"If the government can do this, what, what else can it not do?" asked Supreme Court Justice Antonin Scalia in arguments on the constitutionality of the requirement that nearly all Americans buy health care insurance or face a penalty.
"All bets are off," Chief Justice John G. Roberts Jr. gravely added.
Thus did Supreme Court arguments last week over the Obama administration's health care law emerge as a historic test of federal power versus individual liberty.
If, as now seems not only possible but perhaps likely that the Supreme Court will strike down the health care law as unconstitutional, it would be a breathtaking departure from decades of Supreme Court jurisprudence.
Limiting Congress' power to legislate under what is known as "the commerce clause'' could have far-reaching, and unintended, consequences beyond health care. No one disputes that Congress can enact laws to carry out powers enumerated in the Constitution, including the power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."
As the nation's economy evolved from largely local markets to regional, national and increasingly global ones, the Supreme Court has taken a progressively broader view of congressional power under the commerce clause, even when individual freedom had to be sacrificed. This included limiting one farmer's ability to plant wheat during the Depression because his production affected the overall supply and hence had an effect on interstate commerce; and, more recently, upholding a federal ban on homegrown marijuana even if the plant never crossed state lines. The court has stressed that Congress needs only a "rational basis" for concluding that economic activity might affect interstate commerce.
There would seem to be little argument that health care affects interstate commerce, and that one person's decision to buy or not buy insurance, just like one farmer's decision to plant wheat, would affect a national market. Congress has estimated that health care services and insurance account for 17 percent of the U.S. gross domestic product: more than $2 trillion annually.
But constitutional opponents of the law have seized on the mandate requiring most people to buy health insurance as an unconstitutional infringement of individual liberty. They've argued that a ban on individual activity that, magnified in the aggregate, might affect interstate commerce (like wheat farming), is fundamentally different from requiring someone to do something or face a penalty, as the health care legislation does. A lower court judge ruled that "inactivity" — the failure to buy health insurance — by its very nature cannot affect interstate commerce.
Until this week, most scholars seemed to think this would be treated by the justices as a distinction without any special significance.
But then came Justice Scalia's now famous invocation of broccoli.
"Everybody has to buy food sooner or later, so you define the market as food," he said. "Therefore, everybody is in the market. Therefore, you can make people buy broccoli." Justice Samuel A. Alito Jr. chimed in, asking Solicitor General Donald B. Verrilli Jr. to answer "as succinctly as you possibly can."
Verrilli was anything but succinct, and he never got around to discussing broccoli or, for that matter, any other antioxidant. No wonder the justices were soon pondering the slippery slope of federally mandated purchases that might also be good for us, like health club memberships.
But it seems to me that a succinct answer to Scalia's question is that the commerce clause would not limit Congress's ability to regulate broccoli — if members of the House and Senate were crazy enough to pass legislation requiring all of us to eat green vegetables and if that were deemed a rational way to regulate commerce.
But that doesn't mean we would all be required to eat broccoli. Congress has the constitutional power to pass many bills that would strike most people as idiotic, but as a popularly elected assembly, it doesn't. And absurd bills like a broccoli mandate are likely to fail other constitutional tests.
The Supreme Court itself has articulated limits to congressional power under the commerce clause in two relatively recent cases that, for the first time in decades, limit its scope. Both involved federal efforts to exercise traditionally local police powers — to ban firearms near schools and impose civil penalties for gender-motivated violence against women — under the guise of the commerce clause. Justice Clarence Thomas argued that such a broad reading would confer a federal police power over the entire nation. In both cases, it was arguably a stretch to argue, as respective administrations have, that carrying a gun near a school or assaulting a woman because of her gender has anything to do with interstate commerce.
The same could no doubt be said of many activities traditionally reserved to the states, but defenders of the health care law needn't address them. The Supreme Court has established limits to the commerce cause, which is regulating activity that has little or nothing to do with commerce. The multi-trillion-dollar health care and insurance industries surely fall well within that boundary.
It seems curious that opponents of the health care law are now looking to the commerce clause, as opposed to the Bill of Rights, as a bulwark of individual liberty. To the extent it ever was, that battle was lost generations ago. To Depression-era farmers, it was no doubt an affront to individual freedom that the federal government had the power to tell them what crops not to plant.
Of course, the Supreme Court could reverse decades of its own jurisprudence and fundamentally redefine and limit the power of Congress to regulate interstate commerce. But conservatives should be careful what they wish for. The commerce clause was a response to the chaotic and often conflicting state regulations that hobbled the nation under the Articles of Confederation. Its interpretation over the ensuing two centuries has wisely reflected the growing nationalization and globalization of economic activity and by doing so, has promoted economic growth.