During yesterday’s arguments on the constitutionality of Obamacare’s individual mandate, Justice Stephen Breyer took exception to the states’ argument that the mandate imposes, for the first time in American history, a congressional obligation that private citizens must purchase a product of the government’s choosing. Breyer, who consistently grants extraordinary deference to Congress under the commerce clause and correspondingly little deference to our government’s federalist design, said, “I look back into history, and I see it seems pretty clear that if there are substantial effects on interstate commerce, Congress can act.”

Breyer then offered three examples to support his point:

“I say, hey, can’t Congress make people drive faster than 45 — 40 miles an hour on a road? Didn’t they make that man growing his own wheat go into the market and buy other wheat for his — for his cows? Didn’t they make Mrs. — if she married somebody who had marijuana in her basement, wouldn’t she have to go and get rid of it?”

Breyer’s second example, however, isn’t accurate. Congress did not require the farmer in Wickard v. Filburn to buy wheat. It limited the amount of wheat he could grow. He may have decided to buy wheat in response, or sell less of his allotment and keep more of it for his own use, or take other courses of action, but he was not required to purchase wheat under penalty of law — a fundamental distinction.

Breyer’s first example cites a power that, so far as I know, Congress has never claimed. When Congress wants states to lower speed limits within their borders, even on interstates, it gets them to do so by taking actions like threatening to withhold federal highway funds. Congress doesn’t set speed limits itself. In any event, telling people what speed they can’t exceed (or, in Breyer’s exact example, what speed they must exceed) bears little resemblance to compelling them to buy a product.

Breyer’s third example is, indeed, of an actual congressional power, but its relevance to the case at hand seems mysterious. Is Breyer saying that because some unfortunate brides have to remove their husbands’ pot stashes, Americans can be compelled to buy federally approved health insurance? That’s not an argument that seems likely to persuade the majority of the Court — or of the citizenry.

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