(CNSNews.com) - During oral arguments in the Supreme Court this week, Justice Stephen Breyer posed and answered the core question at issue in the controversy over the constitutionality of Obamacare’s mandate that individual Americans must buy government-approved health insurance policies: Can Congress order individuals to buy a good or service?
“Yes, of course they could,” said Breyer.
In the history of the nation, according to the Congressional Budget Office, the federal government has never done this.
But Breyer, on Tuesday, stated his belief that the basic power of Congress to do such a thing was settled by the Supreme Court as early as 1819, in the case of McCulloch v. Maryland, in which the court decided Congress had the power to create a Bank of the United States.
Breyer explained his point of view after becoming impatient with the convoluted answers Solicitor General Donald Verrilli had offered up in response to questions from Justices Sam Alito and Anthony Kennedy and Chief Justice John Roberts.
Alito had asked Verrilli if Congress could force young people to buy burial insurance because everyone is going to die someday. Roberts asked Verrilli if Congress could force people to buy cell phones because it would facilitate contacting emergency services in the event of an accident. And Kennedy asked Verrilli: “Can you create commerce in order to regulate it.”
“I'm somewhat uncertain about your answers to, for example, Justice Kennedy,” said Breyer. He “asked, can you, under the Commerce Clause, Congress create commerce where previously none existed.
“Well, yes,” said Breyer, “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 [to] 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,” said Breyer.
“And the same with the computers, or the same with the cell phones, if you're driving by the side of the highway and there is a federal emergency service, just as you say you have to buy certain mufflers for your car that don't hurt the environment, you could,” said Breyer.
“I mean, see, doesn't it depend on the situation?” said Breyer.
“It does, Justice Breyer,” said Verrilli, “and if Congress were to enact laws like that, we –”
“Would be up here defending it,” said Breyer.
“It would be my responsibility to then defend them, and I would defend them on a rationale like that, but I do think that we are advancing a narrower rationale,” said Verrilli.
Breyer served as a counsel to the Senate Judiciary Committee in the late 1970s, when Sen. Ted Kennedy (D.-Mass.) chaired that committee. In 1980, President Jimmy Carter appointed him to the U.S. Court of Appeals for the First Circuit. In 1994, President Clinton nominated him to replace retiring Supreme Court Justice Harry Blackmun, who in 1973 had authored the Roe v. Wade decision that declared abortion a constitutional right.
When Breyer was confirmed to the Supreme Court, only 9 Republicans in the Senate voted against him.