Broccoli, mandates, health care, and the Supreme Court

>> our special coverage is continuing this afternoon here at the supreme court . as justices consider the 800- pound gorilla in the health care reform law. the mandate. at issue today, is the government within its rights to mandate insurance coverage for all, distributing the costs of covering some 30 million uninsured, or is it beyond federal powers to order citizens to buy a commercial product they may not want. and early on in the arguments, it was justice scalia who brought in the slippery slope question. if the government can make you buy insurance , why not say vegetables?

>> everybody has to buy food sooner or later . so you define the market as food. therefore everybody is in the market. therefore you can make people buy broccoli.

>> no. that's quite different.

>> that was the tone, justices showing skepticism about the constitutionality of this mandate. to judge from the court watchers who were there for the arguments today, they seemed to say this law could be in big, big trouble . our big court watcher, of course, is nbc news correspondent pete williams . and pete , you've been quoted a lot today saying that everything you saw and heard in the supreme court today tells you the mandate could be in trouble.

>> you know, sandra day o'connor used to say, whats the most important thing? counting to five, she would say. who are the five votes who would vote to uphold. this you can assume that the four more liberal members are inclined to support it. and i think you can assume that the four more conservatives are not. we got a little answer to that today from justice scalia . there was some thought that because he had voted to, in the past, to a very broad commerce clause power. perhaps he was a gettable vote today. it became quite clear he was not. it all comes down to justice kennedy . and of course, it is impossible do today.t what the three months from the time they write the final decision. what they think right now is sort of irrelevant. but judging from what was said during the oral argument , justice kennedy set the bar very high when he said at the beginning, if you're going to change the relationship between the government and an individual, don't you have a very heavy burden? and almost until the very end of the argument, he sort of signals that he never got an answer that was satisfactory to him. at the very end, chuck, em, well, you know, maybe the health care market is different. maybe it's different than food and forcing people to buy broccoli. maybe there is something different about the health care market that would allow the government to do this. so there is a glimmer of hope there for the administration. we'll just have to see whether time brings him around.

>> i want to ask you about, there was some sound. there is some arguments in questioning that justice roberts had of the other side that seems to also give the obama administration some hope that he was pretty skeptical of the argument against the mandate as well.

>> pete ?

>> sorry. i thought we were going to hear something there. i wouldn't -- i think he was trying to be fair. i think he was trying to may the fair traffic cop today. in terms of how the arguments were characterized. but i wouldn't county justice roberts as a very likely vote for health care . what the government lawyer was arguing here is, there is agreement from both sides that congress does have the power to force people, or to require people to buy insurance when they show up at the emergency room or when they go to the doctor's office. what the government says is, that's not practical. imagine how expensive insurance would be if you bought it at the entry counter when you went into the emergency room . so the government says all it's doing is shifting the time and requiring people to buy it earlier. what the conservatives were saying is, the problem there is, requiring not just people who want health care to buy insurance . but you're requiring everybody to buy insurance . whether they're going to go to the doctor's office or the emergency room in the next five years or not.

>> pete william, i know you have more work to do for "nightly news" tonight. i want to head north now and get my partner, former partner in crime and our chief legal analyst. today co-host, savannah guthrie . i want to play the sound that has some in the obama administration in panic mode. that is justice kennedy 's questioning of the government's case. here it is. then you want to get your reaction.

>> when you were the relation of the individual to the government in this, what we can stipulate is, i think a unique way. do you not have a heavy burden of justification to show authorization under the constitution?

>> savannah, that seems to be the question that frankly does have some democrats that i'm hearing from almost in panic mode.

>> yeah. there's no question that the sub text of what justice kennedy asked and justice alito and justice roberts . isn't there something different about what's going on here? are not you basically forcing individuals into the stream of commerce for the purpose of regulating them? and whether they said that outright as some justices did, or whether the questions indicated that's how they were at the case. that's lifted right out of the brief of people opposing this law. that's how they've framed the issue. if you look at the oral arguments and the question that was asked, it does seem the justices are buying that view of it. the opponents of the law, the supporters were saying, look, we are regulating the health care economy. there's nothing to see here. the federal government clearly has the power to regulate things that are substantially affecting interstate commerce . this isn't a difficult case. what was clear from the questions today was that the justices don't necessarily see it that way. what justice kennedy is saying, there is something extraordinary about this. there is something almost unprecedented about this. and just in terms of tone, it seem like they're signing more on to the way the opponents of the law view the case than the supporters do.

