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Judicial Watch • 12 3 22 transcript Obamacare update

12 3 22 transcript Obamacare update

12 3 22 transcript Obamacare update

Page 1: 12 3 22 transcript Obamacare update

Category:Panel Transcripts

Number of Pages:30

Date Created:April 8, 2014

Date Uploaded to the Library:April 08, 2014

Tags:DOMA, Obama, ATF, White House, Supreme Court, EPA, IRS, ICE, CIA


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ldquo;OBAMACARE UPDATE: THE COURTS  
AND PRACTICE 
 
 
 
MODERATOR:   
 
TOM FITTON, PRESIDENT JUDICIAL WATCH 
 
 
 
PANELIST: 
 
BILL MCCOLLUM, FORMER ATTORNEY  
GENERAL, FLORIDA  
 
ALAN WILSON, ATTORNEY GENERAL,  
SOUTH CAROLINA  
 
BETSY MCCAUGHEY, PRESIDENT DEFEND  
YOUR HEALTHCARE, FORMER LIEUTENANT  
GOVERNOR, NEW YORK 
 
 LEE CASEY, PARTNER, BAKER HOSTETLER  
 
 
 
 
9:30  11:00 
THURSDAY, MARCH 22, 2012 
 
TRANSCRIPT PROVIDED TRANSCRIPTION  WWW.DCTMR.COM  
 
 
 
 
(Part one.) 
 
MR. TOM FITTON:  Welcome Judicial Watch.  Im Tom Fitton, president Judicial Watch.  Were conservative, nonpartisan, educational foundation dedicated promoting transparency, accountability, and integrity government politics and the law.  And through our educational activities, Judicial Watch seeks ensure that political and judicial officials obey the law and not abuse the powers entrusted them the American people. tomorrow marks the second anniversary the imposition the Obamacare the American people.  And next week, will hear historic constitutional challenges Obamacare, otherwise known the Patient Protection and Affordable Care Act, but that will occur before the Supreme Court.   
 
Obamacare unprecedented government power grab and fundamental  fundamental threat our nations constitutional order.  The challenges being heard next week the high court seek vindicate federalism, individual liberty, and limited constitutional government.  Many Americans, including thankfully some federal court judges simply reject the notion that the federal government can, for example, force Americans buy health insurance. U.S. District Court Judge Roger Vinson wrote who ruled against the individual mandate, difficult imagine that nation which began least part result opposition British mandate giving the East India Company monopoly and imposing nominal tax all tea sold America would have set out create government with the power force people buy tea the first place. Congress can penalize passive individual for failing engage commerce, the enumeration powers the Constitution would have been vain for would difficult perceive any limitation federal power and would have Constitution name only.  Surely this not what the Founding Fathers could have intended. Constitution name only.  Well, the Founding Fathers didnt intend that, but Constitution name only but one the awful possible outcomes the constitutional court challenges against Obamacare dont succeed.   
 
Also, the meantime, the crisis ongoing outside the courts.  From the corruption Obamacares passing, remember the Cornhusker Kickback, the controversy its implementation, which has seen vicious attack the Church, waivers Obama campaign supporters, and taxpayer funded propaganda starring Andy Griffith all people.  And dont even get started the trillion costs and the regulatory webs beyond comprehension. have excellent panel experts here today, including Florida attorney general, former Florida attorney general, Bill McCollum, Betsy McCaughey, president Defend Your Healthcare, whos former lieutenant governor New York, and Lee Casey, 
partner Baker Hostetler.  Unfortunately, due the poor weather conditions, the fog, South Carolina Attorney General Alan Wilson will unable join today.   
 
Each and every one these panelists leader the battle and were lucky have their benefit their expertise.   
 
First up, before begin the program, sure turn off all your cell phones, before forget put them buzz.   
 
Im going introduce now first Betsy McCaughey, whos patient advocated, constitutional scholar, and said, former lieutenant governor New York State.  Her bio the materials you have and our internet.  And just let say generally speaking, Betsy has been fighting this.  She fought effectively Hillarycare.  She fought effectively Obamacare when first reared its ugly head the stimulus project.  And obviously, she even made better once came up, calling attention some its worst aspects.   
 
What Betsy has done effectively actually read the legislation and point out some the problems with it, referring the text the legislation, whether was Hillarycare, whether was the stimulus package, whether was the Obamacare legislation.  And for that, she drives the other side crazy.  And shes been one the most effective advocates against senseless socialized medicine have and she probably knows more about this issue and has been involved the public policy fights related socialized medicine since the days  since going back before the days Hillarycare. with that, turn over Betsy McCaughey.   
 
MS. BETSY MCCAUGHEY:  Thank you.   
 
MR. FITTON:  Thank you.  (Applause.)   
 
MS. MCCAUGHEY:  Thank you. really glad here with you today.  Its historic moment prepare the Supreme Court for constitutional showdown against the Obama health law.  And with the U.S. Constitution our side, freedom should prevail.   
 
This Obama health law forces you enroll one-size-fits-all government designed health plan, whether you want not, and more importantly, whether you need not. also broadens the powers the IRS penalize you you fail comply.  And whoever occupies the White House has the authority dictate what your health plan must include.  Nothing the United States Constitution permits this. addition, for the first time history, this law empowers the federal government dictate how doctors treat privately ensured patients. even youre Aetna Cigna and youve paid for the plan yourself, the government still charge.  The law says that you must enroll qualified plan and the law says the qualified plans can pay 
only those doctors and hospitals that obey whatever regulations the secretary health and human services imposes the name quality.  Well, that can include everything medicine.  When your cardiologist recommends stent versus bypass, when your ob-gyn decides caesarian section, your doctors decisions will monitored for compliance with federal guidelines.  And your doctor could the position having choose between doing whats best for you and staying the governments good graces.   
 
You know, women went the barricades prevent the federal government from accessing their health records dictating their doctors.  Now, many womens groups are supporting this law, which does both  accesses your health records and dictates your doctor.  How can that woman free choose abortion but not hip replacement?  Either your body free from government interference isnt.   
 
The president promised that would make health insurance affordable order help solve the problem the uninsured.  But thats not what this law does.  Youve got your premium hikes the mail.  Instead, this law vastly expands Medicaid.  According the administrations own projections, nearly one third Americans under age will Medicaid, moving this nation toward Medicaid nation.   
 
Customarily, states have made the decision about eligibility and benefits under Medicaid, but this law puts the Feds control and coerces percent increase enrollment Medicaid Texas, percent increase Medicaid enrollment Virginia, for example.  Medicaid expansion may the sleeper issue this Supreme Court showdown.  All the lower courts rejected the Medicaid challenge, but the Supremes saw fit give second look.   
 
Under this law, Medicaid spending will increase from $343 billion the last year the Bush administration $900 billion before the end the decade.  How will this enormous increase Medicaid spending paid for?   
 
Well, theres $503 billion new taxes and fees right here this law and already Washington, theyre talking about another new tax, the VAT, the Vanishing America Tax, oh, yes.  But addition, this vast expansion Medicaid paid for eviscerating Medicare.  The law takes $575 billion out future Medicare funding over this current decade and shifts over pay for the new entitlements under the Obama health law, particularly the expansion Medicaid.   
 
Richard Foster, the chief actuary Medicare and Medicaid, told Congress April 22nd, 2010, that the cuts hospitals, the cuts what hospitals are paid care for seniors would severe under this law that percent hospitals would forced operate the red and other hospitals might have simply stop taking Medicare altogether.   
 
