justice scalia adopted that approach. much to our disappointment. but here's what the opinion said, not one word about. it said not one word about the word "proper" in the necessary and proper clause. it says congress shall have power to make laws that are necessary and proper to carry into execution the foregoing powers. there is nothing in the raich case about the word proper, it's justice scalia who said the unprecedented imposition of a power to coerce local sheriffs to enforce federal law in the brady act by making them run gun checks, that was beyond the power of congress to enact and he called the necessary and proper clause that was being offered to defend that power the last refuge of those who would defend the ultra virus powers of congress. and to that argument, he said while that law may be necessary, it is not a proper exercise of power. so if there is any justice on the supreme court that will be very capable of distinguishing a concurrent opinion in raich it's the justice that made the greatest use of the distinction between news and

one thing about that opinion by justice scalia. the opinion, which was expressly about the necessary and proper clause, was only about the word "necessary" in the necessary and proper clause. the issue was whether essential to a broader regulatory scheme would be interpreted in the same deferential way as the word "necessary" has been interpreted in the past by the supreme court, meaning congress basically has discretion when it chooses means amongst the various means that might be convenient to its end. and justice scalia basically adopted that approach. much to our disappointment. but here's what that opinion said not one word about. it said not one word about the word "proper" in the necessary and proper clause. the necessary and proper says the congress shall have the power to make laws which shab necessary and proper for its execution of foregoing powers. there's nothing in the case about proper. yet justice scalia himself said in the priest case to enforce local sheriffs to enforce-fed ral law, he said that was beyond the pow

just give me one dictionary. >> well, but i think my point, justice scalia is that they're not using it in the true dictionary sense. >> how do we know that? when people speak i assume they're speaking english. >> well i think that there are several reasons that i would suggest that we would know that from. the first is, as i say, the findings themselves, congress says, at the very beginning, the head of it is, congress makes the following findings, and they're talking about the interstate -- you know, b is headed, effects on the national economy and interstate commerce. so know the context congress is talking about it is more or less quoting from the court's commerce clause statement, but if one looks at the very preceding finding which is finding h, which is on 42, over on to 43, congress at that point also uses the word essential in the second sentence. it says, this requirement, and again we're talking about the minimum coverage provision, is an essential part of thethe-of s larger regulation of the economic activity, by the way, an exact quote from lopez. in which the absolute r

as for the minimum coverage you look back to justice scalia's quote. must be a necessary part of the general regulation. as far as it being necessary to the a c a as a whole we look to u.s. forces, stock which i respectfully disagree with randy's characterization of. chief justice roberts joined justice briers's sweeping opinion that any means rationally related to the implementation of constitution we enumerated power is appropriate for congress to use. whether the mandate is good or bad policy, it is difficult to say that the minimum coverage provision is not rationally related to the indisputably valid regulation of the interstate market for health-insurance. even if you argue with me on the commerce clause i don't see how you can't be with me on the necessary and proper clause. the power to pass legislation that is necessary and proper was intended to be sweeping. as the supreme court held the framers of the constitution did not intend to impede the exercise of enumerated powers by withholding the choice of means that unlike the articles of confede

i disagree, justice scalia. that's just an assumption. if it proves to be wrong then congress has timing to recalibrate and beyond that i think -- i just want to go back to the other part of your honor's point, that with respect to the relationship between medicaid and the act and particularly the minimum coverage provision, my friend mr. clemente has suggested that you can infer coercion because with respect to the population to which the provision applies, if there's no medicaid, there's no other way for them to satisfy the requirement, i want to work through that for a minute if i may because it's just incorrect. first of all, with respect to anybody at 100% of the poverty line or above, there is an alternative in the statute. it's the exchanges with tax credits and with subsidies to insurance companies. so with respect to that part of the population, 100% of poverty to 133% of poverty, the statute actually has an alternative for them. for people below 100% of poverty, it is true that there is no insurance alternative, but by the same

