STF na Mídia - MyClipp

equiring someone to do something or face a penalty,
as the health care legislation does. A lower court judge
ruled that “inactivity” — the failure to buy health
insurance — by its very nature cannot affect interstate
commerce.
Until this week, most scholars seemed to think this
would be treated by the justices as a distinction without
any special significance. “It’s a silly distinction,”
Douglas Laycock, a University of Virginia law
professor, told me this week. Opponents of the law
“have gotten an enormous amount of mileage out of
‘inactivity,’ but that really has nothing to do with the
regulation of commerce,” he said. One hundred
professors from many of the country’s major law
schools signed a statement arguing that those seeking
to overturn the law “seek to jettison nearly two
centuries of settled constitutional law” and “there can
be no serious doubt about the constitutionality” of the
insurance mandate.
But then came Justice Scalia’s now famous invocation
of broccoli. “Everybody has to buy food sooner or later,
so you define the market as food,” he said. “Therefore,
everybody is in the market. Therefore, you can make
people buy broccoli.” Justice Samuel A. Alito Jr.
chimed in, asking Solicitor General Donald B. Verrilli
Jr. to answer “as succinctly as you possibly can.”
Mr. Verrilli was anything but succinct: “The class to
which that requirement applies either is or virtually is
most certain to be in that market when the timing of
one’s entry into that market and what you will need
when you enter that market is uncertain. ...” He never
got around to discussing broccoli or, for that matter,
any other antioxidant. No wonder the justices were
soon pondering the slippery slope of federally
mandated purchases that might also be good for us,
like health club memberships.
Mr. Verrilli was trying to make the point that a decision
not to buy broccoli doesn’t increase the price others
must pay for broccoli in the same way that a decision
to forgo health insurance increases the premiums
others must pay for health insurance. But it seems to
me that a succinct answer to Justice Scalia’s question
is that the commerce clause would not limit Congress’s
ability to regulate broccoli — if members of the House
and Senate were crazy enough to pass legislation
requiring all of us to eat green vegetables and if that
were deemed a rational way to regulate commerce.
The same could be said of health clubs.
A lengthy Wall Street Journal editorial last week
argued that “the reality is that every decision not to buy
some good or service has some effect on the interstate
market for that good or service.” That may well be true,
The New York Times/ - Politics, Sex, 30 de Março de 2012
CLIPPING INTERNACIONAL (Supreme Court)
and Mr. Verrilli should have admitted it rather than
getting entangled in unconvincing semantics.
That doesn’t mean we would all be required to eat
broccoli. Congress has the constitutional power to
pass many bills that would strike most people as
idiotic, but as a popularly elected assembly, it doesn’t.
The Supreme Court itself has said: “The principal and
basic limit on the federal commerce power is that
inherent in all Congressional action — the built-in
restraints that our system provides through state
participation in federal governmental action. The
political process ensures that laws that unduly burden
the states will not be promulgated.” And absurd bills
like a broccoli mandate are likely to fail other
constitutional tests.
Mr. Verrilli seems to have done a poor job at
articulating the limits to Congressional power under the
commerce clause, but the Supreme Court has already
done that for him in two relatively recent cases that, for
the first time in decades, limit its scope. Both involved
federal efforts to exercise traditionally local police
powers — to ban firearms near schools and to impose
civil penalties for gender-motivated violence against
women — under the guise of the commerce clause.
Justice Clarence Thomas argued that such a broad
reading would confer a federal police power over the
entire nation. In both cases, it was arguably a stretch
to argue, as respective administrations have, that
carrying a gun near a school or assaulting a woman
because of her gender has anything to do with
interstate commerce.
The same could no doubt be said of many activities
traditionally reserved to the states, but defenders of
the health care law needn’t address them. The
Supreme Court has established limits to the
commerce cause, which is regulating activity that has
little or nothing to do with commerce. The
multitrillion-dollar health care and insurance industries
surely fall well within that boundary.
It seems curious that opponents of the health care law
are now looking to the commerce clause, as opposed
to the Bill of Rights, as a bulwark of individual liberty.
To the extent it ever was, that battle was lost
generations ago. To Depression-era farmers, it was no
doubt an affront to individual freedom that the federal
government had the power to tell them what crops not
to plant.
Of course, the Supreme Court could reverse decades
of its own jurisprudence and fundamentally redefine
and limit the power of Congress to regulate interstate
commerce. But conservatives should be careful what
they wish for. The commerce clause was a response to
51