Throughout Tuesday’s hearing on the health care law, the justices and lawyers argued about the perfect product to illustrate the limits of the federal government’s power over interstate markets.
“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,” offered Justice Antonin Scalia, obviously resistant to expanding government’s reach.
“That’s quite different,” responded Solicitor General Donald Verrilli, arguing for the health insurance mandate. Unlike grocery shopping, medical care is a market “in which your participation is often unpredictable and often involuntary.” And the care of patients who don’t pay gets passed on to everyone else as higher taxes and insurance premiums.
Verrilli preferred his own examples: the law is like regulation of telephone rates or price supports for milk.
And so it went.
* How about mandatory burial insurance, ventured conservative Justice Samuel Alito. “Everybody is going to be buried or cremated at some point. What’s the difference?”
* Chief Justice John Roberts wanted to know if people could be forced to buy cellphones for 911 calls.
* Attorney Paul Clement, representing 26 states challenging the law, tried wheat. When Congress wants to help farmers, he said, it doesn’t “just make everybody in America buy 10 loaves of bread.”
But Roberts, seeming to tire of the parade of products, cut him off by saying that doesn’t address the government’s argument _ that everybody needs health care “and all they’re regulating is how you pay for it.”