Justice Scalia’s greatest ObamaCare hits

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.
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.

Mr. Verrilli, you could say that about buying a car. If people don’t buy cars, the price that those who do buy cars pay will have to be higher. So, you could say in order to bring the price down, you’re hurting these other people by not buying a car.

One of my favorites. Sorry, but the fact that Congress has passed a law demanding that people do something does not change what is now Constitutionally permitted.

GENERAL VERRILLI: No. It’s because you’re going — in the health care market, you’re going into the market without the ability to pay for what you get, getting the health care service anyway as a result of the social norms that allow — that — to which we’ve obligated ourselves so that people get health care.

JUSTICE SCALIA: Well, don’t obligate yourself to that.

GENERAL VERRILLI: Well, I can’t imagine that that — that the Commerce Clause would — would forbid Congress from taking into account this deeply embedded social norm.

JUSTICE SCALIA: You could do it.

Catching Verrilli unclear on the concept

GENERAL VERRILLI: [I]n the sense that it’s novel, this provision is novel in the same way, or unprecedented in the same way, that the Sherman Act was unprecedented when the Court upheld it in the Northern Securities case; …. And

JUSTICE SCALIA: Oh, no, it’s not. They all involved commerce. There was no doubt that what was being regulated was commerce. And here you’re regulating somebody who isn’t covered.

By the way, I don’t agree with you that the relevant market here is health care. You’re not regulating health care. You’re regulating insurance.  It’s the insurance market that you’re addressing and you’re saying that some people who are not in it must be in it, and that’s — that’s different from regulating in any manner commerce that already exists out there.

And then a truly crushing blow:

JUSTICE SCALIA: Wait. That’s — it’s both “Necessary and Proper.” What you just said addresses what’s necessary. Yes, has to be reasonably adapted.   Necessary does not mean essential, just reasonably adapted. But in addition to being necessary, it has to be proper. And we’ve held in two cases that something that was reasonably adapted was not proper, because it violated the sovereignty of the States, which was implicit in the constitutional structure.  The argument here is that this also is — may be necessary, but it’s not proper, because it violates an equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a government that has all powers; that it’s supposed to be a government of limited powers. And that’s what all this questioning has been about. What — what is left?  If the government can do this, what — what else can it not do?

A question Verrilli never answers, because he has no good answer.

JUSTICE SCALIA: An equally evident constitutional principle is the principle that the Federal Government is a government of enumerated powers and that the vast majority of powers remain in the States and do not belong to the Federal Government. Do you acknowledge that that’s a principle?

GENERAL VERRILLI: Of course we do, Your Honor.

JUSTICE SCALIA: Okay. That’s what we are talking about here.


JUSTICE SCALIA: I don’t understand your point

JUSTICE SCALIA: Whatever the States have chosen not to do, the Federal Government can do?

GENERAL VERRILLI: No, not at all.

JUSTICE SCALIA: I mean, the Tenth Amendment says the powers not given to the Federal Government are reserved, not just to the States, but to the States and the people. And the argument here is that the people were left to decide whether they want to buy insurance or not.

Taking Verrilli to task when he tries to use Community Rating and Guaranteed Issue as excuses for why the Individual Mandate is Constitutional:

JUSTICE SCALIA: You could solve that problem by simply not requiring the insurance company to sell it to somebody who has a condition that is going to require medical treatment, or at least not — not require them to sell it to him at a rate that he sells it to healthy people.   But you don’t want to do that.

GENERAL VERRILLI: But that seems to me to say, Justice Scalia, that Congress — that’s the problem here. And that seems to me -­

JUSTICE SCALIA: It’s a self-created problem.


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