Tough day for government at Supreme Court?
Justices signal possible trouble of ObamaCare
- Duration 9:04
- Date Mar 27, 2012
Justices signal possible trouble of ObamaCare
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Fox News -- back now to the breaking news on the historic case before the US Supreme Court.
The fate of the president's health care law which could be in trouble today and may come down to one man.
Now we have more.
Of the audio of today's key moments are gonna go through some of this.
With two men who have expert knowledge of the High Court and the issues before today Julian Epstein -- legal counsel for the House Judiciary Committee.
He's written extensively on congress' power under the commerce clause which is the linchpin here.
Of the government's case.
Also -- secular chief counsel for the American Center for Law justice he's argument for the High Court twelve times and had at least twenty cases before.
The High Court OK guys.
Let me start with you this -- how before we get to the -- that we have which is really quite tell him.
How did you think it went.
There were very good I'm very pleased.
Like I will say as a caution you never go by the oral argument but clearly as and that the key vote here is Justice Kennedy.
His statement that the government had a heavy burden.
-- which established the fundamental changes he called it between the role of government and its citizens that was an important statement.
He also said I can't find -- limiting principle here.
So I was very pleased clearly Justice Alito.
Thomas did not speak which is normal but you know words I think it's pretty clear -- -- -- will be here.
Chief Justice Robert expressed significant skepticism with the government's case.
One commentator said that this was a train wreck for the Obama administration I don't I'm gonna say this this well I'd rather be on my side of the case today.
Then on the government side but you know oral arguments oral arguments but it went very well Paul commend Mike Hartman did a brilliant job.
But carbon who by the -- just tell the viewers can get a program tomorrow he's he's a lawyer Jones day which is yours truly is former firm.
He's arguing against this law we'll talk to him live about how he thinks it -- tomorrow but I want to ask you Julian.
Because we're getting from the left you know Jeffrey Toobin who is -- a liberal commentator.
That's who -- was referring to call this a train wreck the Obama administration said the law looks like it's gonna be struck down Kennedy is a lost cause.
The solicitor general did -- simply awful job defending the law Paul Clemente is our former solicitor general under President Bush she said did a very excellent job.
Attacking a lot.
Based on what I heard today this laws in grave grave trouble.
Well I -- I largely agree with where what Jay said I think that Justice Kennedy did surprisingly in this is the big news.
Express more skepticism about the mandate and I think any of us had really anticipated.
On the other hand -- Jay has pointed out I agree with him.
It is really hazardous to try to read the tea leaves on and members of the court's questioning.
Infrequently they ask questions to play devil's advocate they're trying to poke at the weakness of the arguments it doesn't necessarily.
Act as an indicator or barometer of what they're viewers.
Also I think -- I did not expresses much skepticism is I would have expected.
And I think that Alito was voted -- in potentially in play here.
So I I think it's still -- real tossup I think Jeffery tube since he's an excellent commentator.
I think his proclamations of the death of this are are to use mark twain's for paraphrase mark brings -- are a little bit premature at this.
-- -- I think Tom Goldstein -- an expert Supreme Court watcher was on at the top of the broadcast saying even though if I went poorly for the government today thanks.
Once they get behind closed doors they will find the liberals will find that fifth vote if not Kennedy and perhaps -- Roberts or somebody else.
I want to play a little bit of Justice Kennedy just because you never get to hear that stuff right -- guards in the arguments.
Here's Justice Kennedy the man everybody believes is all gonna come down to let the viewers here whether they -- any skepticism.
In his questioning earlier today I think this is him questioning the government's lawyer listen.
So good reason the reason this is concerned this because it requires that individual to do an affirmative act.
In the local courts are traditional -- -- -- If you don't have the duty to rescue someone if that person's endanger the finance walking in front of a car and you do not have a duty to to -- -- some.
Relation between it.
And there's some.
It's sort of severe moral criticisms of that rule but that's generally the rule.
And here the government is saying.
That the federal government has a duty to -- with individual citizens that it must act and that is different.
From what we have in previous cases.
Well that changes the relationship of the federal government to the individual.
In a very fundamental way.
I don't think so Justice Kennedy -- is predicated on the participation of these individuals in the market for health care services.
-- for him it seemed to all be about.
Liberty and whether the government can do -- can encroach on one's liberty just because -- -- she is sitting on a sofa today but tomorrow may need health care.
This is the question coming from Justice Kennedy that the Obama administration did not want to hear.
Because if there is an indicator the indicator was this fundamental shift between -- -- relationship between the federal government.
And the citizens and that is the liberty interest you -- talking about a justice -- by the way has been -- in the past very protective.
-- -- that liberty interest and I think the concern if you're representing the government here I think Julian Scott have been legitimately concerned about this.
Is the fact that that fundamental -- may well be the reason.
Justice Kennedy decides that the law has to go -- unconstitutional because it is such a dramatic shift and the government unfortunately for the government I think good for my site never offered in limiting principle -- when you get to the.
I didn't didn't know who they are saying because because the right -- I'm reading suggests that at the end.
Kennedy -- -- everybody said he was bashing a -- -- a lot the last place team just say and the last question but is this something about the health care market that is so unique.
Rod that would be the limiting principle that would allow them to take these extraordinary steps.
Yeah -- very quickly so what -- to come into.
I think you that is being taken way out of context I listen to the entire audio today.
Of the message I've studied that question.
That question was that searching for the limitation but if you listen to his entire argument he never could find it nor could the government produce it.
Again you're -- reading tea leaves here and I think too much is being made of all of that I think the key question here is.
Where -- lot of people going into this argument thought.
That it wasn't gonna be a 54 -- an -- been six -- three or 72 I think that's vanished today so becomes a very close case and like I said I'd rather be on my side tonight.
-- -- -- -- -- -- Well I think -- the response as you pointed out is that buying the mandate to buy health care is not like a mandate to buy broccoli the analogy that's been used.
And that's because the mandate applies to free riders who have the capacity to buy insurance but choose not to buy insurance to save themselves money.
And they don't get insurance until they get sick because they want the rest of us to have to pick up the tab for their health insurance once they get sick.
We know already in the current system that the impact on interstate commerce or are actually on us.
As individuals who have health insurance is about a thousand dollars a year.
So the argument that the free riders don't have what under the Lopez case is a substantial impact on interstate commerce I think it's a week guard.
May I wanna have you look at what John I got it right I -- -- it isn't it a little bit more scalia's son and as we haven't heard from him and all the results let's just play.
Is it easier Julian -- the broccoli and listen a Justice Scalia always that one of the most colorful characters on High Court.
Why do you define the market that broadly.
Health -- it may well be that everybody -- health care sooner or later but not everybody needs a heart transplant.
And everybody needs a liver transplant.
What's correctly doesn't believe what you never know whether the deal could could you -- -- -- the market they have everybody has to buy food sooner or later so you define the market as food therefore everybody's in the market.
Therefore you can make people.
Like broccoli now he's gone for the slippery slope argument there Julian.
Yeah but I think the point is this -- to finish -- last thought the free riders we know will end up costing us a lot of money.
And having a huge impact on interstate commerce at least a thousand dollars a year a 106 for us individually -- -- sixteen billion.
And I think Lawrence is not a Mark Silverman has been that Charles -- a whole host of his -- -- product and service dollars and.
Jay what about Dudley who could donate their broccoli and wind up having heart attacks and -- pay for -- us and you know.
Look you know what -- that it did exactly the problem -- ideas forced entry into commerce and Julian is arguing a policy decision the court is saying we're not talk -- -- policy decision.
We're talking about authorization under the commerce clause and that's very different than last point here I think that it was telling.
That Lopez nary a mention in fact so far none.
That was at that is surprising that was another case dealing with the commerce -- I got an imminent you know with the congress -- -- -- -- OK guys thank you for being here.