the final example i'll give is the one about justice scalia who wrote a concurring opinion, the raich case, involving medical marijuana. i was disappointed in the vote. i was disappointed in his opinion, but in his opinion, which he concurred with the majority written by justice stevens, he relied on the necessary and proper clause. because justice scalia said in that case because it -- because the reaching of my client's marijuana that was being grown for her by caregivers privately and not commercially, because it was essential to the broad prohibition, they would be able to reach intra state, it was contusional. what he held was it was okay to reach my client's marijuana because it was ee sen sthool a broader regulation of interstate commerce, the pro hi by slun of interstate marijuana. i could say a lot more, i'm out of time, let me say one thing about that opinion. justice scalia's opinion, 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 scheme would be interpreted in the s

angel raich was told to leave the medical center after she tried to skok inside. she was admitted for theft. a pharmacist told her to put it out. but remains upset over the decision. >> to not use my cannabis f i stay it's giving me a death nnts. >> raich is a leading advocate for medical marijuana twice to fight for the right to use cannabis. >> smokers will not be allowed to drive even if passengers have trace amounts. it released the power to issue a dui to anybody with spot in their system. critics show it can remain in the mud for weeks. >> sunnyvale becoming the latest to consider an outdoor smoking ban. witness the city smoking in parks and out door dining. city received a mailing trade for its anti-tobacco efforts. the city asking people to weigh in. with funding secured work can begin on the man to bring part to san jose. the government committed to $900 million in grants for the project yesterday. ground breaking on the existing track behind the flee market. the extension will bring shouses of jobs for the bay area and expected to be heated by 2016. >> a

raich or anything else. now, lastly i want to say a little point about the activity versus inactivity distinction. that distinction was not invented by us come the people who want the statute struck in but rather, that distinction isn't a numerous supreme court decisions would have defined the scope of congress' power in terms of activity. andrew has said well, that congress is created activity with fannie mae and other regulatory agencies, but that's not congress using the commerce power to tax power to regulate or compel people in the private sector. rather that is congress creating government agencies wishing? any particular task. the extent of that is authorized by the constitutional but it would be a wholly different set of arguments and in some cases a different set of clauses from the ones we're talking about here. so ultimately the point is this. attacks and the original meeting for business and nothing the supreme court is in so far at least allows it. and, therefore, the court should not extend its

as randy noted in gonzalez versus raich, he wrote a concurrence that said, "congress may regulate even noncommercial activity if it's a more general part of interstate commerce." i think it's very difficult to get around that, and i disagree with randy, i think it will be pretty difficult for justice scalia to get around that when he considers the health care case. i also think it pretty much dooms the opponents of the laws arguments which randy did not make wisely in his arguments. that there is some sort of activity/inactivity distinction or some focus on noneconomic versus economic. no one can seriously dispute that the affordable care act is a general regulation of the interstate health services market which comprises nearly 20% of our nation's economy. and as for the minimum coverage, if you look back to justice scalia's quote, he says it must be a necessary part of a general regulation. so as far as it being necessary to the aca as a whole, again, we look to u.s. versus comstock, which i respectfully disagree with randy's characterization of. in that case, chief justice roberts j

however, there is still a line that none of us really imagined when the raich case was decided because nobody had previously thought to do this and that is not only to say that you can't grow marijuana or that if you're going to grow marijuana here's how you should grow it, but that you must grow marijuana. i mean there's -- the same sweeping scope that can reach all of those kinds of activities now says that you have to do any one of those activities so long as we deem it in our own discretion to be essential to our interstate scheme of regulation of something completely different, let's say. so that would be a tremendous increase in federal power over the already tremendous power that the federal government currently has. >> well, i'm afraid that's all the time we have. please join our panelists upstairs for lunch after this. rest rooms also are downstairs and upstairs. we'll resume in exactly an hour. please join me in thanking our panelists. [ applause ] >>> good afternoon. welcome back to the second panel of our conference on the question is obamacare unconstitutional, or constitu