Where will seniors their hospital stops taking Medicare? make further cuts, this law creates the Independent Payment Advisory Board, unelected, unaccountable czars.  The IPAB board charged with further reducing Medicare spending. radical departure from Medicare know it, Congress seeds its budget making authority over Medicare this unelected board.  The law says that IPAB cannot reduce Medicare benefits, but those are weasel words because fact, IPAB can reduce the reimbursement caregivers low, lower and lower and lower until one can afford hip replacement anymore. halt this attack our constitutional principles, our liberty, and our health care, states and numerous other parties have challenged the constitutionality this law.  And next week, those states will get their day court  should say their three days court, unprecedented three days oral argument.   
 
The high courts decision the individual mandate may turn one astounding fact, and that fact this.  Half Americans consume virtually health care.  Thats exact quote from federal agency, the Agency for Healthcare Quality and Research  Research and Quality.  Yes.  Half Americans consume virtually health care.  The Eleventh Circuit Court Appeals was the only court directly reject the administrations false claim that health care needs are universal and inevitable.  The Eleventh Circuit was also the only court appeals overturn the individual mandate.  The Obama lawyers argue that all Americans need health care.  All Americans are, therefore, the health care marketplace, engaged health care commerce, and therefore, all Americans are subject Congress power under the Commerce Clause.  Congress has the authority require that they pay for their health care with insurance.   
 
Wrong, said Judges Hall and Dubina, the bipartisan team the Eleventh Circuit that struck down that mandate.  Wrong, they said.  The mandate over inclusive because applies people who are healthy and dont need health care and may not need any health care for years come.  Those two judges had the facts their side.  The Agency for Healthcare Research and Quality issued new report, January 2012, confirming their earlier findings that virtually half Americans consume health care.  And when you look the under age group, which the mandate would apply, its even way over percent who consume health care.  Half the population needs only 2.9 percent the health care consumed this country, average $238 year, and many them consume zero health care year, year after year after year.   
 
The Eleventh Circuit Court Appeals demolished the Obama administrations Commerce Clause argument.  And underscore how unprecedented was for Congress attempt require that Americans purchase product, they recalled, 1968, when Congress passed the Flood Insurance Act try incentivize Americans who lived flood plains buy flood insurance.  They never considered requiring them purchase it.  But now, the Obama administration wants require all Americans, including healthy Americans, buy the mandatory health insurance plan.  That would like requiring Americans who live tops hills buy health insurance. that one pivotal fact that virtually half Americans need health care all shows that the Obama administrations Commerce Clause argument flimflam.  Lets hope the Supremes agree with reasoning and recognize the facts.   
 
But they dont, there are several other challenges the way.  Number one, can the federal government dictate how doctors treat privately insured patients. 2008, the Supreme Court ruled no, when the Bush administrations attempt dictate how doctors one state treated patients one particular circumstance no, the court said, would entail radical shift authority from the states the federal government and literally standardization medicine all locations the country, something the Constitution does not permit.   
 
Secondly, privacy groups are challenging the impact the mandatory electronic medical records, which create tell-all relationship with every doctor you see.  Have abortion, your foot doctor will know.  See psychiatrist, your orthopedists finds out.   
 
Religious groups, thirdly, will challenging Section 1302, which empowers the secretary health and human services dictate what your health plan must cover, even interferes with your practice religion.   
 
And fourthly, course, those provisions the Independent Payment Advisory Board will challenged, the over delegation congressional authority independent board and that bizarre provision that IPAB can only repealed little tiny window between January 1st and February 1st 2017.  Any Congress can supersede the work previous Congress. conclusion, let say that the authors the Obama health law disrespected all us.  They didnt trust the public choose their own insurance plans.  They didnt trust doctors treat their patients properly.  They didnt trust states make good decisions about Medicaid based what their own taxpayers and budgets could handle.  And they didnt even trust future congresses reflect the true will the American people.  Instead, they accumulated all power the executive branch defiance the principles our nation, the founding principles our nation.  But fortunately, those principles will right our side next week, battle the United States Supreme Court and with the Constitution our side, freedom will prevail.  Thank you.   
 
(Applause.)   
 
MR. FITTON:  Thank you.  Betsy.  Another leader this fight Bill McCollum, who served  the House Representatives for years stalwart conservative leader, usually fighting his own party sometimes some these issues that conservatives care about, but being effective conservative spokesman the media well and leader that regard.  After that, ended attorney general Florida.  And that capacity, led the charge against Obamacare.  (Applause.)    
And recall when the lawsuits were filed.  And you initially  you filed the lawsuit the day after Obamacare was signed and was ridiculed and attacked, again, some our friends, but obviously our enemies.  And  but thought this needs challenged and his innovative lawsuit, not only, relates the  the individual mandate, but the federalism issues that Betsy talked about with respect Medicaid are now before the Supreme Court, and proved all the naysayers wrong. were proud have here hes now partner with SNR Dentons Public Policy and Regulation practice, former Attorney General Bill McCollum.   
 
MR. BILL MCCOLLUM:  Thank you for that nice introduction and its exciting here.  First all, Judicial Watch one favorite organizations and youve been doing the challenging things for the conservative cause for long time.  And  Im just thrilled here  were all greatly appreciative that and  those involved. also happy here with Betsy because know the work shes done.  She and have encountered each other other occasions.  Its delightful the same program with you.   
 
And doesnt get much attention his partner these articles, David Rivkin  (laughter)  but Lee Casey  was with Baker Hostetler one point, not too long ago, before became attorney general and have seen that article that did that you and David wrote and your names always there with his. know youre doing the work over there  (laughter)  least lot it.  And see that article which did, think September 2009, about the individual mandate, what inspired send our team off some research the Attorney Generals Office and then ultimately file this lawsuit, which actually was filed within minutes the day the president signed this into law, when signed it. that great team here with. want two three things very quickly because Im going try and stay within about six seven minutes, requested. think the most fun this going you asking questions our engaging discussion.  And want hear what Lee has say because his background.   
 
Let give you overall comment, putting context views about the big picture bill, and then the rest its the lawsuit. agree with Betsy about the problems with this bill, but think whats being missed lot the debate over health care reform, call it, that America has the greatest health care delivery system the world.  And have been very fortunate with the innovation and the research and all the other things that happened.  And may take three four five years, but everybody, regardless income, regardless status has been and beneficiary this.   
 
Were very destructive mode the moment, and this particular bill very destructive.  There are three pillars quality health care  three pillars really good health care system: quality, accessibility, and affordability.  And dont get any argument that, whether its liberal conservative anybody else who Im sitting panel 
with, talking about what are the basic principles what make very good health care system.  And what wrong, though, with this particular legislation, the Affordable Care Act, that undermines and hurts all three: quality, accessibility, and affordability. discussions, later, you want down that road, separate apart from the merits this lawsuit, Id happy help engage along with the others that kind discussion.   
 
The lawsuit itself has several interesting discussions thatll take place next week, which why were really here today, Tom, understand it, prelude the Supreme Court arguments, the oral arguments, and course the decision will occur presumably near the end June.   
 
The first day, theyre going focus whats called the Anti-Injunction Act.  For most us, thats very technical. very important. being argued outside group that the Supreme Court asked come and this that because couple lower court decisions  not ours, but another case two  that this somehow jurisdictional issue and that the penalty, what call penalty here for the individual mandate actually tax comes close being one its going interpreted fall within ambits the so-called Anti-Injunction Law.  And without getting into great detail, the Anti-Injunction Act provides that you are taxpayer challenging tax law, you cant that until the law becomes effective, until you pay the tax, and then you basically are seeking refund.  And then you say, hey, its not constitutional. need money back whatever. very difficult thing for see that the end the day, the Supreme Court going say, were going not hear this case, put off for couple years. wouldnt the end the mandate, but its not ripe and its not ready.  Youve got wait till 2014 and then probably 2015 practical matter.   
 
