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	Roberts, John G. Jr. - Chief Justice We will continue argument this morning in Case 11-398, the Department of Health and Human Services v. Florida. General Verrilli. ORAL ARGUMENT OF DONALD...
	Verrilli, Donald B. Jr. - Solicitor General Mr. Chief Justice, and may it please the Court: The Affordable Care Act addresses a fundamental and enduring problem in our health care system and our...
	Scalia, Antonin - Associate Justice Why aren't those problems that the Federal Government can address directly?
	Verrilli, Donald B. Jr. - Solicitor General They can address it directly, Justice Scalia, and they are addressing it directly through this -- through this Act by regulating the means by which health...
	Kennedy, Anthony M. - Associate Justice Can you create commerce in Alderson Reporting Company Official - Subject to Final Review order to regulate it?
	Verrilli, Donald B. Jr. - Solicitor General That's not what's going on here, Justice Kennedy, and we're not seeking to defend the law on that basis. In this case, the -- what is being regulated is...
	Scalia, Antonin - Associate Justice So, any self-purchasing? Anything I -- you know, if I'm in any market at all, my failure to purchase something in that market subjects me to regulation.
	Verrilli, Donald B. Jr. - Solicitor General No. That's not our position at all, Justice Scalia. In the health care market -- the health care market is characterized by the fact that aside from the...
	Roberts, John G. Jr. - Chief Justice Well, the same, it Alderson Reporting Company Official - Subject to Final Review seems to me, would be true, say, for the market in emergency services:...
	Verrilli, Donald B. Jr. - Solicitor General No, Mr. Chief Justice. I think that's different. It's -- we -- I don't think we think of that as a market. This is a market. This is market regulation....
	Roberts, John G. Jr. - Chief Justice It seems to me that's the same as in my hypothetical. You don't know when you're going to need police assistance. You can't predict the extent to emergency...
	Verrilli, Donald B. Jr. - Solicitor General I think the fundamental difference, Mr. Chief Justice, is that that's not an issue of market regulation. This is an issue of market regulation, and that's...
	Alito, Samuel A. Jr. - Associate Justice Do you think there is a market for burial services?
	Verrilli, Donald B. Jr. - Solicitor General For burial services?
	Alito, Samuel A. Jr. - Associate Justice Yes.
	Verrilli, Donald B. Jr. - Solicitor General Yes, Justice Alito, I think there is.
	Alito, Samuel A. Jr. - Associate Justice All right. Suppose that you and I walked around downtown Washington at lunch hour and we found a couple of healthy young people and we stopped them and...
	Verrilli, Donald B. Jr. - Solicitor General No -≠
	Alito, Samuel A. Jr. - Associate Justice And if that's true, why isn't it equally artificial to say that somebody who is doing absolutely nothing about health care is financing health care services.
	Verrilli, Donald B. Jr. - Solicitor General It's -- I think it's completely different. The -- and the reason is that the burial example is not -- the difference is here you are regulating the method...
	Alito, Samuel A. Jr. - Associate Justice I don't see the difference. You can get burial insurance. You can get health insurance. Most people are going to need health care, almost everybody. Everybody...
	Verrilli, Donald B. Jr. - Solicitor General Well, one big difference -≠
	Alito, Samuel A. Jr. - Associate Justice What's the difference?
	Verrilli, Donald B. Jr. - Solicitor General One big difference, Justice Alito, is the -- you don't have the cost shifting to other market participants. Here -≠
	Alito, Samuel A. Jr. - Associate Justice Sure you do, because if you don't have money, then the State is going to pay for it or some -≠
	Verrilli, Donald B. Jr. - Solicitor General But that's different.
	Alito, Samuel A. Jr. - Associate Justice A family member is going to pay for it.
	Verrilli, Donald B. Jr. - Solicitor General That's a difference, and it's a significant difference. That in this situation, one of the economic effects Congress is addressing is that the -- there...
	Alito, Samuel A. Jr. - Associate Justice But isn't that really a small part of what the mandate is doing? You can correct me if these figures are wrong, but it appears to me that the CBO has estimated...
	Verrilli, Donald B. Jr. - Solicitor General No, I think that -- I do think that's what the Respondents argue. It's just not right. I think it -- it really gets to a fundamental problem with their...
	Ginsburg, Ruth Bader - Associate Justice If you're going to have insurance, that's how insurance works.
	Verrilli, Donald B. Jr. - Solicitor General A, it is how insurance Alderson Reporting Company Official - Subject to Final Review works, but, B, the problem that they -- that they are identifying...
	Kennedy, Anthony M. - Associate Justice Could you help -- help me with this. Assume for the moment -- you may disagree. Assume for the moment that this is unprecedented, this is a step beyond...
	Verrilli, Donald B. Jr. - Solicitor General So two things about that, Justice Kennedy. First, we think this is regulation of people's participation in the health care market, and all -- all this...
	Scalia, Antonin - Associate Justice Why do you -- why do you Alderson Reporting Company Official - Subject to Final Review define the market that broadly? Health care. It may well be that...
	Verrilli, Donald B. Jr. - Solicitor General That's correct, Justice Scalia, but you never know whether you're going to be that person.
	Scalia, Antonin - Associate Justice Could you define the market -- everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore,...
	Verrilli, Donald B. Jr. - Solicitor General No, that's quite different. That's quite different. The food market, while it shares that trait that everybody's in it, it is not a market in which your...
	Scalia, Antonin - Associate Justice Is that a principled basis for distinguishing this from other situations? I mean, you know, you can also say, well, the person subject to this has blue...
	Verrilli, Donald B. Jr. - Solicitor General Yes, for two reasons. First, this -- the test, as this Court has articulated it, is: Is Congress regulating economic activity with a substantial effect...
	Ginsburg, Ruth Bader - Associate Justice Mr. Verrilli, I thought that your main point is that, unlike food or any other market, when you made the choice not to buy insurance, even though you have...
	Verrilli, Donald B. Jr. - Solicitor General That is -- and that is definitely a difference that distinguishes this market and justifies this as a regulation.
	Breyer, Stephen G. - Associate Justice All right. So if that is your difference -- if that is your difference, I'm somewhat uncertain about your answers to -- for example, Justice Kennedy asked,...
	Verrilli, Donald B. Jr. - Solicitor General So -≠
	Breyer, Stephen G. - Associate Justice And the same with the computers, or the same with the -- the cell phones, if you're driving by the side of the highway and there is a federal emergency...
