Transcript: SCOTUS Affordable Care Act oral argument of Michael Carvin on day 2
Department of Health and Human Services v. Florida, et al.
Transcript of the oral argument of Michael Carvin before the U.S. Supreme Court on March 27, 2012:
ORAL ARGUMENT OF MICHAEL A. CARVIN ON BEHALF OF THE RESPONDENTS NFIB, ET AL.
MR. CARVIN: Thank you, Mr. Chief Justice; may it please the Court:
I’d like to begin with the Solicitor General’s main premise, which is that they can compel the purchase of health insurance in order to promote commerce in the health market because it will reduce uncompensated care. If you accept that argument, you have to fundamentally alter the text of the Constitution and give Congress plenary power.
It simply doesn’t matter whether or not this regulation will promote health care commerce by reducing uncompensated care. All that matters is whether the activity actually being regulated by the act negatively affects Congress or negatively affects commerce regulation, so that it’s within the commerce power.
If you agree with us that this is — exceeds commerce power, the law doesn’t somehow become redeemed because
it has beneficial policy effects in the health care market. In other words, Congress does not have the power to promote commerce. Congress has — Congress has the power to regulate commerce. And if the power exceeds their permissible regulatory authority, then the law is invalid.
CHIEF JUSTICE ROBERTS: Well, surely -
MR. CARVIN: I’m sorry.
CHIEF JUSTICE ROBERTS: Well, surely regulation includes the power to promote. Since the New Deal we’ve said that regulation in — there is a market in agricultural products; Congress has the power to subsidize, to limit production, all sorts of things.
MR. CARVIN: Absolutely, Chief Justice, and that’s the distinction I’m trying to draw. When they are acting within their enumerated power, then obviously they are promoting commerce.
But the Solicitor General wants to turn it into a different power. He wants to say we have the power to promote commerce, to regulate anything to promote commerce. And if they have the power to promote commerce, then they have the power to regulate everything, right? Because -
CHIEF JUSTICE ROBERTS: I don’t — I don’t think you’re addressing their main point, which is that they are not creating commerce in — in health care. It’s already there, and we are all going to need some kind of health care; most of us will at some point.
MR. CARVIN: I’d — I’d like to address that in two ways, if I could, Mr. Chief Justice. In the first place, they keep playing mix and match with the statistics. They say 95 percent of us are in the health care market, okay? But that’s not the relevant statistic, even as the government frames the issue. No one in Congress and the Solicitor General is arguing that going to the doctor and fully paying him creates a problem. The problem is uncompensated care, and they say the uncompensated care arises if you have some kind of catastrophe — hit by a bus, have some prolonged illness. Well, what is the percentage of the uninsured that have those sorts of catastrophes? We know it has got to be a relative small fraction. So in other words, the relevant -
CHIEF JUSTICE ROBERTS: Yet we don’t know who they are.
MR. CARVIN: We don’t, no, and we don’t know in advance, and — and — but that doesn’t change the basic principle, that you are nonetheless forcing people for paternalistic reasons to go into the insurance market to insure against risk that they have made the voluntary decision that they are not — have decided not to. But even -
JUSTICE GINSBURG: But the problem is — the problem is that they are making the rest of us pay for it, because as much as they say, well, we are not in the market, we don’t know when the — the timing when they will be.
MR. CARVIN: Which is -
JUSTICE GINSBURG: And the — the figures of how much more families are paying for insurance because people get sick, they may have intended to self-insure, they haven’t been able to meet the bill for — for cancer, and the rest of us end up paying because these people are getting cost-free health care, and the only way to prevent that is to have them pay sooner rather than later, pay up front.
MR. CARVIN: Yes, but my point is this. That, with respect, Justice Ginsburg, conflicts the people who do result in uncompensated care, the free riders. Those are people who default on their health care payments. That is an entirely different group of people, an entirely different activity than being uninsured.
So the question is whether or not you can regulate activity because it has a statistical connection to an activity that harms Congress. And my basic point to you is this: the Constitution only gives Congress the power to regulate things that negatively affect commerce or commerce regulation. It doesn’t give them the power to regulate things that are statistically connected to things that negatively affect the commerce -
JUSTICE KAGAN: Well, Mr. Carvin -
MR. CARVIN: Because — I’m sorry.
JUSTICE KAGAN: Please.
