Transcript: SCOTUS Affordable Care Act oral argument of Paul Clement on day 2

Department of Health and Human Services v. Florida, et al. 

Transcript of the oral argument of Paul D. Clement before the U.S. Supreme Court on March 27, 2012:

ORAL ARGUMENT OF PAUL D. CLEMENT ON BEHALF OF THE RESPONDENTS FLORIDA, ET AL.


MR. CLEMENT: Mr. Chief Justice, and may it please the Court.

The mandate represents an unprecedented effort by Congress to compel individuals to enter commerce in order to better regulate commerce.

The Commerce Clause gives Congress the power to regulate existing commerce. It does not give Congress the far greater power to compel people to enter commerce, to create commerce essentially in the first place.

Now, Congress when it passed the statute did make findings about why it thought it could regulate the commerce here, and it justified the mandate as a regulation of the economic decision to forgo the purchase of health insurance. That is a theory without any limiting principle.

JUSTICE SOTOMAYOR: Do you accept here the General’s position that you have conceded that Congress could say, if you’re going to consume health services, you have to pay by way of insurance?

MR. CLEMENT: That’s right, Justice Sotomayor. We say, consistent with 220 years of this Court’s jurisprudence, that if you regulate the point of sale, you regulate commerce, that’s within Congress’s commerce power.

JUSTICE SOTOMAYOR: All right. So, what do you do with the impossibility of buying insurance at the point of consumption. Virtually, you force insurance companies to sell it to you?


MR. CLEMENT: Well, Justice, I think there’s two points to make on that.

One is a lot of the discussion this morning so far has proceeded on the assumption that the only thing that’s at issue here is emergency room visits, and the only thing that’s being imposed is catastrophic care coverage. But, as the

Chief Justice indicated earlier, a lot of the insurance that’s being covered is for ordinary preventive care, ordinary office visits, and those are the kinds of things that one can predict.

So, there’s a big part of the market that’s regulated here that wouldn’t pose the problem that you’re suggesting; but, even as to emergency room visits, it certainly would be possible to regulate at that point. You could simply say, through some sort of mandate on the insurance companies, you have to provide people that come in — this will be a high-risk pool, and maybe you’ll have to share it amongst yourself or something, but people simply have to sign up at that point, and that would be regulating at the point of sale.

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.

MR. CLEMENT: Well, Justice Kagan, we don’t think it’s a matter of timing alone, and we think it has very significant substantive effects, because if Congress tried to regulate at the point of sale, the one group that it wouldn’t capture at all are the people who don’t want to purchase health insurance and also have no plans of using health care services in the near term. And Congress very much wanted to capture those people. I mean, those people are essentially the golden geese that pay for the entire lowering of the premium -­

JUSTICE KENNEDY: Is the government’s argument this — and maybe I won’t state it accurately. It is true that the noninsured young adult is, in fact, an actuarial reality insofar as our allocation of health services, insofar as the way health insurance companies figure risks. That person who is sitting at home in his or her living room doing nothing is an actuarial reality that can and must be measured for health service purposes; is that their argument?

MR. CLEMENT: Well, I don’t know, Justice Kennedy, but, if it is, I think there’s at least two problems with it.

One is, as Justice Alito’s question suggested earlier — I mean, somebody who is not in the insurance market is sort of irrelevant as an actuarial risk. I mean, we could look at the people not in the insurance market, and what we’d find is that they’re relatively young, relatively healthy, and they would have a certain pool of actuarial risks that would actually lead to lower premiums.

The people that would be captured by guaranteed rating and community issue — guaranteed issue and community rating would presumably have a higher risk profile, and there would be higher premiums. And one of the things, one of the things, Congress sought to accomplish here was to force individuals into the insurance market to subsidize those that are already in it to lower the rates. And that’s just not my speculation, that’s Finding (I) at 43a of the Government’s brief that — it has the statute. And that’s one of the clear findings.

JUSTICE GINSBURG: Mr. Clement, doesn’t that work — that work the way Social Security does?

