Justice Breyer makes an ass out o himself, and Carvin politely helps him figure that out:
JUSTICE BREYER: Fine. Then if that’s so, is — let me just change my example under pressure - and say that in fact it turns out that percent of all automobiles driving interstate without certain equipment put up pollution, which travels interstate — not percent, maybe only percent. Does the EPA have the power then to say you’ve got to have an antipollution device? It’s statistical.
MR. CARVIN: What they can’t do — yes, if you have a car, they can require you to have an anti-pollution -
JUSTICE BREYER: Then you’re not going on statistics; you’re going on something else, which is what I’d like to know what it is.
MR. CARVIN: It’s this. They can’t require you to buy a car with an anti-pollution device. Once you’ve entered the market and made a decision, they can regulate the terms and conditions of the car that you do, and they can do it for all sorts of reasons. What they can’t do it compel you to enter the market.
JUSTICE BREYER: Now we — now you’ve changed the ground of argument, which I accept as — as totally legitimate. And then the question is when you are born and you don’t have insurance and you will in fact get sick and you will in fact impose costs, have you perhaps involuntarily — perhaps simply because you are a human being — entered this particular market, which is a market for health care?
MR. CARVIN: If being born is entering the market, then I can’t think of a more plenary power Congress can have, because that literally means they can regulate every human activity from cradle to grave. I thought that’s what distinguished the plenary police power from the very limited commerce power. I don’t disagree that giving the Congress plenary power to mandate property transfers from A to B would be a very efficient way of helping B and of accomplishing Congress’s objectives. But the framers -
JUSTICE BREYER: I see the point. You can go back to Justice Kagan.
It won’t do any good with Justice Breyer, because he couldn’t care less what’s actually in the Constitution. But it was still a well made point.