One week before the Supreme Court hears arguments on Obamacare, CNN's legal analyst has already come down against the conservative side as "really weak." Jeffrey Toobin gave the legal precedents for an individual health insurance mandate and insinuated that it was constitutional on Monday's Starting Point.
Toobin said, regarding those who believe Congress does not have the power to force people to buy health insurance, "basically that is a really weak argument, in that the United States Congress has been regulating health care for years, has been involved in this market for years, and this is a perfectly ordinary use of Congress's power."
Toobin has shown his liberal colors in the past. He said the Constitution is "not sacrosanct," has ripped the electoral college as a "crazy system," and has accused the current Supreme Court of "conservative judicial activism" while labeling Chief Justice Roberts as "very, very conservative."
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In his current piece for The New Yorker, Toobin continued to criticize the current Supreme Court as a majority of conservatives bucking the legal precedent on race, abortion, and campaign finance.
"As in the Senate, moderate Republicans held sway for years at the Supreme Court, but that species has vanished on both sides of First Street," the liberal Toobin lamented. He added that the Republican-appointed judges have "cut a swath" through previous Court arguments on "race, abortion, and campaign finance."
A transcript of the segment, which aired on March 19 on Starting Point at 7:38 a.m. EDT, is as follows:
JEFFREY TOOBIN: All right, remember, the Supreme Court is not deciding whether health care is a good idea, whether this plan is the right plan or not. All they are deciding is did Congress have the authority under the Constitution to pass this plan? And the Congress acted pursuant to the Commerce Clause of Article One, which says the Congress can pass laws regulating interstate commerce. It's the grant of authority for most of what Congress does. Medicare, Medicaid, all have been done under the Commerce Clause.
SOLEDAD O'BRIEN: So the bottom line is, is making people buy health insurance a legitimate use of the power of Congress?
TOOBIN: Correct, and the challengers in these laws have said no. This is not something Congress can do. What I wrote in The New Yorker this week, what I think is that basically that is a really weak argument, in that the United States Congress has been regulating health care for years, has been involved in this market for years, and this is a perfectly ordinary use of Congress's power.
O'BRIEN: Arguments for?
TOOBIN: – is that everyone in the United States, whether you want to be or not, is in the health care market, because if you don't buy insurance and you get hit by a car, you're going to be taken to the hospital. You are going to be – your healthcare is going to be paid for by you and by me, the taxpayers are going to pay for your health care, so all of us are in the health care market.
The argument against is that Congress does not have the right to tell people to buy a product. You can't tell people to buy broccoli, you can't tell people to do any – make any purchase in the private market.
O'BRIEN: Why do you think that's not a valid argument?
TOOBIN: Because we tell people to do things all the time. You can't buy a car without seat belts. You have to buy a car with seat belts. This is part of the market. You can – there's a famous Supreme Court case from the '40s which said you – if you're a farmer, you can't grow wheat even if you're not even going to sell the wheat, because it affects the national market for wheat.
CAIN: Two points of emphasis. This debate is not about whether health policy and the government's involvement in health policy is a good or bad idea. We agree on that.
TOOBIN: We agree on that.
CAIN: Second of emphasis, Jeff is alluding to is this is a regulation of either activity or inactivity. The government's argument will be by not buying health insurance you'll eventually go to the hospital and therefore, your inactivity is activity. The point I'm saying is this law says for the first time just by existing in this country, just by living, you have broken the law if you have not bought health insurance.
The difference between 1940, a case called Wickard v. Philbin is the government said, this man must not buy a certain amount – no it said, it put a quota on how much wheat he could grow. The difference is this time they're saying what's something you must buy. They didn't say something he must buy then. They didn't tell him he had to go buy wheat –
O'BRIEN: Which – well answer that, but which justice are they focusing on to try to see if they'll get –
TOOBIN: Well, first of all the government tells you to do all sorts of things. It tells to you pay taxes. It tells you to pay your Medicare taxes. I mean, that's another area –
CAIN: That's a taxing issue, though. That's not a regulation issue.
TOOBIN: That's another justification for this law, under the taxing power. There seem to be four votes almost for certain to uphold the law, the four more liberal members of the court, Ginsburg, Breyer, Sotomayor and Kagan. How are they going to get a fifth vote? Anthony Kennedy is usually the swing vote, but here you have several justices that have actually upheld broader grants of power, of federal power.
Justice Scalia has sometimes done it. Chief Justice Roberts has sometimes done it. The only sure vote that this is unconstitutional is Clarence Thomas, because he has said he doesn't believe in this theory of federal power.