Let me put it this way: Congress, in the ’30s, saw a real problem of people needing to have old age and survivor’s insurance. And, yes, they did it through a tax, but they said everybody has got to be in it because if we don’t have the healthy in it, there’s not going to be the money to pay for the ones who become old or disabled or widowed. So, they required everyone to contribute.

There was a big fuss about that in the beginning because a lot of people said — maybe some people still do today — I could do much better if the government left me alone. I’d go into the private market, I’d buy an annuity, I’d make a great investment, and they’re forcing me to paying for this Social Security that I don’t want.

But that’s constitutional. So, if Congress could see this as a problem when we need to have a group that will subsidize the ones who are going to get the benefits, it seems to me you’re saying the only way that could be done is if the government does it itself; it can’t involve the private market, it can’t involve the private insurers. If it wants to do this, Social Security is its model. The government has to do -­there has to be government takeover. We can’t have the insurance industry in it. Is that your position?

MR. CLEMENT: No. I don’t think it is, Justice Ginsburg. I think there are other options that are available.

The most straightforward one would be to figure out what amount of subsidy to the insurance industry is necessary to pay for guaranteed issue and community rating. And once we calculate the amount of that subsidy, we could have a tax that’s spread generally through everybody to raise the revenue to pay for that subsidy. That’s the way we pay for most subsidies.

JUSTICE SOTOMAYOR: Could we have an exemption? Could the government say everybody pays a shared health care responsibility payment to offset all the money that we’re forced to spend on health care, we the government; but anybody who has an insurance policy is exempt from that tax? Could the government do that?

MR. CLEMENT: The government might be able to do that. I think it might raise some issues about whether or not that would be a valid exercise of the taxing power.

JUSTICE SOTOMAYOR: Under what theory wouldn’t it be?

MR. CLEMENT: Well, I do think that -­

JUSTICE SOTOMAYOR: We get tax credits for having solar-powered homes. We get tax credits for using fuel-efficient cars. Why couldn’t we get a tax credit for having health insurance and saving the government from caring for us.

MR. CLEMENT: Well, I think it would depend a little bit on how it was formulated, but my concern would be — the constitutional concern would be that it would just be a disguised impermissible direct tax. And I do think — you know, I mean, I don’t want to suggest we get to the taxing power to soon, but I do think it’s worth realizing that the taxing power is limited in the ability to impose direct taxes.

And the one thing I think the Framers would have clearly identified as a direct tax is a tax on not having something. I mean, the framing generation was divided over whether a tax on carriages was a direct tax or not. Hamilton thought that was a indirect tax; Madison thought it was a direct tax. I have little doubt that both of them would have agreed that a tax on not having a carriage would have clearly been a direct tax. I also think they would have thought it clearly wasn’t a valid regulation of the market in carriages. And, you know, I mean, if you look at Hylton v. The United States, that’s this Court’s first direct tax case.

JUSTICE BREYER: Let me ask — can I go back for a step? Because I don’t want to get into a discussion of whether this is a good bill or not. Some people think it’s going to save a lot of money. Some people think it won’t.

So, I’m focusing just on the Commerce Clause; not on the Due Process Clause, the Commerce Clause. And I look back into history, and 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.

I look back into history, and I see it seems pretty clear that if there are substantial effects on interstate commerce, Congress can act. And I look at the person who’s growing marijuana in her house, or I look at the farmer who is growing wheat for home consumption. This seems to have more substantial effects.

Is this commerce? Well, it seems to me more commerce than marijuana. I mean, is it, in fact, a regulation? Well, why not? If creating a bank is, why isn’t this?

And then you say, ah, but one thing here out of all those things is different, and that is you’re making somebody do something. I say, hey, can’t Congress make people drive faster than 45 — 40 miles an hour on a road? Didn’t they make that man growing his own wheat go into the market and buy other wheat for his — for his cows? Didn’t they make Mrs. — if she married somebody who had marijuana in her basement, wouldn’t she have to go and get rid of it? Affirmative action? I mean, where does this distinction come from? It sounds like sometimes you can, and sometimes you can’t.

So what is argued here is there is a large group of — what about a person that we discover that there are — a disease is sweeping the United States, and 40 million people are susceptible, of whom 10 million will die; can’t the Federal Government say all 40 million get inoculation?

