• By Bill O'Reilly

    Consensus is that Solicitor General Donald Verrilli representing the Obama administration did not... did not make a strong argument in asserting that the federal government has a right to force Americans to buy health insurance or anything else for that matter.

    Verrilli got caught when he tried to call the fine that would be imposed if the Americans didn't buy health insurance a tax. Liberal Justice Stephen Breyer wasn't buying it.

    (BEGIN AUDIO CLIP)

    DONALD VERRILLI, SOLICITOR GENERAL: If they've paid the tax, then they are in compliance with the law.

    JUSTICE SHEPHEN BREYER: Why do you keep saying tax?

    VERRILLI: If they pay the tax penalty, they're in compliance with the law.

    BREYER: Thank you.

    VERRILLI: Thank you, Justice Breyer.

    BREYER: The penalty.

    VERRILLI: Right.

    (END AUDIO CLIP)

    O'REILLY: All right, of course, it's a penalty. This tax thing is completely bogus. It's a penalty. And that means the government is punishing us if we don't conform to the federal demand to purchase what they want us to purchase. That ladies and gentlemen, is flat out unconstitutional. The feds cannot force us to buy anything. Nowhere in the Constitution is that power found.

    The other pro-ObamaCare argument is equally weak. The so-called Commerce Clause whereby the feds regulate interstate transactions gives Congress the power to force us to buy things. I pointed that out last night.

    (BEGIN VIDEO CLIP)

    O'REILLY: One thing that the federal government compels you to buy, one thing. One thing.

    CAROLINE FREDRICKSON, PRESIDENT, AMERICAN CONSTITUTION SOCIETY: Well, let's me say that under the Militia Act of 1792 people were compelled to buy muskets and powder.

    O'REILLY: What act was that?

    FREDRICKSON: But this actually doesn't require... the Militia Act... this doesn't actually require people to buy health insurance. And I think it would be good if you read the legislation.

    O'REILLY: I did read the legislation.

    FREDRICKSON: It imposes a penalty. And a penalty is different from forcing people to buy.

    O'REILLY: That's compelling somebody to do something if you're going to punish them for not doing it.

    FREDRICKSON: No, look.

    (END VIDEO CLIP)

    O'REILLY: All right, now the Militia Act of 1792, I'm sure we are all familiar with that. It's very interesting. That was basically a mandate by the federal government to the 14 existing states at the time to raise a standing militia so the new nation could defend itself if invaded as it was in 1812. The Militia Act had nothing to do with commerce. So Ms. Fredrickson with all due respect, was misleading you.

    Today it became clear in the Supreme Court that most of the Justices are extremely skeptical of Obama care.

    (BEGIN AUDIO CLIP)

    JUSTICE ANTHONY KENNEDY: 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. That changes the relationship of the federal government to the individual in a very fundamental way.

    (END AUDIO CLIP)

    O'REILLY: In other words, if Obama care is allowed to stand, federal power would be increased to a point where Americans could be told exactly how to spend their money. Precedent will be established.

    But it won't be. The court is going to rule the health care mandate unconstitutional. It has to. The justices cannot allow a power grab like that. In the end, America must overhaul its healthcare system. We all know that. And it must use the free market to do it.

    ObamaCare is a disaster economically, socially and politically. And that's the truth.

    And that's "The Memo."

    Pinheads & Patriots

    "Variety" is reporting that an upcoming movie will star Jane Fonda will play Nancy Reagan. The project, called "The Butler," is about a White House valet whose career began with Harry Truman and ended with Ronald Reagan.

    No doubt, Ms. Fonda was cast for publicity purposes, but we believe the new movie is "Pinheaded." You know? Sometimes you can't get away from the politics of the performer, and that's one of those times.

    — You can catch Bill O'Reilly's "Talking Points Memo" and "Pinheads & Patriots" weeknights at 8 and 11 p.m. ET on the Fox News Channel and any time on foxnews.com/oreilly. Send your comments to: oreilly@foxnews.com.