POLITICS

Key questions from the conservative justices

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Politics,Beltway Confidential,Conn Carroll

CHIEF JUSTICE ROBERTS: Well, the same, it seems to me, would be true say for the market in emergency services: police, fire, ambulance, roadside assistance, whatever. You don't know when you're going to need it; you're not sure that you will. But the same is true for health care. You don't know if you're going to need a heart transplant or if you ever will. So there is a market there. To some extent, we all participate in it. So can the government require you to buy a cell phone because that would facilitate responding when you need emergency services? You can just dial 911 no matter where you are? 

JUSTICE ALITO: What you just said addresses what's necessary. Necessary does not mean essential, just reasonably adapted. But in addition to being necessary, it has to be proper. And we've held in two cases that  something that was reasonably adapted was not proper  because it violated the sovereignty of the States, which  was implicit in the constitutional structure.  The argument here is that this also is -- may be necessary, but it's not proper because it violates an equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a  government that has all powers; that it's supposed to be  a government of limited powers. And that's what all this questioning has been about. What -- what is left? If the government can do this, what, what else can it  not do?

JUSTICE KENNEDY: I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this,  what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?

JUSTICE SCALIA: Why do you define the market that broadly? Health care. It may well be that everybody needs health care sooner or later, but not everybody needs a heart transplant, not everybody needs a liver transplant.  Could you define the  market -- everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli?

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