Politico reports this morning:
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It’s the toughest question the administration is likely to face: If Congress can require Americans to buy health insurance, can it force them to buy broccoli, General Motors cars, a private retirement account or any other product lawmakers think up?
That question has surfaced in each of the cases on the health law in lower courts. The government’s answer — that the law falls within the limits of what Congress can regulate — has won over some judges, but not all of them.
Solicitor General Donald Verrilli, Jr., will need to sharpen his response for the justices as well as the public, which understands the “broccoli” idea but isn’t as well versed in Supreme Court precedent on the Commerce Clause.
“The government is not standing before the court and saying, ‘We have the power to make individuals buy some good they wouldn’t otherwise consume,’” Katyal said. “The government’s point is everyone consumes health care. It’s a fact of our mortality.”
He said any concern that Congress would require the purchase and use of food, cars or almost anything else should be extinguished by protections in the Bill of Rights.
“The Bill of Rights will be a stop to any sort of ‘The government can force you to eat broccoli’” argument, Katyal said.
That question has surfaced in each of the cases on the health law in lower courts. The government’s answer — that the law falls within the limits of what Congress can regulate — has won over some judges, but not all of them.
Solicitor General Donald Verrilli, Jr., will need to sharpen his response for the justices as well as the public, which understands the “broccoli” idea but isn’t as well versed in Supreme Court precedent on the Commerce Clause.
“The government is not standing before the court and saying, ‘We have the power to make individuals buy some good they wouldn’t otherwise consume,’” Katyal said. “The government’s point is everyone consumes health care. It’s a fact of our mortality.”
He said any concern that Congress would require the purchase and use of food, cars or almost anything else should be extinguished by protections in the Bill of Rights.
“The Bill of Rights will be a stop to any sort of ‘The government can force you to eat broccoli’” argument, Katyal said.
Principal Deputy Solicitor General Neal Katyal is a smart guy. And his argument that the only limit to Congressional power that the Constitution provides is the Bill of Rights, is popular among some judges. But not the judges that matter. Justice Anthony Kennedy is expected to be the deciding fifth vote on Obamacare. Here is what he said about Katyal’s argument in his concurrence in U.S. v Comstock:
The opinion of the Court should not be interpreted to hold that the only, or even the principal, constraints on the exercise of congressional power are the Constitution’s express prohibitions.
Kennedy’s concurrence is not binding law on lower courts. But it does reveal his opinion about the limits of Congressional power under the Necessary and Proper Clause. If the Obama administration wants Kennedy’s vote, they are going to need a better argument than this tomorrow.
