GENERAL VERRILLI: No. It's because you're going -- in the health care market, you're going into the market without the ability to pay for what you get, getting the health care service anyway as a result of the social norms that allow -- that -- to which we've obligated ourselves so that people get health care.(Tr. at 20).
JUSTICE SCALIA: Well, don't obligate yourself to that. Why -- you know?
Remember Alan Grayson, who on the House floor, described the GOP health care plan as "don't get sick, and if you do get sick, die quickly?:
Nino seems on board with this.
Incidentally, overstrained emergency rooms really aren't a good answer to the problem; as the tragic, fatal misdiagnosis of Anna Brown exemplifies, over-reliance on emergency rooms can lead to patently avoidable loss of life. Instead of receiving the care she needed, Ms. Brown was arrested for trespassing in the hospital, and died in a holding cell. The video of her arrest is harrowing:
She had no drugs in her system, according to toxicology. She was angry, frustrated, and frightened. She died.
Scalia's flip answer is that of a man who has been too long in the cloister, who has forgotten that his decisions impact the lives of many. (As a good conservative friend of mine pointed out, the same charge could be (and has been) fairly leveled at Oliver Wendell Holmes). Anna Brown was not an abstract counter in a game, and Scalia, and all of the participants in this debate, owe her and those without meaningful access to health care, more respect.
On the merits, the Commerce Clause question is, based on precedent, quite simple, really. The Commerce Clause has long been held to encompass activity
even if [the regulated person's] activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.. We have never required Congress to legislate with scientific exactitude. When Congress decides that the “ ‘total incidence’ ” of a practice poses a threat to a national market, it may regulate the entire class.Gonzales v. Raich (2005); quoting Wickard v. Filburn (1942). Moreover, in Wickard,the Court rejected a claim that:
forcing some farmers into the market to buy what they could provide for themselves, is an unfair promotion of the markets and prices of specializing wheat growers. It is of the essence of regulation that it lays a restraining hand on the self-interest of the regulated, and that advantages from the regulation commonly fall to others. The conflicts of economic interest between the regulated and those who advantage by it are wisely left under our system to resolution by the Congress under its more flexible and responsible legislative process. [n29] Such conflicts rarely lend themselves to judicial determination. And with the wisdom, workability, or fairness, of the plan of regulation, we have nothing to do.In so ruling, the Court noted that the broadest definition of the scope of the Commerce Clause was that of Chief Justice John Marshall in Gibbons v. Ogden (1824), who after expressly refusing to apply "strict construction" to enumerated powers (such as the Commerce Clause) stated that
the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in Congress as absolutely as it would be in a single government, having in its Constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States. The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from its abuse.So all of Justice Kennedy's searching for a limiting principle that can establish a bright line beyond which Congress may not go--why, that requires the overturning of not just the New Deal Court, but of the Founders.
[Edited to remove a grammatical error that was plaguing me.]