Health Law Puts Focus on Limits of Federal Power

At New York Times:

WASHINGTON — If the federal government can require people to purchase health insurance, what else can it force them to do? More to the point, what can’t the government compel citizens to do?

Those questions have been the toughest ones for the Obama administration’s lawyers to answer in court appearances around the country over the past six months. And they are likely to emerge again if, as expected, the Supreme Court, as early as Monday, agrees to be the final arbiter of the challenge to President Obama’s signature health care initiative.

The case focuses on whether Congress overstepped its constitutional authority in enacting parts of the law. Lower courts have reached divergent conclusions.

Even judges in lower courts who ultimately voted to uphold the law have homed in on the question of the limits of government power, at times flummoxing Justice Department lawyers.

“Let’s go right to what is your most difficult problem,” Judge Laurence H. Silberman, who later voted to uphold the law, told a lawyer at an argument in September before the United States Court of Appeals for the District of Columbia Circuit. “What limiting principle do you articulate?” If Congress may require people to purchase health insurance, he asked, what else can it force them to buy? Where do you draw the line?

Would it be unconstitutional, he asked, to require people to buy broccoli?

“No,” said the lawyer, Beth S. Brinkmann. “It depends.”

Could people making more than $500,000 be required to buy cars from General Motors to keep it in business?

“I would have to know much more about the empirical findings,” she replied.

Judge Brett M. Kavanaugh, who ended up in dissent, then jumped in. “How about mandatory retirement accounts replacing Social Security?” he asked.

“It would depend,” Ms. Brinkmann replied.

Ms. Brinkmann was cut off before she could elaborate on her answers. In other settings, she and other administration lawyers have described what they see as the constitutional limits to government power, though not typically using concrete examples.

Keep reading.

It's a great piece.

Are there limits to federal power? The question is now before the Court.

See, "Supreme Court to Hear Case Challenging Health Law" (via Memeorandum).

Also at Althouse, "Supreme Court takes the Obamacare case":

If the Court takes down the entire Act, it would do Obama a great favor, which is why I'm predicting the Court will do just that. That was my prediction a few weeks ago, reading, not the the existing doctrine, but "the political forces at play and assessing the Court's vulnerability to those forces."

But would John Roberts really want to do Obama a favor? Interesting...