	Verrilli, Donald B. Jr. - Solicitor General It does, Justice Breyer, and if Congress were to enact laws like that, we -≠
	Breyer, Stephen G. - Associate Justice Would be up here defending it -≠
	Verrilli, Donald B. Jr. - Solicitor General It would be my responsibility to then defend them, and I would defend them on a rationale like that, but I do think that we are advancing a narrower rationale.
	Kennedy, Anthony M. - Associate Justice Well, then your question is whether or not there are any limits on the Commerce Clause. Can you identify for us some limits on the Commerce Clause?
	Verrilli, Donald B. Jr. - Solicitor General Yes. The -- the rationale purely under the Commerce Clause that we're advocating here would not justify forced purchases of commodities for the purpose...
	Kennedy, Anthony M. - Associate Justice But why not? If Congress -- if Congress says that the interstate commerce is affected, isn't, according to your view, that the end of the analysis.
	Verrilli, Donald B. Jr. - Solicitor General No. The -- we think that in a -- when -- the difference between those situations and this situation is that in those situations, Your Honor, Congress would...
	Roberts, John G. Jr. - Chief Justice That, it seems to me, is -- and it's a passage in your reply brief that I didn't quite grasp. It's the same point. You say health insurance is not purchased...
	Verrilli, Donald B. Jr. - Solicitor General No -≠
	Roberts, John G. Jr. - Chief Justice I don't understand that distinction.
	Verrilli, Donald B. Jr. - Solicitor General The difference, Mr. Chief Justice, is that health insurance is the means of payment for health care, and broccoli is -≠
	Roberts, John G. Jr. - Chief Justice Well, now that's a significant -- I'm sorry.
	Verrilli, Donald B. Jr. - Solicitor General And broccoli is not the means of payment for anything else. And an automobile is not -≠
	Roberts, John G. Jr. - Chief Justice It's the means of satisfying a basic human need -≠
	Verrilli, Donald B. Jr. - Solicitor General But -≠
	Roberts, John G. Jr. - Chief Justice -- just as insurance is the means of satisfying -≠
	Verrilli, Donald B. Jr. - Solicitor General But I do think that's the difference between existing commerce, activity in the market already occurring -- the people in the health care market purchasing,...
	Ginsburg, Ruth Bader - Associate Justice General Verrilli, can we -≠
	Verrilli, Donald B. Jr. - Solicitor General This is a regulation of existing commerce.
	Ginsburg, Ruth Bader - Associate Justice Can we go back to -- Justice Breyer asked a question, and it kind of interrupted your answer to my question. And tell me if I'm wrong about this, but I...
	Verrilli, Donald B. Jr. - Solicitor General That -- that absolutely is a justification for Congress's action here. That is existing economic activity that Congress is regulating by means of this...
	Scalia, Antonin - Associate Justice Mr. Verrilli, you could say that about buying a car. If people don't buy cars, the price that those who do buy cars pay will have to be Alderson Reporting...
	Verrilli, Donald B. Jr. - Solicitor General That is not what we're saying, Justice Scalia.
	Scalia, Antonin - Associate Justice That's not -- that's not what you're saying.
	Verrilli, Donald B. Jr. - Solicitor General That's not -- not -≠
	Scalia, Antonin - Associate Justice I thought it was. I thought you're saying other people are going to have to pay more for insurance because you're not buying it.
	Verrilli, Donald B. Jr. - Solicitor General No. It's because you're going -- in the health care market, you're going into the market without the ability to pay for what you get, getting the health...
	Scalia, Antonin - Associate Justice Well, don't obligate yourself to that. Why -- you know?
	Verrilli, Donald B. Jr. - Solicitor General Well, I can't imagine that that -- that the Commerce Clause would -- would forbid Congress from taking into account this deeply embedded social norm.
	Scalia, Antonin - Associate Justice You could do it. But does that expand your ability to issue mandates to -- to the Alderson Reporting Company Official - Subject to Final Review people?
	Verrilli, Donald B. Jr. - Solicitor General I -- this is not a purchase mandate. This is a -- this is a law that regulates the method of paying for a service that the class of people to whom it applies...
	Sotomayor, Sonia - Associate Justice General -≠
	Verrilli, Donald B. Jr. - Solicitor General -- or inevitably will consume.
	Sotomayor, Sonia - Associate Justice General, I see or have seen three strands of arguments in your briefs, and one of them is echoed today. The first strand that I've seen is that Congress...
	Verrilli, Donald B. Jr. - Solicitor General So, let me try to state it this way: The Congress enacted reforms of the insurance market, the guaranteed-issue and community-rating reforms. It did so...
	Sotomayor, Sonia - Associate Justice So, on that ground -≠
	Verrilli, Donald B. Jr. - Solicitor General So -≠
	Sotomayor, Sonia - Associate Justice -- you're answering affirmatively to my colleagues that have asked you the question, can the government force you into commerce?
	Verrilli, Donald B. Jr. - Solicitor General So -- no. No.
	Sotomayor, Sonia - Associate Justice And there's no limit to that power.
	Verrilli, Donald B. Jr. - Solicitor General No, because that's -≠ that's the first part of our argument. The second part of our argument is that the means here that Congress has chosen, the minimum...
	Kagan, Elena - Associate Justice General, you've talked on -≠ Alderson Reporting Company Official - Subject to Final Review a couple of times about other alternatives that Congress might...
	Verrilli, Donald B. Jr. - Solicitor General I do think, Justice Kagan, that the point of difference between my friends on the other side and the United States is about one of timing. They've agreed...
	Kennedy, Anthony M. - Associate Justice I'm not sure which way it cuts, if the Congress has alternate means. Let's assume that it could use the tax power to raise revenue and to just have a national...
	Verrilli, Donald B. Jr. - Solicitor General Let me try to answer that question, Justice Kennedy, and get back to the question you asked me earlier. The -- the -- I do think one striking feature of...
	Scalia, Antonin - Associate Justice Oh, no, it's not. They all involved commerce. There was no doubt that what was being regulated was commerce. And here you're regulating somebody who isn't...
	Verrilli, Donald B. Jr. - Solicitor General Well, to the extent that we are looking at the comprehensive scheme, Justice Scalia, it is regulating commerce that already exists out there. And the means...
	Scalia, Antonin - Associate Justice Wait. That's -- it's both "Necessary and Proper." What you just said addresses what's necessary. Yes, has to be reasonably adapted. Necessary does not...
	Verrilli, Donald B. Jr. - Solicitor General This does not violate the norm of proper as this Court articulated it in Printz or in New York because it does not interfere with the States as sovereigns....
	Scalia, Antonin - Associate Justice No, that wasn't my point. That is not the only constitutional principle that exists.
