is ObamaCare unconstituional (cont'd)?

From David Savage (hat tip: C-J)...

A top Obama administration lawyer defending last year's health care law ran into skeptical questions Wednesday from three federal judges here, who suggested they may be ready to declare all or part of the law unconstitutional...in an ominous sign for the administration, the judges opened the arguments by saying they knew of no case in American history where the courts had upheld the government's power to force someone to buy a product.

"I can't find any case like this," said Chief Judge Joel Dubina of the 11th Circuit Court of Appeals. "If we uphold this, are there any limits" on the power of the federal government? he asked.

Good question!

Katyal argued that health care is unique and unlike purchasing other products, like vegetables in a grocery store. "You can walk out of this courtroom and be hit by a bus," he said. And if such a person has no insurance, a hospital and the taxpayers will have to pay the costs of his emergency care, he said. 

Unique or different than vegetables? Services are typically more complex than goods. Let's consider education where the govt makes it compulsory up to some arbitrary age. They allow you to pursue schooling services (largely) as you would like. And they subsidize their own schools, forcing those who pay taxes to pony up for others. Similar, but probably a first or second cousin. Let's consider auto insurance, where many (all?) state governments compel you to purchase auto insurance, if you want to drive. This seems like the closest analogy, although it's at the state level.

It's interesting that Katyal acknowledges the if/then potential in this debate: If govt is going to do this (unconstitutional thing), can they do another (unconstitutional thing) to compensate for that?

Katyal argued that Congress could reasonably decide that since all citizens are likely to need medical care at some time in their lives, everyone who can afford it should pay part of the cost.

That's weaker. We're not at all going to use medical care to the same extent and we're not all equally able to pay for "it". 

And he said the courts should uphold the law under Congress' broad power to regulate commerce in this country. 

Now, that's a weak argument and really dangerous (although it has precedent).