In it, but not of it. TPM DC
"If the government can do this," Scalia asked, "what else can it not do?" He even raised the now-famous specter of a "broccoli mandate."
Verrilli argued that the mandate is appropriate because everyone is already part of the health insurance market. He argued that it's there as part of a broader regulatory scheme to ensure that sick, uninsured people don't pass the costs of their health care onto others.
Scalia didn't seem to buy it, asking, "Is that a principle basis for distinguishing this from other situations?" He pointed out that the government might then "define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli."
"In addition to being necessary, it must also be proper," he said of the mandate, indicating that he does not believe it's proper.
Scalia was vocal in needling Verrilli about the constitutionality of the insurance requirement, but was largely silent when attorneys for the 26 Republican-led states challenging it were fielding questions.
Some liberals have held out hope for winning Scalia's vote to uphold the law, pointing to his decision in the 2005 Gonzales v. Raich case for sweeping federal power. If Scalia's line of questioning is any indication, they shouldn't hold their breath -- he appears to believe the two cases are apples and oranges.