So here, we have a group of 40 million, and 57 percent of those people visit emergency care or other care, which we are paying for. And 22 percent of those pay more than $100,000 for that. And Congress says they are in the midst of this big thing. We just want to rationalize this system they are already in. So, there, you got the whole argument, and I would like you to tell me -­

JUSTICE SCALIA: Answer those questions in inverse order.

JUSTICE BREYER: Well, no, it’s one question. It’s looking back at that — looking back at that history. The thing I can see that you say to some people, go buy. Why does that make a difference in terms of the Commerce Clause?

MR. CLEMENT: Well, Justice Breyer, let me start at the beginning of your question with McCulloch. McCulloch was not a commerce power case.

JUSTICE BREYER: It was both?

MR. CLEMENT: No, the bank was not justified and the corporation was not justified as an exercise of commerce power. So that is not a case that says that it’s okay to conjure up the bank as an exercise of the commerce power. And what, of course, the Court didn’t say, and I think the Court would have had a very different reaction to, is, you know, we are not just going to have the bank, because that wouldn’t be necessary and proper, we are going to force the citizenry to put all of their money in the bank, because, if we do that, then we know the Bank of the United States will be secure.

I think the framers would have identified the difference between those two scenarios, and I don’t think that the great Chief Justice would have said that forcing people to put their deposits in the Bank of the United States was necessary and proper.

Now, if you look through all the cases you mentioned, I do not think you will find a case like this. And I think it’s telling that you won’t. I mean, the regulation of the wheat market in Wickard against Filburn, all this effort to address the supply side and what producers could do, what Congress was trying to do was support the price of wheat. It would have been much more efficient to just make everybody in America buy 10 loaves of bread. That would have had a much more direct effect on the price of wheat in the prevailing market.

But we didn’t do that. We didn’t say when we had problems in the automobile industry that we are not just going to give you incentives, not just cash for clunkers, we are going to actually have everybody over 100,000 dollars has to buy a new car -­

CHIEF JUSTICE ROBERTS: Well, Mr. Clement, the key to the government’s argument to the contrary is that everybody is in this market. It’s all right to regulate Wickard — again, in Wickard against Filburn, because that’s a particular market in which the farmer had been participating.

Everybody is in this market, so that makes it very different than the market for cars or the other hypotheticals that you came up with, and all they’re regulating is how you pay for it.

MR. CLEMENT: Well, with respect, Mr. Chief Justice, I suppose the first thing you have to say is what market are we talking about? Because the government — this statute undeniably operates in the health insurance market. And the government can’t say that everybody is in that market. The whole problem is that everybody is not in that market, and they want to make everybody get into that market.

JUSTICE KAGAN: Well, doesn’t that seem a little bit, Mr. Clement, cutting the baloney thin?

I mean, health insurance exists only for the purpose of financing health care. The two are inextricably interlinked. We don’t get insurance so that we can stare at our insurance certificate. We get it so that we can go and access health care.

MR. CLEMENT: Well, Justice Kagan, I’m not sure that’s right. I think what health insurance does and what all insurance does is it allows you to diversify risk. And so it’s not just a matter of I’m paying now instead of paying later. That’s credit. Insurance is different than credit. Insurance guarantees you an upfront, locked-in payment, and you won’t have to pay any more than that even if you incur much great expenses.

And in every other market that I know of for insurance, we let people basically make the decision whether they are relatively risk averse, whether they are relatively non-risk averse, and they can make the judgment based on -­

JUSTICE SOTOMAYOR: But we don’t in car insurance, meaning we tell people, buy car — not we, the States do, although you’re going to — I’ll ask you the question, do you think that if some States decided not to impose an insurance requirement, that the Federal Government would be without power to legislate and require every individual to buy car insurance?

MR. CLEMENT: Well, Justice Sotomayor, let me say this, which is to say — you’re right in the first point to say that it’s the States that do it, which makes it different right there. But it’s also -­

JUSTICE SOTOMAYOR: Well, that goes back to the substantive due process question. Is this a Lochner era argument that only the States can do this, eventhough it affects commerce? Cars indisputably affect commerce. So are you arguing that because the States have done it all along, the Federal Government is no longer permitted to legislate in this area?

