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00:00:04
Unidentified Speaker, -
MORNING. I AM SHAUN MEEHAN WITH BLOOMBERG LAW. I'M PLEASED TO WELCOME YOU TO A SUPREME COURT ARGUMENT BRIEFING. WE ARE APPROACHING THE TWO-YEAR...
00:01:26
Unidentified Speaker, -
MORNING, EVERYONE. ON BEHALF OF THE SCOTUSBLOG AND BLOOMBERG LAW, WE'RE GLAD YOU'RE HERE. IF YOU WEREN'T HERE, WE WOULDN'T BE. CONTRARY TO THE PERCEPTIONS...
00:07:54
Unidentified Speaker, -
MY NAME IS TOM GOLDSTEIN, PUBLISHER OF SCOTUBLOG, WE ARE INCREDIBLY GRATEFUL THAT THOSE OF US IN THE -- THOSE OF YOU IN THE ROOM AND WATCHING EITHER...
00:12:59
Unidentified Speaker, -
A TRY. I THINK MAYBE NEIL WOULD HAVE A DIFFERENT WAY OF DESCRIBING IT BUT PROBABLY NOT TOO DIFFERENT. THE KEY PROVISION HERE THAT IS -- THAT HAS GENERATED...
00:16:41
Unidentified Speaker, -
ALL, THANK YOU FOR THIS WONDERFUL EVENT, IT'S A DELIGHT TO BE HERE WITH ALL OF YOU. I DID REPRESENT THE GOVERNMENT, I'M NOT HERE NOW REPRESENTING THE...
00:19:49
Unidentified Speaker, -
YOU WEREN'T PERSUADED BY THAT, IS HEALTH INSURANCE KIND OF FOUNDATIONALLY DIFFERENT IN AWHAT THAT EXPLAINS WHY CONGRESS COULD IMPOSE THE MANDATE HERE...
00:20:06
Unidentified Speaker, -
WRONG FOR THREE REASONS. THE FIRST IS HE COMPLETELY MISDESCRIBED CONGRESS' PURPOSE IN EP ACTING THIS PLAN. THIS IS NOT ME SPEAKING THIS COMES STRAIGHT...
00:24:21
Unidentified Speaker, -
BACK. I KNOW YOU HAVE A THIRD POINT. AMONG YOUR REACTIONS BOTH PAUL AND MICHAEL HAVE SAID THERE IS NO LIMITING PRINCIPLE HERE. MAYBE THERE IS THERE...
00:29:41
Unidentified Speaker, -
MAKE SURE SO THAT -- THERE ARE TWO ARGUABLE CONSTITUTIONAL BASIS FOR THE STATUTE THAT HAVE BEEN DISCUSSED. SO FAR THE THREE OF YOU-ALL TALKED ABOUT...
00:31:29
Unidentified Speaker, -
TAX. WHAT THIS DOES, THE MANDATE IS AN -- IS A REQUIREMENT THAT EVERY INDIVIDUAL SAVE CERTAIN PEOPLE WHO ARE INCARCERATED, PEOPLE WHO ARE NATIVE...
00:36:04
Unidentified Speaker, -
AKIL, I ABSOLUTELY AGREE WITH EVERY WORD HE SAID. HIS THOUGHT IS ANYTHING THAT CONGRESS CAN TAX AND TAKE AND GIVE TO AN INDIVIDUAL, CONGRESS CAN REQUIRE...
00:38:38
Unidentified Speaker, -
YOUR FRIEND, PAUL, I THINK YOU CAN READ THE CASE UNTIL YOU ARE BLUE IN THE FACE. YOU WILL NEVER FIND THE PRINCIPAL HE'S TRYING TO TEASE OW. THAT CONGRESS...
00:40:44
Unidentified Speaker, -
PLAYED DOWN -- LAID DOWN BY PAUL AND MICHAEL ON ONE PARTICULAR POINT. I WANT TO MAKE SURE WHETHER WE ARE AGREED ON IT OR NOT. THAT IS THEY SAY THAT...
