We all knew it would come to this. Is the individual mandate within Obamacare constitutional?
The government made the case last week that your inactivity, if you were to decline to buy health insurance, was actually an activity that effects interstate commerce and something Congress can regulate.
Justice Antonin Scalia argued otherwise:
If the government can make you buy health insurance, what can’t they make you do? Where is a limiting principle?
Is health care unique or is it a market that the government can regulate?
Enter Justice Scalia’s broccoli argument:
Chief Justice John Roberts, unlike Justice Scalia, accepted that the health care market may be unpredictable, but doesn’t see it as that unique:
-The government has argued that Congress has the ability to regulate your inactivity, through the commerce clause, because health care is unique.
-The government argues that health care is a market, and is unpredictable in comparison to other markets like emergency services.
For Justice Alito, this argument still doesn’t show where Congress’s powers will be limited for so many other scenarios, like burial services for instance.
The government’s response to this is that different than the market for burial services, there is already a regulatory environment for health care services:
Considering the logic we’ve heard from the government thus far, Justice Anthony Kennedy wants to know if Congress can create commerce.
The Solicitor General representing the government could not answer the question. Luckily, Justice Stephen Breyer came to the rescue:
It all comes back to the search for a limiting principle. An answer to the question: If Congress can do this, what can’t Congress do?
Unfortunately for supporters of Obamacare, that question was never really answered.
(video intros written by Chris Santarelli)