Justice Kennedy specifically pointed out that federalism requires choice and that without choice there is nothing left of federalism.
Much has been discussed about Marbury v Madison and the Court’s legal standing to review acts of Congress. I want to go back to the discussion in the arguments whether there are limits within the Commerce Clause.
Justice Kennedy again point blank asked, “Can you identify any limits on the Commerce Clause?” Justice Scalia went further by asking whether Congress could force people to eat broccoli simply because it’s healthy.
My belief, although I am not an attorney, is that the law is unconstitutional for the reason that the law punishes a person or a company for NOT buying a service, ie: health insurance. The law doesn’t directly force you to buy it, but fines you for not buying it.
It’s a reverse coercion to use the same term discussed the day I heard arguments. Do I buy health insurance or pay the penalty? Can the federal government do that? Does our Constitution allow that?
The answer is different for states. They very well may be able to setup a health insurance system based on their state constitutions…BUT that doesn’t matter in this case.
The only people who really know what the answer is to the constitutionality question are the nine justices and their clerks who are now drafting opinions in the case.
Rep. Shimkus (R-Ill) serves on the House Committee on Energy and Commerce