angel raich was told to leave the medical center after he tried to smoke inside the building.uffers from an inoperable brain. she remains upset over the decision. >> no wait, you're asking me to not use my cannabis and you're saying if the i stay it's like giving me a death sentence because i would have to be without my cannabis. raich is a leading advocate for medical marijuana and won twice for the right to use cannabis. if one lawmaker has her way, smokers will not be able to drive even if they have tris amounts. the bill was proposed last month and would give police the power to issue a dui with pot in their system. traces of the drug can remain in the blood for weeks. >> we've all heard of surry. of course. a new phone. surry is getting sued a. man taking apple to court for false advertising. he bought an iphone 4. he is not happy. he said apples says surry is less responsive in real life. >> i don't think it's the same as saying i'm sorry. >> we're a ready. we're always right. >> you are right. >> coming up, the 49ers adding a new weapon. >> plus, march madless starting

i mean, it seeps -- it doesn't fit the profile of someone with raich -- with raich antipathy. >> i thinkou are right. people are opportunists here and take advantage. barack obama tried to politicize this, it's wrong. we don't know enough yet. >> sean: i love david petreas. >> i got to know him pretty well. it was my dissertation and i was allowed to imbed in the headquarters in iraq. >> pretty amazing. thank you foruc being with us. congratulations on your run and your book. mr. crowder, congratulations on being alive -- >> getting married. >> sean: let not your heart be troubled, greta's next. see you tomorrow n.

here is the raich case. court ruled 6 to 3 that the federal government could destroy home grown marijuana in california which allowed marijuana because itse it affected the interstate market. >> probably using themselves, is going to affect. >> chris: it was a woman who was sick and she said she was using it. >> that is going to affect interstate commerce you can see how broadly this goes and what is important about that case is both scalia and kennedy concurred with the opinion. people are looking into that and this was brought up i think ten times in the government's brief because they are really trying to move scalia on this and they are really hoping for kennedy to be their number five. >> chris: on the other hand i see you wriggling and squirming in your chair, paul, make the other side of the case. >> you don't have to overturn the cases to hold for the plaintiffs because these cases are different. the difference as brit suggested is that the government is saying we are going to compel you to participa

there was no -- there was no compulsion in raich for him to buy wheat.he could have gotten wheat substitutes or he could have not sold wheat, which is actually what he was doing. there is a huge difference between conditioning regulation, i. e. , conditioning access to the health care market and saying you must buy a product, and forcing you to buy a product. and that, that -- i'm sorry. >> i thought it was common ground that the requirement that the insurers -- what was it, the community-based one and they have to insure you despite your health status, they can't refuse because of preexisting conditions. the government tells us and the congress determined that those two won't work unless you have a pool that will include the people who are now healthy. but so -- well, first, do you agree with your colleague that the community-based -- and what's the name that they give to the other? >> the guaranteed-issue. >> yes. that that is legitimate commerce>> oh, sure. and that's why -but we don't in any way impede that sort of regulation. these nondiscrimination

host: it was gonzales versus raich in 2005.ler: are they so political that we can expect them to always vote for president obama's position? host: let's have tony mauro take that one. guest: that's a good question. that's why some people thought justice kagan should recuse herself from this case because she was solicitor general when this lot was enacted and the strategy was being developed -- this law was enacted and the strategy was being developed. some of the justices are more predictable on this case than some of the others that dahlia mentioned. whether that means they are all in lockstep or following the orders of the obama administration, i do not think so. i do think it is -- i think those four liberal justices, , ginsberg, kagan, and sotomayor are pretty certain to vote in favor of the law. guest: i think it's fair to say in this particular case, the only justices of the nine who is really on the record saying that he agrees with the kinds of arguments that are being made here, the kinds of commerce clause arguments t

randy famously argued the last big case relevant to our discussions here, gonzalez versus raich in 2004. and he's also been called by "the new york times" the intellectual godfather of the lawsuits against the individual mandate and obamacare more broadly. and last but not least, we have elizabeth wydra, who is the chief counsel of the constitutional accountability center, which is a think tank law firm, an action center dedicated to fulfilling the progressive promise of the constitution's text and history. she frequently participates, as do a lot of us in this business, in amicus briefs before the supreme court, and she's actually, unlike many of us, has argued several big cases in the federal courts of appeal. so without further ado, i'll turn it over the michael. and then we'll hear from some lawyers and we'll keep going. >> thank you, ilya, and thank you, roger, for putting this together, and thank you for reading that quote from "the washington post." it sounds like an impressive quote, but they were just quoting me saying that, so it's really less impressive when you know the full

