• With: David Rivkin

    This is a rush transcript from "Journal Editorial Report," March 24, 2012. This copy may not be in its final form and may be updated.

    PAUL GIGOT, FOX HOST: This week on the "Journal Editorial Report," Obamacare heads to the Supreme Court with oral arguments in the historic case set to begin on Monday. We'll talk to the lead attorney in the lower court challenge.

    Plus, our panel looks at the odds that it will be overturned, and what the justices' decision could mean for the 2012 election.

    All that, and Paul Ryan's new budget. He's back and he's taking on tax and entitlement reform once again. Will he live to tell about it this time?

    Welcome to the" Journal Editorial Report." I'm Paul Gigot.

    The Supreme Court on Monday is set to begin hearing an historic three days of oral arguments on the Constitutionality of President Obama's signature legislative achievement, the Patient Protection and Affordable Care Act. Central to the issues before the court the individual mandate, requiring most individuals to buy health insurance by 2014 or pay a penalty.

    26 states challenged that provision, and attorney, David Rivkin, represented those states in the trial and appellate courts. He joins me now.

    David Rivkin, welcome.

    You were the guy who started it all with your op-ed, I'm happy to say, in the Wall Street Journal in 2009 in the lower court case. So what are you going be to be looking for when you listen to the justices next week?

    DAVID RIVKIN, CONSTITUTIONAL ATTORNEY: Well, I'm going to be looking for a spirited questioning which, of course, would come, Paul. But I'll also be looking for indications, particularly from Justices Kennedy and Scalia, that they appreciate what this case is all about.

    This case is all about, as you mentioned in your excellent editorial, it's about the key Constitutional architecture that is designed to protect individual liberty, and that's the dual sovereignty system, which diffuses power between the federal government and the states, and emphatically withholds from the federal government the general police powers to regulate individuals merely because they exist.

    GIGOT: OK, but the people -- the administration says, look, the Commerce Clause of the Constitution gives Congress the right to regulate commerce. Health care is commerce. So why is this case different than other regulation of commerce cases?

    RIVKIN: The reason for it, Paul, is because the Commerce Clause, while very broad, is not infinitely capacious. It's one of Congress's limited enumerated powers. It allows them to regulate things and activities, actions, physical objects, and it allows individuals to be pulled into this regulatory vortex, only to the extent as and in so far as they participate in those activities or interact with things. What Congress is doing here, they're regulating individuals simply because they exist.

    For example, Congress could have said, you cannot obtain any health care services in this country unless you have insurance. That is regulated conditions of purchasing health care that Congress cannot do. What Congress cannot do without regulating you as individuals, which is prohibited by the Constitution, to say because you might in the future use health care services or because of your failure to buy insurance results in a failure to cross-subsidize somebody else, because the --


    GIGOT: Right.

    RIVKIN: -- can regulate you here and now.

    GIGOT: OK, so that comes down -- the core of it comes down, in your view, to the individual mandate. But some of the liberal defenders of the Obamacare legislation say, look, if you're going to overturn this, you've got to overturn all of the New Deal precedents or the major New Deal precedents on the Commerce Clause, and that's something that no conservative court should do, because it's just too radical. What's your response to that?

    RIVKIN: This is nonsense. This is classical misdirection. Our case is the individual mandate. It's consistent with the entirety of the Commerce Clause jurisprudence, including the New Deal cases, like Wickard v. Filburn, and the most recent major Commerce Clause cases like Risch. All of those cases have one common thread running through them. You can regulate in a very broad fashion, activities, interstate or intrastate. You can regulate objects. You can regulate instrumentalities. None of them allow the regulation of people and such. And very importantly, Paul, in every single one of those cases, the court acknowledges that there has to be a meaningful, judicially enforceable limiting principle that distinguishes between the exercise after Commerce Clause and prohibitive exercise of a plenary (ph) police power, which is the power to regulating individuals, which only states can do.

    GIGOT: OK, you live in Washington. And I'm sure you've heard the scuttlebutt that even among some conservatives that this could go 7-2 the other way, with Chief Justice Roberts taking some of the conservatives and upholding the individual mandate because, on the grounds that, look, no Supreme Court should intervene in a such a fundamentally political manner as legislation on health care. What do you think of that talk?

    RIVKIN: I've heard the same talk. I think it's utterly wrong. I would make two observations. First of all, it's very important not to misunderstand what judicial deference is. Judicial deference to the exercise of congressional authority is very real. We, as conservatives, agree with it. But when legislation exceeds congress' Constitutional authorities it is not only right, it is emphatically the duty of a court to strike it down. And I'm sure that all the justices can appreciate that.

    Second, it would not be 2-7, I can promise that much.


    And I am extremely hopeful that not only that the chief justice and justices commonly referred to as conservatives -- I'm very hopeful that Justice Kennedy, who is the most distinctive fearless voice in the court now, whose language in cases like Lopez and Bond, which is the most recent case from last term that deals with (INAUDIBLE) issues -- this is something -- he is the one who referred to this duel summary (ph) system, which I mentioned earlier, as the most distinctive feature of American constitutionalism. He's absolutely right. We have -- this is something that is unique to this country, this additional way of protecting liberty by having the diffusion of power between the federal and the state government.


    RIVKIN: So it's not going to be 2-7.

    GIGOT: All right. What you're saying is we're all going to be watching very closely Justice Anthony Kennedy, as we do in so many cases.

    David Rivkin, thanks for being here.

    When we come back, will they or won't they? Our panel looks at the odds the justices will overturn Obamacare, and what it would mean for the president's reelection campaign.


    GIGOT: Yesterday was the two-year anniversary of the signing of President Obama's health care law, an occasion marked by the White House with very little fanfare. But with the Supreme Court's ruling expected in June, the issue is sure to take center stage in the presidential campaign.

    Here to handicap the justices' decision and discuss the potential political fallout, Wall Street Journal columnist and deputy editor, Dan Henninger; editorial board member, Joe Rago; and opinionjournal.com editor, James Taranto.

    Joe, you've been following this from the beginning. How big a moment, constitutionally, politically, is this?

    JOE RAGO, EDITORIAL BOARD MEMBER: It's history-making, Paul. For the last two years, everyone's been saying, oh, this is ridiculous, you know, the government is limited in enumerated powers. Is --


    GIGOT: Which is in the Constitution.

    RAGO: Right. It's a quaint artifact of the 18th century. Now the court is saying, well, hang on a second, maybe the critics had a point all along.

    GIGOT: This is the longest oral argument in almost half a century.

    RAGO: Almost a half century. That's right.