Well, yes, I thought the answer to that was, since McCulloch versus 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. I would have thought that your answer -- can the government, in fact, require you to buy cell phones or buy burials that, if we propose comparable situations, if we have, for example, a uniform United States system of paying for every burial such as Medicare Burial, Medicaid Burial, Ship Burial, ERISA Burial and Emergency Burial beside the side of the road, and Congress wanted to rationalize that system, wouldn't the answer be, yes, of course, they could.I'm trying to imagine Congress trying to justify, in the interest of public safety, requiring everyone to own a cell phone, with the absurd contracts that most cell phone companies love to use to lock in teenagers and young adults.
Even more entertaining is what happened when Justice Kennedy asked Verrilli to explain what, by Verrilli's very broad definition of Congressional authority to regulate interstate commerce, would not be within the government's authority, starting on page 16:
GENERAL VERRILLI: Yes. The -- the rationale purely under the Commerce Clause that we're advocating here would not justify forced purchases of commodities for the purpose of stimulating demand. We -- the -- it would not justify purchases of insurance for the purposes -- in situations in which insurance doesn't serve as the method of payment for service -And yet the justification in Wickard v. Filburn (1942) for regulating the amount of wheat that a farmer could grow, grind into wheat, and make into bread on his own farm was that home-grown and consumed wheat was a significant fraction of total demand, and therefore it was within the government's authority to regulate such non-interstate activity, because it influenced total demand. Is there anything that the interstate commerce clause can't control, since all of us influence the national economy, at least in a very small way?
JUSTICE KENNEDY: But why not? If Congress -- if Congress says that the interstate commerce is affected, isn't, according to your view, that the end of the analysis.
GENERAL VERRILLI: No. The -- we think that in a -- when -- the difference between those situations and this situation is that in those situations, Your Honor, Congress would be moving to create commerce.
Here Congress is regulating existing commerce, economic activity that is already going on, people's participation in the health care market, and is regulating to deal with existing effects of existing commerce.
UPDATE: Powerlineblog points out another mistake that Justice Breyer made. Breyer was under the impression that the government forced Filburn to go buy wheat. They did not. They limited the amount that Breyer could grow. In practice, this might have the same net effect--but:
The distinction between the case vaguely recalled by Justice Breyer and the one decided by the Supreme Court in the Wickard case might be the difference between a pass or a fail on a fairly graded Con law exam in law school. It goes to the heart of the Obamacare case. Justice Breyer has apparently been pursuing other intersts over the past few months.But Breyer has a good excuse. He obviously wasn't expecting this case to show up this week.