With the Supreme Court about to hear arguments on whether the individual mandate is constitutional this week, I've heard a lot of strange comparisons from the talking heads in the media to what else the government might be able to force someone to
March 25, 2012

With the Supreme Court about to hear arguments on whether the individual mandate is constitutional this week, I've heard a lot of strange comparisons from the talking heads in the media to what else the government might be able to force someone to buy besides health insurance, but this one by The Wall Street Journal's Paul Gigot on Fox News Sunday was one of the more bizarre.

Gigot compared the insurance mandate in the Affordable Care Act to being forced to buy a particular model of car, but completely ignored the fact that most Americans are mandated to buy auto insurance.

As this article from 2010 noted, "95 percent of American households own a car, and most Americans get to work by car (85 percent)." We've got terrible mass transit and urban sprawl where most people don't live that close to their place of employment, so the majority of Americans are being mandated to buy auto insurance. I just found it completely odd that he would use the example of buying cars and ignore the insurance mandate on car owners, while discussing insurance mandates.

For his part, Juan Williams failed to point that out, but at least gave a decent argument for how the uninsured drive up the costs for the rest of us and the reasons this would be covered under the Commerce Clause. What's a shame is we didn't get single payer in the first place with Medicare for all and we wouldn't be having these arguments at all now.

Transcript of the exchange on Fox below the fold.

WALLACE: On the other hand, I see you wriggling in your chair -- squirming in your chair, Paul.


Make the other side of the case.

GIGOT: Well, you don't have to overturn these cases to hold for the plaintiffs because these cases are different. The difference in this case, as Brit suggested, is that the government is saying we're going to compel you to participate in commerce in order to regulate you. It is not

a case of growing wheat. It is a case you must buy this certain product, and if you must buy a certain product, then we can regulate you.

But that is a very different case. And that's an extension of the plaintiff's argument and I think right of the federal power, and extension beyond which the Commerce Clause never been justified by the Supreme Court.

And so I think it is it a novel issue, it's a very grave issue, because if you can compel -- if the federal government can compel individuals to participate in commerce, where do you stop? You can't stop at health care.

What about a car? What about Juan's books, as good as they are? Can you

compel somebody to...

WALLACE: Let me just make the counter argument for the sake of argument, which is, with all due respect, you can live without reading Juan's books or, as some people talked about, broccoli. You don't have to eat broccoli. Sooner or later, everybody is going to use health care.

GIGOT: Well, how different is that than housing? How is that different from transportation? Most people in America need a car. All right? But you know what, I think I want you to buy a certain car because I like the Chevy Volt, the government likes the Chevy Volt, just like I think you need to buy a certain health care product.

We're going to mandate this product for you and you must buy that. Yes, just because somebody ultimately partakes of health care, just like the housing and other markets, we can't compel you to buy that product.

WALLACE: Mr. Justice Williams, would you like to respond to your colleague here on the bench?

WILLIAMS: Certainly. I think that, you know, Justice Gigot needs to understand here that the uninsured aren't making an affirmative step, because their failure to buy insurance affects insurance markets in the country.

It drives up the cost of insurance for you, for me, for emergency rooms that have to treat people after they get smushed. And therefore has a tremendous effect on all of the (INAUDIBLE). This is a classic example that fits under the Commerce Clause.

And in fact, if you look at the record, I think four courts have looked at this, four of the appeals courts, three have said that is exactly right. It fits under the Commerce Clause. One has said it was premature. I guess that's a possibility (INAUDIBLE). They say, you know, the law is not fully in effect so we won't rule . But two of the courts have said, yes, this exactly fits,

only one has said there is a problem.

Can you help us out?

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