MR. CLEMENT: No. I think you might make a different argument about cars than you would make about health insurance, unless you tried to say — but, you know, we’re -­

JUSTICE SOTOMAYOR: Health insurance — I mean, I’ve never gotten into an accident, thankfully, and I hope never. The vast majority of people have never gotten into an accident where they have injured others; yet, we pay for it dutifully every year on the possibility that at some point, we might get into that accident.

MR. CLEMENT: But, Justice Sotomayor, what I think is different is there is lots of people in Manhattan, for example, that don’t have car insurance because they don’t have cars. And so they have the option of withdrawing from that market. It’s not a direct imposition from the government.

So even the car market is difference from this market, where there is no way to get outside of the regulatory web. And that’s, I think, one of the real problems with this because, I mean, we take as a given -­

JUSTICE SOTOMAYOR: But you’re — but the given is that virtually everyone, absent some intervention from above, meaning that someone’s life will be cut short in a fatal way, virtually everyone will use health care.

MR. CLEMENT: At some point, that’s right, but all sorts of people will not, say, use health care in the next year, which is the relevant period for the insurance.

JUSTICE BREYER: But do you think you can, better than the actuaries or better than the members of Congress who worked on it, look at the 40 million people who are not insured and say which ones next year will or will not use, say, emergency care?

Can you do that any better than if we knew that 40 million people were suffering, about to suffer a contagious disease, and only 10 million would get sick -­

MR. CLEMENT: Of course not -­

JUSTICE BREYER: — and we don’t know which?

MR. CLEMENT: Of course not, Justice Breyer, but the point is that once Congress decides it’s going to regulate extant commerce, it is going to get all sorts of latitude to make the right judgments about actuarial predictions, which actuarial to rely on, which one not to rely on.

The question that’s a proper question for this Court, though, is whether or not, for the first time ever in our history, Congress also has the power to compel people into commerce, because, it turns out, that would be a very efficient things for purposes of Congress’s optimal regulation of that market.

JUSTICE KAGAN: But, Mr. Clement, this goes back to the Chief Justice’s question. But, of course, the theory behind, not just the government’s case, but the theory behind this law is that people are in this market right now, and they are in this market because people do get sick, and because when people get sick, we provide them with care without making them pay.

And it would be different, you know, if you were up here saying, I represent a class of Christian Scientists. Then you might be able to say, look, you know, why are they bothering me. But absent that, you’re in this market. You’re an economic actor.

MR. CLEMENT: Well, Justice Kagan, once again, it depends on which market we’re talking about. If we’re talking about the health care insurance market -­

JUSTICE KAGAN: Well, we are talking aboutthe health insurance market, which is designed to access the health care market.

MR. CLEMENT: And with respect to the health insurance market that’s designed to have payment in the health care market, everybody is not in the market. And that’s the premise of the statute, and that’s the problem Congress is trying to solve.

And if it tried to solve it through incentives, we wouldn’t be here; but, it’s trying to solve it in a way that nobody has ever tried to solve an economic problem before, which is saying, you know, it would be so much more efficient if you were just in this market -­

JUSTICE KENNEDY: But they are in the market in the sense that they are creating a risk that the market must account for.

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. I 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.

JUSTICE BREYER: Of course, we do know that there are a few people, more in New York City than there are in Wyoming, who never will buy a car. But we also know here, and we don’t like to admit it, that because we are human beings, we all suffer from the risk of getting sick, and we also all know that we’ll get seriously sick. And we also know that we can’t predict when. And we also know that when we do, there will be our fellow taxpayers through the Federal Government who will pay for this. If we do not buy insurance, we will pay nothing. And that happens with a large number of people in this group of 40 million, none of whom can be picked out in advance. Now, that’s quite different from the car situation, and it’s different in only this respect: It shows there is a national problem, and it shows there is a national problem that involves money, cost, insurance. So, if Congress could do this, should there be a disease that strikes the United States and they want every one inoculated even though 10 million will be hurt, it’s hard for me to decide why that isn’t interstate commerce, even more so where we know it affects everybody.

MR. CLEMENT: Well, Justice Breyer, there are other markets that affect every one -­ transportation, food, burial services — though we don’t like to talk about that either. There also are situations where there are many economic effects from somebody’s failure to purchase a product.

And if I could — if I could talk about the difference between the health insurance market and the health care market, I mean, ultimately I don’t want you to leave here with the impression that anything turns on that. Because if the government decided tomorrow that they’ve come up with a great — somebody — some private company has come up with a great new wonder drug that would be great for everybody to take, it would have huge health benefits for everybody; and by the way, also, if everybody had to buy it, it would facilitate economies of scale, and the production would be great, and the price would be cheaper — and force everybody in the health care market, the actual health care market, to buy the wonder drug, I’d be up here making the same argument. I’d be saying that’s not a power that’s within the commerce power of the Federal Government. It is something much greater. And it would have been much more controversial. That’s one of the important things.

In Federalist 45, Madison says the commerce power -­ that’s a new power, but it’s not one anyone has any apprehension about. The reason they didn’t have any apprehension about it is because it’s a power that only operated once people were already in commerce. You see that from the text of the clause. The first kind of commerce Congress gets to regulate is commerce with foreign nations. Did anybody think the fledgling Republic had the power to compel some other nation into commerce with us? Of course not. And in the same way, I think if the Framers had understood the commerce power to include the power to compel people to engage in commerce -­

JUSTICE KAGAN: Well, once again, though, who’s in commerce and when are they in commerce? If the effect of all these uninsured people is to raise everybody’s premiums, not just when they get sick, if they get sick, but right now in the aggregate, and Wickard and Raich tell us we should look at the aggregate, and the aggregate of all these uninsured people are increasing the normal family premium, Congress says, by a thousand dollars a year — those people are in commerce. They are making decisions that are affecting the price that everybody pays for this service.

MR. CLEMENT: Justice Kagan, again, with all due respect, I don’t think that’s a limiting principle. My unwillingness to buy an electric car is forcing up the price of an electric car. If only more people demanded an electric car, there would be economies of scale, and the price would go down.

JUSTICE KAGAN: No, this is very different, Mr. Clement, and it’s different because of the nature of the health care service, that you are entitled to health care when you go to an emergency room, when you go to a doctor, even if you can’t pay for it. So, the difference between your hypotheticals and the real case is the problem of uncompensated care, which -­

MR. CLEMENT: Justice Kagan, first of all, I do think there — this is not the only place where there’s uncompensated care. If some — if I don’t buy a car and somebody goes on welfare, I’m going to end up paying for that as well.

But let me also say that there’s a real disconnect then between that focus on what makes this different and the statute that Congresses passed. If all we were concerned about is the cost sharing that took place because of uncompensated care in emergency rooms, presumably we’d have before us a statute that only addressed emergency care and catastrophic insurance coverage. But it covers everything, soup to nuts, and all sorts of other things.

And that gets at the idea that there’s two kinds of cost shifting that are going on here. One is the concern about emergency care and that somehow somebody who gets sick is going to shift costs back to other policy areas — holders. But there’s a much bigger cost shifting going on here, and that’s the cost shifting that goes on when you force healthy people into an insurance market precisely because they’re healthy, precisely because they’re not likely to go to the emergency room, precisely because they’re not likely to use the insurance they’re forced to buy in the health care insurance. That creates a huge windfall. It lowers the price of premiums.

And, again, this isn’t just some lawyer up here telling you that’s what it does and trying to second-guess the congressional economic decisions. This is Congress’s findings, Findings (I) on page 43a of the appendix to the Government’s brief.

JUSTICE BREYER: All right. But all that sounds like you’re debating the merits of the bill. You asked really for limiting principles so we don’t get into a matter that I think has nothing to do with this case: broccoli. Okay?

And the limiting principles — you’ve heard three. First, the Solicitor General came up with a couple joined, very narrow ones. You’ve seen in Lopez this Court say that we cannot — Congress cannot get into purely local affairs, particularly where they are noncommercial. And, of course, the greatest limiting principle of all, which not too many accept, so I’m not going to emphasize that, is the limiting principle derived from the fact that members of Congress are elected from States and that 95 percent of the law of the United States is State law. That is a principle, though enforced by the legislature. The other two are principles, one written into Lopez and one you just heard.

It seems to me all of those eliminate the broccoli possibility, and none of them eliminates the possibility that we’re trying to take the 40 million people who do have the medical cost, who do affect interstate commerce, and provide a system that you may like or not like.

MR. CLEMENT: Well, Justice Breyer, let me take them turn.

JUSTICE BREYER: That’s where we are in limiting principles.

MR. CLEMENT: Let me take them in turn. I would encourage this Court not to Garcia-ize the Commerce Clause and just simply say it’s up to Congress to police the Commerce Clause. So, I don’t think that is a limiting principle.

Second of all -­

JUSTICE SOTOMAYOR: But that’s exactly what Justice Marshall said in Gibbons. He said that it is the power to regulate; the power like all others vested in Congress is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than those prescribed in the Constitution. But there is no conscription in the — set forth in the Constitution

MR. CLEMENT: I agree -­

JUSTICE SOTOMAYOR: — with respect to regulating commerce.

MR. CLEMENT: I agree 100 percent, and I think that was the Chief Justice’s point, which was once you open the door to compelling people into commerce based on the narrow rationales that exist in this industry, you are not going to be able to stop that process.

JUSTICE SOTOMAYOR: Well, see, that’s the -­

JUSTICE SCALIA: I would like hear you address Justice Breyer’s other two principles.

MR. CLEMENT: Well, the other two principles are Lopez — and this case really is not — I mean, you know, Lopez is a limit on the affirmative exercise of people who are already in commerce. The question is, is there any other limit to people who aren’t in commerce? And so, I think this is the case that really asks that question.

And then the first point which was — I take it to be the Solicitor General’s point, is, with all due respect, simply a description of the insurance market. It’s not a limiting principle, because the justification for why this is a valid regulation of commerce is in no way limited to this market. It simply says these are economic decisions; they have effect on other people; my failure to purchase in this market has a direct effect on others who are already in the market. That’s true of virtually every other market under the sun.

CHIEF JUSTICE ROBERTS: And now maybe return to Justice Sotomayor’s question.

MR. CLEMENT: I’d be delighted to, which is — I mean, I — you’re absolutely right. Once you’re in the commerce power, there — this Court is not going to police that subject maybe to the Lopez limit. And that’s exactly why I think it’s very important for this Court to think seriously about taking an unprecedented step of saying that the commerce power not only includes the power to regulate, prescribe the rule by which commerce is governed, the rule of Gibbons v. Ogden; but to go further and say it’s not just prescribing the rule for commerce that exists but is the power to compel people to enter into commerce in the first place.

I’d like to say two very brief things about the taxing power, if I could. There are lots of reasons why this isn’t a tax. It wasn’t denominated a tax. It’s not structured as a tax. If it’s any tax at all, though, it is a direct tax. Article I, section 9, clause 4 — the Framers would have had no doubt that a tax on not having something is not an excise tax but a forbidden direct tax. That’s one more reason why this is not proper legislation, because it violates that.

The second thing is I would urge you to read the license tax case which the Solicitor General says is his best case for why you ignore the fact that a tax is denominated into something other. Because that’s a case where the argument was that because the Federal Government had passed a license, not a tax, that somehow that allowed people to take actions that would have been unlawful under State law, that this was some special Federal license to do something that was forbidden by State law. This Court looked beyond the label in order to preserve federalism there.

What the Solicitor General and the government ask you to do here is exactly the opposite, which is to look past labels in order to up-end our basic federalist system. In this -­

JUSTICE SOTOMAYOR: Could you tell me, do you think the States could pass this mandate?

MR. CLEMENT: I represent 26 States. I do think the States could pass this mandate, but I -­

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?

MR. CLEMENT: Well, Justice Sotomayor, I have to resist your premise, because I didn’t answer yes, the States can do it because it would be a valid regulation of intrastate commerce. I said yes, the States can do it because they have a police power, and that is the fundamental difference between the States on the one hand and the limited, enumerated Federal Government on the other.

CHIEF JUSTICE ROBERTS: Thank you, Mr. Clement.

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