	Verrilli, Donald B. Jr. - Solicitor General But it -≠
	Scalia, Antonin - Associate Justice An equally evident constitutional principle is the principle that the Federal Government is a government of enumerated powers and that the vast majority...
	Verrilli, Donald B. Jr. - Solicitor General Of course we do, Your Honor.
	Scalia, Antonin - Associate Justice Okay. That's what we are talking about here.
	Verrilli, Donald B. Jr. - Solicitor General And the way in which this Court in its cases has policed the boundary that -- of what's in the national sphere and what's in the local sphere is to ask...
	Scalia, Antonin - Associate Justice I don't understand your point -≠
	Verrilli, Donald B. Jr. - Solicitor General This is in -≠
	Scalia, Antonin - Associate Justice Whatever the States have chosen not to do, the Federal Government can do?
	Verrilli, Donald B. Jr. - Solicitor General No, not at all.
	Scalia, Antonin - Associate Justice I mean, the Tenth Amendment says the powers not given to the Federal Government are reserved, not just to the States, but to the States and the people....
	Verrilli, Donald B. Jr. - Solicitor General But this -- but, Your Alderson Reporting Company Official - Subject to Final Review Honor, this is -- what the Court has said, and I think it would be...
	Roberts, John G. Jr. - Chief Justice The key in Lochner is that we were talking about regulation of the States, right, and the States are not limited to enumerated powers. The Federal Government...
	Verrilli, Donald B. Jr. - Solicitor General I agree, except, Mr. Chief Justice, that what the Court has said, as I read the Court's cases, is that the way in which you ensure that the Federal Government...
	Kennedy, Anthony M. - Associate Justice But the reason, the reason this is concerning is because it requires the individual to do an affirmative act. In the law of torts, our tradition, our law...
	Verrilli, Donald B. Jr. - Solicitor General I don't think so, Justice Kennedy, because it is predicated on the participation of these individuals in the market for health care services. Now, it happens...
	Roberts, John G. Jr. - Chief Justice Well, but it's critical how you define the market. If I understand the Alderson Reporting Company Official - Subject to Final Review law, the policies...
	Verrilli, Donald B. Jr. - Solicitor General Well, it's part of what the statute requires the insurers to offer. And I think the reason is because it's trying to define minimum essential coverage...
	Roberts, John G. Jr. - Chief Justice But your theory is that there is a market in which everyone participates because everybody might need a certain range of health care services, and yet...
	Verrilli, Donald B. Jr. - Solicitor General The -- with respect to what insurance has to cover, Your Honor, I think Congress is entitled the latitude of making the judgments of what the appropriate...
	Roberts, John G. Jr. - Chief Justice I think you're posing the question I was posing, which is that doesn't apply to a lot of what you're requiring people to purchase. Pediatric services,...
	Verrilli, Donald B. Jr. - Solicitor General Congress has got -- Congress is enacting economic regulation here. It has latitude to define essential -- the attributes of essential coverage. That doesn't...
	Alito, Samuel A. Jr. - Associate Justice Are you denying this? If you took the group of people who are subject to the mandate and you calculated the amount of health care services this whole group...
	Verrilli, Donald B. Jr. - Solicitor General Well, while they are young and healthy, that would be true. But they are not going to be young and healthy forever. They are going to be on the other side...
	Alito, Samuel A. Jr. - Associate Justice The point is -- no, you take into account that some people in that group are going to be hit by a bus, some people in that group are going to unexpectedly...
	Verrilli, Donald B. Jr. - Solicitor General Well, no, the people in that class get benefits, too, Justice Alito. They get the guaranteed-issue benefit that they would not Alderson Reporting Company...
	Scalia, Antonin - Associate Justice Only if you make phone calls.
	Verrilli, Donald B. Jr. - Solicitor General Well, right. But -- but everybody -- to live in the modern world, everybody needs a telephone. And the same thing with respect to the -- you know, the...
	Kagan, Elena - Associate Justice And this is especially true, isn't it, General -≠ Alderson Reporting Company Official - Subject to Final Review
	Verrilli, Donald B. Jr. - Solicitor General -- because that's a judgment Congress has made.
	Kagan, Elena - Associate Justice -- Verrilli, because in this context, the subsidizers eventually become the subsidized?
	Verrilli, Donald B. Jr. - Solicitor General Well, that was the point I was trying to make, Justice Kagan, that you're young and healthy one day, but you don't stay that way, and the system works...
	Scalia, Antonin - Associate Justice These people not stupid. They're going to buy insurance later. They're young and need the money now.
	Verrilli, Donald B. Jr. - Solicitor General But that's -≠
	Scalia, Antonin - Associate Justice When they think they have a substantial risk of incurring high medical bills, they'll buy insurance, like the rest of us.
	Verrilli, Donald B. Jr. - Solicitor General But that's -- that's -≠
	Scalia, Antonin - Associate Justice I don't know why you think that they're never going to buy it.
	Verrilli, Donald B. Jr. - Solicitor General That's the problem, Justice Scalia. That's -- and that's exactly the experience that the States had that made the imposition Alderson Reporting Company...
	Scalia, Antonin - Associate Justice You could solve that problem by simply not requiring the insurance company to sell it to somebody who has a condition that is going to require medical...
	Verrilli, Donald B. Jr. - Solicitor General But that seems to me to say, Justice Scalia, that Congress -- that's the problem here. And that seems to me -≠
	Scalia, Antonin - Associate Justice It's a self-created problem.
	Verrilli, Donald B. Jr. - Solicitor General -- to say that Congress cannot solve the problem through standard economic regulation, and that -- and I do not think that can be the premise of our understanding...
	Scalia, Antonin - Associate Justice Whatever -≠
	Verrilli, Donald B. Jr. - Solicitor General This is an economic problem.
	Scalia, Antonin - Associate Justice -- problems Congress's economic regulation produces, whatever they are, I think Congress can do something to counteract them. Here, requiring somebody...
	Verrilli, Donald B. Jr. - Solicitor General This is not a -- it's not a problem of Congress's creation. The problem is that you have 40 million people who cannot get affordable insurance through...
	Roberts, John G. Jr. - Chief Justice Is your argument limited to insurance or means of paying for health care?
	Verrilli, Donald B. Jr. - Solicitor General Yes. It's limited to insurance.
	Roberts, John G. Jr. - Chief Justice Well, now, why is that? Congress could -- once you -- once you establish that you have a market for health care, I would suppose Congress's power under...
