“[The uninsured are] going into the [health care] market without the ability to pay for what [they] get, getting the health care service anyway as a result of the social norms…to which we’ve obligated ourselves so that people get health care,” explained Solicitor General Donald Verrilli.
“Well, don’t obligate yourself to that,” Scalia countered. “Why — you know?”
“Well, I can’t imagine…that the Commerce Clause would forbid Congress from taking into account this deeply embedded social norm,” Verrilli responded.
“You could do it,” Scalia retorted.
More from Dalia Lithwick:
This morning in America’s highest court, freedom seems to be less about the absence of constraint than about the absence of shared responsibility, community, or real concern for those who don’t want anything so much as healthy children, or to be cared for when they are old. Until today, I couldn’t really understand why this case was framed as a discussion of “liberty.” This case isn’t so much about freedom from government-mandated broccoli or gyms. It’s about freedom from our obligations to one another, freedom from the modern world in which we live. It’s about the freedom to ignore the injured, walk away from those in peril...And now we know the court is worried about freedom: the freedom to live like it’s 1804.