mr. clement has already made, which is the health insurance market is different than the health care market, but let me take it on full stride. i think everybody is in the milk market, everybody is in the wheat product market. that doesn't suggest that the government can compel you to buy five gallons of meat or five bushels of wheat because they are not regulating commerce. whether you're a market participant or not, they are still requiring you to make a purchase that you don't want to do, and to get back to your facial -- >> that's true of almost every product. >> i'm sorry. >> that's true of almost every product directly or indirectly by government regulation. the government says, borrowing my colleague's example. you can't buy a car without emission control. i don't want a car with emission control. it's less efficient in terms of the horsepower, but i'm forced to do something i don't want to do by government regulation. >> you are not forced to buy a product you don't want, and i agree with you that since the government regulates all markets, there is no limiting principle on their co

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 token there is no penalty that is going to be imposed on anybody in that group to begin with right now the level of 100% of poverty is $10,800. the requirement for filing a federal incomes tax return is $9,500. anybody below $9,500, no penalty because they't income tax retur. the sliver of people between $9,500 and $10,800, the question there able to find health insurance that will cost

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 poverty, it -- it is true that there is no insurance alternative. but by the same token, there is no penalty that is going to be imposed on anybody in that group. to begin with, right now, the -- the level of 100% of poverty is $10,800. the -- the requirement for filing a federal income tax return is $9,500. so anybody below $9,500, no penalty, because they don't have to file an income tax return. the sliver of people between $9,500 and $10,800, th

mr. clement, the chief has said i can ask this. >> he doesn't always check first. [laughter] >> as i recall your -- your theory, it is that to determine whether something is coercive, you look to only one side, how much you're threatened with losing or offered to receive. and the other side doesn't matter. i don't think that's realistic. i mean, i think, you know, the -- the old jack benny thing, your money or your life, and, you know, he says "i'm thinking, i'm thinking." it's -- it's funny, because it's no choice. you know? your life? again, it's just money. it's an easy choice. no coercion, right? i mean -- right? now, whereas, if -- if the choice were your life or your wife's, that's a lot harder. now, is it -- is it coercive in both situations? >> well, yes. it is. [laughter] >> really? >> i would say that. >> it's a tough choice. and -- and - >> i thought you were going to say that it's your money and your life. [laughter] >> and, well -- it is. but i mean -- i might have missed something, but both of those seem to be the hallmarks of coercion. [laughter] >>

everybody over $100,000 has to buy a new car. >> mr. clement, the key to the government's argument to the contrary is that everybody is in this market. it's all right to regulate in wick ert against fillburn, that's a particular market which the farm her been participating. every is in this market. that makes it very different than the market for cars or the other hypotheticals you came up with, and all they're regulating is how you pay for it. >> well, with respect, mr. chief justice, i suppose the first thing you have to say, what market are we talking about? because the government, this statute undeniably operates in the health care insurance market and the government can't say that everybody's in that market. the whole problem is that everybody's not in that market, and they want to make everybody get into that. >> doesn't that seem a little bit, mr. clement, cutting the baloney thin jie mean, health insurance exists only for the purpose of financing health care. the two are inextricably interlinked. we don't get insurance so we can stare a

mr. clement, the chief has said i can ask this. >> he doesn't always check first.laughter] >> as i recall your -- your theory, it is that to determine whether something is coercive, you look to only one side, how much you're threatened with losing or offered to receive. and the other side doesn't matter. i don't think that's realistic. i mean, i think, you know, the -- the old jack benny thing, your money or your life, and, you know, he says "i'm thinking, i'm thinking." it's -- it's funny, because it's no choice. you know? your life? again, it's just money. it's an easy choice. no coercion, right? i mean -- right? now, whereas, if -- if the choice were your life or your wife's, that's a lot harder. now, is it -- is it coercive in both situations? >> well, yes. it is. [laughter] >> really? >> i would say that. >> it's a tough choice. and -- and - >> i thought you were going to say that it's your money and your life. [laughter] >> and, well -- it is. but i mean -- i might have missed something, but both of those seem to be the hallmarks of coercion. [laughter] >> no

not just cash for clunkers, we are going to actually have everybody over 100,000 has to buy a new car -- >> well, mr. clements, the key to the government's argument to the contrary is that everybody is in this market. it's all right to regulate wickard -- again, in that case, because that's a particular market was the farmer had been participating. everybody is in this market, so that makes it very different than the market for cars or other hypothetical that you come up with, and all their regulating is how you pay for it. >> well, with respect mr. justice, i suppose the first thing this yet to say is what the market would talk about? because the government -- the statute undeniably operates and health insurance market. and the government can say that everybody is in the market. the whole problem is that everybody is not in the market and they want to make everybody get into the market. >> well, doesn't that seem a little bit, mr. clement, cutting the bologna thin? and in health insurance is only for the purpose of financing health care. the two are inextricably into early. we don't get insurance of that we

