Fox News
March 27, 2012

Supreme Court preparing to pull the plug on health care law?

Guests: Jay Sekulow & Jamie Raskin

This is a rush transcript from "Hannity," March 27, 2012. This copy may not be in its final form and may be updated.

SEAN HANNITY, HOST: The cornerstone of President Barack Obama's domestic agenda is on life support. In a series of stunning developments today inside the United States Supreme Court, an overreaching executive branch collided with the nine justices of the highest court in the land over ObamaCare. And judging by most accounts, it appears the Supremes could be preparing to pull the plug once and for all on the law's individual mandate.

Now, even left-leaning court watchers have described the administration's performance today during oral arguments as, quote, "a train wreck." Now, the president's solicitor general is said to have stumbled early and often as he attempted to defend the key provision of the law which requires Americans to buy insurance.

Now, among the critical exchanges today came when Justice Scalia attempted to educate the president's lawyers about the mandate. Listen.

(BEGIN AUDIO CLIP)

ANTONIN SCALIA, JUSTICE OF THE SUPREME COURT: You are not regulating health care, you are regulating insurance. It's the insurance market that you are addressing and you are saying that some people who are not in it must be in it. And that's -- that's different from regulating in any matter, commerce that already exists out there.

(END AUDIO CLIP)

HANNITY: Also today, Justice Anthony Kennedy, who is likely to be the deciding vote in this case, voiced his skepticism of ObamaCare's constitutionality. Listen to this.

(BEGIN AUDIO CLIP)

ANTHONY KENNEDY, ASSOCIATE JUSTICE OF THE UNITED STATES: The reason this is concerning is because it requires the individual to do an affirmative act in the law of torts, our tradition, our law has been if you don't have the duty to rescue someone, if that person's in danger, the blind man's walking in front of the car, you do not have a duty to stop him, absent some relation between you. And there is some severe moral criticisms of that rule, but that's generally the rule.

And here, the government is saying that the federal government has a duty to tell the individual citizen that it must act. And that is different from what we have in previous cases.

(END AUDIO CLIP)

HANNITY: And here with the recap of this historic day, are Jay Sekulow from the American Center for Law and Justice, and Jamie Raskin from People for the American Way.

Now, how many times have you argued before the Supreme Court, Jay? Just get it clear.

JAY SEKULOW, AMERICAN CENTER FOR LAW AND JUSTICE: Twelve oral arguments, we've done 20 cases. I've argued 12 of them.

HANNITY: And have you argued before the Supreme Court, Jamie?

JAMIE RASKIN, PEOPLE FOR THE AMERICAN WAY: Never had that honor.

HANNITY: OK. Let me get to one more exchange before I get your take on this. This was a pretty stunning comment, I think, coming from Justice Kennedy. You know, in other words, and you, Congress, commerce in order to regulate it. Pretty fascinating exchange ending with Justice Scalia.

(BEGIN VIDEO CLIP)

KENNEDY: You create Congress commerce in order to regulate it?

DONALD VERRILLI, OBAMA'S SOLICITOR GENERAL: That's not what is going on here, Justice Kennedy, and we are not seeking to defend the law on that basis. In this case, what is being regulated is the method of financing the purchase of health care. That itself is economic activity with substantial effects on interstate commerce and --

SCALIA: So any self purchasing, anything I purchase -- you know, if I am in any market at all, my failure to purchase something in that market subjects me to regulation.

(END VIDEO CLIP)

HANNITY: You know, Jay, it was almost universal. Every court observer listening today pretty much had the same comments, that the administration was just not prepared and did not have good answers to the questions, stumbling and stammering, and the fact that they have had such a long period of time to prepare for this is fairly -- you know, almost breathtaking at this point?

SEKULOW: Well, you know, defending the indefensible. That became the real problem for the Solicitor General, who's a very good lawyer but had a very difficult day. I mean, as you said, a lot of court watchers described this as a train wreck. I am going to say this, that the fact of the matter is, the most telling thing that Justice Kennedy said in the argument was when he made this statement -- he said that this individual mandate is a fundamental shift in the relations between the government and its citizens. And he said, that requires a very heavy lift, a very heavy burden. And the fact of the matter is, what Justice Kennedy was looking for which he could not find because one does not exist, is what's called a limiting principle.

And Sean, the reason you had the reaction you did today from those that were observing the case, and I listen to the entire audio, we had some of our team actually inside the courtroom. The fact of the matter is, they are defending the indefensible. And you've got four justices left of center that are going to be in favor of this mandate, and it looks like five that for declared unconstitutional.

