During yesterday’s arguments on the constitutionality of Obamacare’s individual mandate, Justice Stephen Breyer took exception to the states’ argument that the mandate imposes, for the first time in American history, a congressional obligation that private citizens must purchase a product of the government’s choosing. Breyer, who consistently grants extraordinary deference to Congress under the commerce clause and correspondingly little deference to our government’s federalist design, said, “I look back into history, and I see it seems pretty clear that if there are substantial effects on interstate commerce, Congress can act.”

Breyer then offered three examples to support his point: