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Obamacare faces the Supreme Court

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    Sam Olens explains possible rulings on Obamacare

  • Duration 7:33
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This transcript is automatically generated

Issue joining us now sample -- -- -- my pleasure thank you.

So based on where we are at this moment and what you've heard so far from the audio that have been released of the proceedings.

I know we're -- preliminary stages of this -- today's a very big day when we talk about individual mandates but.

What is it that you're looking to see in terms of the debate as it goes forward -- between both sides before the justices today.

Well yesterday I was in the court and I will be back in the court tomorrow.

Today course deals with the individual mandate in your can be looking for any sense from the justices for where they're headed in the decision.

Of whether or not economics in activity leads to a commerce clause case.

Do you believe that strictly on the merits of this commerce clause case that it is fundamentally a violation of the constitution.

To force people to buy health insurance.

Absolutely if an activity leads to a commerce clause case.

Then there is frankly a huge problem with the underlying principle of federalism and the tenth amendment what have little meaning.

In that and that itself -- the justices.

Separate that from the other issues that surround this.

And based strictly on constitutional question -- which it seems pretty black and white to me.

That they're gonna have to.

Overrule the individual mandate option.

Why would agree with you you know prior decisions dealt with for instance growing -- on -- some property.

And the court held that because you were eating some of the product that it was in fact the same this interstate commerce.

Here for the very first time.

Congress's acts is asking the court to hold that the failure to buy a product is interstate commerce and from my perspective that has no limit.

And there'll be no restraints on congress with regard to the commerce -- is absolutely essential.

That the court to throw the act out.

And isn't it also true that the founding fathers wanted the role of butter and the government to be limited in cases like -- situation like this and let the states decide.

On specifics for example like it but -- -- with car insurance for example.

You know even though it's required most days to have insurance -- -- argument -- you don't have to drive so that's how you get around that but that's a state decision not a federal.

Absolutely and under the tenth amendment and under the principles of federalism those responsibilities not specifically given.

To the federal government rests with the government closer to one.

Was upsetting the state government -- that I wasn't that in turn of the founding fathers are even when James Madison's very you know.

Fundamental principle that he was are you when they were putting -- constitutions.

Absolutely.

You know law students for decades are going to be looking at this decision.

This is not a minor case this is a seminal case in the history of our court and our nation.

And when you take a look at the fact that there are legal scholars out there and and those who are former.

You know solicitor generals are better other people who have been prior administrations including Republican ones.

Who say that in the long.

Can stand that there is no reason to strike this down based on the merits of what they see.

How is that possible when you're looking at strictly from a constitutional standpoint of what the what the amendment actually says.

Well look you've got folks that believe that the constitution as a living and breathing document.

And those are the kind of folks that will hold -- the actor's legal.

I firmly believe that we need to go back to what our founders -- we need to go to the exact words of our constitution.

That's the beauty of our country.

And and I think that is the document that is as strong today as it was when that was approved.

And that the commerce clause clearly.

Needs to.

Not be applicable to this fact pattern and for the -- to be held unconstitutional.

I understand all you know not obviously -- a living and breathing document I do see that I know I've given -- -- but I think on this one particularly I think when -- be hard pressed to try to.

Make.

The argument that in this situation they did not.

It doesn't have to follow the tenants of what the amendment actually says.

That said of how do you think this is gonna come down with the justices ruling do you think it's going to be a 54 decision.

Historically most of the commerce clause has -- then 54 decisions.

They've always been very close and it would not surprise me in the least of this too was a 54.

Do you think Justice Kennedy is the -- to watch it to see whether or not he may be the the one and two.

Raise some eyebrows you don't know the one that could turn this whole thing.

-- all likelihood Justice Kennedy is the swing vote he was very talkative -- yesterday he made very good comments.

And -- he's a very bright justice and we look forward to his guidance and and -- that he will in fact be part of the majority to throw this fact out.

And dean conversations from yesterday -- -- -- the court there as fact that they were.

Making that reference to specifically.

The questions of what is -- -- what is not attacks.

It was very interesting in and -- -- it is facing very keen on wanting to have.

That clarification -- to find this -- -- one day and tomorrow you will argue it is not a -- I -- it was very eliminating whether or not.

It actually was the funniest part of the argument when Justice Alito cents a mister solicitor general.

Today it's a penalty tomorrow you're gonna come and our courtroom and tell -- -- attacks.

That you know the whole courtroom sort of smiled because that's true.

And that consistency is everything in the law on the government's position is not consistent.

The commerce clause clearly should not reference economic and activity in the.

Do you thing that we're gonna see parts of this thing thrown out or and something -- allowed to stay or I mean I don't always hard to predict obviously but.

The way that it's going and that will go to day and then I have pretty good sense of how that's going to be argued obviously.

But.

You think it's possible that parts of this will be allowed to remain in place.

You know -- the court were to find that the individual mandate is unconstitutional.

I think there's a very strong likelihood that the whole -- will be stricken.

It is the linchpin of the acted as the financing of the act.

And I would be very surprised if they found the individual mandate to be unconstitutional.

But retain the balance of the act.

But the atmosphere is like in the court.

As you -- hearing all these arguments being put forth.

One you know clearly -- awestruck and by the court to sit -- the nation's highest court.

You look at the justices that there are some brilliance -- very brilliant individuals that have the honor of serving our court.

And you're you're watching history I mean this is the case that will be talked about -- generations to come.

So you know as we talk about in law school and in the courtroom cases like -- hurt very vs Madison.

They're gonna be talking about this case send -- -- this one have the opportunity to watch history in the making.

Indeed indeed sir thank you very much mr.

Owens for joining us today you certainly have had a seat to history and we'll look forward to hearing your comments once a decision is rendered we appreciate it thank you.

-- -- thank you.

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