But there are going plenty those who argue for it, couple judges whom respect, whove ruled this way. you have watch it.  You have respect it.  Politically, the judges wanted that and the way, the Justice Department doesnt want postpone this.  The states dont want postpone it, the courts listening the jurisdictional issue.  But they politically wanted just kick the ball down the road, that would way kick part down the road. would not  even they ruled adversely and said you got wait for whatever reason under that act, you would only wait the individual mandate.  The Medicaid provisions still they have decide. really dont think theyre going that way.  Im not going take the weeds and talk about the Anti-Injunction.  Maybe Lee wants address some that, but  Id happy  understand it.  Id happy  
 
(Part two.) 
 
MR. MCCOLLUM:  The details why just doesnt apply opinion the states all. dont know whether theyre rule jurisdiction not, but only applies individuals and think the states have standing their own the individual mandate.   
 
Now, the merits the mandate, probably the simplest all the arguments. the  got the most attention.  Its the reason filed lawsuit.  But its the simplest all the arguments.  The simple fact the matter that  can repeat this one time because everybodys heard many times from and others.  The mandate here, the essential minimum coverage language, requires you you dont have insurance coverage somewhere else buy insurance policy covered Medicaid youre not able afford pay penalty.  And its that compulsion, that using the Commerce Clause  once was argument this was tax itself, the mandate.  And dont think that the Justice Department any longer really focuses that.  Its really all about the Commerce Clause.  And the question how far does the Commerce Clause go?  How broad can be?  What did the Founding Fathers intend?  And powers question. Lee put well that first op-ed piece, there power under the Constitution what has been done this law, the Affordable Care Act, with regard individual mandate.   
 
The Commerce Clause not elastic. lot people for long time, after the 1930s and 40s decisions thought was.  Very clearly the Supreme Court has set forth that doesnt find that way, that there are limits.  And there ever going limit this area, certainly should here.  And the crux the argument real  again, real straightforward. you are looking this from the standpoint how does the Constitution  reads that Congress has the power, federal government has the power regulate interstate commerce. were not going debate whether its interstate commerce not, but were debating regulating it.  This not regulating interstate commerce.  This all about compelling somebody engage commerce, and theres big difference.  And they want argue, the other side, all these ways over here and the weeds about this necessarily improper the  its just way trying get around it.  And you really look this, its puny excuse for what theyre doing, but obviously some people buy into that, people who want buy into principally. dont challenge their honor and their integrity and their analysis their whatever.  There are people, Im sure, who believe and still want say that the interstate Commerce Clause, after the interpretations that came along years ago, years ago, absolutely anything comes under that  Congress can anything, but that not what the court said recent decisions and dont believe thats what theyre going say after the oral arguments their decision June about the individual mandate.   
 
The other issue that relates the mandate severability.  Now, Im going come the last one little bit, Medicaid.  And Im not going dwell severability.  The severability one little more complicated some ways than the issue with regard the individual mandate only because carries down lots more rabbit holes.  But the basic premise the individual  mean the severability issue what was the intent Congress.  Would they have passed this law, would they have passed these provisions the individual mandate ruled unconstitutional without the individual mandate being there. they knew that couldnt there pay for it, would they have had coverage for preexisting conditions?  Would they have had the end the rating system, which means that insurance companies longer can base their premiums risk thats involved sorting out whos more risk than others and making insurance the health care world really not insurance, like know all and been that way for long time, really going over there and say everybodys covered.   
 
Now, the reality dont think anybody logically would say they would have.  And you look the whole totality this law and then well begin look the Medicaid provisions, which Im about briefly review, seems the fabric tightly woven that Judge Vinson was right say, you know, cant and pull out.  Which ones  are there theyre whatever?  Justice Department wants you believe that only two would have fall, the preexisting conditions and the ones dealing with the rating the risk issue.  But therere many other things that are intertwined here.  Its incredible how its intertwined and how you sort all that out from the exchanges, the cost, and all that, again, this morning, that Im not going into this talk.  But that makes the severability issue more interesting because there will debate over, not only whether the two provisions Ive just mentioned should severed the individual mandates falls, because some course have ruled, course that that isnt severed either.  But whether  Judge Vinson said, the individual mandate the center, the hub this wheel, and all sudden  (inaudible)  when you pull the center out, the tire the wheel collapses.  And think its the latter.  And thats, course, what want see the court do, take the whole bill down and remove it. think therere lot scholars who dont think they will take all down.  They only take parts down and then the debate parts.   
 
Now, Medicaid, thats one that everybody says the sleeper.  Well, Im going tell you.  When our team researched this, wasnt Lees article, his original op-ed, thought this was very important. was important strategically for us, for whole host reasons. was important because the states spend this enormous amount money and theres court decision dicta only that says using the spending powers Congress, you can only far compelling states things.  After that, youre commandeering assets.  The word coercion and commandeering are not the same and they are  argue the fine points that and say the Supreme Courts never ruled that  you know  that the federal government has passed constitutional point return, done something unconstitutional coercing state attaching something its spending bill. can remember when was Congress and passed highway bill one year, and that bill  was against drunk driving, got provision put there that said that states, order get their highway dollars had pass law that raised the drinking age 21.  And thats constitutional its been ruled that way.  But the question how far 
can you go. question that government can something.  But the courts say, hey, theres some point beyond which, youre violating the Tenth Amendment.  Youre violating the sovereignty the state.  Youre commandeering.  And thats what this whole argument about, its how big this is. fact, thats what the Dole case talks about, how big is. its big enough, theres enough money involved, theres enough whatever involved, the states really dont have choice.  You are forcing them into these rabbit holes. let give you the illustration our brief that best, think, you can gain the scope this.  And just use Florida the example, state, 2009, $110 billion taxes were taken the federal government from the citizens Florida, collected, 2009.  The state Florida collected $32 billion that year taxes run the state government. the $110 billion, about percent  $10 billion came back the state Florida assist with Medicaid.  The state Florida pays about some odd percent the Medicaid cost under the cooperative agreement that goes way back the beginning the Medicaid program.  The cooperative agreement having been stretched, then ties the federal government between, but nothing like the Affordable Care Act does. now one says, okay, the real issue, the federal government would argue that states can withdraw.  You dont have take this Medicaid program.  You just get your horse and ride out town and say were not going participate anymore.  Thats not going happen.  What happens all the people our state?  What happens all the money thats going elsewhere used tax dollars other states?  How make for what amount our share this  the federal governments share, should say, the Medicaid program. want this our own, thered about  percent our tax increase that youd have the state Florida that. youd have give schools  mean its just  you can start multiplying this and Im, again, not going every bit the weeds because therere lots arguments and lots examples and lots illustration, but this ginormous.  Forty percent all federal grant spending the states are based Medicaid.  Its huge number.  Its billions dollars money every year.  And its very serious matter.  The increase the actual burden thats this law top what already exists, not just  (inaudible)  already exist today now, what everybody Affordable Care Act.  And whats everybody Affordable Care Act someone the Eleventh Circuit said, well, were not going along with after listening all our arguments, dont think the Medicaid provisions violate the Tenth Amendment because the amount money that the states have put out, isnt that great? isnt that great for short period time, youre looking pure money for newly eligible Medicaid recipients.  And there lot newly eligible. mean thats whole argument. lot time theyve even sued defining all the scope what people were after.  And the fact that the beginning this program states had lot discretion.  And there were very few people, first all, Medicaid originally that  (audio break)  that continues increase and that goes the 138 percent poverty level, has nothing with disability need anything else, except for the poverty figure.   
 