MR. CARVIN: I was just going to say, because if they have that power, then they obviously have the power to regulate everything, because everything in the aggregate is statistically connected to something that negatively affects commerce, and every compelled purchase promotes commerce.
JUSTICE BREYER: So in your view, right there — in your view right there -
MR. CARVIN: Justice Breyer -
JUSTICE BREYER: Can I just -
MR. CARVIN: I’m sorry.
JUSTICE BREYER: I’m just picking on something. I’d like to just — if it turned out there was some terrible epidemic sweeping the United States, and we couldn’t say that more than 40 or 50 percent — I can make the number as high as I want — but the — the — you’d say the Federal Government doesn’t have the power to get people inoculated, to require them to be inoculated, because that’s just statistical.
MR. CARVIN: Well, in all candor, I think Morrison must have decided that issue, right? Because people who commit violence against -
JUSTICE BREYER: Is your answer to that yes or no?
MR. CARVIN: Oh, I’m sorry. My answer is no, they couldn’t do it, because Morrison -
JUSTICE BREYER: No, they could not do it?
MR. CARVIN: Yes.
JUSTICE BREYER: They cannot require people, even if this disease is sweeping the country, to be inoculated. The Federal Government has no power, and if there’s — okay, fine. Go ahead.
MR. CARVIN: May -
JUSTICE BREYER: Please turn to Justice Kagan.
MR. CARVIN: May I just please explain why?
JUSTICE BREYER: Yes.
MR. CARVIN: Violence against women obviously creates the same negative impression on fellow citizens as this communicable disease, but the — and it has huge effects on the health care of our country. Congress found that it increased health care costs by -
JUSTICE BREYER: I agree with you that -
MR. CARVIN: Well, but -
JUSTICE BREYER: — that it had big effects, but the majority thought that was a local matter.
JUSTICE SCALIA: I think that’s his point.
MR. CARVIN: I — I don’t know why having a disease is any more local than — that beating up a woman. But — but — my basic point is, is that notwithstanding its very profound effect on the health care market, this Court said the activity being regulated, i.e., violence against women, is outside the Commerce Clause power. So regardless of whether it has beneficial downstream effects, we must say no, Congress doesn’t have that power. Why not? Because everything has downstream effects on commerce and every compelled purchase promotes commerce. It by definition helps the sellers of existing -
JUSTICE ALITO: Mr. Carvin, isn’t there this difference between Justice Breyer’s hypothetical and the law that we have before us here? In his hypothetical the harm to other people from the communicable disease is the result of the disease. It is not the result of something that the government has done, whereas here the reason why there is cost- shifting is because the government has mandated that. It has required hospitals to provide emergency treatment and, instead of paying for that through a tax which would be born by everybody, it has required — it has set up a system in which the cost is surreptitiously shifted to people who have health insurance and who pay their bills when they go to the hospital.
MR. CLEMENT: Justice Alito, that is exactly the government’s argument. It’s an extraordinarily illogical argument.
JUSTICE BREYER: Fine. Then if that’s so, is — let me just change my example under pressure -
JUSTICE BREYER: — and say that in fact it turns out that 90 percent of all automobiles driving interstate without certain equipment put up pollution, which travels interstate — not 100 percent, maybe only 60 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, go back to Justice Kagan. Don’t forget her question.
JUSTICE KAGAN: I’ve forgotten my question.
MR. CARVIN: I — I was facing the same dilemma, Justice Kagan.
JUSTICE GINSBURG: Let me — let me ask a question I asked Mr. Clement. It just seems -
JUSTICE KAGAN: See what it means to be the junior justice?
JUSTICE GINSBURG: It just seems very strange to me that there’s no question we can have a Social Security system besides all the people who say: I’m being forced to pay for something I don’t want. And this it seems to me, to try to get care for the ones who need it by having everyone in the pool, but is also trying to preserve a role for the private sector, for the private insurers. There’s something very odd about that, that the government can take over the whole thing and we all say, oh, yes, that’s fine, but if the government wants to get — to preserve private insurers, it can’t do that.
MR. CARVIN: Well I don’t think the test ofa law’s constitutionality is whether it more adheres to the libertarian principles of the Cato Institute or the statist principles of someone else. I think the test of a law’s constitutionality is not those policy questions; it’s whether or not the law is regulating things that negatively affect commerce or don’t.