	Verrilli, Donald B. Jr. - Solicitor General But this is insurance as a method of payment for health care services. And that
	Roberts, John G. Jr. - Chief Justice Exactly. You're worried -≠
	Verrilli, Donald B. Jr. - Solicitor General And that's -≠
	Roberts, John G. Jr. - Chief Justice That's the area that Congress has chosen to regulate. There's this health care market. Everybody's in it. So, we can regulate it, and we're going to look...
	Verrilli, Donald B. Jr. - Solicitor General Mr. Chief Justice, let me answer that, and then if I may, I'd like to move to the tax power argument.
	Scalia, Antonin - Associate Justice Can I tell you what the something else is so -- while you're answering it? (Laughter.) The something else is everybody has to exercise, because there's...
	Verrilli, Donald B. Jr. - Solicitor General No. The position we're taking here would not justify that rule, Justice Scalia, because health club membership is not a means of payment for -- for consumption...
	Roberts, John G. Jr. - Chief Justice Right. Right. That's exactly right, but it doesn't seem responsive to my concern that there's no reason -- once we say this is within Congress's commerce...
	Verrilli, Donald B. Jr. - Solicitor General But I think it's common ground between us and the Respondents that this is an interstate market in which everybody participates.
	Roberts, John G. Jr. - Chief Justice Right.
	Verrilli, Donald B. Jr. - Solicitor General And they agree that Congress could impose the insurance requirement at the point of sale. And this is just a question of timing and whether Congress's...
	Roberts, John G. Jr. - Chief Justice Right. No, I think you're just -≠
	Verrilli, Donald B. Jr. - Solicitor General -- show up to get health care. And that -≠
	Roberts, John G. Jr. - Chief Justice Unless I'm missing something, I think you're just repeating the idea that this is the regulation of the method of payment. And I understand that argument....
	Verrilli, Donald B. Jr. - Solicitor General And it is -≠
	Roberts, John G. Jr. - Chief Justice It may be a good one. But what I'm concerned about is, once we accept the principle that everybody is in this market, I don't Alderson Reporting Company...
	Verrilli, Donald B. Jr. - Solicitor General But we agree Congress can regulate this market. ERISA regulates this market. HIPAA regulates this market. The market is regulated at the Federal level...
	Alito, Samuel A. Jr. - Associate Justice Could you just -≠
	Verrilli, Donald B. Jr. - Solicitor General Yes.
	Alito, Samuel A. Jr. - Associate Justice Before you move on, could you express your limiting principle as succinctly as you possibly can? Congress can force people to purchase a product where...
	Verrilli, Donald B. Jr. - Solicitor General We've got -≠
	Alito, Samuel A. Jr. - Associate Justice Is that it?
	Verrilli, Donald B. Jr. - Solicitor General We've got -≠
	Alito, Samuel A. Jr. - Associate Justice Is there anything more?
	Verrilli, Donald B. Jr. - Solicitor General We got two and they are -- they are different. Let me state them. First, with respect to the comprehensive scheme. When Congress is regulating -- is enacting...
	Sotomayor, Sonia - Associate Justice General, could you turn to the tax clause?
	Verrilli, Donald B. Jr. - Solicitor General Yes.
	Sotomayor, Sonia - Associate Justice I have looked for a case that involves the issue of whether something denominated by Congress as a penalty was nevertheless treated as a tax, except in...
	Verrilli, Donald B. Jr. - Solicitor General Well, I think I would point the Court to the License Tax Case, where it was -≠ was denominated a fee and nontax, and the Court upheld it as an exercise...
	Scalia, Antonin - Associate Justice But fees, you know, license fees, fees for a hunting license, everybody knows those are taxes. I mean, I don't think there is as much of a difference between...
	Verrilli, Donald B. Jr. - Solicitor General And that, and -- and I think in terms of the tax power, I think it's useful to separate this into two questions. One is a question of characterization....
	Ginsburg, Ruth Bader - Associate Justice But yesterday you told me -- you listed a number of penalties that are enforced through the tax code that are not taxes and they are not penalties related...
	Verrilli, Donald B. Jr. - Solicitor General They may still be exercise of the tax -- exercises of the taxing power, Justice Ginsburg, as this is, and I think there isn't a case in which the Court...
	Scalia, Antonin - Associate Justice The President said it wasn't a tax, didn't he?
	Verrilli, Donald B. Jr. - Solicitor General Well, Justice Scalia, what the -- two things about that. First, as it seems to me, what matters is what power Congress was exercising. And they were --...
	Scalia, Antonin - Associate Justice You're making two arguments. Number one, it's a tax; and number two, even if it isn't a tax, it's within the taxing power. I'm just addressing the first.
	Verrilli, Donald B. Jr. - Solicitor General What the President said -≠
	Scalia, Antonin - Associate Justice Is it a tax or not a tax? The President didn't think it was.
	Verrilli, Donald B. Jr. - Solicitor General The President said it wasn't a tax increase because it ought to be understood Alderson Reporting Company Official - Subject to Final Review as an incentive...
	Ginsburg, Ruth Bader - Associate Justice A tax is to raise revenue, tax is a revenue-raising device, and the purpose of this exaction is to get people into the health care risk -- risk pool before...
	Verrilli, Donald B. Jr. - Solicitor General That -- that is true, Justice Ginsburg. That is also true of the marijuana tax that was upheld in Sanchez. That's commonly true of penalties under the...
	Kagan, Elena - Associate Justice I suppose, though, General, one question is whether the determined efforts of Congress not to refer to this as a tax make a difference. I mean, you're...
	Verrilli, Donald B. Jr. - Solicitor General I don't think that that's a fair characterization of the actions of Congress here, Justice Kagan. On the -- December 23rd, a point of constitutional order...
	Roberts, John G. Jr. - Chief Justice Why didn't Congress call it a tax, then?
	Verrilli, Donald B. Jr. - Solicitor General Well -≠
	Roberts, John G. Jr. - Chief Justice You're telling me they thought of it as a tax, they defended it on the tax power. Why didn't they say it was a tax?
	Verrilli, Donald B. Jr. - Solicitor General They might have thought, Your Honor, that calling it a penalty as they did would make it more effective in accomplishing its objectives. But it is in the...
	Roberts, John G. Jr. - Chief Justice Well, that's the reason. They thought it might be more effective if they called it a penalty.
	Verrilli, Donald B. Jr. - Solicitor General Well, I -- you know, I don't -- there is nothing that I know of that illuminates that, but certainly -≠ Alderson Reporting Company Official - Subject...
	Sotomayor, Sonia - Associate Justice General, the problem goes back to the limiting principle. Is this simply anything that raises revenue, Congress can do?
	Verrilli, Donald B. Jr. - Solicitor General No. There are certain limiting principles under the -≠
	Sotomayor, Sonia - Associate Justice So there has to be a limiting principle as to when -≠
	Verrilli, Donald B. Jr. - Solicitor General -- taxing power, and they -- and I think, of course, the Constitution imposes some, got to be uniform, can't be taxed on exports, if it's a direct tax,...
	Alito, Samuel A. Jr. - Associate Justice Can the -- can the mandate be viewed as a tax if it does impose a requirement on people who are not subject to the penalty or the tax?
	Verrilli, Donald B. Jr. - Solicitor General I think it could, for the reasons I -- I discussed yesterday. I don't think it can or should be read that way. But if there is any doubt about that, Your...
	Scalia, Antonin - Associate Justice You're saying that all the discussion we had earlier about how this is one big uniform scheme and the Commerce Clause, blah, blah, Alderson Reporting Company...
	Verrilli, Donald B. Jr. - Solicitor General It -- it used its powers together to solve the problem of the market not -≠
	Scalia, Antonin - Associate Justice Yes, but you didn't need that. GENERAL VERRILLI -- providing affordable coverage -≠ You didn't need that. If it's a tax, it's only -- raising money is...
	Verrilli, Donald B. Jr. - Solicitor General It is justifiable under its tax power.
	Scalia, Antonin - Associate Justice Okay. Extraordinary.
	Verrilli, Donald B. Jr. - Solicitor General If I may reserve the balance of my time.
	Roberts, John G. Jr. - Chief Justice Thank you, General. We'll take a pause for a minute or so, Mr. Clement. (Pause.) All right. Why don't we get started again. Mr. Clement. Alderson Reporting...
	Clement, Paul D. - Attorney Mr. Chief Justice, and may it please the Court. The mandate represents an unprecedented effort by Congress to compel individuals to enter commerce in order...
	Sotomayor, Sonia - Associate Justice Do you accept here the General's position that you have conceded that Congress could say, if you're going to consume health services, you have to pay by...
	Clement, Paul D. - Attorney That's right, Justice Sotomayor. We say, consistent with 220 years of this Court's jurisprudence, that if you regulate the point of sale, you regulate...
	Sotomayor, Sonia - Associate Justice All right. So, what do you do with the impossibility of buying insurance at the point of consumption. Virtually, you force insurance companies to sell...
	Clement, Paul D. - Attorney Well, Justice, I think there's two points to make on that. One is a lot of the discussion this morning so far has proceeded on the assumption that the...
	Kagan, Elena - Associate Justice Well, Mr. Clement, now it seems as though you're just talking about a matter of timing, that Congress can regulate the transaction. And the question is...
	Clement, Paul D. - Attorney Well, Justice Kagan, we don't think it's a matter of timing alone, and we think it has very significant substantive effects, because if Congress tried...
	Kennedy, Anthony M. - Associate Justice Is the government's argument this -- and maybe I won't state it accurately. It is true that the noninsured young adult is, in fact, an actuarial reality...
	Clement, Paul D. - Attorney Well, I don't know, Justice Kennedy, but, if it is, I think there's at least two problems with it. One is, as Justice Alito's question suggested earlier...
	Ginsburg, Ruth Bader - Associate Justice Mr. Clement, doesn't that work -- that work the way Social Security does? Let me put it this way: Congress, in the '30s, saw a real problem of people needing...
	Clement, Paul D. - Attorney No. I don't think it is, Justice Ginsburg. I think there are other options that are available. The most straightforward one would be to figure out what...
	Sotomayor, Sonia - Associate Justice Could we have an exemption? Could the government say everybody pays a shared health care responsibility payment to offset all the money that we're forced...
	Clement, Paul D. - Attorney The government might be able to do that. I think it might raise some issues about whether or not that would be a valid exercise of the taxing power.
	Sotomayor, Sonia - Associate Justice Under what theory Alderson Reporting Company Official - Subject to Final Review wouldn't it be?
	Clement, Paul D. - Attorney Well, I do think that -≠
	Sotomayor, Sonia - Associate Justice We get tax credits for having solar-powered homes. We get tax credits for using fuel-efficient cars. Why couldn't we get a tax credit for having health...
	Clement, Paul D. - Attorney Well, I think it would depend a little bit on how it was formulated, but my concern would be -- the constitutional concern would be that it would just...
	Breyer, Stephen G. - Associate Justice Let me ask -- can I go back for a step? Because I don't want to get into a discussion of whether this is a good bill or not. Some people think it's going...
	Scalia, Antonin - Associate Justice Answer those questions in inverse order.
	Breyer, Stephen G. - Associate Justice Well, no, it's one question. It's looking back at that -- looking back at that history. The thing I can see that you say to some people, go buy. Why does...
	Clement, Paul D. - Attorney Well, Justice Breyer, let me start at the beginning of your question with McCulloch. McCulloch was not a commerce power case.
	Breyer, Stephen G. - Associate Justice It was both?
	Clement, Paul D. - Attorney No, the bank was not justified and the corporation was not justified as an exercise of commerce power. So that is not a case that says that it's okay to...
	Roberts, John G. Jr. - Chief Justice Well, Mr. Clement, the key to the government's argument to the contrary is that everybody is in this market. It's all right to Alderson Reporting Company...
	Clement, Paul D. - Attorney Well, with respect, Mr. Chief Justice, I suppose the first thing you have to say is what market are we talking about? Because the government -- this statute...
	Kagan, Elena - Associate Justice Well, doesn't that seem a little bit, Mr. Clement, cutting the baloney thin? I mean, health insurance exists only for the purpose of financing health care....
	Clement, Paul D. - Attorney Well, Justice Kagan, I'm not sure that's right. I think what health insurance does and what all insurance does is it allows you to Alderson Reporting Company...
	Sotomayor, Sonia - Associate Justice But we don't in car insurance, meaning we tell people, buy car -- not we, the States do, although you're going to -- I'll ask you the question, do you...
	Clement, Paul D. - Attorney Well, Justice Sotomayor, let me say this, which is to say -- you're right in the first point to say that it's the States that do it, which makes it different...
	Sotomayor, Sonia - Associate Justice Well, that goes back to the substantive due process question. Is this a Lochner era argument that only the States can do this, even Alderson Reporting...
	Clement, Paul D. - Attorney No. I think you might make a different argument about cars than you would make about health insurance, unless you tried to say -- but, you know, we're...
	Sotomayor, Sonia - Associate Justice Health insurance -- I mean, I've never gotten into an accident, thankfully, and I hope never. The vast majority of people have never gotten into an accident...
