From the Associated Press (h/t Sullivan):
“If the government can do that, what else can it do?” asked Justice Antonin Scalia, referring to the individual mandate portion of the Patient Protection and Affordable Care Act. He then questioned whether Congress could also require individuals to buy vegetables, such as broccoli.
There is a straightforward answer to that question: the government can do anything that does not “shock the conscience” unless it is prohibited by another clearer provision of the Constitution. That is the basic answer for any substantive due process question. Now, Scalia hates substantive due process because it is so formless. That’s why — he claims — he thinks that there is no right to privacy in the Constitution. But now, suddenly, he is just so very, very concerned about unenumerated rights.
Note that this has absolutely nothing to do with federalism or the scope of the Commerce Clause. This is a garden-variety substantive due process case dressed up as a federalism case. Scalia’s question demonstrates that he understands this. He just doesn’t care.