And since obviously the failure to purchase an item doesn’t create the kind of effects on supply and demand that the market participants in Wickard and Raich did and doesn’t in any way interfere with regulation of the insurance companies, I don’t think it can pass the basic -
JUSTICE GINSBURG: I thought — I thought that Wickard was you must buy; we are not going to let you use the home-grown wheat. You have got to go out in the market and buy that wheat that you don’t want.
MR. CARVIN: Oh, but let’s be careful about what they were regulating in Wickard, Justice Ginsburg. What they were regulating was the supply of wheat. It didn’t in any way imply that they could require every American to go out and buy wheat. And yes, one of the consequences of regulating local market participants is it’ll affect the supply and the demand for the product.
That’s why you can regulate them, because those local market participants have the same effect on the interstate market that a black market has on a legal market.
But none of that is true — in other words, you can regulate local bootleggers, but that doesn’t suggest you can regulate teetotalers, people who stay out of the liquor market, because they don’t have any negative effect on the existing market participants or on regulation of those market participants.
JUSTICE KAGAN: That’s why I suggested, Mr. Carvin, that it might be different if you were raising an as-applied challenge and presenting a class of people whom you could say clearly would not be in the health care market. But you’re raising a facial challenge and we can’t really know which, which of the many, many, people that this law addresses in fact will not participate in the health care market and in fact will not impose costs on all the rest of us.
So the question is can Congress respond to those facts, that we have no crystal ball, that we can’t tell who is and isn’t going to be in the health insurance market, and say most of these people will be and most of these people will thereby impose costs on the rest of us and that’s a problem that we can deal with on a class-wide basis?
MR. CARVIN: No again. The people who impose the costs on the rest of us are people who engage in a different activity at a different time, which is defaulting on their health care payments. It’s not the uninsured. Under your theory you could regulate anybody if they have got a statistical connection to a problem.
You could say, since we could regulate people who enter into the mortgage market and impose mortgage insurance on them, we can simply impose the requirement to buy private mortgage insurance on everybody before they have entered the market because we are doing it in this prophylactic way before it develops.
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.
MR. CARVIN: Two points, one of which Mr. Clement’s already made, which is the health insurance market is different than the health care market. But let me take it on full-stride. I think everybody is in the milk market. I think everybody is in the wheat product market. But that doesn’t suggest that the government compel you to buy five gallons of meat or five bushels of wheat because they are not regulating commerce. Whether you’re a market participant or not, they are still requiring you to make a purchase that you don’t want to do, and to get back to your facial example -
JUSTICE SOTOMAYOR: I mean, but that’s true of almost every product.
MR. CARVIN: I’ve sorry?
JUSTICE SOTOMAYOR: It’s true of almost every product, directly or indirectly by government regulation. The government says, borrowing my colleague’s example, you can’t buy a car without emission control. I don’t want a car with emission control. It’s less efficient in terms of the horsepower. But I’m forced to do something I don’t want to do by government regulation.
MR. CARVIN: You are not forced to buy a product you don’t want. And I agree with you that since the government regulates all markets there is no limiting principle on their compelled purchase. When they put these environmental controls on the -
JUSTICE SOTOMAYOR: They force me to buy -
MR. CARVIN: I’m sorry.
JUSTICE SOTOMAYOR: They forced me to buy if I need unpasteurized foods, goods that don’t have certain pesticides but have others. There is government compulsion in almost every economic decision because the government regulates so much. It’s a condition of life that some may rail against, but -
MR. CARVIN: Let’s think about it this way.
Yes, when you’ve entered the marketplace they can impose all sorts of restrictions on you, and they can impose, for example, all kinds of restrictions on States after they have enacted laws. They can wipe out the laws. They can condition them.
But what can’t they do? They can’t compel States to enact laws. They can’t compel States to carry out Federal law. And I am arguing for precisely the same distinction, because everyone intuitively understands that regulating participants after A and B have entered into a contract is fundamentally less intrusive than requiring the contract.
JUSTICE SOTOMAYOR: We let the government regulate the manufacturing process whether or not the goods will enter into interstate commerce, merely because they might statistically. We — there is all sorts of government regulation of manufacturing plants, of agricultural farms, of all sorts of activity that will be purely intrastate because it might affect interstate activity.