And  but now weve got this enormous amount money that being spent addition and the states have way, the way, changing the things they used have discretion over eligibility cutting corners costs whatever under this act.  And top all that, its big burden.  But let get back this one point, and that the federal government does take high percentage, most the additional cost, initially for several years, the newly eligible Medicaid recipients.  But with the individual mandate the bill, the estimate that about seven million people who currently are eligible for Medicaid, who have not previously chosen join the Medicaid system will come aboard and will become beneficiaries and side up.  And theres nothing the long that alleviates the states burdens for that.   
 
And then theres provision which lot money.  And then theres provision  additional one  and then theres the provision that says that the states will required the future pay  assure guess its the right way putting  assure that therere enough doctors and hospital beds and nurses and other providers take care all these Medicaid eligible people.  Imagine the litigation.  Judicial Watch  (inaudible)  just defining  theyll never satisfied  (inaudible)  whats their huge cost.  And then therere other hidden things there well that dont think that our team has even raised, probably not wanting get too far into the weeds and confuse the court, but  and Ill glad that during questions and answers.  Therere other additional things the Medicaid area, very intertwined, very vicious.   
 
What happens, states cant afford it. cannot afford it.  And not only can not afford it. the greatest usurpation federal  state sovereignty under the federal government the history country.  Individual mandate about individuals and the states and its violation the Constitution and goes beyond the powers granted the Interstate Commerce Laws and makes the Interstate Commerce Clause become, you know, inelastic, mean makes way  (inaudible).  But over here, you want think the  (inaudible)  theres never been time when the federal government ever did anything this big.  These things cant get  (inaudible).  Theres way they could give the money and walk away from this and not this and theyre being  the whole thing was designed that they  the Congress knew they couldnt that, they  then theyre going require them all these other things. think its very good opportunity for Supreme Court draw the line and delimitate exactly where how far the court can  mean the Congress can with regard this.  Well, thats hopefully small  (inaudible)  longer than wanted and its already extended beyond seven minutes.  But thank you very much. look forward your questions.  And were going win, think.  (Applause.)   
 
MR. FITTON: matter how, the Medicaid fight has not turned out the way you hope.  Sounds like theres fiscal time bomb here and that were talking about the  (inaudible)  crisis Washington, they intend take states out with them.  That were all going down the tubes there, unbelievable.   
 
Well, Attorney General McCollum implied, Lee Casey, with his partner, quite literally, over Baker Hostetler have done great work alerting the American people and public policy leaders about the concerns about Obamacare and the individual mandate, because frankly prior your alerting folks this  and obviously, itd been little bit the public domain  but therere op-eds, theres nothing better than the Rivkin-Casey op-eds terms alerting people accessible way about issues related law and public policy.   
 
The individual mandate was always talked about terms about whether was practical issue not.  And President Obama, when opposed the individual mandate, running against Hillary Clinton, didnt oppose constitutional grounds. opposed practical grounds.  And our next guest, Lee Casey, who over, said, Baker Hostetler, had previously been the Justice Department, helping the government figure out what stances take core constitutional issues and other important areas law, has developed quite following through his and his partners op-eds the Washington in The Wall Street Journal, The Washington Post, and elsewhere. hes leading public intellectual areas law. were lucky have him here.  And hes real leader this issue.  And turn over Lee Casey.  (Applause.)   
 
MR. LEE CASEY:  Thank you.  Thank you very much for those kind words.  And also, wanted to, course, thank Betsy, who has been leader this area and against these constant efforts create some sort compulsory national health scheme for years more, and course  course, Bill, who was honor, course, serve his partner the practice law, and did the honor  David and myself and our law firm hiring outside counsel the lawsuit.  And its important know that wasnt for him, very likely would not here talking about the Supreme Court argument upcoming, certainly not with the issues framed they are. put together states plus Florida file that complaint.  You have idea what that means.  That means convincing other state attorneys general join him.  Six were added later give more than half the sovereign states this union.  The Supreme Court could not  not take this case that think was  once that happened, was unimaginable that the court would not consider the case.  But keeping that group together, obviously sounds very much like herding cats, but not just cats, very large cats.  And each those cats comes with staff other cats  (laughter)  all whom have law degrees.  (Laughter.)  And was small achievement.   
 
But let very briefly talk about some the issues that the court going address here next week.  First and foremost, and think theres doubt about it, this the most important case about federal state relationships, power under the Constitution generation.  The core issue whether the federal government, using the Commerce Clause, can exercise type power, which call police power, that the Supreme Court, certainly, and think both history and text the Constitution also supports, has always said was deserved the states.  The federal government has general police power.  What police power?  Basically, the way the Supreme Court described leading case its the authority make law pretty much anything affecting anybody 
within your jurisdiction long you follow individual limits, liberties, either from the federal Constitution state Constitution, but its general power just what the legislature feels the public good.  The framers our Constitution denied the federal government that power.  They established federal government limited and enumerated powers.   
 
Therefore, the states, for example, want have  require you have health insurance, the states want require you, the case just alluded to, get smallpox vaccine, they can that using their police power.  Its simply public health and welfare measure and because you happen within their jurisdiction, they can tell you, you have this there can penalties.  The federal government cant that. the federal government wants achieve the same result, they have look the list enumerated powers the Constitution  have the power tax and spend, regulate foreign and interstate commerce, the other powers, and see how they might about achieving the same result.  They may able achieve the same result, but they cant just dictate legislate the way the states can.  And course, over the years, the Commerce Clause has become the basis clearly the majority federal regulation that live with today.  The Supreme Court has interpreted very broadly. probably was meant, least some level, the framers broad grant power, because they did want it.  Indeed the Constitution Convention was called because the states were regulating commerce among themselves and erecting trade barriers, like smaller European countries. was serious problem.  But the court has always recognized that there are limits that power.  And the fundamental limit, frankly, cant turn into police power. cant wipe away the entire constitutional balance and structure and allow the federal government simply regulate people because theyre here and because being here, they have some impact the economy.  Everybody has impact the economy.  The fact that were here has impact the economy.  Were not out buying hotdogs the street doing something else.  And that enough, then Congress can regulate everything. has that police power.  And think that frankly what the court will rule. believe that the court will strike down the individual mandate for number reasons, but that the core.  And you know, its interesting, Bill suggested, unprecedented.  Congress has never tried this before.  And you back and look, Ive done, try find example, either our history our history before independence and the actions the British parliament, you are hard pressed. found instance which either Congress parliament required that you enter market and buy something simply because you happen subject their jurisdiction. the late 18th century, the closest thing found was, ironically enough, France, the old regime France.  And course, the framers our Constitution would have considered  did consider that despotism.  God knows was gentle despotism compared what have seen since, but nonetheless that was their view.  And there were two fundamental taxes old regime France.  One was basically head tax, but the real money maker was tax salt.  Now, they taxed salt because you need it, both survive, but most importantly you need preserve food. was the only preservative they had.  But that wasnt good enough.   
 
You actually had buy certain amount salt every single year comply with this law. they could tax you, course.  And  mean  think its very interesting that the only real example the type regulation that were dealing with with Obamacare comes from regime that the framers our Constitution thought the very model despotism. terms the arguments that were likely see, the one  wont get too much into the details, because know you want obviously get the question and answer period. will say, with respect the leading Commerce Clause case that everyone refers supporting the law  that Gonzalez Raich, the most recent those cases.  And their case, the court upheld regulation under the Controlled Substances Act homegrown marijuana.  California had passed law that allowed people grow certain amount for medical uses.  And the argument was made that well, this all local, and California has approved it, its lawful, and therefore, beyond the commerce power.  The court rejected that and said, well, the fact is, the previous case about wheat the 1940s Wickard Filburn, that the impact those local  the local use marijuana was sufficient.  But think the important thing realize about that case that that case, Congress was regulating thing, product. was regulating substance. wasnt regulating people. you avoid all the substances, the Controlled Substances Act really has nothing say you.  However, you interact with one those controlled substances, has great deal say you.  father, few years ago, during his final illness, were given small bottle liquid morphine.  You have never seen many frightening warnings with actual citations federal statutes that bottle.  What you can with it.  When you picked that bottle up, you were subject all that and there are very serious criminal penalties would not apply.  But when you put the bottle back down and walk away, youre longer subject it. mean has nothing say you until you interact with one the substances.   
 