>> two responses, justice scalia. you can look at this court's cases on severability and they form you late this test differently. everyone of them talks about congressional intent. here's the other answer. >> that's true, but is it right? >> it is right here's how i would answer your question which is when congress includes the sever ability claus it's addressing it in the abstract. it doesn't say no matter which provisions you strike down we absolutely positively want what's left. >> right. the consequence of your proposition, would congress have enacted it without this provision, okay, that's the consequence, that would mean that if we struck down nothing in this legislation but the what's it called, the horn husker kickback, okay, we find that to violate the constitutional proskription of vinality. when we strike that down, it's clear that congress would not have passed it without that. it was -- the means of getting the last necessary vote in the senate. and you're telling us that the whole statute would fall bec

i disagree, justice scalia. that's just an assumption, and if it proves to be wrong, then congress has time to recalibrate. and beyond that, i do think if -- i just want to go back to the -- the other part of your honor's point -- that with respect to the relationship between medicaid and the -- the act, and particularly the minimum coverage provision, my -- my friend mr. clement has suggested that you can infer coercion because, with respect to the population to which the provision applies, if there's no medicaid, there's no other way for them to satisfy the requirement. i want to work through that for a minute if i may, because it's just incorrect. first of all, with respect to anybody at 100% of the poverty line or above, there is an alternative in the statute. it's the exchanges with tax credits and with subsidies to insurance companies. so with respect to that, the part of the population at 100% of poverty to 133% of poverty, the -the statute actually has an alternative for them. for people below 100% of po

. >> i guess to some extent i have to quarrel with the premise, justice scalia, because the position that i'm advocating today under which the court would only take out the minimum coverage provision, i don't think would fit the description that you have given, of taking out the heart of the statute. now, i do think once you take out guaranteed issue and community rating, you're getting closer to the heart of the statute, and one of the difficulties i think with the government's position is that i think it's harder to cabin that, to draw that bright line around it. it's harder than the government thinks it is. i mean to begin with, even the government seems to acknowledge, i think, that the exchanges are going to be relatively pale, relatives of the exchanges as they're intended to be. we are going to have standardized products. everybody can come and make comparisons based on products that look more or less the same, but the other thing that's going to happen is with the subsidy program. the way that the subsidy program is set up, the subsidy is calculated according to essentially a

. >> to the extent we're looking at the comprehensive scheme, justice scalia it is regulating commerce that already exists out there and the means in which that regulation is made effective here, the minimum coverage provision, is a regulation of the way in which people participate a method of their payment in the health care market. that is what it is. and i do think, justice kennedy, getting back to the question you asked before, what matters here is whether congress is choosing a tool that's reasonably adapted to the problem that congress is confronting. and that is different from the way has chose ton use in the past. not something that counts against the provision in a commerce law. that's -- >> it's both necessary and addresses what's necessary. yes. has to be adapt the. necessary does not mean essential. just reasonably adapted. in addition to being necessary it has to be proper. and we've held in two cases that something that is reasonably adapted was not proper, because it violated the sovereignty of the states. which was implicit in the constitutional structure. the argument

but i think based on comstock, chief justice roberts might be a possible vote and i think justice scalia and raich will have a very hard time getting around his ruling if he wants to be seen as respecting precedent and the text from history of the constitution, as he claims. so with that, i look forward to your comments and questions, and thank you again for including me. [ applause ] >> well, thank you. i know there must be lots of questions in the audience. while people get ready to do them, i just want to ask michael very quickly to outline what will happen if, a, the mandate is upheld, as a matter of health care policy and economics, and, b, if let's take the government's position on severability is struck down. what will be the policy and economic consequences? really quickly. >> the policy consequences if only the mandate were struck down? >> if the -- everything is upheld or -- >> everything is upheld. this regulatory structure is a pretty rickety one to begin with, even with the mandate in place. a lot of americans will be able to save thousands of dollars per year by dropping th

it is a debate going on and is a productive one and it is interesting that justice scalia and justicethomas remain the only self identified originalists on the court. chief justice roberts and others have not signed up for that. they make a basis to or originalism but are not stuck there. history is more important now in court arguments than it has been in recent years because of justice scalia's force on the matter. originalism alone will not win a supreme court argument. people need to come up with other arguments. fbn >> the first question i have is about technological issues. in congress we have seen the fight over issues where the people don't necessarily have the technical know-how to actually voting on this legislation and something you could end up seeing on the supreme court with tenure and things like that where they might not -- technological things are getting lost and couch with different issues. if you could address something that somehow could be addressed and i was going to ask -- it is not politicized -- the court is not politicized but -- >> the mike is very loud. >>

gone up contain with take -- to cheney when the vice president office was before the court and justice scalia presented himself with a 20 page opinion why french chef without high government official is means for recusal over history history, and many supreme court justices 1/2 to because you don't get to be a superior court justice unless you know, people in high places. i am not an expert on ethics but quite comfortable feeling that the members of the court make the ethical calls i wish they would make. i have a follow-up question about the politics of judicial restraint progresses argued for restraint striking down new deal laws. after fifties and sixties it was a conservative argument. we'll receive that become a liberal call or does it depend where you stand and reuse it or any coherence to that issue? >> there is not a lot of coherence. and activist judge is one who comes out with an opinion that one does not like. there is an interesting conversation in conservative circles. you may see the op-ed from the u.s. court of appeals from the fourth circuit judicial activism he is an old-fash