MR. CARVIN: I fully agree with you, Justice Sotomayor. But I think -
JUSTICE SOTOMAYOR: So how is that different from saying you are self-insuring today, you’re foregoing insurance? Why isn’t that a predecessor to the need that you’re eventually going to have?
MR. CARVIN: The cases you referred to I think effectively eliminated the distinction between participants in the intrastate market vis-à-vis participants in the interstate market. None of those cases suggest that you can regulate people who are outside of the market on both an intrastate and interstate level by compelling them to enter into the market. And that -
JUSTICE BREYER: What about — the simplest counter-example for me to suggest is you’ve undoubtedly read Judge Sutton’s concurring opinion. He has about two pages, it seemed to me, of examples where everyone accepts the facts that under these kinds of regulations the government can compel people to buy things they don’t otherwise want to buy.
For example, he gives, even in that farm case, the farmer who was being forced to go out and buy grain to feed to his animals because he couldn’t raise it at home. You know and he goes through one example after another. So what — what is your response to that, which you’ve read?
MR. CARVIN: Judge Sutton is wrong in each and every example. There was no — there was no compulsion in Raich for him to buy wheat. He could have gotten wheat substitutes or he could have not sold wheat, which is actually what he was doing. There is a huge difference between conditioning regulation, i.e., conditioning access to the health care market and saying you must buy a product, and forcing you to buy a product. And that, that — I’m sorry.
JUSTICE GINSBURG: I thought it was common ground that the requirement that the insurers — what was it, the community-based one and they have to insure you despite your health status; they can’t refuse because of preexisting conditions. The government tells us and the Congress determined that those two won’t work unless you have a pool that will include the people who are now healthy. But so — well, first, do you agree with your colleague that the community-based — and what’s the name that they give to the other?
MR. CARVIN: The guaranteed-issue.
JUSTICE GINSBURG: Yes. That that is legitimate Commerce Clause legislation?
MR. CARVIN: Oh, sure. And that’s why - but we don’t in any way impede that sort of regulation. These nondiscrimination regulations will apply to every insurance company just as Congress intended whether or not we buy insurance.
JUSTICE GINSBURG: Well then, what about the determination that they can’t possibly work if people don’t have to buy insurance until they are — their health status is such that the insurance company just dealt with them on its — as it will? They’d say, I won’t insure you because you’re — you’re already sick.
MR. CARVIN: It depends what you mean by “work.” It’ll work just fine in ensuring that no sick people are discriminated against. What — what — but when you do that — Congress -
JUSTICE GINSBURG: But the sick people, why would they insure early if they had to be protected if they get insurance late?
MR. CARVIN: Yes. Well, that’s — see, this is the government’s very illogical argument. They seem to be saying, look, we couldn’t just force people to buy insurance to lower health insurance premiums. That would be no good. But we can do it because we’ve created the problem. We, Congress, have driven up the health insurance premiums, and since we’ve created that problem, this somehow gives us authority that we wouldn’t otherwise have. That can’t possibly be right. That would -
JUSTICE SOTOMAYOR: Do you think that there’s — what percentage of the American people who took their son or daughter to an emergency room and that child was turned away because the parent didn’t have insurance — do you think there’s a large percentage of the American population who would stand for the death of that child -
MR. CARVIN: One of the most -
JUSTICE SOTOMAYOR: — if they had an allergic reaction and a simple shot would have saved the child?
MR. CARVIN: One of the more pernicious, misleading impressions that the government has made is that we are somehow advocating that people could get thrown out of emergency rooms, or that this alternative that they’ve hypothesized is going to be enforced by throwing people out of emergency rooms. This alternative, i.e., you condition access to health care on buying health insurance, is enforced in precisely the same way that the Act does. You either buy health insurance or you pay a penalty of $695. You don’t have doctors throwing people out on the street. And — and so the only -
JUSTICE SOTOMAYOR: I’m sorry. Did you say the penalty’s okay but not the mandate? I’m sorry. Maybe I’ve misheard you.
MR. CARVIN: No, no, no. I was — they create this strawman that says: Look, the only alternative to doing it the way we’ve done it, if we condition access to health care on buying health insurance, the only way you can enforce that is making sick people not get care. I’m saying no, no. There’s a perfectly legitimate way they could enforce their alternative, i.e., requiring you to buy health insurance when you access health care, which is the same penalty structure that’s in the Act.