00:41:18
Unidentified Speaker, -
WRONG. COULD I FLUSH THAT OUT? >> SURE. >> FIRST
00:41:22
Unidentified Speaker, -
OF ALL I THINK IT'S IMPORTANT TO APPRECIATE THE ROLE OF GOVERNMENT WHERE PAUL DOES. THE GOVERNMENT'S NOT GOING TO COME IN AND SAY, HERE ARE OUR LIMITING...
00:43:18
Unidentified Speaker, -
SO LIMITING PRINCIPLES. I READ YOU A PASSAGE FROM MCCLULLA WHERE HE WAS TALKING ABOUT THE TAX POWER, AS NEAL HAS SAID THERE ARE OTHER POWERS AND THE...
00:47:30
Unidentified Speaker, -
ON CONGRESS, DOESN'T IT? WE HAVE BEEN LISTENING TO 20 MINUTES OF THIS. YOU KNOW WHAT CONGRESS HAS GOT TO DO? IT'S GOT TO RATIONALLY FIND IT'S A PROBLEM...
00:47:53
Unidentified Speaker, -
DUE. GIVEN IT'S DUE, THAT IS, I THINK WE CAN AGREE THAT HEALTH CARE AFFECTS INTERSTATE COMMERCE AS DO SO MANY THINGS UNDER THE MODERN CONCEPTION....
00:48:29
Unidentified Speaker, -
A FAIR QUESTION AND I'M SURE MICHAEL HAS GREAT ANSWER TO IT. BEFORE WE LEAVE COMPLETELY THE LIMITING PRINCIPLE. CAN I THINK TWO THINGS? I'M NOT SURE...
00:48:59
Unidentified Speaker, -
OK. LOOK, I ARGUED -- WHEN I ASKED FOR MY LIMITING PRINCIPLE I POINTED TO LOPEZ AND MORRISON. BUT THAT HAS NOTHING TO DO WITH THIS PARTICULAR POWER....
00:49:31
Unidentified Speaker, -
THE REGULATION IS NOT THE INDIVIDUAL MANDATES. THERE IS AN INTERSTATE PROBLEM THAT PRE-EXISTS THE INDIVIDUAL MANDATE. THIS IS ONE WAY -- HANG ON. >>...
00:49:40
Unidentified Speaker, -
SHOULD TRANSITION TO THE QUESTION THAT TOM ASKED MIKE, WHICH IS YOUR POINT HERE, I THINK, IS THAT YOU DON'T HAVE TO SHOW REALLY ANYTHING ABOUT THE INTERSTATE...
00:50:00
Unidentified Speaker, -
STATEMENT OF THE FACTS TWICE YOU SAID, NOT JUST A PART, YOU SAID, QUOTE, A CRITICAL PART. WE HAVE TO BE -- >> MIKE AND I WILL -- >> IT IS A CRITICAL...
00:50:11
Unidentified Speaker, -
A COMPREHENSIVE SCHEME, PLANP TO DEAL WITH A GENUINE INTERSTATE PROSH THAT NO -- PROBLEM THAT NO INDIVIDUAL STATE CAN HANDLE. AND JOHN MARSHALL WOULD...
00:50:26
Unidentified Speaker, -
YOU EMPHASIZED IN THAT SENTENCE, GENUINE, INTERSTATE, COMMERCE, ARE THE KIND OF WORDS THAT THE SUPREME COURT WILL ALWAYS DEFER TO CONGRESS ON. AND SO...
00:50:49
Unidentified Speaker, -
INTERSTATE. LET'S START THERE. I'M SIGNATURE AT HOME IN MY LIVING ROOM. I'M NOT BUYING INSURANCE. I'M NOT ENGAGED IN COMMERCE. LOCAL INTRASTATE, INTERSTATE....
00:53:05
Unidentified Speaker, -
THAT. WHEN MIKE SITS IN HIS LIVING ROOM AND DOESN'T BUY INSURANCE, HE IS ACTUALLY DOING SOMETHING THAT AFFECTS THE NATIONAL ECONOMY. THAT'S WHAT THE...
00:53:36
Unidentified Speaker, -
A LIMITING PRINCIPLE? -- RISE TO LAMINGT PRINCIPLE? THE PROBLEM IN 2008 WAS THAT PEOPLE WERE SITTING IN THEIR LIVING ROOM AND THEY WEREN'T BUYING...