justice on the supreme court that will be very capable of distinguishing his concurring opinion in raich from this case, it's the justice that has made the greatest use of the distinction between necessary and proper. how will he do that? because an individual mandate to make every man, woman, and child do business with a private company at the whim of congress, just because congress thinks it's convenient to its regulation of interstate commerce, is not only unnecessary, as i've explained, it is also highly improper and for that reason unconstitutional. thanks. >> thank you so much for having me here. i am also honored to be part of the inaugural event in this wonderful new auditorium here at cato. and i also want to thank cato because i carry around in my purse all the time my pocket constitution, and while i heartily disagree on many issues with what cato thinks about what's inside the constitution, they have the best covers. this has lasted me for, like, ten years. so i'd like to carry around for my liberal brethren, you know. cato, you got it right on the cover. let's talk about wha

so even raich doesn't go far enough to get the government where it needs to go in this particular case. so it turns out the only possible way to uphold the mandate under the commerce clause is if congress were held to have the power to impose virtually any kind of mandate to do anything that has some sort of economic effect which, of course, is pretty much anything that congress can compel it to do. the government has tried to resist this conclusion and has argued that actually health insurance is a special case in various ways. the most common argument that the abuse is claiming health insurance is special because we all use health care at some point in our lives, and that makes it different from most other products. however, notice the sleight of hand here. there focusing to health care to a broader category. if you are allowed this in a similar sleight of hand, and justify pretty much any other mandate of any kind. consider for instance, the famous broccoli man become an example has been used so often throughout this case. is to not everybody eats broccoli, not everyone likes it as

doesn't create the kind of effects on supply and demand that the market participants in wickrad and raich did and doesn't in any way interfere with the regulation of the insurance companies, i don't think it can pass the basic -- >> i thought wickard was you must buy. we're not going to let you use the home-grown wheat. have you to go out and buy that wheat that you don't want. >> let's be careful about what they are regulating in wickard what. they were regulating was the supply of wheat. it didn't in any way imply that they could require every american to go out and buy wheat. one of the consequences of regulating local market participants is that it will affect the supply and demand for the product. that's why you can regulate them, because those local market participants have the same effect on the interstate market that a black market has on a legal market but none of that is true -- in other words, you can regulate local bootleggers, but that doesn't suggest you can regulate tea totelers, people who stay out of the liquor market because they don't have any negative effect on the exi

opponents argue that the raich case is distinguishable from the healthcare case and predict it won'ty justice scally. we'll see. starting come we will have around the clock coverage of the arguments. minute they break i will held out and give you all the details. it will be live from the supreme court monday night at 6:00 eastern time and check out fox news .com for in depth reports and additional reaction all throughout the day. speak of the internet we have been asking you all morn you think the supreme courtnino should find the individual mandate constitutional or unconstitutional. a viewer writes how on earth could such a mandate be constitutional. jeffrey writes the healthcare law is saving lives. if the opposition does not have a better plan they should keep their mouths shut. we want to hear from you. we will read more of your responses later this hour, former vice president dick cheney is recovering from a heart transplant this afternoon. a statement from his office says the donor's identity has not been shared with the family but they will be eternally grateful for the gift.

>> reporter: angel raich is no stranger to the feds nor fighting them. she sued the government for outlawing marijuana even though the states legalized. the u.s. supreme court ruled against her. she says ucsf was rough with her, pulling ivs out of her body after she refused. >> i heard the doctor in the hall say go and rip those things off of her head. >> reporter: ucsf won't comment on this specific case because of patient confidentiality. but in a statement says ucsf is a smoke-free campus and this includes the vaporized form of marijuana. and under federal and state law, a physician is at legal risk related to any activity that could be construed as predescribing medical marijuana to a patient. >> i'm realizing at this point i'm probably going to jail so i grabbed my vaporizer and i -- i'm sucking on it. you're not supposed to be smoking in here. i said i'm not smoking. this is vapor. and i blew it out. >> reporter: a study found it doesn't result in ex-exposure to combustion gases. as for the legality that's a constant fed versus state conflict. she

