There is news galore on the oral arguments in the Supreme Court on Tuesday on whether the individual mandate is constitutional. Wickard v. Filburn in 1942 is the Supreme Court case that essentially eviscerated the commerce clause of the U.S. Constitution by holding that any economic activity that has a substantial effect on interstate commerce comes within the enumerated powers of the Congress to regulate interstate commerce. Prior to Wickard, it was necessary to have goods or services moving across state lines before Congress had power to regulate it. Obamacare, if the individual mandate is upheld, will extend the reach of federal regulation to not only matters where there is economic activity wholly within one state, but also to matters where there is not any economic activity at all but Congress thinks there should be, and therefore requires individuals to enter into private contracts with insurance companies. If Congress can do this there is nothing Congress cannot do. It can make you buy broccoli.
The following exchange by the Justices with Obama’s Solicitor General Donald Verrilli is pretty interesting. To understand it one must realize that only 5 Justices on the Court are looking at this case from a perspective of Constitutional law. Those are Scalia, Thomas, Alito, Roberts, and (we hope) Kennedy. The other four, Ginsburg, Breyer, Sotomayor, and Kagan don’t care a whit what the law is or what the Constitution actually says. The don’t like the law or the Constitution and want to use this case to change it according to their political agenda. The following exchange clarifies this neatly. Verrilli is asked some tough questions by Justices Kennedy and Scalia and he doesn’t give very good answers, at least not very good insofar as upholding the individual mandate under Constitutional law. So Justice Ginsburg jumps in to bale him out, and tells how he should have answered their questions. It’s a teaching moment for us, should we ever doubt that the four liberal Justices look at cases from a purely political point of view, the law and the Constitution be damned.
JUSTICE KENNEDY: Could you help — help me with this. Assume for the moment — you may disagree. Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?
I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?
GENERAL VERRILLI: So two things about that, Justice Kennedy. First, we think this is regulation of people’s participation in the health care market, and all — all this minimum coverage provision does is say that, instead of requiring insurance at the point of sale, that Congress has the authority under the commerce power and the necessary proper power to ensure that people have insurance in advance of the point of sale because of the unique nature of this market, because this is a market in which — in which you — although most of the population is in the market most of the time — 83 percent visit a physician every year; 96 percent over a five-year period — so virtually everybody in society is in this market, and you’ve got to pay for the health care you get, the predominant way in which it’s — in which it’s paid for is insurance, and — and the Respondents agree that Congress could require that you have insurance in order to get health care or forbid health care from being provided –
JUSTICE SCALIA: Why do you — why do you define the market that broadly? Health care. It may well be that everybody needs health care sooner or later, but not everybody needs a heart transplant, not everybody needs a liver transplant. Why –
GENERAL VERRILLI: That’s correct, Justice Scalia, but you never know whether you’re going to be that person.
JUSTICE SCALIA: Could you define the market — everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli.
GENERAL VERRILLI: No, that’s quite different. That’s quite different. The food market, while it shares that trait that everybody’s in it, it is not a market in which your participation is often unpredictable and often involuntary. It is not a market in which you often don’t know before you go in what you need, and it is not a market in which, if you go in and — and seek to obtain a product or service, you will get it even if you can’t pay for it. It doesn’t –
JUSTICE SCALIA: Is that a principal basis for distinguishing this from other situations? I mean, you know, you can also say, well, the person subject to this has blue eyes. That would indeed distinguish it from other situations. Is it a principle basis?
I mean, it’s — it’s a basis that explains why the government is doing this, but is it — is it a basis which shows that this is not going beyond what — what the — the system of enumerated powers allows the government to do.
GENERAL VERRILLI: Yes, for two reasons. First, this — the test, as this Court has articulated it, is: Is Congress regulating economic activity with a substantial effect on interstate commerce?
The way in which this statute satisfies the test is on the basis of the factors that I have identified. If –
JUSTICE GINSBURG: Mr. Verrilli, I thought that your main point is that, unlike food or any other market, when you made the choice not to buy insurance, even though you have every intent in the world to self-insure, to save for it, when disaster strikes, you may not have the money. And the tangible result of it is — we were told there was one brief that Maryland Hospital Care bills 7 percent more because of these uncompensated costs, that families pay a thousand dollars more than they would if there were no uncompensated costs.
I thought what was unique about this is it’s not my choice whether I want to buy a product to keep me healthy, but the cost that I am forcing on other people if I don’t buy the product sooner rather than later.
GENERAL VERRILLI: That is — and that is definitely a difference that distinguishes this market and justifies this as a regulation.