Encamped on his usual bench in Agora Park, retired law Professor Justin Good routinely engaged passersby with the Socratic skills that had terrified his former students. On a breezy Sunday, Max Right, a retired judge, stopped to chat while walking his dog. Max was upset.
Professor: What’s wrong, Max?
Max: It’s that darn new health care law. It forces me to buy insurance. Next thing you know, the government will try and make me eat broccoli. It’s outrageous, and in all my years on the bench I never saw such an unprecedented power grab.
Professor: I haven’t kept up with all the fuss about the law. Could I ask you more about it?
Professor: You’re talking about the new law that regulates health care and health insurance, right?
Professor: And it’s unprecedented because it has a mandate?
Professor: The government makes me pay taxes. And I got drafted into the Army. Are those mandates?
Max: Those are different. This isn’t just any mandate. It involves commerce.
Professor: Health care and health insurance are big markets, so it must be interstate commerce, right?
Max: That’s right.
Professor: It’s pretty common for Congress to regulate interstate commerce, isn’t it?
Professor: And it’s not unprecedented for Congress to regulate health care and health insurance, is it? I seem to recall some law about hippos.
Max: That’s HIPAA. But you’re being too general. What’s unprecedented is that Congress is making people buy something.
Professor: I see. Tell me, Max, how old are you?
Professor: How do you pay your medical bills?
Max: Mostly Medicare.
Professor: How does that work?
Max: C’mon, Prof, you must know this. Medicare is automatic when you turn 65. The government’s deducted money from my paycheck for 40 years to pay for it.
Professor: Interesting. Did you pay that money voluntarily?
Max: Of course, not. The government made me pay it.
Professor: So didn’t the federal government make you buy Medicare health insurance?
Max: Professor, you’re missing the key distinctions. Medicare is a government program. It’s unprecedented for the government to make me buy something from a private company.
Professor: Ahh. (stroking his beard) Is that a new Hummer you drove here?
Max: Why, yes. I got it from Lochner Motors.
Professor: Did you buy seat belts?
Max: Of course. The government requires that all new cars have seat belts.
Professor: So, then, didn’t the government require you to buy seat belts from a private company?
Max: No. No. No. I didn’t mean the government’s never required me to buy something when I was already buying something else. You’re still looking at this too broadly.
Professor: I’m sorry. I haven’t had my Ritalin today. I see you’re limping, Max. What happened?
Max: Thanks for asking. I fell and broke my leg four months ago. I had to go to the emergency room and have surgery. Now I’m in rehab.
Professor: That’s too bad. Must have been painful, not to mention expensive.
Max: Insurance picked up most of it, and I paid the rest.
Professor: So, Max, doesn’t that mean you really are in the market to purchase health care, just as you were in the market to purchase a car?
Max (turning red): That’s different. I voluntarily bought a car. I had no choice about getting my leg fixed.
Professor: I get it. It’s only a precedent if it’s voluntary. Let me ask you this, Max. Suppose you didn’t have insurance. Could you have paid the medical bills yourself?
Max: No way. It was more than $15,000. I only have $500 in the bank.
Professor: Would the hospital have treated you if you hadn’t been insured?
Max: Absolutely. I had a bone sticking out. Hospitals can’t leave you bleeding on the street unless you can pay. That would be callous.
Professor: We wouldn’t want that. Well, Max, I see your dog is getting impatient. Thanks for your explanation of why the requirement to have health insurance is so unprecedented and sweeping that it wipes out all limits on federal power. I see now what the problem is.
They shook hands. Max turned and limped away with his dog. “Damned socialist,” he muttered.
Robert Weiner is a partner at Arnold & Porter in Washington. He was previously associate deputy attorney general at the U.S. Department of Justice. At DOJ, he oversaw the defense of the new health care law.