The most interesting quote for me came from Kenedy where he called out Congress for not being honest and that they should have simply enacted a single payer system, supported through taxation, which would have been completely legal because it is within the taxation power.
The audio for Tuesday is here and the transcript here.
Interesting quotes from Tuesday:
JUSTICE KENNEDY: I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?
JUSTICE SCALIA: 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: I thought what was unique about this is it's 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.
JUSTICE SOTOMAYOR: -- you're answering affirmatively to my colleagues that have asked you the
question, can the government force you into commerce? And there's no limit to that power.
JUSTICE KENNEDY: I'm not sure which way it cuts, if the Congress has alternate means. Let's assume that it could use the tax power to raise revenue and to just have a national health service, single payer. How does that factor into our analysis? In one sense, it can be argued that this is what the government is doing; it ought to be honest about the power that it's using and use the correct power.
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.
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?
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?
CHIEF JUSTICE ROBERTS: The key in Lochner is that we were talking about regulation of the States, right, and the States are not limited to enumerated powers. The Federal Government is. And it seems to me it's an entirely different question when you ask yourself whether or not there are going to be limits on the Federal power, as opposed to limits on the States, which was the issue in Lochner.
JUSTICE KENNEDY: But the reason, the reason this is concerning is because it requires the individual to do an affirmative act. In the law of torts, our tradition, our law has been that you don't have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him, absent some relation between you. And there is some severe moral criticisms of that rule, but that's generally the rule.
And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases, and that changes the relationship of the Federal Government to the individual in a very fundamental way.
CHIEF JUSTICE ROBERTS: But your theory is that there is a market in which everyone participates because everybody might need a certain range of health care services, and yet you're requiring people who are not -- never going to need pediatric or maternity services to participate in that market.
CHIEF JUSTICE ROBERTS: That's the area that Congress has chosen to regulate. There's this health care market. Everybody's in it. So, we can regulate it, and we're going to look at a particular serious problem, which is how people pay for it. But next year, they can decide everybody's in this market; we're going to look at a different problem now, and this is how we're going to regulate it. And we can compel people to do things -- purchase insurance, in this case; something else in the next case -- because you've -- we've accepted the argument that this is a market in which everybody participates.
JUSTICE ALITO: Before you move on, could you express your limiting principle as succinctly as you possibly can? Congress can force people to purchase a product where the failure to purchase the product has a substantial effect on interstate commerce, if what? If this is part of a larger regulatory scheme?
JUSTICE KAGAN: I suppose, though, General, one question is whether the determined efforts of Congress not to refer to this as a tax make a difference. I mean, you're suggesting we should just look to the practical operation. We shouldn't look at labels. And that seems right, except that here we have a case in which Congress determinedly said, this is not a tax, and the question is why should that be irrelevant.
JUSTICE KAGAN: Well, Mr. Clement, now it seems as though you're just talking about a matter of timing, that Congress can regulate the transaction. And the question is when does it make best sense to regulate that transaction?
And Congress surely has it within its authority to decide, rather than at the point of sale, given an insurance-based mechanism, it makes sense to regulate it earlier. It's just a matter of timing.
JUSTICE BREYER: I think if we look back into history, we see sometimes Congress can create commerce out of nothing. That's the national bank, which was created out of nothing to create other commerce out of nothing.
MR. CLEMENT: Well, Justice Kennedy, I don't think that's right, certainly in any way that distinguishes this from any other context. When I'm sitting in my house deciding I'm not going to buy a car, I am causing the labor market in Detroit to go south. am causing maybe somebody to lose their job, and for everybody to have to pay for it under welfare. So, the cost shifting that the government tries to uniquely associate with this market -- it's everywhere. And even more to the point, the rationale that they think ultimately supports this legislation, that, look, it's an economic decision; once you make the economic decision, we aggregate the decision; there's your substantial effect on commerce. That argument works here. It works in every single industry.
MR CLEMENT: ...the Framers would have had no doubt that a tax on not having something is not an excise tax but a forbidden direct tax.
JUSTICE SOTOMAYOR: Is there any other area of commerce, business, where we have held that there isn't concurrent power between the State and the Federal Government to protect the welfare of commerce?
CHIEF JUSTICE ROBERTS: No, no, that's not -- I don't think that's fair, because not everybody is going to enter the mortgage market. The government's position is that almost everybody is going to enter the health care market.
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