00:53:47
Unidentified Speaker, -
DIFFERENCE. WHAT CONGRESS IS SIGNIFICANT, WHAT SUTTON IS SAYING, HEALTH CARE IS THE DIFFERENT THAN THE BUYING OF CARS. EVERYONE IS GOING TO NEED HEALTH...
00:54:51
Unidentified Speaker, -
IF YOU'RE RIGHT, WE COULD DEBATE THE FACTUAL PREMISE, EVEN IF YOU'RE RIGHT THAT THE HEALTH CARE MARKET IS DIFFERENT IN THAT RESPECT, WHY DOES THAT SUGGEST...
00:55:46
Unidentified Speaker, -
WHAT DOES THE WORK IN YOUR ARGUMENT, AND YOU ARE TRULY THE BEST LAWYER OF YOUR GENERATION, IF YOU CAN'T WIN THIS CASE, NO ONE CAN, I DON'T THINK ANYONE...
00:56:32
Unidentified Speaker, -
IS VERY DISTINCT BECAUSE EVERYONE NEEDS TO HAVE IT AND WILL HAVE IT AT SOME POINT IN THEIR LIFE. THAT'S NOT TRUE OF OTHER THINGS. HERE'S THE SECOND...
00:57:22
Unidentified Speaker, -
IS SAYING THAT YOU CAN'T PAY FOR HEALTH CARE WITH YOUR OWN MONEY. THAT YOU HAVE -- ARE YOU GOING TO HAVE TO PAY FOR IT WITH INSURANCE. THAT WHEN MICHAEL...
00:57:56
Unidentified Speaker, -
NO. BECAUSE THEY COULD REQUIRE YOU TO COMPEL EVERY TIME YOU DECIDE NOT TO BUY A PRODUCT WHETHER IT'S CONTRACEPTIVES OR BOOKS IN A SCHOOL CURRICULUM...
00:58:20
Unidentified Speaker, -
APO GUISE. ARE YOU GOING TO BUY HEALTH INSURANCE. THE PREMISE OF THE STATUTE. TWO SENTENCES. AND I TAKE IT THE STAT -- THE STATUTE IS SAYING -- IS...
00:59:05
Unidentified Speaker, -
MY FEET. I HAVE DECIDED TO SELF-MOVE OR A SCOOTER OR A CAB OR AIRPLANE. WHAT WE ARE JUST TELLING YOU WHICH WAY YOU HAVE DECIDED TO ENGAGE IN TRANSPORTATION....
01:00:50
Unidentified Speaker, -
I THINK YOUR LOPEZ EXAMPLE BACKFIRES. OUR POINT IS THAT LOPEZ DEMONSTRATES THE PRECISE LIMITS THAT IN LOPEZ THE STATES WERE SEPARATELY COMPETENT TO...
01:01:38
Unidentified Speaker, -
AN INTERSTATE FOOD MARKET THEORY. BUT IF I CAN JUST TRY. YOU STARTED THIS -- NEAL, I'M SOARRY. YOU STARTED THIS BY SAYING WE ARE ALL MODELING THIS...
01:02:05
Unidentified Speaker, -
TOLD THE COURTS THEIR SOLUTION DIDN'T WORK EFFECTIVELY PRECISELY BECAUSE IT WASN'T A NATIONAL SOLUTION. >> BECAUSE
01:02:12
Unidentified Speaker, -
YOU CAN'T HAVE YOUR CAKE AND EAT IT TOO. WHAT YOU CAN'T DO IS TELL PEOPLE -- LET'S SEE IF ANYONE DISAGREE WAS THIS ECONOMIC RATIONALE. IF FIRE INSURANCE...
01:03:04
Unidentified Speaker, -
NOTHING TO DO WITH POLITICS. WHAT IT HAS TO DO WITH IS YOUR FALSE ASSERTION THAT THIS IS SOMEHOW A UNIQUE FACTUAL SCENARIO WHERE CONGRESS IS NEVER...
01:03:31
Unidentified Speaker, -
LIMIT. >> LET'S TALK ABOUT MASSACHUSETTS AND CARS AND WILL I NOT USE A CERTAIN WORD THAT BEGINS WITH INTERAND ENDS WITH STATE. THEY WANT YOU TO THINK...
