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Constitutional lawyer Seth Berenzweig on the constitutionality of the individual mandate and the health-care law as a whole.
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Welcome back to a special edition of the Willis report health care showdown.
The Supreme Court considering Obama -- over three -- six hours of hearings the longest they've thought about one.
Sued in about forty years since parents like joining me now a business attorney to talk about the -- self really.
And what's going on with the court how they'll consider each of these arguments.
I wanna start with.
That that what they're debating over the next three days starting with the anti injunction -- that they talked about today -- meaning of that.
Short -- -- the anti injunction act is basically the question of whether the case is ready to move forward whether it's right.
They end the anti injunction act is a statue that basically says that you can't challenge something that's attacks -- -- -- but the justices were.
Very skeptical about that today that they bought that argument then everything was gonna come in for a -- because they could've just said look we're not ready it's premature.
They were all pretty clear on that indicated that they were not gonna buy that so therefore there's going to be a big day tomorrow it just makes the arguments.
Moral -- critical everything would've been put on hold at least until 2015 I think that we would have a long way that's very until anything happen of course the big -- tomorrow.
Is the individual mandate -- -- is it legal.
Before congress for the federal government to require people to buy a specific product and then if they don't find them are -- them as a result you tell us more about that.
Well the individual mandate is really at the heart of obamacare and in my view I think that's the heart of the statute that's really on life support.
The government is relying essentially on what's called the commerce clause under article one which says that for something that has an effect within the -- interstate commerce.
That congress can regulated -- do things that are necessary property do so but the problem with that argument is that first of all the government's been very inconsistent about what they want to rely on.
They don't have tax and spend authority for this and they've really flip flopped on that.
They try to go back to the necessary -- proper plus make long story short.
Saying that you have people to be placed an interstate commerce than relying on the interstate commerce clause is like saying you should be forced to buy a car.
To help the environmental regulations because it has lower emission standards it's unconstitutional my view it's a big problem.
Pacific you know I've seen some of the case -- -- the justices will be considering it's pretty.
Persuasive it seems like congress can do almost anything they want under the guise of -- the commerce look what do you say.
Well that's true that when you fall under that clause that you have very broad authority to be able to do that the problem is that it has to be under an enumerated power of the constitution.
And I don't believe that are really triggers -- that here because to say that there's some kind of the spill -- effect.
When there's no data to support it to say that if you have people buy these insurance in the exchange is that it flows interstate commerce even though you're really -- the commerce that you're trying to then say flows through.
That's the problem constitutionally I think it's a problem it's the first time that this kind of -- directive.
-- been placed to tell people that you have to buy a product or service or you're gonna be penalized.
And it is a penalty is not a tax which is why the justices are skeptical today to say that there's no injunctive issue here.
What the other issue coming up -- abilities so.
If the mandate weren't involved is the rest of obamacare.
Is that not a lot anymore is it illegal as it out the window what do you make of back.
If you listen to the to the government the answer is yes they're really rolling dice on this issue and it's a huge gamble.
They are seeing.
That it is not several ball the issue -- server ability is whether it's like a house of cards if you take a few down does everything collapsing as part of its debt.
The governments are -- the -- they're saying that there's no server ability.
I think that that's a question but at the end of the day I think that there is a real risk that everything gets collapsed because without this mandate.
Then everything is really integrated into that engine and therefore everything is really their connected to that piece so there's a real danger -- that.
It's certainly becomes more complicated and a lot of people saying that it's very difficult for the -- -- progress you know it's already it's already operating we're already getting the first steps -- first baby steps of obamacare.
But having a go forward is really difficult in that situation.
Let's talk about the justices for just a second nine justices.
Led by the Chief Justice John Roberts.
-- the president in the White House are gonna have to take at least one conservative justice with them if they're gonna win this thing I agree who is in the cross -- who do you think.
That in the White House is side is really gonna target here really gonna try to pull across -- -- That's a great question -- I thought I was going to select one I would have to say Justice Kennedy Justice Kennedy has had a reputation of being the so called swing vote.
And in these kinds of -- decision there where there will be a narrow margin I think that this will be a narrow margin.
The historians would say Justice Kennedy and I would agree with that.
But at the end of the day I think that.
It's gonna be difficult to really anticipate exactly what's going to happen I know that there's going to be a huge risk with the administration really during the -- on the -- ability issue.
In this is the first time that this kind of an issue for required individualized.
Forced purchase of a product or service has been triggered so.
Tomorrow's going to really be the hugest day and that's really when that we're gonna have about the pedal -- the -- here so to speak.
-- that the metal everybody's gonna be paying attention she can you give us a crib sheet of what to think about tomorrow as we watch the day -- Think about whether the government's gonna be able to establish specifically whether.
Or how there is a stream of interstate commerce -- whether they're really artificially creating that.
Is there a collateral affect.
That is in interstate commerce that they can latch on to.
To hold onto the -- into the interstate commerce clause or -- really just creating -- themselves artificially and then to latching on said.
I think that they're gonna have a real hard time being able to support this.
And at the end of the day I think that there really is a high risk that this will entirely be deemed unconstitutional.
Over a long way to -- lots of arguments being made I'm sure they'll be a lot of intelligent push back -- thanks for coming on we really appreciate your time.
