Supreme Courting Season - Jeffrey Toobin

  • Aired:  10/03/11
  •  | Views: 22,831

Jeffrey Toobin discusses the Constitution's Interstate Commerce Clause and its potential impact on the Supreme Court's Obamacare decision. (4:06)

NAIL-BITER WHICH IS FINE

BECAUSE MY INSURANCE COVERS

CUTE CALTRANS PLANTS.

NOBODY BUT NOBODY CAN

PREDICT HOW THE SUPREME

COURT IS GOING TO RULE ON

THIS ONE.

HERE TO PREDICT HOW THE

SUPREME COURT IS GOING TO

RULE ON THIS ONE, PLEASE

WELCOME CNN ANALYST AND

AUTHOR OF THE NINE, JEFFERY

TOOBIN.

THANKS SO MUCH FOR COMING

BACK.

GOOD TO SEE YOU.

OKAY.

(CHEERS AND APPLAUSE)

>> Stephen: ALL RIGHT,

JEFFERY, LET'S TALK ABOUT

THE ISSUES HERE.

I'M SORRY, DID YOU WANT SOME

DIP?

>> THAT'S OKAY.

>> Stephen: ALL RIGHT.

NOW LET'S TALK ABOUT THE

ISSUES AT PLAY HERE.

WHAT IS THE INTERSTATE

COMMERCE CLAUSE.

DOES THAT REGULATE THE GUYS

WHO SELL THE ORANGES ON THE

OFF-RAMP AT THE INTERSTATE.

>> NO, NO, IT'S THE PART OF

THE CONSTITUTION THAT SAYS

THE FEDERAL GOVERNMENT CAN

REGULATE ANYTHING RELATED TO

INTERSTATE COMMERCE, WHICH

THE SUPREME COURT

HISTORICALLY HAS INTERPRETED

VERY BROADLY.

>> Stephen: WHAT HAS THAT

GOT TO DO WITH THIS.

>> WELL, THE OBAMA

ADMINISTRATION SAYS THAT THE

HEALTH-CARE INDUSTRY IS 17%

OF THE ECONOMY AND ALL OF

THE TRANSACTIONS LUMPED

TOGETHER HAVE A BIG AFFECT

ON INTERSTATE COMMERCE.

SO IT'S APPROPRIATE TO

REGULATE ABOUT IT.

>> Stephen: AND THIS IS

GOING TO SETTLE IT ONCE AND

FOR ALL, RIGHT.

>> THEY ARE FINAL.

>> Stephen: NOW WHY IS THE

OBAMA ADMINISTRATION NOT

FIGHTING GETTING THIS TO THE

COURT.

BECAUSE THEY'RE GOING TO

HAVE THEIR ASS HANDED TO

THEM, RIGHT.

>> WELL, NO, WE DON'T KNOW

THAT.

>> Stephen: COME ON.

>> THEY THINK THEY'RE GOING

TO WIN.

>> Stephen: CAN THE

GOVERNMENT FORCE YOU TO DO

SOMETHING LIKE THAT?

THIS ISN'T SAYING YOU CANNOT

DO SOMETHING, THIS IS SAYING

YOU MUST DO SOMETHING.

WHEN HAS THAT EVER HAPPENED.

>> THE GOVERNMENT TELLS YOU

TO DO ALL SORTS OF THINGS.

>> Stephen: BUT THEY DON'T

MAKE YOU BUY THINGS.

>> WELL, THEY, SOMETIMES

THEY DO.

>> Stephen: WHEN.

>> NOT OFTEN.

>> Stephen: BUT-- HOLD ON,

HOLD ON, HOLD ON.

LEGAL ANALYST.

>> WHAT.

>> Stephen: CHECKMATE, I'M

SORRY.

THIS SHOWS HOW HARD OF A

CASE THIS HAS BEEN BECAUSE

I'M PULLING MY ARGUMENTS

RIGHT OUT OF MY ASS.

>> THAT'S TRUE.

>> Stephen: I DON'T KNOW

WHAT THE HELL I'M TALKING

ABOUT, YOU ARE A LEGAL

ANALYST AND I'VE GOT YOU ON

THE ROPES HERE.

>> YOU DO.

