The Wall Street Journal editorial page provides this summary of Tuesday’s oral arguments.  Questions from Justice Kennedy are encouraging.

“Can you create commerce in order to regulate it?” inquired Justice Kennedy, in the first question from the bench. To ask another way, does the Administration think it has plenary police powers to coerce individuals into economic transactions they would otherwise avoid?

Mr. Verrilli replied that health care is “unique,” so Justice Samuel Alito brought up the “market for burial services” and asked if the government could mandate funeral insurance. After all, in the long run we are all dead and thus could transfer the costs of our deaths to the rest of society. (See nearby.)

Mr. Verrilli’s error is that even if health care and health insurance were intrinsically different from all other markets—and they aren’t—that fact is constitutionally irrelevant. Any federal exercise of police powers is untenable because the Constitution gives such powers to the states.

Justice Scalia bowed at this reality when he asked if having blue eyes would be a meaningful principle limiting the mandate. “That would indeed distinguish it from other situations,” he said, but it would also be irrelevant because it would still be “going beyond what the system of enumerated powers allows the government to do.”

Justice Scalia returned to this point when he said that apropos of the Necessary and Proper Clause, “in addition to being necessary, it has to be proper. And we’ve held in two cases that something that was reasonably adopted was not proper because it violated the sovereignty of the states, which was implicit in the constitutional structure.”

Those core features of the American system were also stressed by Justice Kennedy. “The government is saying that the federal government has a duty to tell the individual citizen that it must act,” he said, “and that is different from what we have in previous cases, and that changes the relationship of the federal government to the individual in the very fundamental way.”

Justice Kennedy later expressed some sympathy for the government’s claim that young people who don’t buy insurance are “very close” to affecting interstate commerce, but the key distinction is that proximity is not enough and can’t be enforced by the courts. To regulate individuals at any point in their lives merely because they exist would still undermine the accountability and destroy the dual sovereignty that are the touchstones of his jurisprudence.