There is no moral dilemma between having people have insurance and denying them emergency service. Congress has made a perfectly legitimate value judgment that they want to make sure that people get emergency care. Since the founding, whenever Congress has imposed that public responsibility on private actors, it has subsidized it from the Federal Treasury. It has not conscripted a subset of the citizenry and made them subsidize the actors who are being hurt, which is what they’re doing here. They’re making young, healthy people subsidize insurance premiums for the cost that the nondiscrimination provisions have put on insurance premiums and insurance companies.
JUSTICE SOTOMAYOR: So the -
MR. CARVIN: And that is the fundamental problem here.
JUSTICE SOTOMAYOR: So the — I — I want to understand the choices you’re saying Congress has. Congress can tax everybody and set up a public health care system.
MR. CARVIN: Yes.
JUSTICE SOTOMAYOR: That would be okay?
MR. CARVIN: Yes. Tax power is -
JUSTICE SOTOMAYOR: Okay.
MR. CARVIN: I would accept that.
JUSTICE SOTOMAYOR: Congress can — are you taking the same position as your colleague, Congress can’t say we’re going to set up a public health system, but you can get a tax credit if you have private health insurance because you won’t access the public system. Are you taking the same position as your colleague?
MR. CARVIN: There may have been some confusion in your prior colloquy. I fully agree with my brother Clement that a direct tax would be unconstitutional. I don’t think he means to suggest, nor do I, that a tax credit that incentivizes you to buy insurance creates a problem. Congress incentivizes all kinds of activities. If they gave us a tax credit for buying insurance, then it would be our choice whether or not that makes economic sense, even though -
JUSTICE SOTOMAYOR: So how is this different than this Act, which says if a taxpayer fails to meet the requirement of having minimum coverage, then they are responsible for paying the shared responsibility payment?
MR. CARVIN: The difference is that the taxpayer is not given a choice. It’s the difference between banning cigarettes and saying I’m going to enforce that legal ban through a $5 a pack penalty, and saying, look, if you want to sell cigarettes, fine; I’m going to charge you a tax of $5 a pack. And that’s -
JUSTICE SOTOMAYOR: I think — I think that’s what’s happening, isn’t it?
MR. CARVIN: No. Not -
JUSTICE SOTOMAYOR: We’re paying — I thought that everybody was paying, what is it, $10 a pack now? I don’t even know the price. It’s pretty high.
MR. CARVIN: Right. And everyone would -
JUSTICE SOTOMAYOR: I think everybody recognizes that it’s all taxation for the purposes of dissuading you to buy it.
MR. CARVIN: That’s precisely my point. And everyone intuitively understands that that system is dramatically different than saying cigarettes tomorrow are illegal.
JUSTICE BREYER: It is different. It is different. It is different. I agree with that. But you pointed out, and I agree with you on this, that the government set up these emergency room laws. The government set up Medicaid. The government set up Medicare. The government set up CHIP, and there are 40 million people who don’t have the private insurance.
In that world, the government has set up commerce. It’s all over the United States. And in that world, of course, the decision by the 40 million not to buy the insurance affects that commerce and substantially so.
So I thought the issue here is not whether it’s a violation of some basic right or something to make people buy things they don’t want, but simply whether those decisions of that group of 40 million people substantially affect the interstate commerce that has been set up in part through these other programs.
So that’s the part of your argument I’m not hearing.
MR. CARVIN: Let me -
JUSTICE BREYER: Please.
MR. CARVIN: It is clear that the failure to buy health insurance doesn’t affect anyone. Defaulting on your payments to your health care provider does. Congress chose, for whatever reason, not to regulate the harmful activity of defaulting on your health care provider. They used the 20 percent or whoever among the uninsured as a leverage to regulate the 100 percent of the uninsured.
JUSTICE KENNEDY: I agree — I agree that that’s what’s happening here.
MR. CARVIN: Okay.
JUSTICE KENNEDY: And the government tells us that’s because the insurance market is unique. And in the next case, it’ll say the next market is unique. But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets — stipulate two markets — the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.
That’s my concern in the case.
MR. CARVIN: And, Your — I may be misunderstanding you, Justice Kennedy. I hope I’m not. Sure, it would be perfectly fine if they allowed — you do actuarial risk for young people on the basis of their risk for disease, just like you judge flood insurance on the homeowner’s risk of flood. One of the issues here is not only that they’re compelling us to enter into the marketplace, they’re not — they’re prohibiting us from buying the only economically sensible product that we would want, catastrophic insurance.