BUT THE TAX, THEY TELL TO

YOU PAY TAX, THAT'S ALSO

PART OF THE CASE, THE TAXING

POWER.

>> Stephen: IF THEY CALLED

THIS A TAX WOULDN'T THAT

HAVE BEEN A DIFFERENT CASE?

>> WELL, SOME PEOPLE SAID

THEY SHOULD HAVE CALLED IT A

TAX BUT THEN POLITICALLY IT

WOULD HAVE BEEN HARDER TO

PASS BECAUSE TO BE WANTS TO

HAVE TAXES PASSED.

>> Stephen: SO HOW DO YOU

THINK THAT BOTH SIDES ARE

GOING TO CRAFT THEIR

ARGUMENT?

IT IS GOING TO BE 5-4, AT

SOME POINT, RIGHT.

>> IT OFTEN IS, IT PROBABLY

WILL BE.

>> Stephen: WHO DOES IT COME

DOWN TO.

>> ANTHONY KENNEDY.

>> Stephen: O SO AGAIN IT

COMES DOWN TO KENNEDY.

>> USUALLY.

>> Stephen: SO ARE THEY

GOING TO CRAFT THE ARGUMENT

ITS STRAIGHT AT KENNEDY OR

ARE THEY GOING TO TRY TO DIG

DOWN LOOKING FOR SOMETHING

THAT MIGHT APPEAL TO HIM.

>> ABSOLUTELY.

THAT'S HOW THEY WRITE THESE.

THEY CITE CASES THAT HE'S

WRITTEN IN THE PAST.

THEY VERY MUCH FOCUS THEIR

ARGUMENTS ON HIM.

>> Stephen: ARE YOU LOOKING

PARTICULARLY HANDSOME TODAY,

JUSTICE KENNEDY.

>> THAT MAY HAPPEN.

>> Stephen: IS THERE ANY

CHANCE THAT THE JUSTICES

WILL HAVE TO ALL RECUSE

THEMSELVES SINCE THEY HAVE

GOVERNMENT HEALTH CARE.

>> I DOUBT THAT.

I DOUBT THAT.

>> Stephen: WELL, IS ANYBODY

GOING TO HAVE TO RECUSE

THEMSELVES?

(APPLAUSE)

>> YOU KNOW, JUSTICE

THOMAS'S WIFE HAS BEEN VERY

OUTSPOKEN, AGAINST THE

HEALTHCARE LAW.

SHE'S A POLITICAL ACTIVIST

AND SOME PEOPLE SAY HE

SHOULD RECUSE HIMSELF YOU.

>> Stephen: AND KAGAN WORKS

FOR THE OBAMA

ADMINISTRATION.

>> CORRECT.

SOME SAY SHE SHOULD RECUSE

HERSELF.

>> Stephen: SHE HAS O

BILLION-- OBAMA ON HER.

YOU CAN'T WASH THAT OFF AS

FAR AS CONSERVATIVES ARE

CONCERNED.

>> THAT'S TRUE.

>> Stephen: YOU WROTE A

GREAT BOOK ON THE SUPREME

COURT CALLED THE NINE.

ARE YOU --

>> IT WAS FANTASTIC.

I ENJOYED IT I DIDN'T GET

AROUND TO READING 1 THROUGH

8 YET.

DO YOU HAVE ANOTHER ONE

COMING.

>> I DO, NEXT FALL.

>> Stephen: SEQUEL.

WHAT WOULD YOU LIKE TO HAVE

HAPPEN ON THE SUPREME COURT,

YOU KNOW, TO MAKE YOUR BOOK

EXCITING, TIGER ATTACK.

>> I WOULD LIKE A 5-4

DECISION THAT SETS THE

COUNTRY ON FIRE ONE WAY OR

THE OTHER.

>> WELL, I CERTAINLY HOPE

THE COUNTRY BURNS TO THE

GROUND SO YOU CAN SELL SOME

BOOKS.

>> ABSOLUTELY.

>> Stephen: JEFF ERIE TOOBIN,

THANK YOU SOP MUCH.

CNN SENIOR LEGAL ANALYST

JEFFERY TOOBIN.

WE'LL BE RIGHT BACK.

THANK YOU SO MUCH.

(CHEERS AND