That not what Obamacare does.  Obamacare applies you regardless.  You cannot escape unless you flee the jurisdiction, unless youd leave the country.  And that  that the quintessential exercise police power. think Bill absolutely right raise the Medicaid issue. suggested, the courts below ruled against that. think you read the opinions, what they were saying this just above our pay grade.  They acknowledged the Supreme Court precedent this area.  They said, however, that there case which the court exactly struck down federal law this basis, and therefore, will not   
 
(Part three.) 
 
MR. CASEY:  There was lot debate.  There was lot wonder whether the Supreme Court would take the issue. did take the issue, which means has called the question whether the rule suggested South Dakota vs. Dole, which there 
could some restriction federal money that coercive that would violate the constitution.   
 
They have now called the question that and think they will decide it.  And think, frankly, they will either have abandon that doctrine they will have rule that this violates because there other imaginable case that could more clearly coercive.   
 
And, indeed, its interesting. you talk state officials, Bill was, but especially the health care area that will actually have administer these programs private about these issues, there fear their eyes.  This will involve humongous costs that they know they cant meet and one believes that the federal government will continue over the long term fund this. result, this critical issue for them.   
 
They cannot withdraw from Medicaid.  Indeed, there actually provision the law permitting it. mean, all assume that, well, there must some way that state can withdraw.  Frankly, you look the statutes, theres mechanism for that.  Presumably, theyd make they along some state were try exercise but the fact Congress never imagined that they would.   
 
And the way know that crystal clear fashion that state withdraws from Medicaid, then the poorest people that state have means complying with the mandate.  Congress provided means for not the poorest but certain tranche people who are above the poverty line but still not affluent.  They expanded Medicaid cover those people that they would able comply with the mandate.  And they dont, the states not that, then theres federal alternative that will still cover them.  Theres alternative for people below the poverty line.  Basically, either have accept that Congress didnt care about that and that really didnt care about universal coverage that never imagined any the states could withdraw.  This law mandatory and extremely coercive.   
 
Very briefly with respect the Anti-Injunction Act, Bill mentioned  that think  not think that going the  the courts going take very much time getting passed it. doesnt apply the states.  There was case  South Carolina against Regan that establishes that.   
 
And its not tax.  The individual mandate has  not based Congress tax authority, doesnt raise revenue, its not the language that tax ordinarily passed in.  Its mandate.  And its enforced penalty.  The only tax aspect this law this provision the law that housed the internal revenue probe and that because the way will enforced that the IRS will keep your income tax refund you dont comply.  Thats how they will collect it.  Otherwise, there aspect the mandate that any sense tax. 
 
Let actually stop there and can get the questions. 
 
MR. FITTON:  Thank you.  (Applause.)  You know, could make quick point  Judicial Watch cares about corruption. think some the intersections here are worth discussing highlighting.   
 
One the issue severability.  You know, this legislation had been treated the normal course things, the House and the Senate would have figured this out, but they had get passed, the way they needed get passed, they knew should have known the severability issue would have popped up, meaning the individual mandate was thrown out, would the whole kit and caboodle out with it. effective  Im sure you have something say about this, Bill.  There are enough people Congress with enough experience know how pass legislation that would survive severability challenge.  And the fact that didnt not indication that the law was badly written, that was just that was  the process was screwed getting passed. 
 
MR. MCCOLLUM:  Well, certainly they had enormous task writing this and they were passing with the votes they had find over the Senate and they had devious ways doing it.  And was mess. wasnt here for that, but Ive heard stories about it.  And Im sure they omitted the severability clause, may have been accident. doubt was intentional.   
 
But, the other hand, the fact they did not put there.  And that gives big opening and gives the chance make the argument, which sensible, the argument being that why would they have passed this without the individual mandate?  How are they going pay for it?  They could have passed tax, regular tax.  They could have said, okay, were going increase the income taxes and pay for this they could have done what some conservative groups have argued since but has not yet been promoted legislation and thats refundable tax credit which would another way, again, for the federal government subsidize, but wouldnt mandating something under the Commerce Clause. wouldnt violating what Lee has just talked about and going into area that beyond the enumerated powers our view the constitution going  stretching the Commerce Clause ridiculous extreme and taking you into the requirement buy product service for the first time. think they messed up, but Im not sure they knew all this, that the briefings they got from the Congressional Budget Office and Congressional Research Service and everybody else told them everything where they werent going into this without being aware there were potential constitutional issues here. 
 
MR. FITTON: dont ask this question put anyone the spot with regard presidential politics, but its matter public debate why state like Massachusetts could require individuals purchase health care but not the federal government.  Lee, could you speak what the constitutional differences might maybe Massachusetts isnt able that under the law? 
 
MR. CASEY: think because state and has police power.  Requiring you get health insurance car insurance even life insurance certainly  least think, within the states general health and welfare powers.  But its only the states that have that.  And, obviously, Massachusetts did adopt such provision.  Some the other states may have considered it.   
 
But there problem  theres certain legal constitutional problem with them doing that.  And think that really highlights the fundamental issue stake here, which are going dissolve eliminate the bright line between what kind powers the federal government can exercise and what kind what kind powers the state can exercise. 
 
MR. FITTON:  Betsy, the constitutional concerns aside, the practical concerns think deserve lot more attention here Washington and the transformation our health care system thats taking place speak.  Could you address that little bit? know you work closely with the health care industry and have lot expertise there about whats happening now response Obamacare that Americans ought concerned about? 
 
MS. MCCAUGHEY:  Well, let focus one issue regarding that question that think everyone the room will care lot about and that the rapid diminution and the ability doctors make the best decisions for their patients unencumbered federal interference.   
 
And thats why when made brief remarks the beginning, focused Section 1311 this law because youre not simply required enrolled whats called qualified plan, plan that meets the requirement for essential benefits defined the federal government, members the executive branch, but once youre that qualified plan, this law gives the federal government lot authority over your health care, even though youre playing for the plan yourself.   
 
And beginning with the stimulus law, which you mentioned earlier, the architecture for real controls over how doctors treat privately insured patients are being put into place.  The stimulus law provided very large payments doctors and hospitals bring onboard the kind electronic health information technology needed create system electronic medical records.   
 
And even leaving aside the privacy issues for moment, the rationale articulated members the administration  David Blumenthal, Ezekiel Emanuel, the doctors who were advising the president, was that really cant rely doctors the best for their patients.  There have federal guidelines direct how doctors treat patients with eye toward reducing the amount care used.   
 
And should all concerned about that because, you mentioned earlier, course its very important that were going court protect the bright line between 
state and federal authority and protect individual rights from overreaching federal government.   
 
But addition, were trying protect the best health care system the world. all want everyone get enough health care and have access health insurance, but just look the data. youre seriously ill person, the best place the United States. woman with breast cancer here the U.S. has over percent chance surviving it. Europe, her chances are less than percent. you the arithmetic, that means shes twice likely die from that diagnosis.  Or, you take prostate cancer, man diagnosed with prostate cancer here the U.S. has percent chance surviving it.  Its not death sentence here, but Europe, nearly one out every four men who gets prostate cancer dies from it. really have make sure that the elements this law that not only require you insurance plan but insurance plan thats highly regulated the federal government where the regulations beyond what the insurers what the hospitals and doctors being paid those insurers do.  That really dangerous for the quality your health care.   
 
