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SCOTUS Audio: Ginsburg, Scalia, Kennedy

BEGIN TRANSCRIPT

RUSH: Terence Jeffrey, Cybercast News Service: "Administration Admits to Court: Under Obamacare, Select Group Can Get Health Care, Not Pay for It, Not Buy Insurance, Not Pay Penalty." Referring to this earlier, the solicitor general for the regime did not have a good day today during oral arguments. And now that this bill's been passed we continue to learn what's in it and what it means: More government control, free riders are still gonna ride free. That's what Terry Jeffrey has uncovered here. It's a long article. I won't read the whole thing to you.

"President Barack Obama has justified the mandate in his health care law that requires individuals to buy health insurance by arguing that it will eliminate free riders -- that is, people who get health care (often from emergency rooms) but, lacking insurance, never pay anything back into the health care system. 'So that's why the individual mandate's important,' Obama explained in a speech on Aug. 15, 2011. 'Because the basic theory is, look, everybody here at some point or another is going to need medical care, and you can't be a free-rider on everybody else,' said Obama. 'You can't not have health insurance, then go to the emergency room, and each of us, who've done the responsible thing and have health insurance, suddenly we now have to pay the premiums for you. That's not fair. So, if you can afford it, you should get health insurance just like you get car insurance.'

"However, in the Supreme Court on Monday, Justice Samuel Alito forced President Barack Obama’s solicitor general, Donald Verrilli, to admit that under Obamacare these free riders will not be eliminated despite the individual mandate. For an elite group -- including people eligible for Medicaid who don’t sign up for it and people whose health care expenses exceed 8 percent of their income -- the Obamacare mandate is no mandate and the penalty is neither a penalty nor a tax because they are not required to pay it, period. Under Obamacare, Verrilli conceded, these people can continue to receive free health care, not sign up for health insurance, not sign up for Medicaid, and not pay a penalty."

And it was Justice Sam Alito who took the solicitor general apart. In fact, we have three sound bites from the oral arguments today. We have Ruth Bader Ginsburg; we have Antonin Scalia; and we have Justice Kennedy. Now, remember, Ruth Bader Ginsburg was in Egypt recently where the Muslim Brotherhood's taken over in the so-called Arab Spring, and she was advising them on creating a constitution. And she specifically told them to not model their constitution after the United States Constitution. She said that it was old, antiquated, had too much discrimination built in, did not have enough human rights and social justice included in it. This is what she said, an active, sitting associate justice of the US Supreme Court told the Muslim Brotherhood in Egypt, forget us, we didn't do it right.

It's why I tell you that this health care law is not about health care as far as the left is concerned. It's about throwing out a huge chunk of the Constitution that they don't like. Anyway, that's who she is, and we have our first sound bite. Here she is trying to help Verrilli, the government lawyer. She's arguing for the mandate here in oral arguments this morning. It's not an emotional argument that she's making. It's not about the Constitution at all. Listen to what she says.

GINSBURG: The major point of your argument was that the people who don't participate in this market are making it much more expensive for the people who do. That is, they will get, a goodly number of them will get services that they can't afford at the point when they need them and the result is that everybody else's premiums get raised. So it's not your free choice just to do something for yourself. What you do is going to affect others, affect them in a major way.

RUSH: She's telling the government lawyer what to say here. Which she can do, I mean this oral argument, the justice can ask or say whatever they want, make observations. But she's trying to help Verrilli because he was floundering today, and she was trying to help him make the right argument. This is what you need to be saying, you doofus. Up next is Antonin Scalia, who buries Verrilli. You'll hear him in this sound bite on the broccoli argument.

SCALIA: Could you define the market? Everybody has to buy food sooner or later. So you define the market as food, therefore everybody's in the market, therefore you can make people buy broccoli.

VERRILLI: No. That's quite different. It's quite different. The food market, while it shares that trait that everybody's in it, it is not a market in which your participation is often unpredictable and often involuntary. It is not a market in which you often don't know before you go in what you need, and it's not a market in which if you go in and seek to obtain a product or service, you will get it even if you --

SCALIA: Is that a principal basis for distinguishing this from other situations? I mean, you know, you could also say, well, the person subject to this has blue eyes. That would indeed distinguish it from other situations.

VERRILLI: It is --

SCALIA: Is it a principled basis? I mean it's a basis that explains why the government is doing this, but is it a basis --

RUSH: Is it a basis of law? And how about the differentiation that Verrilli came up with here between the food and the health care market? Well, you don't know when you're gonna need health care and you don't know how much you're gonna need and you never know in advance, therefore it's unpredictable, and sometimes it's involuntary. The food market, you can be there every day, you're gonna be doing this and so forth. So? Even more justification for the Feds being involved. I mean if it's predictable that everybody's gonna be in the food market every day, then what better set of circumstances for the government to get in and tell people what they have to eat in order to for our health care costs, for example, to be kept down.

Here's Anthony Kennedy to Verrilli. This is the point that we opened the program with today, that Kennedy said, you got a heavy burden here, pal. You have got a really heavy burden you're trying to make here. This is Kennedy saying it.

KENNEDY: This is a step beyond what our cases have allowed. The affirmative duty to act, to go into commerce. If that is so, do you not have a heavy burden of justification? I understand that we must presume laws are constitutional. But even so, when you are changing 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?

RUSH: Yeah, you do. And, again, bad day for Mr. Verrilli and Jeffrey Toobin, if you weren't here, earlier today on CNN expressed total shock. He was an early predictor that this would sail through, be found constitutional. After oral arguments today, he thinks all bets are off. He thinks it's gonna go down big. He doesn't think it has a chance now. That caused Wolf Blitzer to go into hysterics and start blaming the government lawyer for not doing a good job, fumbling around, stumbling around, maybe wasn't well prepared, and many in the legal left here are now beside themselves today, 'cause they really did, they thought they had a slam-dunk here, and particularly with Kennedy and the tone and the direction Kennedy took in his questioning now has them petrified. But it's still just oral arguments and nothing more. Toobin did say that oftentimes oral arguments are a good predictor, but not always. So we must still wait.

END TRANSCRIPT

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