I think the shock for those that were in favor of the individual mandate was they actually thought that this was going to be an overwhelming victory for the Obama administration. And as some commentators said today, it was a train wreck. And I think what it was, not a question of, are you unprepared for the solicitor general? There was no defense to the legitimate questions the court was asking, and that was despite Sean, the attempts by some of the justices to bail out the solicitor general. But he had no limiting principle. Life insurance example, require life insurance, I mean, require you know, buying a car, eating broccoli. There is no limit to this.

HANNITY: We are going to play some of this. Whether or not the government would require buying cell phones or broccoli. I'll get to that in a second.

RASKIN: Right.

HANNITY: Jamie, let me go to this, because there were moments when the arguments were so poor and so contradictory that the solicitor general was laughed at on two occasions, you could see that the more liberal members, Justice Kagan and Justice Stevens, trying to bail out the solicitor general, as they were laughing about this.

But I think that Jay hit on the very key point here, and that is the expected swing justice in this case which is Justice Kennedy, saying that this would be a fundamental shift. That seemed to be a very key moment.

RASKIN: The only thing weaker than that performance I think were the questions that were coming from the bench. The idea that they're tackling --

HANNITY: You are going to attack the justices of the Supreme Court of the United States?

RASKIN: If you give me the chance, I would love to.

HANNITY: This ought to be entertaining.

RASKIN: Well, to start with, the idea that there is something unusual or extraordinary about the government compelling people to do things is just incredible for a Supreme Court justice to fall into that trap. Have you heard of Social Security? Have you heard of military conscription? Have you heard of compulsory public education? So, the idea that this is somehow unprecedented just seems completely --

SEKULOW: What does that have to do with -- I cannot believe, Jamie, you are impacting and negatively speaking about the integrity of the justice of the court. Look, I don't agree with --

(TALKING OVER EACH OTHER)

RASKIN: When did I do that? When did I talk about the integrity of the court? We're not talking about Bush v. Gore I'd be delighted to talk about Bush v. Gore or Citizens United.

SEKULOW: Did you listen? I know you didn't like that result.

HANNITY: All right. Whoa, whoa, stop, stop, stop. One at a time. Let me go to another point. I'll play this in the next segment. The Chief Justice Roberts is asking whether or not the government should require citizens to buy cell phones. But I'll play first, Justice Scalia wondering if the government is soon going to require us to purchase broccoli, it's good for you.

(BEGIN VIDEO CLIP)

SCALIA: Why do you define the market that broadly -- health care. It may well be that everybody needs health care, but not everybody needs a heart transplant, not everybody needs a liver transplant.

VERRILLI: That's correct, Justice Scalia, but you never know whether you're going to be that person.

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.

(END VIDEO CLIP)

HANNITY: It almost was, and at times it even showed up, because this is the same trap that Obama himself fell into, is it a tax, is it not a tax. And the solicitor general did not have that basic simple argument down is amazing. And for the justices to say, well, should we compel you to buy broccoli or cell phones? It was almost like they were, in their own intellectual way, mocking the weak arguments of the solicitor general, Jay?

SEKULOW: Well, it's because, again, Sean, we to go to a fundamental point, and that was, there is no limiting principle for what the solicitor general was asserting. But I want to say something here for the record. And that is why I will disagree with members of the Supreme Court of the United States, I am not going to say their questioning was not appropriate. There was not a question that was asked today that's not appropriate.

RASKIN: Who said that?

HANNITY: He did.

SEKULOW: You may not like Jamie -- you may not like the answers to Solicitor General gave.

HANNITY: You were insinuating.

SEKULOW: But the fact of the matter is, those questions are legitimate. And the other thing that has to be understood here is --

RASKIN: Broccoli?

SEKULOW: -- this is the fundamental shift what the chief justice said. Did you listen to the audio? Were you in the court or did you listen to the audio today?

RASKIN: I listened to the audio. But let me ask you this.

(TALKING OVER EACH OTHER)

SEKULOW: All two hours of it? You thought the questions were not correct?

RASKIN: Listen, we are talking about a Republican plan. Remember, the individual mandate.

SEKULOW: Oh!

RASKIN: This was the heart RomneyCare. Newt Gingrich was behind it --

(TALKING OVER EACH OTHER)

HANNITY: Wait, wait. That came up today. That's state. They are talking about state vs. --

SEKULOW: Governor Romey did not impose --

RASKIN: Do I get to speak on this show?

SEKULOW: Well, how about respond to the questions asked. You are talking about a Republican coup. It was the Obama administration that brought this legislation forward, and Jamie, what you don't like is, you didn't have a good day at the Supreme Court. And that happens sometimes.

RASKIN: No, I cheerfully concede that.

HANNITY: All right. We have to end it there. Guys, thank you for being with us.

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