01:04:28
Unidentified Speaker, -
THEM THEIR DUE. THEY WOULD SAY THERE ISN'T A BIG CONCERN ABOUT THIS IN THE CASE LAW BECAUSE THERE HAS NEVER BEEN A STATUTE THAT REQUIRED SOMEBODY TO PURCHASE...
01:04:40
Unidentified Speaker, -
TO GET INSURANCE, ALMOST EVERY STATE, BEFORE YOU GO ON THE ROAD BECAUSE OTHERWISE YOU ARE EXPORTING COSTS ON THE PEOPLE. THAT IS IS A MANDATE TO...
01:05:26
Unidentified Speaker, -
IS THIS, THIS IS SOMETHING THAT THE STATE SHOULD BE DOING. AND I DON'T THINK THAT THEY ARE GOING TO BE PERSUADED -- THEY ARE NOT GOING TO BE PERSUADED....
01:05:47
Unidentified Speaker, -
YES. I READ IT TO YOU. MILITIA ASKET 1792. >> YOU COULD HAVE
01:05:52
Unidentified Speaker, -
BEEN GIVEN THE GUNS. YOU WEREN'T REQUIRED TO PURCHASE THEM. >> YOU
01:05:55
Unidentified Speaker, -
DON'T HAVE TO PURCHASE THIS. YOU CAN BE GIVEN A HEALTH INSURANCE POLCY. IT'S THE SAME. LOGICALLY ALL THE WAY DOWN. I'M MAKING A TWOFOLD POINT. ONE,...
01:07:11
Unidentified Speaker, -
LIKE ME TO RESPOND TO THE MILITIA ACT -- I'M HAPPY TO. >> ON THE
01:07:18
Unidentified Speaker, -
QUESTION OF WHETHER THERE IS A LIMITING PRINCIPLE, I TAKE IT THAT YOU AGREE THAT CONGRESS COULD HAVE DONE THIS WITHOUT IT BEING A TAX, RIGHT? AND SO...
01:07:55
Unidentified Speaker, -
THROUGH OTHER MEANS? >> NO. IT SUGGESTS THERE IS A LIMITING PRINCIPLE AND THE LIMITING PRINCIPLE IS YOU CAN'T DO THIS THROUGH AN INDIVIDUAL MANDATE....
01:10:23
Unidentified Speaker, -
UNCONSTITUTIONAL BECAUSE YOU END UP BUYING THE INSURANCE? >> YOU CAN -- IF YOU CALL IT
01:10:27
Unidentified Speaker, -
A TAX, THEN AS MICHAEL SUGGESTS IT'S GOING TO BE DISTRIBUTED IN A DIFFERENT WAY, MORE BROADLY. I DON'T THINK CONGRESS WILL PASS A TAX. I'M NOT SURE...
01:12:23
Unidentified Speaker, -
NEAL THE CHANCE TO PUT IN A RESPONSE FOR FURTHER THOUGHT. THEN I WANT TO MAKE SURE WE HAVE TIME FOR QUESTIONS. >> JUST BRIEFLY, OF ALL
01:12:30
Unidentified Speaker, -
THE ARGUMENTS AND CRITICISMS AGAINST THE ACT, THE ONE THAT THERE IS A LACK OF POLITICAL ACCOUNTABILITY IS THAT THIS ACT SOMEHOW STOLEN TO THE UNSUSPECTING...
01:13:16
Unidentified Speaker, -
INDIVIDUAL MANDATE IF YOU LABEL IT A TAX. I'M SAYING YOU COULD ACCOMPLISH THE SAME OBJECTIVE BY RAISING EVERYONE'S TAXES AND PROVIDING A DIRECT SUBSIDY...
01:13:39
Unidentified Speaker, -
THERE IS NO DIFFERENCE BETWEEN REQUIRING PEOPLE TO DO SOMETHING DIRECTLY AND CREATING A FINANCIAL INCENTIVE TO DO SO I ASSUME THE GOVERNMENT WILL...