And, course, you mentioned, the health care industry its already having very detrimental effect research because people are looking ahead see what kinds diagnostic tests and therapies will doctors hospitals free use under Medicare, the largest payer hospitals but also even under the commercial insurers.   
 
And would just leave you with one statistics.  Since 1950, the United States has won more Nobel prizes medicine and physiology than the entire rest the world combined. you have serious illness thats considered incurable, this the place be.  This the place where theres hope, right? want make sure that whatever changes are made our health care system increase access and affordability not the expense the quality care and the independent ability doctors and other caregivers make clinical decisions for their patients without having their arms pulled back and tied the federal government. 
 
MR. MCCOLLUM:  Can piggy-back that, Tom? think Betsy has got exactly the right scope this, but want point out what think the heart the problem, the overriding heart.  And thats the idea that the federal government centrally going able control all the costs.  And you have realize that theres philosophical driving forces  there are philosophical driving forces here that want towards universal coverage, single-payer system, blah, blah, blah.  Some them are unwitting.  Some them are very witting.   
 
But when you get the train moving, what puts all these interest groups and everybody else into the train with them lot this the idea were going say weve got solve the problem rising health care cost who?  Whos paying this?  
The taxpayers. the government keeps getting bigger and bigger the federal level, the pressure keeps getting greater and greater, because budgetary reasons, reduce the availability and access certain care. mean, how else can you put it?   
 
Rationing done the government for various reasons, the pressure this bill consolidate, get doctors and work for hospitals, the idea pressing hospitals and other health care providers consolidate, take much  and all its designed save money, they say, but for whom?  Save money for the federal government.  And thats whats bad about this.  The federal government is, therefore, planning all this the name doing good, but really the driving force all about money.   
 
And what gets lost too what shes pointing out and that the accessibility and the quality, because, you see this system Im seeing now, you are having fewer and fewer doctors for number patients the number senior citizens and the baby boomers retire, you see doctors retire, you see problems that have getting young people into specialties, you see that there are not enough residencies. may need more  there are lot articles recently that Ive read  Im sure you have  that arent getting enough graduates, new graduates out medical schools.  Well, theyre not anywhere near the number residencies the hospitals able get these people trained right now. were already behind the curb.  This makes far worse. when you talk about accessibility, what kind health care?  Are you going have enough people who are nurses physicians assistants make all?  There are people out there who believe that.  Well, thats the way go.  And they can some it, but they cant all and they cant make for the doctor every case. that causes quality down, causes accessibility down from what presently exists.  And when they talk about accessibility, think theyre talking, the other side, about insurance companies.  And thats not true.  Anybody can get doctor but its the emergency room and the whole thing that the hospitals dont like about cost shifting, which part the argument the lawsuit.   
 
But its very big picture argument.  People get lost the weeds.  They dont want read all this stuff. complex that regard. is, Betsy.  But when you have read the pages, you have spend the time the three have looking not just the law but the whole thing, the picture becomes pretty clear.  And you just cry out inside you somehow tell the world what this really all about and that there are alternatives this that provide for preexisting condition covered provide for more people get better access, but this not the way it.  This unrelated the constitutional issue. 
 
MR. FITTON:  And, frankly, you dont need read the whole thing.  You just listen what the attorney general saying.  And when you read newspaper articles 
about agencies medical boards suggesting that certain drug treatments are not cost effective  dont work compared effective research.   
 
One drug decision they made they were considering the Medicare level  forget which drug was, John Alton (sp), you remember, you can hear me.  Anyway, theyre not supposed consider cost.  And its expensive treatment.  But you see pop the e-mail traffic. uncovered the documents. its clear that cost driving factor these decisions that youre hearing, well, dont this treatment.  Dont get mammograms before certain age, dont get this prostate cancer drug, dont get this breast cancer drug.  The benefit not worth the cost.  And thats not medical decision.  Thats political decision. 
 
MS. MCCAUGHEY:  Right. wanted point out one quote from Kathleen Sebelius that embodies this very dangerous fallacy.  Here she is, quote: The only way slow Medicare spending slow overall health care spending through comprehensive and carefully crafted legislation  like this, right?   
 
Now, course there are other ways slow Medicare spending. could incept the eligibility age. could ask some seniors who have the means pay larger co-pays pay larger premium share the cost.  Instead, what the government has done decide lower the standard care for all Americans.   
 
And when you look what this law does, the share health care paid for the federal government has actually increased from percent percent over short period time, just few years, 2020. Medicaid spending soars, Medicare spending, course, cut.  Theres big shift resources from the elderly the poor this law.   
 
But they key here that there are ways make Medicare affordable without lowering the standard care.  And what those enormous cuts Medicare payments hospitals, which referred earlier, the ones that Richard Foster, who works for the president, has warned Congress will deadly, those severe cuts what hospitals are paid care the elderly will impose overall regimen scarcity hospitals. will mean fewer nurses the floor, fewer pieces diagnostic equipment you wait longer when you need X-ray MRI, fewer cleaners  know that means more hospital infections.   
 
And so, consequently, have tell the people the federal government, yes, were concerned about the cost entitlements, but there are ways fix them without silently and deceptively lowering the standard care for all Americans, which what you just described again with the emphasis reducing preventive services and diagnostic tests.   
 
MR. FITTON:  Lee, you could answer constitutional  the new constitutional argument coming out the Obama administration. saw Dr. Ezekiel Emanuel, whos the White House health adviser and constitutional scholar now, talking about this morning the Necessary and Proper Clause.  Theyre kind avoiding the Commerce Clause and talking about this other area related  this part the necessary and proper benefit. 
 
MR. CASEY:  Well, think was Justice Scalia who wrote that the Necessary and Proper Clause the last bastion those defending unconstitutional laws.   
 
The Necessary and Proper Clause exactly what says. allows Congress make any law necessary and proper carry out one more its enumerated powers.  Its not independent grant authority, which say only applies you start with legitimate exercise enumerated power, which they actually dont have here, but even they did, right, mean, that really was one the things, the issue Raich, where they clear had Congress can clearly deny exclude certain substances from interstate commerce, which actually  you back down from the theory, how that Congress can regulate either drugs adulterated milk many other things its because they can exclude certain things from interstate commerce and from that the rest flows.   
 
And what the court Raich  and actually Justice Scalia concurrence said was addition under the Necessary and Proper Clause assuming that legitimate exercise authority Congress can then also pass laws that will make effective.  And what they mean that not make work.  The Necessary and Proper Clause not catchall that basically lets Congress succeed its goal, whatever that goal has be.   
 
What means Congress can things like make you keep records.  Congress can things like create enforcement mechanisms. can essentially avoid keep people from either evading avoiding undercutting the law its enforcement, but not basis for saying that, well, need the right impose the individual mandate and require people something order make the scheme that weve adopted work, then can that.  That not what the Necessary and Proper Clause says.  Its not how has been interpreted.   
 
And even you actually did accept that, its not enough necessary.  Its got also proper.  Another thing that Justice Scalia pointed out his Raich concurrence that when you  that real test when you look what proper.  You see what does the constitutional fabric.  And here, what does, allows the federal government exercise the police power and ultimately destroys  when you put that conjunction with the Supremacy Clause, reduces the states administrative units.  And that not what the constitution says. 
 
MR. FITTON:  Just quickly status  you think the courts decision, eliminates, takes out the individual mandate, would the decision result the status 
quo before the individual mandate was passed you see opportunity for more limited construction how the Commerce Clause used Congress other issues? 
 
MR. CASEY:  Well, that honestly hard say. think this instance they went over what think very bright line and think the court will push them back over it.  Now, whether  and certainly result, hopefully, Congress will little more careful the future.  Okay.  Probably not, but can always hope.   
 
