>> let's bring in our panel. the center filed a brief defending the health care law . josh is the white house the reporter for politico. and you are a constitutional law professor at nyu. let me be clear. we're showing the folks outside here. i'll start with you because the tone of this, obviously what we hear from people outside, will not impact the justices in their decision. we'll get to the specifics of that. but you have? their political article out yesterday talking about how this case went mainstream and how initially during material parts of the debate. and you didn't hear arguments over the individual mandate. now there is a possibility that this point, if ruled by the supreme court , that it is unconstitutional, will be the caring point here.
>> that's right. this gives law professors a good name. a law professor was a mastermind of this and initially, his argument against the individual mandate was, scoffed at or many people gave the back of their hands. but over time it has gotten traction. i want to emphasize that even though we're hearing a lot of doom and gloom for the individual mandate, we actually went into this knowing that we had before a liberal justice, probably being sympathetic to the affordable care act and justice thomas on the other side crusading against it. those four other votes were in play. i think we've learned that justice alito was left empathetic. he was a dark horse going into this. i don't think the other justices are that much of a surprise. they're all looking for a himming principle. ? we played the sound from justice kennedy who said assume for the moment this is unprecedented. this is a step beyond what our cases have allowed. the affirmative duty to act, to go into commerce. if that is so, do you have a heavy burden of justification? people williams pointing out the answer was not provided to justice kennedy . let me get your thoughts on what kenji referred to. this gloom and doom that some of these court watchers have come out with today.
>> i'm completely opposite. i was in the courtroom today and i thought contrary to what pete said, that argument business the challengers were incredibly thin on the court over the course of it. the justices came out kind of swinging at the law a little bit. i think by the end of the two hours, you had both chief justice roberts and justice kennedy asking very skeptical questions of the challengers of this act. and i think the end of the day , i think the thinness of the claims against this law that were called frivolous at the beginning of this lawsuit started to look very frivolous at the end of the lawsuit. justice kennedy talked about how this was, the conduct here. the not buying insurance was uniquely approximate to the risk of unpaid health insurance bills. and i think he gets at that. and a key point of this, this is a regulation of interstate commerce . it is at the core of what the federal government is supposed to be able to do under the constitutional authority . i think that's why at the end of the day , the courts will uphold this law.
>> let me bring you back to justice scalia and the comment about the broccoli in that that has been actually, i don't want to call it a talking point for a justice. i've heard a lot of people on the right and those opposed to this health care law bring that up as a comparison. meanwhile on the left, you have many who tweeted me and sent e-mails saying what about car insurance ? people are required to have that. how do you balance these analogies, if they are even analogies of what we are really talking about here.
>> i thought what was most disappointing about the argument today was justice scalia seemed to be a partisan advocate for the side, the claimants against this law. he wasn't seriously considering this law as you would expect, given his pint in a case that upheld federal regulation of medical marijuana . i guess that was just about the subject of the race case, which was about regulating marijuana, which he is favorable toward. i wouldn't count him as one of the justices who i think at the end of the day will uphold it. i do think that both chief justice roberts and justice kennedy were listening carefully. by the end of the day , were much more sympathetic to the federal government 's claims than they were at the beginning.
>> let me bring you in. it is your article that i was talking about. the headline. how the health care case went mainstream. and i've pointed out again these people who are protesting out front on morning joe today. it was noted that depending on who is the quote/unquote loser in this, you can rally your side in november. perhaps to your advantage, even if the supreme court does not go to the side you wish or hope that they should here.
>> there is no question people will try to make political hey out of it and being defeated at the court can be more of a rallying cry politically than being successful there. that said, i think from the obama administration's perspective ask from the president's perspective himself, it would be a pretty tremendous blow. you have to remember this was sort of the main thing the administration was doing for about a year. it's really the key stone of obama 's policy. and if the supreme court strikes it down, if you set politics aside, just in terms of the practical accomplishments of the first term of his presidency, there really wouldn't be a lot left on the table beyond the economic issues and the stimulus. so it would be a serious body blow to the white house . i do think they could run the usual liberal campaign against the supreme court saying it is an activist court . where conservatives are out of control, striking down legislation that we need. i'm just not sure that's the way the white house would want this to come out.