. >> there was a questionable answer to common analogy by justice scalia. >> in the market, everybody to buy food. >> so you define the market as food. therefore everybody is in the market and therefore you can make people buy broccoli. >> that is quite different. that is quite different. the food market, while it shares that trait, that everybody is in it, it's not a market in which your participation is often unpredictable. and often involuntary. >> white house allies caution pundits may be overreading gloom and doom. >> some justices actually ask questions that are contrary to where they may be going. >> one of the plaintiffs that argued against him before the high court said the white house should prepare for disaster. >> the point of the individual mandate is drive mandates down. if you throw that down and leave the rest in, the cost goes through the roof. >> white house aides says president is so certain of victory he does not have a plan "b." >> in a shift, the obama campaign is now even embracing the critics framing of the law as obamacare. >> if you want to call it obamacare,

. >> that's the problem, justice scalia. and that's exactly the experience that the states had that made the imposition of guaranteed and community rating not only the ineffectual but highly counterproductive. rates, for example, in new jersey doubled or tripled. went from 180,000 people covering this market down to 80,000 people covered in this market. kentucky, every insurer left the market and the reason for is that because when people have that guarantee of, that they can get insurance they're going to make that calculation that they won't get it until they're sick and need it so the pool of people in the insurance market gets smaller and smaller. the rates you have to charge to cover them get higher and higher. it helps fewer and -- insurance coverers, fewer and fewer until the system ends. it's not a situation in which you're conscripting, forcing insurance companies to cove very large numbers -- >> could you solve that problem by simply not requires the insurance company to sell it to somebody who has a condition that

>> they obviously are trying to save the rest of the law and justice scalia got one of his biggest laugh when he said doesn't the 8th amendment come into play here. >> cruel and unusual punishment because the justices would have to sort through all 2700 pages and say, well, that stays, that goes, that stays, that goes. that would be a big undertaking. >> and it gets to the nature of the law itself. judge vincent said it was not severable. i think that judge vincent may be the only one that read all 7,200 pages, once you do that, you see it's just the most incomprehensible complex piece of legislation and for somebody to, like justice ginsburg to start describing which of these endless parts you're going to save, is kind after fool's errand. >> the critics of the court if it overturns the law says it's an activist act by the justices, they're really just taking this law and throwing it out in total, but would it be activist or more activist just to overthrow part of it? >> well, see, that's the point. well, if they've struck some parts and not others, they're trading a new law that congre

i disagree, justice scalia. that's just an assumption, and if it proves to be wrong, then congress has time to recalibrate. and beyond that, i do think if -- i just want to go back to the -- the other part of your honor's point -- that with respect to the relationship between medicaid and the -- the act, and particularly the minimum coverage provision, my -- my friend mr. clement has suggested that you can infer coercion because, with respect to the population to which the provision applies, if there's no medicaid, there's no other way for them to satisfy the requirement. i want to work through that for a minute if i may, because it's just incorrect. first of all, with respect to anybody at 100% of the poverty line or above, there is an alternative in the statute. it's the exchanges with tax credits and with subsidies to insurance companies. so with respect to that, the part of the population at 100% of poverty to 133% of poverty, the -the statute actually has an alternative for them. for people below 100% of po

justice. he does not like to do this type of exchange. people like scalia relish it. s a law professor who likes the socratic method. the rest of the justices falls somewhere in between. was what you will see -- host: here, because they won't have cameras -- guest: they have kept the cameras out. what you will see is the insight into how the justices are viewing the question. some of them will be technical and arcane. the question of whether it will be a tax or penalty. de administration has a dilemma here, because they have used both terminologies, tax and penalty, in their argument. now they are faced with a threshold question. if it is a tax, we have to wait until 2015. nobody wants that. for the administration and the states, it would be a disaster. you have a law that is presumably unconstitutional for some but critical to others, waiting to penalized for a tax, going to court to challenge it. you have this interesinteresting situation where both sides are saying "rule, for god's sake," and the arguments of whether this is both wrong, it is a tax, see you in 2015.

