If conservative Justice Antonin Scalia hadn’t already made up his mind on the individual mandate before Tuesday’s oral argument, he apparently wanted people in the court to think otherwise.
Scalia aggressively questioned the Obama administration’s lawyer Donald Verrilli on the limits of federal power, and how they might be impacted if the health care law’s requirement to purchase insurance is upheld.
That may not seem like much of a surprise. But Scalia’s opinion in a recent, key case — one that hinged on a similar question of the extent of Congress’ commerce clause power — convinced many health care reform supporters he might be in play.
“If the government can do this,” Scalia asked, “what else can it not do?” He even raised the now-famous specter of a “broccoli mandate.”
Verrilli argued that the mandate is appropriate because everyone is already part of the health insurance market. He argued that it’s there as part of a broader regulatory scheme to ensure that sick, uninsured people don’t pass the costs of their health care onto others.
Scalia didn’t seem to buy it, asking, “Is that a principle basis for distinguishing this from other situations?” He pointed out that the government might then “define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli.”
“In addition to being necessary, it must also be proper,” he said of the mandate, indicating that he does not believe it’s proper.
Scalia was vocal in needling Verrilli about the constitutionality of the insurance requirement, but was largely silent when attorneys for the 26 Republican-led states challenging it were fielding questions.
Some liberals have held out hope for winning Scalia’s vote to uphold the law, pointing to his decision in the 2005 Gonzales v. Raich case for sweeping federal power. If Scalia’s line of questioning is any indication, they shouldn’t hold their breath — he appears to believe the two cases are apples and oranges.
Sahil Kapur is a congressional reporter for TPM. He previously covered politics and public policy for numerous publications including The Guardian and The Huffington Post. He can be reached at sahil [at] talkingpointsmemo.com.