	Clement, Paul D. - Attorney But, Justice Sotomayor, what I think is different is there is lots of people in Manhattan, for example, that don't have car insurance because they don't...
	Sotomayor, Sonia - Associate Justice But you're -- but the given is that virtually everyone, absent some intervention from above, meaning that someone's life will be cut short in a fatal way,...
	Clement, Paul D. - Attorney At some point, that's right, but all sorts of people will not, say, use health care in the next year, which is the relevant period for the insurance.
	Breyer, Stephen G. - Associate Justice But do you think you can, better than the actuaries or better than the members of Congress who worked on it, look at the 40 million people who are not...
	Clement, Paul D. - Attorney Of course not -≠
	Breyer, Stephen G. - Associate Justice -- and we don't know which?
	Clement, Paul D. - Attorney Of course not, Justice Breyer, but the point is that once Congress decides it's going to regulate extant commerce, it is going to get all sorts of latitude...
	Kagan, Elena - Associate Justice But, Mr. Clement, this goes back to the Chief Justice's question. But, of course, the theory behind, not just the government's case, but the theory behind...
	Clement, Paul D. - Attorney Well, Justice Kagan, once again, it depends on which market we're talking about. If we're talking about the health care insurance market -≠
	Kagan, Elena - Associate Justice Well, we are talking about Alderson Reporting Company Official - Subject to Final Review the health insurance market, which is designed to access the health...
	Clement, Paul D. - Attorney And with respect to the health insurance market that's designed to have payment in the health care market, everybody is not in the market. And that's the...
	Kennedy, Anthony M. - Associate Justice But they are in the market in the sense that they are creating a risk that the market must account for.
	Clement, Paul D. - Attorney Well, Justice Kennedy, I don't think that's right, certainly in any way that distinguishes this from any other context. When I'm sitting in my house deciding...
	Breyer, Stephen G. - Associate Justice Of course, we do know that there are a few people, more in New York City than there are in Wyoming, who never will buy a car. But we also know here, and...
	Clement, Paul D. - Attorney Well, Justice Breyer, there are other markets that affect every one -≠ transportation, food, burial services -- though we don't like to talk about that...
	Kagan, Elena - Associate Justice Well, once again, though, who's in commerce and when are they in commerce? If the effect of all these uninsured people is to raise everybody's premiums,...
	Clement, Paul D. - Attorney Justice Kagan, again, with all due respect, I don't think that's a limiting principle. My unwillingness to buy an electric car is forcing up the price...
	Kagan, Elena - Associate Justice No, this is very different, Mr. Clement, and it's different because of the nature of the health care service, that you are entitled to health care when...
	Clement, Paul D. - Attorney Justice Kagan, first of all, I do think there -- this is not the only place where there's uncompensated care. If some -- if I don't buy a car and somebody...
	Breyer, Stephen G. - Associate Justice All right. But all that Alderson Reporting Company Official - Subject to Final Review sounds like you're debating the merits of the bill. You asked really...
	Clement, Paul D. - Attorney Well, Justice Breyer, let me Alderson Reporting Company Official - Subject to Final Review take them turn.
	Breyer, Stephen G. - Associate Justice That's where we are in limiting principles.
	Clement, Paul D. - Attorney Let me take them in turn. I would encourage this Court not to Garcia-ize the Commerce Clause and just simply say it's up to Congress to police the Commerce...
	Sotomayor, Sonia - Associate Justice But that's exactly what Justice Marshall said in Gibbons. He said that it is the power to regulate; the power like all others vested in Congress is complete...
	Clement, Paul D. - Attorney I agree -≠
	Sotomayor, Sonia - Associate Justice -- with respect to regulating commerce.
	Clement, Paul D. - Attorney I agree 100 percent, and I think that was the Chief Justice's point, which was once you open the door to compelling people into commerce based on the narrow...
	Sotomayor, Sonia - Associate Justice Well, see, that's the -≠
	Scalia, Antonin - Associate Justice I would like hear you address Justice Breyer's other two principles.
	Clement, Paul D. - Attorney Well, the other two principles are Lopez -- and this case really is not -- I mean, you know, Lopez is a limit on the affirmative exercise of people who...
	Roberts, John G. Jr. - Chief Justice And now maybe return to Justice Sotomayor's question.
	Clement, Paul D. - Attorney I'd be delighted to, which is -- I mean, I -- you're absolutely right. Once you're in Alderson Reporting Company Official - Subject to Final Review the...
	Sotomayor, Sonia - Associate Justice Could you tell me, do you think the States could pass this mandate?
	Clement, Paul D. - Attorney I represent 26 States. I do think the States could pass this mandate, but I -≠
	Sotomayor, Sonia - Associate Justice Is there any other area of commerce, business, where we have held that there isn't concurrent power between the State and the Federal Government to protect...
	Clement, Paul D. - Attorney Well, Justice Sotomayor, I have to resist your premise, because I didn't answer yes, the States can do it because it would be a valid regulation of intrastate...
	Roberts, John G. Jr. - Chief Justice Thank you, Mr. Clement. Mr. Carvin. ORAL ARGUMENT OF MICHAEL A. CARVIN ON BEHALF OF THE RESPONDENTS NFIB, ET AL.
	MR. CARVIN, - Thank you, Mr. Chief Justice; may it please the Court: I'd like to begin with the Solicitor General's main premise, which is that they can compel the purchase...
	Roberts, John G. Jr. - Chief Justice Well, surely -≠
	MR. CARVIN, - I'm sorry.
	Roberts, John G. Jr. - Chief Justice Well, surely regulation includes the power to promote. Since the New Deal we've said that regulation in -- there is a market in agricultural products;...
	MR. CARVIN, - Absolutely, Chief Justice, and that's the distinction I'm trying to draw. When they are acting within their enumerated power, then obviously they are promoting...
	Roberts, John G. Jr. - Chief Justice I don't -- I don't think you're addressing their main point, which is that they are not creating commerce in -- in health care. It's already there, and...
	MR. CARVIN, - I'd -- I'd like to address that in two ways, if I could, Mr. Chief Justice. In the first place, they keep playing mix and match with the statistics. They...
	Roberts, John G. Jr. - Chief Justice Yet we don't know who they are.
	MR. CARVIN, - We don't, no, and we don't know in advance, and -- and -- but that doesn't change the basic principle, that you are nonetheless forcing people for paternalistic...
	Ginsburg, Ruth Bader - Associate Justice But the problem is -- the problem is that they are making the rest of us pay for it, because as much as they say, well, we are not in the market, we don't...