and what justice scalia said, what congress was trying to do is force local sheriffs to do background checks on prospective gun purchasers, they don't work for the federal government, that was an unprecedented claim of power, what justice scalia said if for 200 years a power this attractive has gone unused by congress, that is a pretty good argument that that power does not exist. and the same thing could be said about the individual insurance mandate. if for 230 years the congress has gone and solved all sort of cost shifting problems and wars on poverty, wars on drugs, without having to impose an economic mandate in the past, even though that would be a very highly attractive power, rather than paying you cash for your clunkers, we could make you buy a new car. we wouldn't have to pay money out of the public treasury. even though that is an attractive power, congress never sought to examiner sides that, that is a good argument why the power doesn't exist. there is a constitutional significance to the fact this law is unprecedented. second, the law is uncabined or unlimited. so far,

should be easy for justice scalia's clerks. >> i think -- >> i don't care whether it's easy for my it' easy for me. >> i think that's exactly right. s statutory interpretation. >> what's exactly right. it's a question of statutory interptation, that means you have to go through every line of the statute. i haven't heard your answer to justice scalia's question. >> i think in this case there is an easy answer. that is justice kagan pointed out that the act itself creates a sharp dividing line between the minimum coverage provision, the package of reforms, the minimum coverage provision along with the guaranteed issue and community rating that is one package that congress deemed essential. >> how do you know that? where is this line? i looked through the whole act. i didn't 0 owe well -- where is the sharp line? >> it is in congress's that the minimum coverage provision, without it congress said in finding i, without that provision people would wait to get insurance and cause all sel- >> that makes your case that the one provision should fall if he. doesn't tell us anything about all of

justice scalia wants to collapse of them, judge motz. -- judge motz -- >> those two cases were applied challenges and this one is not. >> what is the difference in the commerce clause jurisprudence? >> this is another area where the supreme court has been a little bit on certain actors salerno. our view is that that does not matter for purposes of necessary and proper clause analysis. the question you are faced with here is this -- can congress regulate the decision to self- insure as part of an overall comprehensive scheme. the answer to that has to be yes because of the undoubted evidence congress had before that they could not reform the insurance market to include those with pre-existing conditions unless they also adopted a minimum coverage provision. congress had strong empirical evidence support. >> the empirical evidence emboss the employment act, too. >> not with respect to what is necessary and proper to feel -- still in the gap. >> the government has argued the necessary and proper clause and won. >> if i could explain what congress is doing first, we could talk about the di

it should be easy for justice scalia's clerks. [laughter] >> i think, i think that -- >> i don't care whether it's easy for my clerks. i care whether it's easy for me. [laughter] >> i think that's exactly right. as i said is a question of statutory interpretation. >> what's exactly right? is a question of statutory interpretation and that means you have to go through every line of the statute. ivan her to answer justice scalia's question yet. >> is justice kagan pointed out, that act itself creates a sharp dividing line between the minimum coverage provision, package of reforms, the minimum coverage provision along with a guaranteed kit issue and community rating. that as one package that congress deemed essential. >> essential. >> how do you know that? where is the line? where is the sharp line? >> it is in congresses findings, that the minimum coverage provision, without it, the congress said in finding ida, without that provision people would wait to get insurance and therefore, and cause all the adverse selection problems that

then today, it was justice scalia going on. are you say thawing really believe the court's going to go through this entire 2700-page bill? this is, you know -- is this not totally unrealistic was the phrase he used? and there was laughter in the courtroom. how bad was it while you were in there? >> well, there was laughter because what justice scalia brought up is, if you pull out the individual mandate, the funding stream, the fact that just because we breathe as americans, now the federal government will force us to buy an insurance product where they set the price, by the way. what he was saying is that he and his clerks will have to sit around and look through the 2700 pages and decide what stands and what falls. they essentially said, thanks, but no thanks. and so, it seems the better answer is either the bill will stand or the bill will fall. it's clear, 72% of the american people want this bill to fall. >> sean: let's go through just how bad this was at different moments between yesterday and today. we could literal spen

ending with justice scalia. >> you create congress commerce in order to regulate it? >> that's not what is going on here, justice ken deism we are not seeking to defend the lieu that basis. in this case, what is being regulated is the method of financing the purchase of health care. that itself is economic activity with substantial effects on interstate commerce -- >> so any self purchasing, anything i purchase -- you know, if i am in any market at all, my failure to purchase something in that market subjects me to regulation? >> sean: you know, jay, it was almost universal. every court observer listening today pretty much had the same comments, that the administration was just not prepared. and didn't have good answers to the questions, stumbling and stammering and the fact that they have had such a long period of time to prepare for this is fairly -- you know, almost breath take at this point? >> well, you know, defending the indefensible. that became the real problem for the solicitor general, who had a very difficult day. a lot of court watchers described this as a

