OTR Interviews

'ObamaCare's' individual mandate appears to be in jeopardy before Supreme Court: An insider's view

Plaintiffs lawyer breaks down case and atmosphere in Supreme Court arguments on health care reform law


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

GRETA VAN SUSTEREN, FOX NEWS HOST: This case is making history. Regardless of which way the Court rules, the Supreme Court's decision will have an impact on every single American. Michael Carvin is one of the lawyers arguing against President Obama's health care law before the high court. And today, he took on Justice Sonia Sotomayor, arguing that the individual mandate oversteps the government's reach.


ASSOC. JUSTICE SONIA SOTOMAYOR, UNITED STATES SUPREME COURT: The government says, borrowing my colleague's example, you can't buy a car without emission control. I don't want a car with emission control. It's less efficient in terms of the horsepower. But I'm forced to do something I don't want to do by government regulation.

You are not forced to buy a product you don't want. And I agree with you that since the government regulates all markets, there is no limiting principle on their compelled purchase. When they put these environmental controls on the...


SOTOMAYOR: They forced me to buy, if I need...


SOTOMAYOR: ... unpasteurized goods, goods that don't have certain pesticides but have others. There is government compulsion in almost every economic decision because the government regulates so much. It's a condition of life that some may rail against.


VAN SUSTEREN: Does Sotomayor have a point? Michael Carvin is here. Michael, how did you answer the Justice?

CARVIN: Obviously, if you decide to buy a car, the government can tell you what -- to tell the car companies what's in the car. The difference here is the government is trying to tell you to buy the car in the first place.

And as Justice Kennedy pointed out, that's a fundamental alteration of the relationship between the national government and its citizens. Never before in our history has the government presumed to tell us, Go ahead and buy products you don't want because it's going to help other people.

VAN SUSTEREN: All right, Justice Breyer asked you a question, which is slightly different from those. He asked -- I'm paraphrasing it -- asked if the federal government could not order vaccinations if some terrible epidemic was sweeping the nation, and your answer was what, whether the government could order vaccinations the nation?

CARVIN: There's an old case called Morrison, where the -- people were doing horrible things to women, violence against women. And the Court said, Look, it's a terrible activity, but it's not an economic activity. And what you can regulate under the commerce clause is economic activity.

Vaccinations is not an economic activity. It's protecting the health and welfare of the citizenry. In our system, that's done by the states. The states can control and obviously will control any kind of nationwide epidemic.

But this is an even easier case because the analogy here would be, Can you force somebody to buy a vaccine for somebody else? In other words, I'm not the problem, I'm not the one who's creating the problem, but I am the solution that the government's used.

And that's the key thing to understand. The reason they're compelling the uninsured to buy this insurance, as Congress found, was to lower health insurance premiums because they're bringing in a whole bunch of healthy people into the risk pool, and that way, bringing down the health insurance premiums to counteract the fact that they brought in all these sick people who obviously are going to drive up health insurance premiums.

VAN SUSTEREN: All right. Now, the viewers may wonder why -- you know, why you're arguing because they know that Paul Clement is arguing for the states. You represent the NFIB, is that correct? And who are they and why are they a party to this litigation?

CARVIN: I represent the NFIB and then four individuals. All of them are either sole proprietors or small businesses who don't think, quite sensibly, that they need health care. And if they did need health care, it'd be of a catastrophic nature, not this kind of essential benefits Cadillac plan that the government's forcing on them, which includes wellness programs and contraceptives and all those sorts of things.

So they decided they would much rather pay the doctor out of their own pocket than pay $7,000 to $20,000 in insurance premiums. And the government, even though they're only going to spend $500 for health care, is making them spend $20,000 for insurance premiums.

They don't think the government can ever force to you buy a product, and they sure don't think the government can force you to buy a product that is way too expensive for the avowed purpose of helping other people.

VAN SUSTEREN: All right, is this the first time you've argued in the Supreme Court?

CARVIN: No, this is the sixth time.

VAN SUSTEREN: What do you -- is there any -- does it change from time to time or is it any -- any different than arguing in the appellate courts? Is it -- tell me the personal side of this.

CARVIN: There's nine very intelligent people, eight of whom ask a lot of questions, and very aggressive. So you spend your half hour basically being a ping-pong ball between the Justices because some of them are trying to make a point and some of them are trying to rebut the point. All of my previous cases have come out 5-4. So this is not an unusual experience for me, actually.

VAN SUSTEREN: Did you have the sense that any of them had already made up their minds, which, I mean -- I mean, nothing to stop them from doing that. I mean, this is part of the whole process. But did you go in -- when you listened to them ask the questions, and when you were arguing, did you think, This Justice has already decided?

CARVIN: Well, look, obviously, these people have thought about these issues. Many of them have written on the commerce clause previously, so you have a good sense of who's coming from where.

I think they all take their responsibility, particularly on a piece of major legislation like this, very seriously. And so they're going to think about it. And you said it before, and it's true. It's a sucker's game to think that their questions are necessarily going to tell you how they're going to vote, but I do think it generally tells you what they're concerned about.

And what they were concerned about here was, where does the government get this power? How can you square it with the language of the Constitution? And if they can make you buy this product, how can -- how can we stop them from making you buy any product when it's convenient?

And I think that's where the government failed to address the concerns of the Justices. It really couldn't answer any of those questions.

VAN SUSTEREN: In terms of your personal strategy going into the courtroom, did you -- I mean, a lot of people talk about the fact that Justice Kennedy's thought to be the swing vote, the uncertain one, which, of course, that could all be rude and we could be completely nuts about it and it could be dead wrong.

But I'm curious if -- you know, you've sort of thought, like, in preparing for your argument, that you needed to connect most out of the nine with Justice Kennedy.

CARVIN: Well, you know, everybody can count. And sure, you want to make sure that people who you think might be on the fence about this, that you address their concerns in particular.

Justice Kennedy, as your piece before indicated, was pretty straightforward about his pretty serious concerns about the government's position and its ramifications.

So sure, when I stood up, I tried to tell him that there were no limitations on the government's argument here, and if you let them do this, then you can let them do basically anything. And since we're based on a system where the federal government has limited enumerated powers, you would be undoing the Constitution's scheme.

VAN SUSTEREN: Would you agree this is an exciting case to argue?

CARVIN: It's -- they're all fun, but this one is particularly interesting, yes.

VAN SUSTEREN: I figured you'd say that. Michael, thank you.

CARVIN: Thanks a lot.