Scalia on Obamacare Mandate: ‘If the Government Can Do This, What Else Can It Not Do?'

By Terence P. Jeffrey | March 29, 2012 | 12:35pm EDT

Justice Antonin Scalia (AP Photo/Manuel Balce Ceneta)

( - In oral arguments in the Supreme Court this week over the constitutionality of President Barack Obama’s health care plan’s requirement that individuals must buy health insurance, Justice Antonin Scalia posed to Obama’s solicitor general a fundamental question that the mandate raises about the nature of the U.S. government.

“If the government can do this, what else can it not do?” asked Scalia.

Scalia asked the question in the context of quizzing Solicitor General Donald Verrilli on the administration’s claim that forcing people to buy health insurance is justified by the clause in Article 1, Section 8 of the Constitution that allows Congress to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” In this case, the administration argued that the “foregoing power” that made forcing people to buy health insurance a “necessary and proper” act of Congress was the Commerce Clause.

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The Commerce Clause says Congress shall have the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

Solicitor General Verrilli argued that by not purchasing health insurance Americans are really participating in health-care commerce “among the several states” because by not buying insurance they are having an "effect" on interstate commerce in health care. Therefore, he argued, it is necessary and proper for Congress to force these individuals to buy insurance as a means of regulating this interstate commerce.

Scalia pointed out to Verrilli that the administration’s argument seemed to take no cognizance of the Tenth Amendment (which was proposed and ratified specifically to ensure that the Necessary and Proper Clause, along with the General Welfare Clause, were not misconstrued to mean the federal Congress had powers not specified in the Constitution and that it could thus do anything it wanted that it claimed was in the "general welfare" and was "necessary and proper."). The Tenth Amendment says: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

“By the way, I don't agree with you that the relevant market here is health care,” Scalia told Verrilli. “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 different from regulating in any manner commerce that already exists out there.”

Verrilli responded, “Well, to the extent that we are looking at the comprehensive scheme, Justice Scalia, it is regulating commerce that already exists out there. And the means in which that regulation is made effective here, the minimum coverage provision, is a regulation of the way in which people participate, the method of their payment in the health care market. That is what it is.

“And I do think, Justice Kennedy,” Verrilli continued, “getting back to the question you asked before, what matters here is whether Congress is choosing a tool that's reasonably adapted to the problem that Congress is confronting. And that may mean that the tool is different from a tool that Congress has chosen to use in the past. That's not something that counts against the provision in a Commerce Clause analysis.”

“Wait,” said Scalia. “That 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,” Scalia continued, “is that this also … 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 is left?

“If the government can do this,” said Scalia, “what else can it not do?

“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,” said Scalia. “Do you acknowledge that that's a principle?”

“Of course we do, Your Honor,” said Verrilli.

“Okay,” said Scalia. “That's what we are talking about here.”

Verrilli then went right back to his argument that forcing individuals to buy health insurance is a legitimate act of the federal government because it is regulating commerce.

“And the way in which this Court in its cases has policed the boundary … of what's in the national sphere and what's in the local sphere is to ask whether Congress is regulating economic activity with a substantial effect on interstate commerce,” said Verrilli.

Verrilli’s unstated assumption here is that not buying health insurance is “economic activity.”

“And here I think it's really impossible, in view of our history, to say that Congress is invading the State sphere,” said Verrilli. :This is a market in which 50 percent of the people in this country get their health care through their employer. There is a massive Federal tax subsidy of $250 billion a year that makes that much more affordable. ERISA and HIPAA regulate that to ensure that the kinds of bans on pre-existing condition discrimination and pricing practices that occur in the individual market don't occur.”

Scalia was not persuaded. "I don't understand your point,” he said. “Whatever the States have chosen not to do, the Federal Government can do?”

“No, not at all,” said Verrilli.

Scalia then pointed out that the Tenth Amendment also explicitly underscores the Constitution’s protection of individual liberty—that sovereignty comes from the people up, not from the federal government down.

“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,” said Scalia. “And the argument here is that the people were left to decide whether they want to buy insurance or not.”

President Obama’s solicitor general then corrected Scalia, arguing that the Supreme Court had already decided that the Tenth Amendment did not protect the sovereignty of individuals from being forced by the federal government to buy a good or service they did not want to buy. Verrilli again defined not buying health insurance as an "economic activity."

“But, Your Honor,” Verrilli said, “this is what the Court has said, and I think it would be a very substantial departure from what the Court has said, is that when Congress is regulating economic activity with a substantial effect on interstate commerce, that will be upheld. And that is what is going on here.”

“What is left?” Scalia had said on first hearing Verrilli make this argument.  “If the government can do this, what else can it not do?”

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