Another interesting thing that came in the oral argument today was the colloquy about cell phones. Chief Justice Roberts pointed out that the Administration’s argument that the government can force you to buy insurance because you never know when you might need to have a doctor would also seem to allow the government to force people to buy cell phones. Can the government force you to buy a cell phone? Solicitor General Verrilli said no, “because that wouldn’t be the regulation of a market. This is a market. This is market regulation.” What he meant by that is that the Mandate is only controlling how you pay for something that you buy, and not really forcing you to buy something. And yet…
And yet, later on, when he was pressed on the fact that the Mandate’s real purpose is to subsidize insurance companies to make up for the costs imposed on them by forcing them to insure sick people, the Solitor General answered,
And in terms of the–the subsidy rationale, I don’t think–I think it’s–it would be unusual to say that it’s an illegitimate exercise of the commerce power for some people to subsidize others. Telephone rates in this country for a century were set via the exercise of the commerce power in a way in which some people paid rates that were much higher than their costs in order to subsidize–
Here he was interrupted by a voluble Justice Scalia: “Only if you make phone calls.”
The Solicitor General answered: “Well, right. But–but everybody–to live in the modern world, everybody needs a telephone.” He emphasized this point by using another example: milk price regulation: “I suppose it’s theoretically true that you could raise your kids without milk, but the reality is you’ve got to go to the store and buy milk. And the commerce power–as a result of the exercise of the commerce power, you’re subsidizing somebody else.”
But wait a second. If the government’s legal theory is that it can force you to buy something whenever you’re inevitably going to be in the market for that thing–and that this is precisely what makes the health insurance industry unique, and that this is just why we don’t need to fear that there will be other mandates in the future, then how does this not mean that the goverment can force you to buy a cell phone? Or milk? On the contrary, if “to live in the modern world, everybody needs a telephone,” then it would follow that the government can force you to buy a telephone.
What’s more, Justice Breyer was quite willing to accept that argument: “[S]ince McCulloch v. Maryland, when the Court said Congress could create the Bank of the United States which did not previously exist, which job was to create commerce that did not previously exist, since that time the answer has been yes [that Congress can create commerce]. I would have thought that your answer–can the government, in fact, require you to buy cell phones…wouldn’t the answer be, yes, of course they could?”
So the Mandate really would allow Congress to force us to buy other things.
Incidentally, McColloch did not hold that “Congress could create the Bank of the United States which did not previously exist, which job was to create commerce that did not previously exist.” It upheld the constitutionality of the Second Bank of the U.S., not the First, and did so in 1819, decades after the National Bank was first created. By that time, it had become so much a centerpiece of a national economic system that even President Madison–a foe of big government and of the first Bank–believed it now really was constitutional. And here’s what Marshall said in that case: “[H]as congress power to incorporate a bank…? [T]his can scarcely be considered as an open question, entirely unprejudiced by the former proceedings of the nation respecting it. The principle now contested was introduced at a very early period of our history, has been recognised by many successive legislatures, and has been acted upon by the judicial department, in cases of peculiar delicacy, as a law of undoubted obligation.” In other words, Madison, and arguably Marshall, believed the Second Bank was constitutional precisely because it was not something that previously did not exist, and precisely because it was not creating commerce that did not exist!