>> now, of course, there was one of these cases where the government's case was upheld and the government's rule was unconstitutional. at this point in time during the appeal court process, the government felt as if they were going to lose and this was the one that was in the d.c. circuit . so how much of this tea leaf reading the dangerous?

>> it's the perfect caveat to make. you can cite that. they were very conservative judges on the d.c. circuit . a very influential circuit who ruled on the constitutionality of this issue, who grilled government lawyers in oral argument and then ultimately these conservative judges were with the majority to uphold this provision. so when you look at the oral arguments and you look how tough the justices were on the government lawyers today, you don't necessarily know what the outcome is. when you look at the content of the question, you can see why the administration is worried. you can see why veteran court watcher like pete williams are saying, they may be pressed to find five votes. another example of the voting rights act a couple years ago. the government lawyer there was absolutely grilled. later the court upheld the voting rights act . i think the vote was something like 8-1. so it's always good to have that caveat. oral arguments are not always predictable of the eventual outcome. sfr what you've read of the transcript and heard, was the government prepared today?

>> well, you know, clearly they're prepared. all of these lawyers have been exhausting themselves with moot court and all the rest of it. so it is not like anybody showed sxum w up and was cramming for exams the night before. the conservatives justices , his own analogy of if the government can force you to buy insurance , can they force you to buy broccoli? can they force to you carry a cell phone so you can call 911? can they force to you buy burial insurance ? what i was struck by, the government lawyer didn't seem to have a snappy or powerful, rhetorically any way, response to that saying there is a reason why regulating in the area of health care , forcing somebody to buy health insurance is different than those examples. that surprised me a little bit.

>> we thought it was going to be wheat. instead it's brockly. it's all about food. savannah guthrie , this has been fun this week going back and forth with you.

>> good to see you.

>>> two more supreme court experts joining me now. thomas goldstein , attorney and co-founder of what has become must-read for a lot of us. and kevin russell , the editor of the blog. i want to pick up on this point of whether they were ready.

>> i think he was ready. he may have not given the concise snappy answers that some of the adversaries were able to give. but ultimately, his difficulty is that they don't have great answers to some of the questions that are troubling some of the justices . it is a matter of substance rather than regulation.

>> too much tea reading?

>> it was a bad day for the government. when the five justices are looking for one vote and they're all giving you a hard time except for the one, you know you're behind the eight ball and you're struggling. you don't know that you'll lose. i think it is more likely than not that the government will pull this one out. it will be closer than anybody thought.

>> some of the justice that's are sympathetic to the government's case was trying to bail him out. let me give some sound for this.

>> doesn't that seem a little bit, cutting the baloney thin? health insurance exists only for the purpose of financing herring. the two are explicably interlinked.

>> the people who don't participate in this market are it much more expensive for the people who do. it is not your free choice just to do something for yourself. what you do is going to affect others.

>> so those are the justices , kagan and ginsburg questioning mr. clem who was arguing against the mandate.

>> i thought they were typical of the kinds of questions you get from justices kagan and ginsburg. it wasn't really surprising that we were getting questions like that. on the other side, you have justice scalia trying to help out the other side when they didn't give the answer that he thought they should give.

>> at the end there were some tough questions for mr. clement as well. what did you make of that?

>> i don't think so. as pete suggested, i think john roberts in the enwas trying to make you are sure he was even hand and fair. mainly his questions to the plaintiffs, trying to invalidate the mandate was saying, what about the other side's argument? he wasn't embracing it in any way.

>> given what happened to the government today, what appears to be a bad day for them, how now is the severability case tomorrow? that much more important than they thought?

>> well, the government was hoping tomorrow would be an afterthought and wouldn't really amount to anything. particularly the morning argument about severability. the people who care the most tomorrow morning are the insurance industry who are panic stricken of the idea of the mandate being gone. so the insurance pool won't rise. but at the same time still being stuck with the requirement that they provide all this coverage.

>> thank you both. i think we'll be trying to check back in with you again before the end of the hour. i know you're busy. you've been life lines for