Supreme Court asks: Can feds require you to buy cell phones?

During arguments over the Affordable Care Act's constitutionality, and its controversial individual mandate, the justices offered a consumer electronics analogy.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
3 min read

Foes of the Affordable Care Act's individual mandate requiring Americans to buy health insurance have long argued that if the law is constitutional, a federal law forcing everyone to eat broccoli would be permitted as well.

During today's oral arguments before the U.S. Supreme Court, the justices instead asked a lawyer for the Obama administration this: Could Congress constitutionally require Americans to buy cell phones?

In other words, if Obamacare, as critics have labeled the Act, can require Americans to engage in commerce merely because they're breathing -- which is unprecedented in the history of the United States -- what constitutional limits constrain Congress? Why not a cell phone, broccoli, or car-buying mandate?

Here's an excerpt from today's transcript (PDF):

CHIEF JUSTICE JOHN ROBERTS: 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?

SOLICITOR GENERAL VERRILLI: No, Mr. Chief Justice. I think that's different. It's -- we -- I don't think we think of that as a market. This is a market. This is market regulation. And, in addition, you have a situation in this market not only where people enter involuntarily as to when they enter and won't be able to control what they need when they enter, but when they --

CHIEF JUSTICE ROBERTS: It seems to me that's the same as in my hypothetical. You don't know when you're going to need police assistance. You can't predict the extent to emergency response that you'll need, but when you do -- and the government provides it. I thought that was an important part of your argument, that when you need health care, the government will make sure you get it.

Well, when you need police assistance or fire assistance or ambulance assistance, the government is going to get it.

A few minutes later, Justice Stephen Breyer, a more liberal Clinton appointee, tried to revive the analogy by saying being required to buy a cell phone would be like being required to buy mufflers (although if you don't drive, you're not forced to buy a muffler):

JUSTICE STEPHEN BREYER: And the same with the computers, or the same with the -- 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 -- I mean, see, doesn't it depend on the situation?

GENERAL VERRILLI: It does, Justice Breyer, and if Congress were to enact laws like that, we --

JUSTICE BREYER: Would be up here defending it --

GENERAL VERRILLI: 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.

The U.S. Constitution's first sentence says that "all legislative powers herein granted shall be vested in a Congress of the United States," followed by another authorizing Congress to "make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof." (Emphasis added.)

In other words, the Constitution created a federal government with limited, enumerated powers -- including the power to regulate interstate commerce and levy taxes -- rather than one with vast authority. (The Tenth Amendment adds that any powers "not delegated to the United States by the Constitution" are reserved to the states or the people.)

Unfortunately for legal prognosticators, the U.S. Supreme Court hasn't evaluated an individual mandate before. Previous cases dealt with the constitutionality of regulating existing commerce, not forcing Americans to engage in it.

In Gonzales v. Raich (2005), a majority concluded that a federal law prohibiting a California woman from growing marijuana for her own medical use is "entitled to a strong presumption of validity" -- and authorized by the Commerce Clause -- even if state law permits the medicinal use of cannabis. On the other hand, in U.S. v. Lopez (1995), the court struck down a gun-related law on the grounds that it lacked "any concrete tie to interstate commerce."