Everyone agrees the only potential problem that a 30-year-old, as he goes from the healthy 70 percent of the population to the unhealthy 5 percent - and yet Congress prohibits anyone over 30 from buying any kind of catastrophic health insurance. And the reason they do that is because they needed this massive subsidy.
Justice Alito, it’s not our numbers. CBO said that injecting my clients into the risk pool lowers premiums by 15 to 20 percent.
So, Justice Kennedy, even if we were going to create exceptions for people that are outside of commerce and inside of commerce, surely we’d make Congress do a closer nexus and say, look, we’re really addressing this problem; We want these 30-year-olds to get catastrophic health insurance. And not only did they — they deprived them of that option. And I think that illustrates the dangers of giving Congress these plenary powers, because they can always leverage them. They can always come up with some public policy rationale that converts the power to regulate commerce into the power to promote commerce, which, as I was saying before, is the one that I think is plenary.
JUSTICE KAGAN: Mr. Carvin, a large part of this argument has concerned the question of whether certain kinds of people are active participants in a market or not active participants in a market. And your test, which is a test that focuses on this activity/inactivity distinction, would force one to confront that problem all the time.
Now, if you look over the history of the Commerce Clause, what you see is that there were sort of unhappy periods when the Court used tests like this, direct versus indirect, commerce versus manufacturing. I think most people would say that those things didn’t really work. And the question is, why should this test, inactive versus active, work any better?
MR. CARVIN: The problem you identify is exactly the problem you would create if you bought the government’s bogus limiting principles. You’d have to draw a distinction between the insurance industry and the car industry and all of that, returning to the Commerce Clause jurisprudence that bedeviled the Court before the 1930s, where they were drawing all these kinds of distinctions among industries, whereas our test is really very simple. Are you buying the product or is Congress compelling you to buy the product? I can’t think of a brighter line.
And again, if Congress has the power to compel you to buy this product, then obviously they have got the power to provide you — to compel you to buy any product, because any purchase is going to benefit commerce, and this Court is never going to second-guess Congress’s policy judgments on how important it is this product versus that product.
JUSTICE ALITO: Do you think that drawing a line between commerce and everything else that is not commerce is drawing an artificial line, like drawing a line between commerce and manufacturing?
MR. CARVIN: The words “inactivity” and “activity” are not in the Constitution. The words “commerce” and “noncommerce” are. And again, it’s a distinction that comes, Justice Kagan, directly from the text of the Constitution.
The Framers consciously gave Congress the ability to regulate commerce, because that’s not a particularly threatening activity that deprives you of individual freedom.
If you were required, if you were authorized to require A to transfer property to B, you have, as the early cases put it, a monster in legislation which is against all reason and justice, because everyone intuitively understands that regulating people who voluntarily enter into contracts in setting changing conditions does not create the possibility of Congress compelling wealth transfers among the citizenry. And that is precisely why the Framers denied them the power to compel commerce and precisely why they didn’t give them plenary power.
CHIEF JUSTICE ROBERTS: Thank you, Mr. Carvin.
- WhatTheFolly.com: Justices question constitutionality of health insurance mandate
- WhatTheFolly.com: Supreme Court holds first hearing on the Affordable Care Act
- WhatTheFolly.com: Transcript: SCOTUS Affordable Care Act oral argument of Solicitor General Donald Verrilli on day 2
- WhatTheFolly.com: Transcript: SCOTUS Affordable Care Act oral argument of Paul Clement on day 2
- SupremeCourt.gov: Transcripts of the oral arguments on Tuesday, March 27, 2012 (PDF)
- SupremeCourt.gov: Department of Health and Human Services v. Florida, et al – petition for a writ of certiorari (PDF)
- SupremeCourt.gov: Department of Health and Human Services v. Florida, et al – brief of state respondents (PDF)
- SupremeCourt.gov: Department of Health and Human Services v. Florida, et al – brief of private respondents (PDF)
- SupremeCourt.gov: Department of Health and Human Services v. Florida, et al – reply brief (PDF)
- SupremeCourt.gov: Department of Health and Human Services v. Florida, et al – appendix to petition (PDF)
- Justice.gov: Solicitor General Donald B. Verrilli, Jr.
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