this very explicitly said in raich case.s v. >> it has to find that it is a problem. as long as you attach it to a bill, that is ok. it is a national problem. come on. >> given it its due, and i think we can agree that the health care affects interstate commerce, as does so many things. it is not just attached to something. it is part of an integrated scheme. that does not make it constitutional, but is it fair? and obviously you think it is, but you say there is a bill where there are five people who work together. one of them is an individual mandate. so we have an individual mandate as opposed to letting them get away with the statute as a whole. >> i am sure michael has a great answer to it. before we leave completely the limiting principal, can i say two things? i am not sure i really heard one. there is a great defense. doing so, they laid out an item. >> when i was asked for my limiting principal -- that has nothing to do with this particular power, and this power is unique, which is the power to compel someone to more efficiently regulate commerce, and that po

in the delegates and here is ron paul's chief delegate counter, doug weed, talking to my colleague, raichd m ever rachel maddow. >> i see them say romney has this many delegates and santorum this many delegates. not a single delegate has been awarded from iowa or minnesota or missouri or colorado or nevada. we are tracking this at the precinct level and we think we have the majority of them and we think we won in iowa and won in minnesota and won in colorado. and with missouri's yet to be seen. we think we probably won in nevada because we are counting the precinct votes. >> the point here being that the states that have -- awarded delegates for caucuses, in most cases those delegates haven't been awarded yet. >> that's right. >> there is a variety of processes and levels of caucusing that have to happen before they are awarded which means committed activist could come away with more delegates than it looked like they had when we came out of the vote. >> that's absolutely right. that's -- the sort of -- quirkiness of a caucus is that a lot of people, you know, particularly the media gets

it's like -- it's very much like wickard in that respect, very much like raich in that respect. with respect to the -- with respect to the -- considering the commerce clause alone and not embedded in the comprehensive scheme, our position is that congress can regulate the method of payment by imposing an insurance requirement in advance of the time in which the -- the service is consumed when the class to which that requirement applies either is or virtually is most certain to be in that market when the timing of one's entry into that market and what you will need when you enter that market is uncertain and when -- when you will get the care in that market, whether you can afford to pay for it or not and shift costs to other market participants. so those -- those are our views as to -those are the principles we are advocating for and it's, in fact, the conjunction of the two of them here that makes this, we think, a strong case under the commerce clause. >> general, could you turn to the tax clause? >> yes. >> i have to look for a case that involves the issue of whether somethin

host: it was gonzales versus raich in 2005. go ahead, frank. caller: are they so political that we can expect them to always vote for president obama's position? host: let's have tony mauro take that one. guest: that's a good question. that's why some people thought justice kagan should recuse herself from this case because she was solicitor general when this law was enacted and the strategy was being developed. some of the justices are more predictable on this case than some of the others that dahlia mentioned. whether that means they are all in lockstep or following the orders of the obama administration, i do not think so. i do think it is -- i think those four liberal justices, breyer, ginsberg, kagan, and sotomayor are pretty certain to vote in favor of the law. guest: i think it's fair to say in this particular case, the only justices of the nine who is really on the record saying that he agrees with the kinds of arguments that are being made here, the kinds of commerce clause arguments that would return us to the 1940's and the pre-new d

and as a second example of the same usage by congress, the statute that was before the court in raich, section 801 of title 21, the court said that the regulation of intrastate drug activity, drug traffic, was essential to the regulation of interstate drug activity. again, it is simply not conceivable that congress was saying one is so indispensable to the other, the way the united states uses the term here, so indispensable that if we can't regulate the intrastate traffic, we don't want to regulate the interstate traffic, either. the whole law criminalizing drug traffic would fall. so i think once you look at the finding for what i believe it says, which is, we believe this is a useful part of our regulatory scheme, which the congress would think in its own approach would be sufficient -- >> counsel, the problem i have is that you are ignoring the congressional findings and all of the evidence congress had before it that community ratings and guaranteed issuance would be a death spiral -- i think that was the word that was used -- without minimum coverage. those are all of the materi