	MR. CARVIN, - Which is -≠
	Ginsburg, Ruth Bader - Associate Justice And the -- the figures of how much more families are paying for insurance because people get sick, they may have intended to self-insure, they haven't...
	MR. CARVIN, - Yes, but my point is this. That, with respect, Justice Ginsburg, conflicts the people who do result in uncompensated care, the free riders. Those are people...
	Kagan, Elena - Associate Justice Well, Mr. Carvin -≠
	MR. CARVIN, - Because -- I'm sorry.
	Kagan, Elena - Associate Justice Please.
	MR. CARVIN, - I was just going to say, because if they have that power, then they obviously have the power to regulate everything, because everything in the aggregate...
	Breyer, Stephen G. - Associate Justice So in your view, right there -- in your view right there -≠
	MR. CARVIN, - Justice Breyer -≠
	Breyer, Stephen G. - Associate Justice Can I just -≠
	MR. CARVIN, - I'm sorry.
	Breyer, Stephen G. - Associate Justice I'm just picking on something. I'd like to just -- if it turned out there was some terrible epidemic sweeping the United States, and we couldn't say that...
	MR. CARVIN, - Well, in all candor, I think Morrison must have decided that issue, right? Because people who commit violence against -≠
	Breyer, Stephen G. - Associate Justice Is your answer to that yes or no?
	MR. CARVIN, - Oh, I'm sorry. My answer is no, they couldn't do it, because Morrison -≠
	Breyer, Stephen G. - Associate Justice No, they could not do it?
	MR. CARVIN, - Yes.
	Breyer, Stephen G. - Associate Justice They cannot require people, even if this disease is sweeping the country, to be inoculated. The Federal Government has no power, and if there's -- okay,...
	MR. CARVIN, - May -≠
	Breyer, Stephen G. - Associate Justice Please turn to Justice Kagan.
	MR. CARVIN, - May I just please explain why?
	Breyer, Stephen G. - Associate Justice Yes.
	MR. CARVIN, - Violence against women obviously creates the same negative impression on fellow citizens as this communicable disease, but the -- and it has huge effects...
	Breyer, Stephen G. - Associate Justice I agree with you that -≠
	MR. CARVIN, - Well, but -≠
	Breyer, Stephen G. - Associate Justice -- that it had big effects, but the majority thought that was a local matter.
	Scalia, Antonin - Associate Justice I think that's his point. (Laughter.)
	MR. CARVIN, - I -- I don't know why having a disease is any more local than -- that beating up a woman. But -- but -- my basic point is, is that notwithstanding its...
	Alito, Samuel A. Jr. - Associate Justice Mr. Carvin, isn't there this difference between Justice Breyer's hypothetical and the law that we have before us here? In his hypothetical the harm to...
	Clement, Paul D. - Attorney Justice Alito, that is exactly the government's argument. It's an extraordinarily illogical argument.
	Breyer, Stephen G. - Associate Justice Fine. Then if that's so, is -- let me just change my example under pressure -≠ (Laughter.) -- and say that in fact it turns out that 90 percent of all...
	MR. CARVIN, - What they can't do -- yes, if you have a car, they can require you to have an anti-pollution -≠
	Breyer, Stephen G. - Associate Justice Then you're not going on statistics; you're going on something else, which is Alderson Reporting Company Official - Subject to Final Review what I'd like...
	MR. CARVIN, - It's this. They can't require you to buy a car with an anti-pollution device. Once you've entered the market and made a decision, they can regulate the...
	Breyer, Stephen G. - Associate Justice Now we -- now you've changed the ground of argument, which I accept as -- as totally legitimate. And then the question is when you are born and you don't...
	MR. CARVIN, - If being born is entering the market, then I can't think of a more plenary power Congress can have, because that literally means they can regulate every...
	Breyer, Stephen G. - Associate Justice I see the point. You can go back to, go back to Justice Kagan. Don't forget her question.
	Kagan, Elena - Associate Justice I've forgotten my question. (Laughter.)
	MR. CARVIN, - I -- I was facing the same dilemma, Justice Kagan.
	Ginsburg, Ruth Bader - Associate Justice Let me -- let me ask a question I asked Mr. Clement. It just seems -≠
	Kagan, Elena - Associate Justice See what it means to be the junior justice? (Laughter.)
	Ginsburg, Ruth Bader - Associate Justice It just seems very strange to me that there's no question we can have a Social Security system besides all the people who say: I'm being forced to pay...
	MR. CARVIN, - Well I don't think the test of Alderson Reporting Company Official - Subject to Final Review a law's constitutionality is whether it more adheres to the...
	Ginsburg, Ruth Bader - Associate Justice I thought -- I thought that Wickard was you must buy; we are not going to let you use the home-grown wheat. You have got to go out in the market and buy...
	MR. CARVIN, - Oh, but let's be careful about what they were regulating in Wickard, Justice Ginsburg. What they were regulating was the supply of wheat. It didn't in...
	Kagan, Elena - Associate Justice That's why I suggested, Mr. Carvin, that it might be different if you were raising an as-applied challenge and presenting a class of people whom you could...
	MR. CARVIN, - No again. The people who Alderson Reporting Company Official - Subject to Final Review impose the costs on the rest of us are people who engage in a different...
	Roberts, John G. Jr. - Chief Justice No, no, that's not -- I don't think that's fair, because not everybody is going to enter the mortgage market. The government's position is that almost...
	MR. CARVIN, - Two points, one of which Mr. Clement's already made, which is the health insurance market is different than the health care market. But let me take it...
	Sotomayor, Sonia - Associate Justice I mean, but that's true of almost every product.
	MR. CARVIN, - I've sorry?
	Sotomayor, Sonia - Associate Justice It's true of almost every product, directly or indirectly by government regulation. The government says, borrowing my colleague's example, you can't buy...
	MR. CARVIN, - You are not forced to buy a product you don't want. And I agree with you that since the government regulates all markets there is no limiting principle...
	Sotomayor, Sonia - Associate Justice They force me to buy -≠
	MR. CARVIN, - I'm sorry.
	Sotomayor, Sonia - Associate Justice They forced me to buy if I need unpasteurized foods, goods that don't have certain pesticides but have others. There is government Alderson Reporting Company...
	MR. CARVIN, - Let's think about it this way. Yes, when you've entered the marketplace they can impose all sorts of restrictions on you, and they can impose, for example,...
	Sotomayor, Sonia - Associate Justice We let the government regulate the manufacturing process whether or not the goods will enter into interstate commerce, merely because they might statistically....