Whether leads new understanding the Commerce Clause additional restrictions, Im not sure can really say except say that every time the court affirms that the federal government one limited and enumerated powers, good for Commerce Clause jurisprudence. 
 
MR. FITTON:  Well, Ill tell you what  ahead, Betsy. 
 
MS. MCCAUGHEY: want ask that question for just second because the 11th Circuit Court Appeals decision, Judges Hull and Dubina, who wrote the majority decision, was two one, explained that requiring all Americans covered, all Americans under age and there are few other exceptions covered one these plans, they used the word over inclusive.  And they took great pains explain maybe would permissible require those people seeking health care pay for with coverage.  That they said might plausible.  And that was very interesting comment me.   
 
But, course, theres difference, they said, between requiring those who are the health care marketplace pay for their health care with insurance and forcing people into commerce who are uninvolved.  That, obviously, exceeds the Congress authority. was interesting that they made that comment.  And can imagine Congress trying again somehow require that people who the hospital have coverage.  That would different.   
 
MR. CASEY: would certainly different under the Commerce Clause.   
 
MS. MCCAUGHEY:  Yes. 
 
MR. CASEY:  Now, that point, course, start talking about other constitutional provisions.  And when you start getting into the area  
 
(Part four.) 
 
MR. CASEY:  Limiting how people can actually access health care.  You start running into some the courts privacy decisions indeed, suggested. the abortion area, the court has carved out virtually the only absolute right the Constitution, more absolute certainly than the right free speech and religion, least the Supreme Court has interpreted those privacy cases.  But its true. cant just for that. you ever write bodily autonomy, its the whole thing.  Its not just that particular aspect.  And 
would very interesting see how the court would adjudicate such cases, both under its privacy cases and under  from perspective  more legitimate substantive due process cases that suggest that there are certain things the government cant you.  Its not very well defined.  But making impossible for you get needed medical care, thats going have really good argument thats one those things.   
 
MS. MCCAUGHEY:  Yes.  Im actually amazed that many womens groups have supported this law, obviously without reading it, because remember when Gloria Feldt from Planned Parenthood, 2004, said  she was applauding court decision regarding the efforts the federal government ban partial birth abortion.  And she said, you know, this decision important because makes clear that doctors and patients, not politicians, will interfering our health care and accessing our medical records.  And here they are, supporting this law which makes clear that the federal government will doing both.   
 
MR. FITTON: can imagine conservative politician creatively thinking way affectively outlaw abortions result the federal governments role providing health care coverage through either state exchanges elsewhere.  Its  therere opportunities for those who support liberal progressive policies these issues really lose out some these health care debates conservatives decide exercise the powers that are given them through Obamacare.   
 
MR. MCCULLOM:  Thats very true. dont know that  can elaborate that, but thats very true.   
 
MS. MCCAUGHEY:  Well, one the most amazing is, this recent discussion over contraception, contraception not guaranteed essential benefit under 1302 this law.  The secretary health and human services, presidential appointee, given the authority decide what must covered under health plans.  And future occupant the White House could say contraceptives.  Why would anyone want their decisions about their insurance plan left the whim whoevers president that time?   
 
MR. MCCULLOM:  Can jump here, Betsy. know John Fun (sp) and others want ask questions.  Ive seen their hands going out the top.  But want elaborate this one point. brings the issue about the contraceptive.  Its  under the question the mandates whats insurance policy  and youve talked about couple times, but want real explicit because Ive come from the states perspective now.  And there are, Florida, think still about mandated coverages any basic health insurance policy, which one the great problems politics, that studies that Ive been involved with and chaired and forth and real health care reform, what need do, what are the problems, one the top problems the fact that you could reduce the cost insurance policies considerably you didnt have all these interest groups lobbying the legislature and getting everything put into policy, and then having so-called insurance companies  they arent so-called  they are health insurance companies  wanting keep them there for reasons that, say, why need 
have certain maternity coverage Im single male.  Why does that need the policy, whatever else may be. always thought that would better for the states realistic about this and say, okay, therere 10, things that ought basic policy and everything else like television, you know, cable whatever.  Youre going buy and you get menu and you can pick and choose other alternatives able  (inaudible)  the premium for it, but only limited number things basic policy.  Now, the federal governments come along for the first time.  And when was Congress, they didnt have any these powers.  They maybe have them, but  (laughter)  but for the first time theyve come along and they said, were going regulate insurance.  Were going decide whats basic policy, but they didnt preempt the states.  They states can still have those. whats going happen and whats happened with the contraception  me, the argument not just about abortion your views life and choice and all, its about this usurpation, this deal thats going and affects this case. not being argued. dont think its the briefing, but would have loved put there Id had mind could have convinced Paul Clement earlier whatever. did talked him about it, but its not there. any event, the truth that discovered from our Department Insurance Florida one day and preparing for one these talks and asking them some unrelated question, they had just sent memo over the state legislature and said, hey, theres huge hidden cost the Affordable Care Act the states, because theres provision there that says that the federal government has issued, say, mandated provisions  lets assume for the sake argument theyre all identical ones Florida already has  well, lets say 20, just simple.  And Florida has and dont know the exact numbers.  Lets just use them illustrations.  Then, the state Florida, unless repeals those additional mandates going have pay money into the federal government compensate for the additional Medicaid cost that the federal governments going have result all whats going with these additional mandates.   
 
MS. MCCAUGHEY:  And the insurance exchanges.   
 
MR. MCCULLOM:  And the insurance exchanges, too.  But this just one illustration how devious this and how much more costly this can the states.  Now, granted this case, probably the reason the argument not being made the court pretty clear. the states wanted to, they could repeal all those.  But you know and know theyre not going because the politics. this going become one  maybe they would repeal the additional and you still have 30. dont know what the number is, but its still very expensive, just enormous nightmare the states.  And its because the federal government choosing usurp power historically left the states.   
 
MR. FITTON:  Well, lets allow the floor participate here. think have microphone.  John Fun.  This questions for Lee. went panel discussion with your counterparts from the other side, discussing the Supreme Court issue.  And theyve obviously spent lot men and women hours researching this.  And they claim have found there their silver bullet, which that 1792, under President George Washington, there was some kind mandate the states that they empower militia and that the militia equipped with flintlock and various cartridges  
 
MR. CASEY:  There you go, you just equip.  The necessary and proper equipment repel foreign invaders. other words, its form servitude that they were requiring.  And Im just wondering, have they found their silver bullet lead?   
 
MR. CASEY:  Im afraid, like the balls that were shot out those muskets, its lead.  The  there are certain  there are, indeed, certain things that the federal government can require individuals do.  They are few and far between.  The Militia Act based specific grant authority. mean there enumerated power that allows Congress raise and support armies and regulate the militias.  And that specific grant indeed supports that kind regulation. wasnt the Commerce Clause.  And mean think that the key.  Theyre mixing and matching powers and they cant that. should also say, they also raise often other examples, for example, the federal government can require you serve jury, can the states.  And its true.  Theres  there specific provision the Constitution that permits them that.  But that one those few things where the Constitution does permit them create courts.  And from the perspective the framers the Constitution, when they said court, they didnt just mean building. mean they meant all the attributes court that they were familiar with, jury service was one them, and indeed was militia service actually.  That these things go, they use say, time out mind.  There are  were obligations citizenship that are easily inferred the Constitution and indeed certainly the military service.  When the court, 100 year ago, upheld the draft for the first time, very specifically said, look, Congress can raise armies.  What you think that meant? mean, course, they can impose draft.  That has been the case for the last 800 years.   
 
And think when you start trying come with these other examples, find example under the Commerce Clause, which what issue here.   
 
MR. FITTON:  Im looking forward presidential candidate running platform requiring citizens have  (inaudible)  would great one.  (Laughter.)  Any questions, comments.    
 