01:13:56
Unidentified Speaker, -
DO WITH SOMETHING VERY DIFFERENT. >> WE HAVE 20 MINUTES
01:14:00
Unidentified Speaker, -
LEFT. LET ME MAKE SURE THAT WE HAVE THE OPPORTUNITY TO ASK QUESTIONS. I THINK BEFORE -- I THINK WE HAVE MICROPHONES AVAILABLE. HERE WE GO. IF YOU'LL...
01:15:14
Unidentified Speaker, -
ACT LET ME ASK NEAL FIRST. IS THAT OK? >> I DON'T REMEMBER
01:15:19
Unidentified Speaker, -
ALL THE DETAILS. IT MIGHT BE BETTER O TO POSE TO THOSE TWO. >> THE FIRST PROBLEM WITH
01:15:26
Unidentified Speaker, -
THE QUESTION IS YOU REFER TO IT -- BUT IT'S IMPORTANT TO, AGAIN, DISTINGUISH BETWEEN THE MANDATE AND THE PENALTY THAT ENFORCES THE MANDATE. THE PENALTY...
01:16:20
Unidentified Speaker, -
QUESTION ASSUMED -- ASSUME THE STATUTE IS UPHELD UNDER THE TAXING POWER DORKS IT THEN RUN INTO THE ANTI-INJUNCTION ACT? >>
01:16:28
Unidentified Speaker, -
OK. EXPLAIN MORE BROADLY WHY I DON'T THINK IT'S A PROBLEM. IT'S NOT A PROBLEM BECAUSE THE PRINCIPLE CHALLENGE IS TO THE MANDATE. THAT CREATES AN IMPORTANT...
01:18:15
Unidentified Speaker, -
IS THE INDIVIDUAL -- IF THE INDIVIDUAL MANDATE GOES DOWN DOES THE REST OF THE STATUTE LOGICALLY HAVE TO FALL APART? >> THE GOVERNMENT HAS
01:18:23
Unidentified Speaker, -
TAKEN THE POSITION IN THIS CASE THAT IF THE INDIVIDUAL MANDATE FALLS, ONLY A FEW PROVISIONS OF THE ACT FALL, THAT IS THE INSURANCE MARKET REFORMS AND...
01:19:28
Unidentified Speaker, -
APART IF THE MANDATE GOES DOWN? >> PRECISELY
01:19:31
Unidentified Speaker, -
BECAUSE NEAL'S RIGHT. I DON'T THINK ANY REASONABLE PEOPLE CAN DISAGREE THAT THE INDIVIDUAL MANDATE IS TIED INEXTREEKABLY TO THE WHAT WE CALL GUARANTEED...
01:20:51
Unidentified Speaker, -
SEVERALIBILITY WOULD BE RATHER THAN KILLING THE WHOLE THING OR EVEN THE HEART AND LUNGS OF IT, WOULD BE TO SAY, IF IT'S ALL ABOUT THE FACT THAT THE USED...
01:22:04
Unidentified Speaker, -
STATUTE IS ACTUALLY STRUCTURED IN SUCH A WAY THAT PAYING THE PENALTY IS NOT COMPLIANCE WITH THE MANDATE, AND AMEND IT CONTINUES. YOU ARE UNDER A FEDERAL...
01:22:18
Unidentified Speaker, -
READ THE STATUTE SO THAT IT IS CLEAR IT THAT AS LONG AS YOU PAY THE PENALTY, YOU ARE IN COMPLIANCE. IF THAT SATISFIES EVERYONE, THAT IS IN NICELY SMALL,...
01:22:32
Unidentified Speaker, -
IS AND NOT THE LABELING ISSUE. I DON'T CARE IF THEY CALLED A TAX, PENALTY, OR A BANANA. WHAT IT IS IS A MANDATE TO DO SOMETHING AND IF YOU DON'T DO...
01:24:05
Unidentified Speaker, -
MUST POSITION -- GOVERNMENT'S POSITION IS THAT TO REACH ITS GOAL OF UNIVERSAL COVERAGE, IT IS NECESSARY TO REQUIRE PEOPLE TO BUY PRIVATE HEALTH INSURANCE....