if you look at the history of particularly of justice scalia, justice kennedy and justice roberts, that three of them view that federal government. >> the two justices in recent history have the most concern about the power of the state versus the federal government aren't there anymore. chief justice rehnquist and sandra day o'connor or even scalia and kennedy, lito not quite as clear, don't seem as concerned about the scope of the federal power. >> it seems to me that alito has never overturned a law. >> he's very pro federal government. i think 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 m

and justice scalia's example of broccoli for the sake of their health. i thought a more general question would have been the question of since overpopulation has become such a major issue around the world and from some segments of this country, i wonder if congress would have the authority to pass a contraception, a forced contraception act and based on the fact that overpop lag is costing us generally and medically specifically. and by suggesting that contraception must be used. i wonder if that's something both liberals and conservatives would be able to agree on. of course, i ask somewhat facetiously. when it comes to contraception where the divide so great, here would be an opportunity for the congress to be able to pass something that would perhaps fall in line with liberal thinking as to their authority, and yet, perhaps, would be a little uncomfortable to many of those in the country that support this particular argument of the obama care program. so i put that out there for an answer to the question. i was interested to know how far they would be

supreme court elected george bush by one vote on a very far-fetched theory of irreparable harm that justice scalia had. and citizens united, again, you had a very badly polarized ideological core. justice kennedy is in the center, and i think he enjoys being unpredictable. he'd like to call it the kennedy court, and he took another step yesterday when he was the swing vote on giving counsel to defendants on plea bargain cases. but the conventional wisdom is that the court is going to >> kennedy will vote with the conservative. >> that's the conventional wisdom. but he probably watches c-span, and i would urge him to follow the facts. a big point in these issues is whether congress has established a sufficient factual basis for the legislation which is followed. and when chief justice roberts response to my questions, he said that it was congress's job to establish the facts. and that if the supreme court deviated from what congress had followed, found, that it was really legislating and it was not an appropriate judicial function, but in citizens was 1f congressional fact finding. and chief justic

justice scalia suggested that the mandate goes, the whole thing to go. >> if you take the heart out of the statute, the statute is gone. >> nina, you reported that i.t. is clear that there are five of votes to strike down the mandate, and if there are five votes to strike that down, there are five votes to strike down the whole thing. >> i said that if there are five the votes to strike down the mandate, it looks like there are five votes to strike down all law. i am not sure what they were going to do. it looks like it is in the hands of justice kennedy, and he seems to be agonizing. but when justice kennedy says that something changes the liberty relationship between the federal government and the individual, that is a reason those that are on the side of trying to defend this position to worry. >> i want to ask you about roberts later. let me move to mark. justice scalia said that whether we strike it down or leave it in place, the congressional process will never be the same. do you agree with that? >> no, i don't agree with that. i think congress will react based upon the decision

justice scalia was someone who watched, a conservative, but his past case history, his decisions in prior cases gave some speculation that he might be a swing vote. what dop we heid we hear from j scalia and isestion people have? >> i think that was always a fairly optimistic view among the laws of defenders, and probabl justice scalia is among the least likely to hide the ball when it comes to his thinking about an issue. his comments orite clear he sim accept the premise of the government law. the premise being that the market being regulated is that of health care and insurance is just a transactional device for paying for health care. he clearly sided with the view of the challengers, which was that health care and insurance are separate markets, and compulsion of people into the insurance market was not necessarily related to the regulation of an existing market in health care, and out of that sort of technical economic distinction is really what the heart is about in congress. something about joe's remarks from salt lake city. it is true while we are watching the branches of governm

. >> i think i have a three-part answer to that justice scalia. first the text says that it should be assessed in the same manner as a tax without addressing any party particularly. >> he's assessing it and collecting it in the same manner as a tax. >> the other two parts of the answer are as a practical matter, i don't think there's any dispute in this case if the anti-injunction act does not apply this penalty, this section 5,000-a penalty will as a practical matter be assessed and collected in a very different manner from other taxes and other tax penalties. there are three main differences. first, you have the pay the tax or the penalty first and then let gait later to get it back with interest. second, you have to exhaust administrative remedies even after you pay the tax you can't immediately go to court. you have to go to the secretary and give the secretary at least six months to see if the matter can be resolved administratively. and third, even in the very carefully defined situations in which congress has permitted a challenge to a tax

