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Two days down one day to go as the highest court in the land is dealing with the heart of the health care law whether the federal government.
Has the power to require you to buy health insurance or pay a fine.
So -- the justice is giving any signals on which way they might rule.
Let's ask fox senior judicial analyst judge Andrew Napolitano.
Judge we haven't heard the audio yet from today's courtroom session but the breakdown we're getting in print about the questions.
The justices asked suggests that the court is kind of breaking down along the the four liberals four conservative line -- justice Anthony Kennedy being the swing vote again.
And day even though I was not in the courtroom and I have not listened to the audio yet I'm about to do so as soon as.
You when I finished chatting John it appears that Justice Kennedy.
Did ask some of the most profound and stinging questions if you will.
Of the government.
Saying things like well how can the government create a market for the purpose of enabling it to regulate that market and and this is the profound question.
He says to the solicitor general.
Isn't it true that this law if -- disturbed.
Would profoundly change the relationship between the federal government and individual Americans that is the core.
Of the objection of those of us who follow the constitution for a living.
Have with this statute.
Is that it would and it -- it would change the relationship of the government to individuals without an amendment of the constitution.
Simply by a vote of -- Yes well one of the arguments apparently the proponents of the law have made is that if you are born into this country you are going to need health care.
At some point and therefore it becomes.
A government matter how do you address that.
Well when justice.
-- Ginsburg made an argument to that effect in the form of -- question.
Two one of the lawyers challenging the statute that where was Paul -- former solicitor general.
Justice Scalia actually jumped in before.
Paul Clement could answer justice Ginsburg is a question and said you know you could say that with just about anything.
You could say with a automobiles you could say it would transportation.
You could -- with who would you could say it with clothing.
Yes we all need these things and yes but the fewer people that purchase them the more it's going to cost for the rest of us.
That doesn't give congress or dramatically the authority to regulate that area of human behavior.
Very very telling and exceedingly sharp questioning and in the case of justices Scalia and -- and Ginsburg.
From one justice to the other as opposed to from one justice to the lawyer you save it.
-- commerce clause initially was was was brought into being in part to.
Governed ferry fares between New Jersey where you live and New York where we're sitting right now all.
How does that get blown up into the kind of you know federal program we're looking at today and health care law.
You know one of the first major commerce clause cases had to do with that the -- to get on a ferry from Hoboken to New York in the Supreme Court said.
Congress can regulate it.
Well a couple generations later congress decided to regulate the wages of workers.
Whose products were put on to the ferries to get from New Jersey -- New York in congress set under the commerce clause they can regulated and a few generations later congress decided.
To regulate the workplace in which those workers worked.
Even if -- products we're not getting on the ferries.
And the Supreme Court said congress can regulate that so by a gradual slow -- over the course of a 150 years.
Addition to congress' power.
And the Supreme Court saying yes.
We now have a congress that can regulate -- strength of the flow of water in our.
In our showers on our home the thickness of the shoes on our feet the a matter of ketchup in sugar that level regulations congress has imposed.
And the courts are permitted.
It's almost endless and it looks like made -- -- We've reached the end of that line with this legislation well I suspect I now.
Know how justice Andrew Napolitano wouldn't -- not sitting on -- Supreme Court but how do you predict this court will rule.
It's actually -- dangers to predict.
Having been on the bench as you so nicely -- remind our viewers sometimes you ask questions and it doesn't reveal how you think.
But I do believe that the court will invalidate the individual mandate.
By a five to four vote Justice Kennedy siding with them were traditional.
Justices it written it remains to be seen what they do with the rest of the statute there -- substantial challenges tomorrow John.
Tomorrow the court addresses whether the congress can tell the states what to do.
The congress has told the states raise taxes and spend those new tax dollars as will -- as we're telling you to spend -- 26 states obviously more than half have challenged that the court will address tomorrow going to be fascinating judge and -- Polycom -- thanks for helping us understand thank you for calling me -- stepped up.
Could and we never know.
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