuana. i mean, is it in fact a regulation? why not. if creating the bank is, why isn't this? and then you say one thing out of all those is different and that is you are making somebody do something. can't congress make people drive faster than 35, 40 miles an hour on the road? didn't they make that man go out into the market and by week for his cows? didn't they make -- if she married somebody that had marijuana in her basement, wouldn't she have to go and get rid of it? affirmative action. where does this distinction come from? it sounds like sometimes you can and sometimes you can't. so what is are doing here is there is a large group of -- what about the person that we discovered there are a disease sweeping the united states and 40 million pe

and they could not be justified here under congress' power to regulate the interstate commerce. but he held that it was constitutional anyway. congress may have called it a penalty, but the chief justice says that it will be a tax. collected by the irs and well within congress' taxing power. >> the health care is needed. it is constitutional, undeniable and irreversible. >> reporter: they also expand medicaid. offering it to everyone who will be falling under 133% of the poverty line. but the court said that the federal government has no right to cut off all of the state's medicaid funds. if it fails to sign up for the expanded medicaid. and that is the chief justice and what he said was not a gentle none, but he called it an unconstitutional gun to the head. so states, they are all left to decide whether or not to join medicaid expansions, and its huge federal subsidies. the fight was certainly continuing. >> they needed to place a mandate with the tax. >> i'm so happy as the supreme court that it is the right thing that upheld the constitution. >> reporter: now, the house repu

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 wanted to go out and write laws requiring people to buy things. the plaintiffs here, the objectors said this was unheard of, and it really was. so i don't think that that's going to have a big effect on congress' law-making authority. megyn: right. >> there was another piece of the statute though -- megyn: right, and i want to talk to you about that. the medicaid piece. this is the piece of the statute that 26 states had challenged because the congress had also said, states, you have to expand your medicaid rolls, people who are a little, who have a little bit more money than the very, very poor. >> yeah. megyn: and the high court did not side with the administration on

and one of the authorized powers was to regulate interstate commerce. but if a person's sitting on a creek bank in alabama not buying insurance, not participating, can he be made to buy a product in interstate commerce when he is explicitly not participating in that? i didn't believe it was -- could be done and the court agreed. the court rejected the obama administration's argument that it did. they said the federal government has no power to compel you to participate in a commercial market when you don't participate. if you participate, maybe they can regulate it. but if you don't participate, they can't tell you to participate, because this is a government of limited powers. and it was a historic and important ruling that the supreme court made clear, there are limits on the power of the united states government. i -- i felt good about that. but i -- now chief justice roberts and other members concluded, well, it may look like a mandate but we called it a tax -- and i haven't don't technical analysis that they went through to reach that opinion, but

this is a very narrow decision that you can't force people to do something because eat affects interstate commerce. what they said is with the cigarettes for instance, we heavily tax cigarettes to force people not to smoke. and the supreme court said that's okay. so they are saying we are not forcing you do anything we are not penalizing you from doing things but we are going to charge you a tax. so wouldn't it be better to get something for your dollar. merely than to give it to the government. >> what happens now sh. >> at this point -- now? >> at this point details are to be worked out. because it's not until 2014 that the statute goes in place. the supreme court is done. it will not come back and challenge. what the supreme court has suggested is that congress may want to take another look and depend on the presidential election, this statute could go through tremendous changes. otherwise, there will be aspects of the statute which will be challenged in the lower courts but that will be in the area of implementation. this case is constitutional and the statute and so from that perspective, the

the commerce clause regulars interstate commerce and chief justice roberts said that presumes that there is activity to regulate. 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

we knew that we thought we were on solid ground in terms of interstate commerce. solid grounds in terms of the constitution and just a question of what the vote would be and with that confidence, we happily embraced the decision that came down. now we can move forward to the full implementation of the law and when that happens for the american people, the best is yet to come. i want to say a word about senator kennedy. i spoke to vicky kennedy this morning and to patrick kennedy before coming here thanking them for the important role that he played, a lifetime of commitment to make health care a right and not a privilege in the country. he called it the unfinished business of our country and our society. >> i knew that when he left us he'd go to heaven and help pass the bill, and now i know he's busily at work until this decision came down, inspiring one way or another and now he can rest in peace. his dream for america's families has become a reality. i would be pleased to take any questions. >> one man said himself on numerous occasions that the individual manda

