Day two of the Health Care arguments focused on the individual mandate and it looks like it is in trouble. Justice Kennedy is seen as a key swing vote and he challenged the Solicitor General with the following:
“…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… do you not have a heavy burden of justification? …..When you are changing the relation of the individual to the government in this …unique way… do you not have a heavy burden to show authorization under the Constitution…?
For some reason the Justices are stuck on the notion of government forcing individuals to buy goods and Broccoli is the example most frequently used;
Justice Scalia in questioning the Solicitor General;
“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… “
Justice Ginsburg attempted to help the Solicitor General in defining the argument and justify treating health care as a singularly unique market which is effected by a choice to stay out of the pool;
“…..I thought what was unique about this is its 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….”
Finally Justice Breyer asked that Justice Kennedys ultimate question be responded to- namely- Can under the Commerce Clause Congress create commerce where none previously existed?
It seems that the real question is troubling the Conservative Justices and that is treating health care differently than other commodities which Congress wouldn’t have the power to create a market in. Individuals are to be forced into an insurance market to create lower cost since they will do it early on before health issues set in. This primary focus of the Act is most troubling to those who see the Framers limiting federal powers to those specifically enumerated and this is very unclear. The Court wants a limiting principle and the answer will be in if they find one. Arguments continue tomorrow.
Audio from the hearing and a transcript from the hearing have been posted below: