Central question of health care case to be debated

>>> it's tuesday, march 27th . this is the daily rundown. i'm chuck todd . a few more people are outside of the supreme court . welcome to the main event . in two hours the supreme court will turn to whether congress has the power to require almost all americans to buy health insurance or pay a penalty. the argument about the mandate is the core of the debate over the role of government which may be the most important question that the presidential election decides. and the argument that divides fairly neatly by party. yesterday, senate republicans railed against the requirement.

>> it is a monumental, historic insertion of federal power if the government can say that.

>> we're asking the government to, please, leave us a shred of freedom. don't make us buy a product that we don't want to buy.

>> a funny thing about the health care mandate, nearly all of its early who opposed it at times are now defenders. why? it was much considered a conservative idea here's newt gingrich in 1993 .

>> i am for individuals having health insurance and having to require health insurance .

>> he says he was just reacting to what he considered a worst option to being proposed. mitt romney was making a similar argument.

>> i know some people are saying, gee, your plan is not conservative. i'm saying, yes, it is. because right now in this country people who don't have health insurance go to the hospital if they get a serious illness and get.

>> the only ones adjusted the mandate, even president obama once spoke out against it when he was a candidate against hillary clinton . now the 26 states challenging the health care law say that while the constitution gives the to regulate commerce, it gives no and in other words they can't force people to buy something they don't want to boy. the obama administration says the law regulates the entire health care market, something that eventually everyone is involved in. what did we learn out of day one? nearly all of the justices appear to think the penalty is not a tax.

>> congress has nowhere used the word tax. what it says is penalty. and so why is this a tax?

>> this is not a revenue-raising measure because if it's successful, nobody will pay the penalty and there will be no revenue to raise.

>> nbc news justice correspondent pete williams is about to head into the courtroom. tell me this, pete whochlt are t who are you most curious to hear question?

>> i would say anthony scalia. he would normally be inclined to vote against something like this but he's been willing to give a very broad power to congress when it comes to regulating congress. let me give you an example. a couple of years ago there was a case of a woman who grew marijuana in the backyard of her home. it is legal in this state. the dea came, took her plants down. she sued, she said, you can't do that. i'm using this in my own yard and the court said, no, the government can control it and justice scalia said, first of all, her marijuana is no more than an instant away and someone without insurance is nevermore than an instant away from the emergency room but if you basically -- congress has the right to regulate even local things that if you aggregate them together nationwide become an interstate issue. so -- and two other things, chuck. two of the most conservative appeals courts scheduled to uphold this law you might say are good friends of justice scalia . jeff sutton, a former scalia clerk in ohio. his running buddies have found this to be constitutional. it's going to be very interesting to watch him, as justice kennedy in play like this.

>> very quickly, the action outside, bigger today?

>> yes. more organized today. of course, it was cold last night. we're all in our winter clothes today. imagine the people who -- there are people lralready in line to get in today. but there were people camped out overnight to try to get in. they had a very cold night here last night.

>> go get your seat. pete williams , just across the yard from me. let's call it flex-a-sketch. the same overreaction we saw in the romney campaign -- nor noncontroversial truth about politics, greeted president obama 's hot mike moment yesterday. political opponents jumped on the comments, tried to take advantage of an apparent slip.

>> there are a few things we know. we know that president obama systems in poland and chek republic, to link nuclear defense and what we don't know is what president obama has in mind for working with the russians after his re-election when he would, as he put it, have some flexibility.

>> although the president might have just been speaking prag mat clee about election year politics simply a delay to put them off? it was immediately clear that the president wanted to put this off. covering a microphone while making the rounds at the nuclear security summit and then at a try lat tri-lateral event. he quickly took a question.

>> first of all, are the mikes on? if i'm consulting with the pentagon, with congress, if i've got bipartisan support, and frankly, the current environment is not conducive to those kinds of thoughtful consultations. so i think the stories that you've been writing over the last 24 hours is god evidence of that. i think we'll do better in 2013 .

>> though the president's hot mike remark drew plenty of a attention, it was mitt romney 's reaction. he responded to it while at a san diego town hall .

>> when the president of the united states is picking with the leader of russia saying, he could be more flexible after the election, that is an alarming and troubling development. this is no time for our president to be pulling his punches with the american people .

>> romney even accidently said that iran, quote, must have a nuclear weapon . that was a misspeak. democrats leaping on what they thought was an overly strong statement about where russia stands in american foreign policy .

>> if he's planning on doing more and suggest to russia that he has things that he's willing to do with him, he's not willing to tell the american people . this is to russia . this is, without question, our number geopolitical foe. they fight every cause for the world's worst actors.

>> there is a question about that. there is a dispute in the foreign policy these days about how much of an ally versus foe russia is these days. that is where this conversation is. i think it's fair to say it's a minority view these days about russia . there is a lot of discussion about putin. that's a whole other debate.

>> the good news for romney , he was 3,000 miles away and avoided getting into the mandate. of course, he wants to make health care the mega issue this week as he called it on the steps of the supreme court .

>> this is the most important issue of government rule over people's lives, both economic decisions and, of course, their decisions about even their own personal fact. unfortunately, the worst person to make that case is mitt romney and that's why, as i said, we're here today and he's not.

>> santorum tried to milk his meltdown reminding republicans at every opportunity that he would take on the new york times and turn the rope line episode against the romney campaign.

>> any good conservative who hasn't had a flare-up with the "new york times" isn't worth their salt. you talk about desperate and pathetic, mitt romney can't run on his record. here we have with the whole world watching what is going on. mitt romney is 3,000 miles away .

>> meanwhile, mitt romney standing against a repeal obamacare backdrop in san diego , carefully avoided that number one topic of conversation for every political junkie right now. he skipped any mention of the supreme court and instead santorum .

>> i'm not going to worries what rick is falling these days. when you fall further and further behind you get more am nated.

>> what's romney 's current debate in massachusetts, this was his answer yesterday.

>> it's a matter of constitutional direction. states have the power to provide mandates if they wish to do so the federal government does not. in the case of obamacare, he's put in place $500 billion of new taxes. $500 billion of medicare cuts.

>> finally, a dream ticket due for some? santorum seems to think so.

>> would you even consider it? would you consider it?

>> look, i would do in this race as i always say, the most important race in our country's history. i'm going to do everything that i can.

>> you're keeping your options opened?

>> i'll do whatever is necessary to help our country.

>> santorum is ready to consider it.