the interstate commerce clause of the congress dictates that this can happen. it's going to energize the democratic base, and that is important for the president. >> the health care law as currently structured is discouraging job creation and expansion of business in america, and so that issue will continue to be faced if the law is upheld. and if the law is overturned, republicans, hopefully, we have the majority, and president romney will have to come up with an alternative, a way to replace what obama care does. >> meanwhile, the nation is also awaiting a supreme court decision on arizona's immigration law that among other things, allows law enforcement to ask people stopped by police to provide paperwork proving they're in the country legally. senator marco rubio says he understands why arizona took the step, but suggested the greater responsibility lies with the federal government for not protecting the border. >> arizona has an all-out border problem there that's not just about immigration, it's about security, and its legislature, frustrated with inactio

but there's a difference between that and using power regulate interstate commerce and enforce people to buy commerce. there's serious constitutional differences between some of the things that have tried to be done by the obama administration today versus things in the past. a lot of people just been too brought of a brush with the tea party. they don't understand the tea parties concerns earlier cons to too small. they are subtle, but important people don't understand the constitution anymore. much less what they mean. how are we ever going to have a serious and important substantive discourse about what is right in what is wrong with this country unless we know these things? >> guest: unanimous view of the politicians back when the tea party you came in at 2010. marco rubio been one of those. senator rubio is being -- names is a possible vice president pick from that romney. they see is that selection, what does that suggest? you talk about principles that are so important. how do you complement that romney's presidency and the comedic spectrogram? >> guest: marco rubio is the one

congress under what is called the commerce clause, that congress has the right to regulate interstate commerce. the majority of the justices said no, that is not right, you cannot regulate inactivity. somebody's unwillingness to buy healthcare is not something that can be controlled by congress. but then they went onto the next thing and this question of when this penalty for failure to buy health insurance is a tax or a penalty. congress repeatedly called it a penalty, but the justices looked at it and the majority of them said what looks like a duck and quacks like a duck is a duck. it looks like a tax. the penalty is collected by the irs, it is dependent on your income, it is effectively a tax and congress does have the power to impose this tax, the tax, the penalty for failure to buy health insurance. so the individual mandate stands. what does not stand is one small aspect of this medicaid question. congress wanted to expand med case cade to provide medical care for people up to 133% of the poverty line. and if states did not do that, if they did not implement a program to cover-up to 133

pittsburgh to cleveland, you have to get a certificate of convenience and necessity from the interstate commerce commission saying that it's necessary for you to haul horse feathers. there will be a proceeding in which that will be opposed by the single company that is now licensed to haul horse feathers from pittsburgh to cleveland and they get paid $7 a pound to do it under a rate the icc has. ralph nader wrote a piece about that, wrote a whole book about how that's ridiculous and ripping off consumers. let people who meet basic safety conditions ship whatever they want, wherever they want. and let people decide what they want to pay for it. and we abolish the icc. in some areas, america is very much accepted your argument. i think on life and death decisions like the draft, it's a harder sell. and a decision like immigration legalization is somewhere in between. >> i'm going to go to another reading. we can come back to this. one of readings we had was bronson. he talks about the idea of what true progress is and the only legitimate justification for war against southern independence. i think

