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Device. >> that was justices briier and ginsberg. two people you would assume would be favorable to the president's cause here on this. if they're not buying the tax argument, what does that tell you? >> sure. let's set the table a little bit. there is a statute called the anti-injunction act. it says you can't sue ahead of time over taxes. what they were saying was something favorable to the government. this is not a tax so you can bring the suit now and we can decide the case now. but there is another side of the coin for the government. that is tomorrow, when it is the main event, defending...

But for them to uphold the mandate, they have to take the outer reach of the commerce clause and move it way, way out from where it stands. >> how is it moving that much farther out? look, i didn't go to law school. but reading the case that everybody brings up. it is among the reasons why the government believes they're going to win this argument. that they will convince possibly kennedy, roberts and maybe even scalia, all three of them on this. how did that not stretch the outer limits? >> it did. you've picked the farthest limit right now of the commerce clause. you picked the right case. i...

Talking about this health care reform. so i not only think it's a good idea that we talk about it that way. that's the way people have heard it. more importantly, the positive things about it and of course, once this supreme court decides that the individual mandate will stay and i believe they will, because of the prior precedent setting case. this is about the commerce clause. we looked at i very, very deeply when we were trying to pass this law. people will see they will have access into this system and that's what obama care does. >> loretta sanchez from southern california. thank you. n...

Care as we do, for instance, medicare, also been litigated and found constitutional. that would have been found constitutional. that congress and this president didn't want to be dealing with a tax bill. they cooked up this alternative scheme where they're compelling to us buy the product. which in this case is health insurance. it is not health care. it is health insurance. supposedly under the commerce power and that has never happened before. >> if they strike this down and use this commerce clause to do that. are you at all worried about opening up a can of worms? that this is going to be ...

So the individual mandate is being framed as an acumen under the commerce law. they say this is not a tax, this is a penalty. so congress could refurbish this as a tax and say we're not doing this under our commerce power, we're doing this under a general taxation power. plaintiffs are arguing that would be much more intellectually honest and harder to pass through congress. harder to pass, and more evidence that this is to raise revenue to fund the rest of the -- >> i want to pause everybody there for a second. one of the things we know, americans have a great deal of difficulty knowing what ...