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Well we've introduce you to the man who is preparing to argue with could be the biggest Supreme Court case of a generation the fight against the president's health care law.
Well now we bring you more of our conversation with the former solicitor general Paul Clemente why he wanted to tackle this case and his strategy for winning day.
We're gonna win this case by emphasizing to related principles one is that this is a completely unprecedented exercise of congressional power.
In related -- the government and they've been asked many many times just doesn't have a limiting principle for their argument.
So congress has been passing laws for 220 years.
There have been lots of crises over this 220 years have been lots of opportunities where we can really convenient.
To force people to buy something.
And congress is never resorted to that power you could ask yourself is that because congress has been really -- for -- Or is that because the power doesn't exist in our submission is that's because the -- doesn't exist.
That's about a -- ability issue here if indeed the court did decide to strike -- and it is unconstitutional.
Can the rest of the loss survive.
I think it's going to be very difficult and because the more you study of the law the more you recognize that a lot of the basic provisions are very inner -- So even the government in this case concedes that if the mandate falls.
Then the so called community rating and guaranteed issue provisions have to fall and -- government wants to say that's where it should end.
But I think that really -- understands the -- because once you look at the mandate guaranteed issue and community rating.
That's really the part of the act as you look at this it really is a little bit like dominos falling.
Because if you take out one provision and then you take -- another provision pretty soon you have really the heart of the act.
That is invalid and the rest -- it really can't stand.
Well you'll also argue the Medicaid expansion issue which a lot of folks are familiar with the basically -- the law changes the amount of folks that would have to be on Medicaid rules the states say they can't afford it it's an overreach of federal power.
What's your best argument there will are.
Best argument there is to point to the supreme court's own cases that have always said there is a limit to what congress can do under the spending -- It can't just without limit -- -- the states into doing whatever the federal government wants to do -- there's no limit on what the federal government can make the states do.
Then they can really make them do anything including impose an individual mandate.
So in some sense if there are limits on spending power.
The limits on the commerce power than necessary and proper power and all this other powers would all go for -- that's why these issues so important really gets base down to -- Basic question if you do we have a limited government or do we have an unlimited federal -- Are you worried about any particular justices.
And being able to convince them.
Well look I'm worried about all nine justices and I never buy into the notion in any case.
That I'm limited to certain justices and I can only get certain tests so I'll be trying to get all nine -- to vote my way that some of them based on their past.
Case law on their past opinions are going to be harder than others.
But I'm not as worried I think at some people are about.
Some justice is based on what they've written I think some people frankly haven't read even the whole opinions they're talking about.
Lot of people are very excited about justice scalia's opinion -- race.
I look at what he wrote and I think it's actually.
Frankly helpful for us and -- in this case do you think about that historical perspective the consequences.
Of what this ruling -- -- I think you deal with it as as an appellate lawyer it's a constitutional lawyer because.
You know there's there's a sense that that I mentioned to somebody else that this is constitutional.
Law in its best cents.
Which it really means you know how do we constitute a ourselves as a people how to we run our government is -- all gonna be run from the federal government.
Are there going to be some things that only the states can do.
And when you get to have an argument that really has those features to it it's it's hard not to.
Understand it as being historical because I think every single person in this country.
It's tremendously proud of our constitution and the fact that it's endured the fact that you know they're relatively few amendments to it.
And so we had a case like this that asks a question.
That's so basic to the constitution -- that think it's it's very it's it's unmistakably historic and that's -- -- you want to take this case.
I wanted to take this case because.
Think it's the rare.
Really big case where the -- can make -- difference and that gets back to the point we talked about it beginning about this being unprecedented.
-- -- right now I mean I'd be happy to get involved in a case involving something like the war on terror campaign finance.
But you'd look at those cases and you know that the court has already decided.
Numerous cases in those areas and most of the justices probably know what they think.
About the campaign finance case even before they've read the -- that doesn't mean they won't read the briefs and give everybody the benefit of the doubt but they've really thought about those issues a lot.
Here's one where just by virtue of the fact that congress hasn't ever done this before.
The justices I think are gonna be more open to persuasion I think.
Some of -- lower court judges were also open to persuasion you know the other side.
Likes to point to a couple of Republican appointed judges who upheld the law but in a judge -- in the eleventh circuit.
Was appointed by President Clinton was one of our votes to strike down the law.
And I just think that shows that this is a case where.
The judges and justices are open to persuasion and therefore the -- really matters and that's why it's -- you know I really thought.
Was one that would be very exciting to be apartment.
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