. >> if congress says the interstate commerce is effective, isn't according to your view. >> we thinkthat the difference between those situations is that congress would be existing commerce come academic activity already going on. people's participation in the market is regulated to deal with existing effects. >> the passage in your reply i didn't quite grasp. the same point you said health insurance is not purchased like a car or broccoli. it's a mean of financing health care consumption and covering universal risks. they are purchased for covering the need for food. health insurance is the means of payment for health care. it is not the means of payment for anyone else. >> it is satisfying >> and the market already occurring at health care services. the creation of commerce clause does not take this step is just to find the creation. >> you may go back to justice breyer. i interact is your answer to my question and tell me if i'm wrong about this. i'm a major, major point of your argument was the good people who don't participate in this market are making a much more important that

the commerce clause -- this constitution allows congress to regulate interstate commerce. the health insurance is allowed under the commerce clause, just like car insurance. so, if you do not step into a hospital or a doctor's office ever, then, yes, you should not have to buy health care. but if you to go into a doctor's office or hospital ever in your life, then you should have to have health care. host: bowie, maryland. caller: the last caller was absolutely correct. the commerce clause, it is constitutional. i was listening to the oral arguments of the supreme court a little less than an hour ago on c-span, and one of the attorneys who was against the mandate was trying to use the analogy of car insurance to help insurance. it is not the same thing, not even close. anybody who has blood in their body is responsible for their own health. and the reality of the situation is, of the majority of people are going to get sick and are going to need some type of medical help and they are going to need to go to the hospital. and also, what about the babies who are born to mother

and therefore they can regulate all activities that they can declare to be interstate commerce. that means all activities, whatever, whatsoever. and by the way, i will say that if the commerce clause is so broadened by consent of the supreme court next week, then the commerce clause itself swallows all of the enumerated powers, everything can be regulated within the commerce clause. but i'm really here to focus on the -- on the difference -- on the separation of powers between the legislative and the executive branch. and so i take us to naturalization. the enumerated powers grant that power of a naturalization to establish a uniform rule of nationalization to the united states congress. exclusively. not to the president of the united states. the president has argued exclusive rule of naturalization includes all immigration laws and congress should determine that and there is no 10th amendment. that's another case before the supreme court that i expect we'll get on next week, but the scratch of the rationale that the president has sent does great offense to the constitution of

and it could not be justified under congress' power to regulate interstate commerce. but he held that it was constitutional anyway. congress may have called it a penalty, but the chief justice says it is really a tax. collected by the irs and well within congress' taxing power. >> the health care is constitutional, undeniable, and irreversible. >> reporter: the affordable care act expands medicaid, offering it to everyone who falls under 133% of the poverty line. but the court said that the federal government has no right to cut off all of the state medicaid funds. if it fails to sign up for expanded medicaid. and that, the chief justice said, was not a gentle nudge, but an unconstitutional gun to the head. and so states are level to decide whether to join medicaid expansion and its huge federal deficits. >> they will receive 100% funding for three years, never going below 90%. so this is extraordinarily generous. >> reporter: the fight is still far from over. the house republicans have set up a largely symbolic vote for about two weeks from now to repeal what they ar

four justices say that this does fit as interstate commerce.ea that's consistent in his mind with jurisprudence. but i'm looking at the reaction onç the right to chief justice roberts today. he did not appreciate the needle that they're threading here. i think they actually called him a traitor to conservatism. a conservative republican saying i lost two friends today, america and chief justice roberts. >> not overdramatic. it is a great tweet and if you look back at what these republicans have been saying about chief justice john roberts in the past. it was slightly different. i think we have a tweet from john boehner, supreme court justices john roberts and samuel alito, president bush's two successful appointments to the supreme court aren't who they hoped and thought they were, justices committed to a fair and justice interpretation of the constitution. >> if that group is mad about what roberts has done, then clearly he's done the right thing. and he's not the partisan person that we thought he was. i'm just thrilled. >> you love john rob

that was the decision on which they said it didn't affect interstate commerce.think that impact is going to be minimal to nil. because i can't for a minute think of another example in which this activity-inactivity distinction would be made. if you read the roberts' opinion, roberts chipped away at the edges of the commerce clause, but basically kept in place the jurisprudence for the last 50 years. i think what they did is much, much more minimal impact. as you pointed out two nights ago on the tax element, what was so surprising about what roberts said in the decision today was it was kind of obvious. everyone thought it was kind of out of left field.ç we have tax incentives for a whole variety of things. whether to go to school, to have a child, get married, buy a home. this is no different than the tax incentives we have throughout the tax code. he kind of said this was a no-brainer. the idea that this came out of left field, i think roberts in his majority opinion kind of debunked that. and very much to the point you made the other night. >> alex, it turns