that's not our position at all, justice scalia. health care market the health care market is characterized by the fact that aside from the few groups that congress choose to exempt from the minimum coverage requirement those for who religious reasons don't participate, those who are incarcerated, indian tribes, virtually everybody else is in that market or will be in that market and the distinguishing feature of that is that they cannot -- people cannot whenhey enter that market or what they need when they enter that market. >> is same it seems to me would be true for the market in emergency services. police, fire, ambulance, roadside assistance, whatever. you don't know when you're going to need it. you're not sure that you will, but the same is true for health care. you don't know if you're going to need a heart transplant or if you ever will. there's a market there to some extent we all participate in it. so can the government require you to buy a cell phone because that would facilitate responding when you need emergency servic

that's why at the end of the day, the courts will uphold this law. >> let me bring you back to justice scalia and the comment about the broccoli in that that has been actually, i don't want to call it a talking point for a justice. i've heard a lot of people on the right and those opposed to this health care law bring that up as a comparison. meanwhile on the left, you have many who tweeted me and sent e-mails saying what about car insurance? people are required to have that. how do you balance these analogies, if they are even analogies of what we are really talking about here. >> i thought what was most disappointing about the argument today was justice scalia seemed to be a partisan advocate for the side, the claimants against this law. he wasn't seriously considering this law as you would expect, given his pint in a case that upheld federal regulation of medical marijuana. i guess that was just about the subject of the race case, which was about regulating marijuana, which he is favorable toward. i wouldn't count him as one of the justices who i think at the end of the day will uphold it.

there are cases and many of which justice scalia knows as well. which uses the same word as the statute. and that doesn't mean the secretary can do anything he or she wants. but they are limited to arbitrary discretion in interpreting statutes, applying the statutes, et cetera. end of the argument. end of my question. respond as you wish. i think that really right here what we know to an absolute certainty is that this statute gives the secretary the right to remove all the state's funding under these programs. >> do you think the federal government couldn't if it chose congress say, the system doesn't work. we're just simply going to recall it. it's not insistent with what we want to accomplish. we're just going to to do away with the system and start a new health care plan of some sorts. and states, you can take the new plan, you can leave them, we're going to give out 20% less. maybe 20% more, depending on what congress chooses. can congress do that? does it have to continue the old system? because what is what the states are relying upon. it's

here's justice scalia talking to the government's attorney. take a listen. >> to say that we're affect yating the intent of congress is just unrealistic. once you cut the guts out of it, who knows. who knows what we're really desired by on their own and which one weren't. >> the question for the court is congress having passed the law, by whatever majority there might be in one house or the other, congress having passed the law, what at this point is the legislative intent em booed died in the law congress maz actually passed. >> that's right, but the problem is, straight from the title, we have two complementary purposes. patient protection and affordable care. and you can't look at something and say this promotes affordable care therefore it's consistent with congress's intent, because congress had a balanced intent. you can't look at another provision and says that promotes patient protection without asking if it's affordable .. it seems to me if you ask what is going to promote congress's purpose, that's an inquiry you can't carry out. >>

>> they can address it directly justice scalia. they are addressing it directly through this act by regulating the means by which health care -- by which health care is purchased. that is the way this act works. under the commerce clause what congress has done is to enact reforms of the insurance market directed at the individual insurance market that precludes -- that preclude discrimination based on preexisting conditions that require guaranteed issue community rating. it using and the minimum coverage provision is necessary to carry into execution those insurance reforms. >> you create commerce in order to regulate it. >> that's not what's going on here justice kennedy. we're not seeking to defend the law on that basis. in this case, what is being regulated is the method of financing the purchase of health care. that itself is economic activity with substantial effects on interstate commerce. >> so any self-purchasing? if i'm in any market at all, my failure to purchase something in that market subjects me to regular lace. >> no

. >> well -- i mean, that's a fair point, justice scalia, although one of the things that happens, if you take the mandate out, while it is true that the subsidies that the government provides to any individual will increase and they will be less efficient. i'm not disputing that point. actually, the overall amount of the subsidies that the government will provide will decline as the government notes itself in its brief, because there will are fewer people getting it. some people will opt out of the system even though they're getting subsidies. but i would just like to go back one more second to the point about how the subsidies are part of what congress was using, because the other thing is that for people below 250% of the federal poverty line, congress also picks up and subsidizes the out of pocket costs, raising the actuarial value. so you have all of that, and then you have congress, also, unlike the states, establishing precisely, almost all the states, establishing an age differential of up to 3-1. so an insurance company, for example is selling a 25-year-old a policy for $4,00