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It is one of the most watched faces in front of the US Supreme Court in a generation.
The President Obama health -- all day two now wrapped up -- -- team coverage continues.
Joining us from outside the Supreme Court George -- university constitutional law professor Randy Barnett he is.
Representing the National Federation of Independent Business before the -- and professor Barnett you are credited by many would being the driving force behind getting the health care case before the Supreme Court.
My first question is how did the justices react today.
Well I thought it was a very very interesting day.
And I feel very good about the way the justices reacted to it.
And essentially you had four justices who were very heavily critical of the government's argument you had four justices who who were very heavily critical of our case.
And then you had Justice Thomas who normally doesn't ask questions.
But you would she didn't see.
Our justices from either side sort of crossing over to criticize the other side and -- -- it suggests to me that we have a closely divided court.
And we're gonna have to wait until June to find out exactly who's able to command five votes.
Were you encouraged by justice Anthony Kennedy basically saying to the government has a huge burden here.
To -- to you know that has a constitutional case -- to mandate this health insurance so is that encouraging to you.
Yes you can't judge any of these arguments based on one question but that was a very revealing question asked by Justice Kennedy said of course there's a presumption of constitutionality.
But what what the government is seeking here is what Justice Kennedy called a fundamental.
Change in the nature of the relationship between the citizen.
And the government.
That was hugely important that he sees it that way I believe it's true it's something I've been arguing for for two years.
And I think to hear that come from Justice Kennedy was greatly reassuring.
Today in in when -- when he let off his questioning with that observation.
Couldn't you argue -- that -- mandatory participation -- government programs kind of -- exist with programs like Social Security.
The government has the power to mandate that you contribute to the government and then the government takes the money and distributes its two other people.
There's a long history of that in Social Security is constitutional Medicare is constitutional but that's not what the congress did this time rather than take money from the people.
In the form of taxes and be politically -- -- worth -- for that they avoid a political accountability by forcing young and healthy people.
To subsidize the insurance companies who were having.
-- have to having to bear the cost of new regulations being imposed upon them that's not something the congress is ever tried to do before when they do with the right way its constitutional when they do with the wrong way it's unconstitutional.
And this in describing this individual mandate I was looking at you know -- use words such as unnecessary.
And dangerous why do you say that.
Well it's unnecessary because as you just pointed out congress does have powers to address issues of caution -- -- free riding it's the tax powers how we've addressed that problem.
For 220 years but it's very dangerous if it's allowed to use its commerce power for that.
Because the only consequence of attacks -- subsidy if you if -- -- cash for clunkers is you pay a monetary cost for not buying a new car but if congress can mandate that you buy cars.
Then it can actually -- in -- enforce that mandate but up to and including imprisonment that's a much new.
It's a new power and it's a dangerous power far more dangerous than even the power of taxation which we all know is also the power to destroy.
Fascinating issue being played out in front of the nation's highest -- my thanks to professor Barnett from Georgetown University thank you for joining us.
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