01:24:43
Unidentified Speaker, -
AM A LIBERTARIAN, BUT I DON'T THINK THE SUPREME COURT TO JUDGE THE VALIDITY OF CONGRESSIONAL ACTION BY WHETHER I.T. HAS MORE OR LESS LIBERTARIAN THAN...
01:25:16
Unidentified Speaker, -
THERE ARE OTHER OPTIONS, INCLUDING SINGLE PAYER, THAT MIGHT BE SCORED DIFFERENTLY BY THE AMERICAN LIBERTARIAN ASSOCIATION OR SOMETHING, BUT THE FACT THAT...
01:25:43
Unidentified Speaker, -
PAUL SAID. IF THE ARGUMENT IS THAT THEY COULD HAVE CALLED THIS A TAX RATHER THAN CONGRESS, WHAT IS THE BIG DEAL? WHO CARES IF WE WENT ON THE COMMERCE...
01:26:29
Unidentified Speaker, -
CRS. WHAT IS THE BASIS OF THE ARGUMENT THAT THE MANDATE IS UNCONSTITUTIONAL? >> THE COURT HAS MADE CLEAR
01:26:39
Unidentified Speaker, -
THAT YOU HAVE TO GO BACK TO FIRST PRINCIPLES. FEDERAL GOVERNMENT IS INHERENTLY DIFFERENT FROM THE STATES BECAUSE THE FEDERAL GOVERNMENT IS ONE OF LIMITED...
01:27:49
Unidentified Speaker, -
AS THE COURT HAS SAID, YOU SHOULD NOT GET UP TO ON ON WHETHER THE LIMITING PRINCIPLE -- THE COURT HAS SAID REPEATEDLY IT THAT AS LONG AS IT IS WITHIN...
01:28:42
Unidentified Speaker, -
TO THE SAME THING WITH THE INCOME TAX. THEY DO NOT CONCEDE THAT THERE IS A LIVING PRINCIPLE. MIKE SAID THAT, I EMPHATICALLY DISAGREE. HE DOES NOT WANT...
01:29:59
Unidentified Speaker, -
JUST WANT TO MAKE A COMMENT, BECAUSE WHEN I WENT TO LAW SCHOOL IN THE 1980'S, I SPENT A LOT OF TIME TALKING ABOUT THAT, AND I DON'T REMEMBER EVER TALKING...
01:30:22
Unidentified Speaker, -
AN OBVIOUS DISTINCTION BETWEEN REGULATING SMALL PRODUCERS OF THE PRODUCT AND THE CONGRESS THAT PASSED THE LAW IN THE 1930'S, INSTEAD OF TELLING MR. SILVER...
01:31:24
Unidentified Speaker, -
THESE WERE SITUATIONS WHERE PEOPLE ARE NOT DOING ANYTHING AT ALL. SHE WAS NOT ENGAGED IN INTERSTATE COMMERCE WHEN SHE WAS TRYING TO GROW MARIJUANA IN...
01:32:21
Unidentified Speaker, -
YOU HAVE HEARD ALL THIS TALK ABOUT THE LIMITS, LOPEZ, MORRISON, WE THINK WE ARE ON THE CORRECT SIDE OF THESE CASES. THEY BASICALLY DRAW THE LINE BETWEEN...
01:33:05
Unidentified Speaker, -
COMMENTARY WILL CAPTURE THE GOVERNMENT'S POSITION. THE ADMINISTRATION LIKE HALF OF JUSTICE SCALIA'S POSITION. WE HAVE RESPONSE TO THAT THERE ARE OTHER...
01:35:09
Unidentified Speaker, -
ARE NOT COMMERCE CLAUSE CASES, AND PAUL'S IS THE PROBLEM IS THAT WHEN YOU ARE SITTING IN YOUR LIVING ROOM, YOU ARE, CONGRESS FOUND, AFFECTING INTERSTATE...
01:35:35
Unidentified Speaker, -
APPRECIATE IT, AND THANK YOU ALL FOR COMING. [APPLAUSE] [CAPTIONING PERFORMED BY NATIONAL CAPTIONING INSTITUTE] [CAPTIONS COPYRIGHT NATIONAL CABLE...

NOTE: The transcript for this program was compiled from uncorrected Closed Captioning.

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