become active and commerce by purchasing a product on the ground there failure to do so affects interstate commercee individual mandate cannot be sustained under congress's power to regulate commerce. that means the mandate is gone. >> the errors made waves throughout the media world thursday with a leaked email even showing an associated press editor telling his staff to "stop taunting" cnn and others who made the mistakes. a photo that went viral online visually shows president obama as harry truman proudly displaying the cnn homepage on his ipad. i think it was a daily news photographer. but this goes to a bigger point, which is the way the media has covered this whole health care debate. this is interesting. president obama thought it went down because he was watching cnn. if he had watched "democracy now!" when we did our live broadcast, we got it right from the beginning. one of the ways we're getting it right, credit goes to scotus blog, superb blog. the issue of how this whole discussion has been couched, dr. oliver fein, i think it had gone the other way, if they had struck down the law an

what encouraged him to go beyond the interstate commerce clause and find the taxing authority, the provision justice roberts and his wife just a bit is his motive was high morality. he wanted to do good and went with the oath to respect the constitution. he wanted to protect both. that's the heart of it. and the one shot this country has at looking at the welfare of all our people and the way it would score with the constitutionally limited government. social justice runs deep and wide crossing those sad divides between right and left and holds a central belief to look out for our brothers and sisters on this earth. it goes against the notion every man for himself and there's something of obligation to our fellow man kind. it is worthy, it is good. and today the supreme court, the highest court in our country agreed with it. saying when it comes to health and health care, we have no obstacle to doing what is right

this idea that conservatives were so concerned about, overreaching as an attempt to regulate interstate commerce. but maybe the fallback position of the obama administration, that kate just described, might be enough to save the law, and that's how it ended up. >> you have to listen to them very carefully, right? >> yes. >> let me ask you a question about the chief justice. i read in some of the commentary afterwards, that this was an opinion that seemed to be the chief justice in his role as chief justice, that he was very aware that the court is seen as an increasingly politicized. and that this was his sort of, okay, american people, you can trust this court to follow the law decision. take us inside his mind, if you can. >> the chief justice only speaks through the opinions. there's a lot of speculating going on, a lot of psychology. but i think you can start with the premise that he believed this was the right outcome. but the premise follows from a philosophy that says, with big economic legislation that can affect hundreds of millions of people, the supreme court ought to be the last reso

insurance is constitutional under the commerce clause, which gives congress the power to regulate interstate commerce or the necessary and proper clause, which gives congress the power to enact laws necessary or proper related to their affirmative powers to regulate commerce. >> we're also going to the supreme court just outside where margaret flowers is standing by, among many single payer activists, she is a pediatrician and president of physicians for national health program. she was arrested in a very raucous baucus caucus. it was senator max baucus of montana who as the legislation was being considered, when the panels were being held and no single payer representative was there, she stood up in that hearing room and was taken out by security. dr. margaret flowers, you're on the steps of the supreme court today. as david cole describes with the legislation is, where do you come down? >> it is interesting to hear david cole is these progressive talking points defending the law proved too much of what is going on is about politics and not health policies. i was with a group who filed a and it is b

constitutional means by which congress makes law for tons of stuff, everything from actual interstate commerce, and a lot of things in between. i just spoke with dahlia lithwick, but i'm wondering what your view is on part of that decision, did we get a really big change in what the government is allowed to do under the auspices of the commerce clause? >> no, i think that's exactly right, and i normally agree tremendously with dahlia, but on this one i think there is a bit of cause for concern here. i think there's language both in the commerce clause parts of the decision as well as the spending clause parts of the decision 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