(Part five.)   Uwe Reinhardts work percent spending.   
 
MS. MCCAUGHEY: think hes referring what  the work Princeton professor, Uwe Reinhardt, who argues that percent the difference between what Europeans spend health care and Americans spend health care related higher income levels the United States.   
 
MR. FITTON:  Yes, any other questions, yes.  Wait for the microphone. havent read the act.  Im sorry say.  Im sorry say, havent had time read the act.   
 
MS. MCCAUGHEY:  Well, theres rainy weekend, Ill give  (laughter)  since have expert here  (laughter)  this regulation our health care only tied the payment it?  For example, choose doctor and not invoke state mandated insurance coverage, but just tell the doctor, Ill pay you cash for treating me.  You wont have through any the insurances Medicare Medicaid anything else. that prohibited any way this act?   
 
MS. MCCAUGHEY:  No, havent found any prohibition that nature. aware, though, that  its different circumstance when youre Medicare.  But below  for people who are under age 65, havent found any restrictions.  Have you?   
 
MR. MCCULLOM:  No, but want tell you little story.  When was Congress, many years ago, not too senior, very junior, had  was runner. still run. ran three and half miles last night. Im real proud continue that.  And had pulled something lower leg, near the ankle and the calf.  And went see orthopedic surgeon friend and said, you either have partial tear, Bill, your Achilles tendon you torn your muscle. dont know which.  And you  but cant take risk. you are going all right with this, dont  you cant run maybe for six months maybe year till see this going problem because dont know this going  (inaudible).  But there new procedure  that time new procedure  not covered insurance.  Ill call MRI.  And could have that test done youre willing pay for it. cost over $1,000 and did have pay for it.  And  and looked and said, wow, this little tiny severed muscle  was kind fun look it. was about this small, the size pencil lead, but its severed. back and running.  Wait week maybe and back and running.   
 
Im the airport Colorado, about month later.  And was bad weather, Betsy, and was waiting the plane and just coincidentally, next and struck conversation was the executive director the Canadian Medical Society.  And this was only medical story. told him the story and said, Congressman, under Canadian health care law, you could never have had that MRI.  You could have never paid for because wasnt medically necessary and wouldnt permit it, matter what.  And thats what lot fear.  That was  this struck the very beginning, illustration, young guy government how never wanted there, and yet, thats 
really the inevitable path, hear lot people talking about, who are behind this Affordable Care Act.  That the philosophical drive, some the political drive get that Canadian, that European, that universal system, and ultimately, thats the rationing were talking about. may elderly. may whatever.  But whatever somebody decides isnt necessary, youre not going get, even you want to.  And now, thats not the law.  Thats not the Affordable Care Act.  But this sort viewed and lot other people just the first step.  They were really excited about getting there. may take them another years. might not affecting you, but what about your grandkids?   
 
MS. MCCAUGHEY:  And fact, one the philosophical drivers, you mentioned, behind this law, which has been articulated several the presidential  presidents medical advisors that America should moving toward that European style care, where government controls how much care people get, even they are willing pay for themselves.  Fortunately, Canadian high court recently overturned that national law that prohibited people from paying for their care with American insurance just out pocket.  But driving force behind this law, not only that you shouldnt able pay for care yourself, but also that some people should not able get more care than others simply because theyre willing pay for themselves.   
 
MR. FITTON: have time for one more question comment.  Yes.  Im Jim Mantle (sp) here.  Im just wondering what the source your confidence that youll prevail. mean, you know, obviously theres the merits the argument, but all know, lot times, really depends the composition the court. could you address that?   
 
MR. MCCULLOM:  Well, think both  Betsy can, too, she wishes, but Lee and can address that.  And Im sure have slightly different views.  Im not overly confident were going prevail. want believe its sort like its basketball team.  Its case, Im little biased.  But just have hard time, told you the beginning, believe the Anti-Injunction Act argument will kick off.   
 
Number two, think the individual mandate argument really compelling anybody who logically looks and you look the court composition and you say, why would somebody the other way.  Now, Ive listened the experts  and Lee can through this, because hes closer some them than are, the people who are former solicitors generals, the ones who  someone the other side this, professor law, and blah, blah, blah.  And they will along and theyll say reason why Scalia, reason why Roberts might vote the other way.  But the end the day, think there  should get five four decision. might even better. won one Democrat the Eleventh Circuit, you pointed out, Betsy, but Kennedy seems the swing judge.  And Im not going get into that analysis.  Lee can wants.  But there  most the target all this effort both sides has been assuming Kennedy key.  And theres lot reason for believe that are, based his past decisions, this 
end the Medicaid issue, very much appealing what hes written the past his viewpoint. Im  Im cautiously optimistic severability. think that well get some kicked out.  Id like think well kick all out.  Based past precedent, probably more difficult predict that, whether theres any certainty that well get the whole thing kicked out.   
 
And then Medicaid, you know, guarantees there.  This  but Lee said, theyre ever going it, this the time it, and weve got great argument under the Dole case.   
 
What you think, Lee?   
 
MR. CASEY:  Yes, agree. mean  obviously, you should never count your justices before they vote.  (Laughter.)  And  mean followed lot the debate about well, which justice and will Justice Scalia, largely because his concurrence Raich, which think the other side misinterpreting, going vote uphold the law, and course Justice Kennedy? think, frankly, you look the Supreme Courts precedent, you look the number times that they have said that there general federal police power, you look their Commerce Clause cases, every single one them discusses the type activity that Congress regulating.  Its not Congress can regulate people.  Its Congress can regulate this type activity, sometimes even its non-commercial, but its always  that always there.  The government has never yet come with decent theory about why  except trying suggest that thinking sufficient activity that  when decide not something have failed something, that too activity. mean thats pretty thin  thin read.  But with respect Justice Kennedy, you look his decisions, and course,  has disappointed conservatives number occasions, but one thing genuinely believes, one thing has written about since got the court, and many ways, defines him judge, the belief federalism.  think really believes what writes, which say that the federal system there for reason. critical the framers vision how guarantee liberty and the courts are properly positioned vindicate that proper case. think that really why Im  hope Im not overly confident, but think will  will prevail the mandate, whether the court will strike down the whole law.  They certainly ought because dont think theres ghost chance Congress would have passed the other provisions without the mandate that they can operate, which say, yes, therere effective regulations the insurance industry, but they dont achieve what Congress wanted achieve.  And think Judge Vinson, below, was absolutely correct striking the whole law.  Well see what the court does with that.   
 
MR. FITTON:  Well, certainly their appeal Scalia would indicate that maybe thats admission that theyve lost Kennedy.   
 
MR. CASEY:  (Laughs.)  Perhaps.   
 
MR. FITTON:  Who knows.  Well, well know maybe next week, maybe not, depending how the justices talk the hearings, but will know for certain, you believe, one way another June, unless they kick the can down the road under this Anti-Injunction Act argument.   
 
MR. MCCULLOM:  And the way, Tom, dismiss here, think the discussion this morning has pointed out bottom line thing all ought take away from this.  That when this court decides, whatever decides, matter what decides, the beginning, not the end the debate over what happens our health care system. not the end this all.  itll historic moment for constitutionally and from federalism standpoint and individual liberty standpoint, but not the end the debate health care.   
 
MR. FITTON:  Well, appreciate it.  You can see how hit the gold mine with this panel with Betsy McCaughey, Bill McCullom, and Lee Casey.  These three individuals have done more than virtually anyone else really fend off two administrations socialized medicine. appreciate their leadership this. thank you very much.  (Applause.)   
 
MS. MCCAUGHEY:  Lee, good luck.   
 
MR. FITTON:  And thank you all for participating well.  Thank you.   
 
(END)



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