>> oxley, we do know the white house is now at least attempting to embrace the obamacare moniker that really came from a lot of tea party members as an insult. now the white house and team obama trying to embrace that. josh, let me ask you. you talk about the blow, if the supreme court says it is unconstitutional, this individual mandate. the blow that it would provide to the obama administration if mitt romney is the nominee here. what kind of blow does it provide to what david plouffe referred to as the godfather of the health care law we're at. we're waiting on new sound from rick santorum who was there in washington in front of the supreme court , taking rightfully advantage of this opening with this health care debate and where mitt romney has stood when he was governor of massachusetts , and now he's obviously offering up something else. now that he's running for president.
>> if the law is upheld, it does leave the political issue of obamacare on the table. you can have republicans run against it saying we'll repeal it. that's clearly what rick santorum is doing, saying as he more logical vehicle for repealing obamacare than is mitt romney who proposed something similar in massachusetts. we should say that legally there are two very different questions about whether a state can impose a scheme like this on its citizens and whether the country as a whole can have a scheme like this under the u.s. constitution . so the supreme court will be ruling only on the issue of whether the federal government is entitled to impose this kind of a mandate.
>> could you let me bring you back in? the atlantic wire had a survey. a survey of supreme court clerks and lawyers found that most of them expect that at least the central portions of the president's health care law , only 35% survey thought the high court would nix the individual mandate there. i'm not one to run the numbers games here. but when you look at this and you also look at josh mentioning in his story that a former clerk to justice scalia , d.c. circuit court judge lawrence silverman voted to uphold the law that legal scholars like yourself took notice with this.
>> it is not just silverman of the d.c. circuit but also judge sutton on the sixth circuit. they are emthen, respected, conservative intellectual judges who have voted to up hold the individual mandate. i want to go back to what josh was saying with regard to how this is a federal/state issue. nobody is saying the state is requiring people to get car insurance . this is about whether the federal government which has to point to a power in the constitution has the power to do this.
>> we are looking at, and josh, these are live pictures of a pretty big group of people out front. obviously passionate to see what happens on day three tomorrow. but doug, i was watching and you have a number of people who come out and say, listen. i should not be required to pay this individual mandate. i should not be required to pay for insurance. the counter side, and you know this argument, is that if you're in a car accident , chris matthews had an elegant and fantastic interview yesterday. you're in a car accident in oklahoma. you're waiting for the ambulance to come to go in and provide you some kind of health assistance. whatever your injuriesful are you don't have money to pay for it. somehow the rest us end up paying for your health care if you don't have money. so we are in a sense, if you believe this argument, being penalized already to cover those who don't have health insurance .
>> that's exactly right. our clients are 500 state legislators from every state in the country saying only the federal government can solve this country. and you do. you don't have a constitutional right to freeload. you don't have a constitutional right to impose uninsured costs on other taxpayers. that's all the mandate does. it requires you get a minimum amount of coverage or you pay fine because it costs us, all of us, a ton of money when people go uninsured and then go into emergency rooms . that don't pay their health care bills. that's exactly what justice kennedy at the end of the argument seemed to recognize. is that the step of being uninsured is very close to the economic problem that congress is trying to solve here.
>> let me get josh in quickly before we wrap this up. we've talked to many legal scholars i love this story that you published. what are you hearing we should watch for at least tomorrow on day three? the final day.
>> you're going to have a lot of arguments on this question of how the law fits together. if the individual mandate goes down, do other provisions in the law like requiring companies to issue insurance, like the provisions on preexisting conditions, which are a lot more popular. so we may get more hints from the justices about what they think about how this law fits together. does it fit together like a jigsaw puzzle or do they think they can go through it and knock provisions out one by one? if they think they can do that, that will be more indication that the individual mandate is in trouble. if they do it as kind of interlocked, it might be an indication that they will have to either say the whole law is okay or reject the entire thing.
>> thank you, gentlemen, for your time. i greatly appreciate it. thank you.
Source: http://video.msnbc.msn.com/newsnation/46870818/
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