mr. clement. what would your fallback position be if we don't accept the proposition that if the man date is declared unconstitutional, the rest of the act every provision has to fall. other proposed other dispositions have been proposed. there is the solicitor general's disposition, the recommended disposition to strike down the guarantee issue and community rating provisions. one of the says strike down all of title one, strike down title 1 and 2. what would you suggest? >> well, suggest, justice, that you sort of follow the argument through and figure out what in the core of the act falls, and then i guess my fallback if what's ndint a hollowed out shell you if you want a sort of practical answer i do think you could just use justice breyer's off the cuff as a start and say title 1 and a handful of related provisions that are very closely related to that are really the heart of the act, the -- >> you could strike one and leave the other. but at a certain point -- i'm sorry. >> in theish. >> at a certain point i think the better answer might be to say we've struck the heart of this act, let's just give congress a clean slate. if it's so easy to have that

has the statute. and that's one of the clear findings. >> mr. clement, doesn't that work -- that work the way social security does? let me put it this way. congress, in the '30s, saw a real problem of people needing to have old age and survivor's insurance. and yes, they did it through a tax, but they said everybody has got to be in it because if we don't have the healthy in it, there's not going to be the money to pay for the ones who become old or disabled or widowed. so they required everyone to contribute. it was a big fuss about that in the beginning because a lot of people said -- maybe some people still do today -- i could do much better if the government left me alone. i'd go into the private market, i'd buy an annuity, i'd make a great investment, and they're forcing me to paying for this social security that i don't want; but, that's constitutional. so if congress could see this as a problem when we need to have a group that will subsidize the ones who are going to get the benefits, it seems to me you are saying the only way that could be done

has the statute. and that's one of the clear findings. >> mr. clement, doesn't that work -- that work the way social security does? let me put it this way. congress, in the '30s, saw a real problem of people needing to have old age and survivor's insurance. and yes, they did it through a tax, but they said everybody has got to be in it because if we don't have the healthy in it, there's not going to be the money to pay for the ones who become old

mr. clement. >> sure. >> what would your fallback position be if we don't accept the proposition that if the mandate is declared unconstitutional, the rest of the act, every single provision, has to fall? other proposed -- other dispositions have been proposed. there's the solicitor general's disposition, the recommended disposition to strike down the guaranteed issue and community rating provisions. one of the -one amicus says strike down all of title i, another says strike down all of title i and title ii. what -- what would you suggest? >> well, i -- i think what i would suggest, justice alito -- i don't want to be unresponsive -- is that you sort of follow the argument through and figure out what in the core of the act falls. and then i guess my fallback would be if what's left is a hollowed-out shell, you could just leave that standing. if you want a sort of practical answer, i mean, i do think you could just -- you know, you could use justice breyer's off- the-cuff as a starting point and basically say, you know, title i and a handful of related provisions that are very closely related to that are really the heart of the act -- >> well, that's -- >> -- the bigger volume

has is being removed by the expansion itself. the chief justice made the point - >> mr. clement, may i ask one question about the bottom line in this case? it sounds to me like everything you said would be to the effect of, if congress continued to do things on a voluntary basis, so we are getting these new eligibles, and say, states, you can have it or not, you can preserve the program as it existed before, you can opt into this. but you are not asking the court as relief to say, well, that's how we -- we -- that's how we cure the constitutional infirmity, we say this has to be on a voluntary basis. instead, you are arguing that this whole medicaid addition, that the whole expansion has to be nullified, and moreover, the entire health care act. instead of having the easy repair, you say that if we accept your position, everything falls. >> well, justice ginsburg, if we can start with the common ground that there is a need for repair because there is a coercion doctrine and this statute is coercion, then we are into the question of remedy. and we do think, we do take the positio

mr. clement f.? what would your fallback position be if we don't accept the proposition that if the mandate is declared unconstitutional the rest of the expiry single provision has to fall. propose of the dispositions have been proposed. the solicitor general's this position, the recommended disposition district and the guaranteed a strong community rating. provisions one hell must write to all of avalon, another sister right down all of tell one and two. what would you suggest? >> well, i think what i would suggest, justice alito, i don't to be unresponsive, follow the argument through and figure out where false. my fullback would be afoot as of today it -- is a holiday show you can leave them standing. if you want a practical standard, i think you could use justice breyer off the cuff as a starting point and six fadel one and a handful of related provisions that are very closely related to that are really the heart of the act. >> bigger volume. >> you could strike one and leave the other, but at a certain point @booktv sorry. >> finish. >> at a certain point adjusting that, you know, the better answer might be to say we have struck the heart of this act. let's