	MR. CARVIN, - I fully agree with you, Justice Alderson Reporting Company Official - Subject to Final Review Sotomayor. But I think -≠
	Sotomayor, Sonia - Associate Justice So how is that different from saying you are self-insuring today, you're foregoing insurance? Why isn't that a predecessor to the need that you're eventually...
	MR. CARVIN, - The cases you referred to I think effectively eliminated the distinction between participants in the intrastate market vis-‡-vis participants in the...
	Breyer, Stephen G. - Associate Justice What about -- the simplest counter-example for me to suggest is you've undoubtedly read Judge Sutton's concurring opinion. He has about two pages, it seemed...
	MR. CARVIN, - Judge Sutton is wrong in each and every example. There was no -- there was no compulsion in Raich for him to buy wheat. He could have gotten wheat substitutes...
	Ginsburg, Ruth Bader - Associate Justice I thought it was common ground that the requirement that the insurers -- what was it, the community-based one and they have to insure you despite your...
	MR. CARVIN, - The guaranteed-issue.
	Ginsburg, Ruth Bader - Associate Justice Yes. That that is legitimate Commerce Clause legislation?
	MR. CARVIN, - Oh, sure. And that's why -≠ but we don't in any way impede that sort of regulation. Alderson Reporting Company Official - Subject to Final Review These...
	Ginsburg, Ruth Bader - Associate Justice Well then, what about the determination that they can't possibly work if people don't have to buy insurance until they are -- their health status is such...
	MR. CARVIN, - It depends what you mean by "work." It'll work just fine in ensuring that no sick people are discriminated against. What -- what -- but when you do that...
	Ginsburg, Ruth Bader - Associate Justice But the sick people, why would they insure early if they had to be protected if they get insurance late?
	MR. CARVIN, - Yes. Well, that's -- see, this is the government's very illogical argument. They seem to be saying, look, we couldn't just force people to buy insurance...
	Sotomayor, Sonia - Associate Justice Do you think that there's -- what percentage of the American people who took their son or daughter to an emergency room and that child was turned away...
	MR. CARVIN, - One of the most -≠
	Sotomayor, Sonia - Associate Justice -- if they had an allergic reaction and a simple shot would have saved the child?
	MR. CARVIN, - One of the more pernicious, misleading impressions that the government has made is that we are somehow advocating that people could get thrown out of emergency...
	Sotomayor, Sonia - Associate Justice I'm sorry. Did you say Alderson Reporting Company Official - Subject to Final Review the penalty's okay but not the mandate? I'm sorry. Maybe I've misheard...
	MR. CARVIN, - No, no, no. I was -- they create this strawman that says: Look, the only alternative to doing it the way we've done it, if we condition access to health...
	Sotomayor, Sonia - Associate Justice So the -≠
	MR. CARVIN, - And that is the fundamental problem here.
	Sotomayor, Sonia - Associate Justice So the -- I -- I want to understand the choices you're saying Congress has. Congress can tax everybody and set up a public health care system.
	MR. CARVIN, - Yes.
	Sotomayor, Sonia - Associate Justice That would be okay?
	MR. CARVIN, - Yes. Tax power is -≠
	Sotomayor, Sonia - Associate Justice Okay.
	MR. CARVIN, - I would accept that.
	Sotomayor, Sonia - Associate Justice Congress can -- are you taking the same position as your colleague, Congress can't say we're going to set up a public health system, but you can get a...
	MR. CARVIN, - There may have been some confusion in your prior colloquy. I fully agree with my brother Clement that a direct tax would be unconstitutional. I don't think...
	Sotomayor, Sonia - Associate Justice So how is this different than this Act, which says if a taxpayer fails to meet the requirement of having minimum coverage, then they are responsible for...
	MR. CARVIN, - The difference is that the taxpayer is not given a choice. It's the difference between banning cigarettes and saying I'm going to enforce that legal ban...
	Sotomayor, Sonia - Associate Justice I think -- I think that's what's happening, isn't it?
	MR. CARVIN, - No. Not -≠
	Sotomayor, Sonia - Associate Justice We're paying -- I thought that everybody was paying, what is it, $10 a pack now? I don't even know the price. It's pretty high.
	MR. CARVIN, - Right. And everyone would -≠
	Sotomayor, Sonia - Associate Justice I think everybody recognizes that it's all taxation for the purposes of dissuading you to buy it. Alderson Reporting Company Official - Subject to Final...
	MR. CARVIN, - That's precisely my point. And everyone intuitively understands that that system is dramatically different than saying cigarettes tomorrow are illegal.
	Breyer, Stephen G. - Associate Justice It is different. It is different. It is different. I agree with that. But you pointed out, and I agree with you on this, that the government set up these...
	MR. CARVIN, - Let me -≠ Alderson Reporting Company Official - Subject to Final Review
	Breyer, Stephen G. - Associate Justice Please.
	MR. CARVIN, - It is clear that the failure to buy health insurance doesn't affect anyone. Defaulting on your payments to your health care provider does. Congress chose,...
	Kennedy, Anthony M. - Associate Justice I agree -- I agree that that's what's happening here.
	MR. CARVIN, - Okay.
	Kennedy, Anthony M. - Associate Justice And the government tells us that's because the insurance market is unique. And in the next case, it'll say the next market is unique. But I think it is...
	MR. CARVIN, - And, Your -- I may be misunderstanding you, Justice Kennedy. I hope I'm not. Alderson Reporting Company Official - Subject to Final Review Sure, it would...
	Kagan, Elena - Associate Justice Mr. Carvin, a large part of this argument has concerned the question of whether certain kinds of people are active participants in a market or not active...
	MR. CARVIN, - The problem you identify is exactly the problem you would create if you bought the government's bogus limiting principles. You'd have to Alderson Reporting...
	Alito, Samuel A. Jr. - Associate Justice Do you think that drawing a line between commerce and everything else that is not commerce is drawing an artificial line, like drawing a line between commerce...
	MR. CARVIN, - The words "inactivity" and "activity" are not in the Constitution. The words "commerce" and "noncommerce" are. And again, it's a distinction that comes,...
	Roberts, John G. Jr. - Chief Justice Thank you, Mr. Carvin. General Verrilli, you have 4 minutes remaining. REBUTTAL ARGUMENT OF DONALD B. VERRILLI, JR., ON BEHALF OF THE PETITIONERS
	Verrilli, Donald B. Jr. - Solicitor General Thank you, Mr. Chief Justice: Congress confronted a grave problem when it enacted the Affordable Care Act: The 40 million Americans who can't get health...
	Roberts, John G. Jr. - Chief Justice Thank you, General. Counsel, we'll see you tomorrow.