Harvard constitutional law prof Mark Tushnet is very cogent here. Oral argument is particularly confusing - to read, and to engage in - because nobody has the briefs (which they didn't write) at hand, so it is much less coherent than are the briefs. Apropos the Chief Justice's question: the government is not going to order you to buy a cell phone because your failure to buy a cell phone does not make cell phones unviable. But failure to buy health insurance until needed could undermine the viability of the health insurance! Burial insurance? I think government could compel you to contribute to that, just like social security. Broccoli? Antonin Scalia really is a jerk. Tushnet spells it all out - GWC
by Mark Tushnet
"The only question is not whether the SG offered a coherent distinction between the health insurance market and other markets – *a* limiting principle – but whether someone’s going to find the distinction adequate. (It’s not a Drew-Days situation where Days couldn’t offer, in Lopez, any limiting principle; here there’s one on offer, so the question is whether the only demand in the case is for a limiting principle, or rather is for a “good” or “strong” or something like that limiting principle.)"
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