WELL, THE COURT DOES FOLLOW THE ELECTION RETURNS:

In her questioning, Justice Ruth Bader Ginsburg pointed out that there is a model for federal social insurance that mandates participation by all Americans and is unquestionably constitutional: Social Security. It covers everyone, whether we want to be covered or not, and it requires that we pay a special tax to fund it. In other words, despite the controversy over whether the federal government can force you to obtain private insurance, there is no doubt that it can force you to accept government-run insurance.

What about Medicaid? In a telling exchange, Justice Elena Kagan asked Paul Clement, attorney for the 26 states challenging the health-care law, whether a ruling that the expansion of Medicaid is coercive would invalidate the entire program. Clement's noncommittal response was "not necessarily."

However, once again, there is a federal insurance program that would clearly pass constitutional muster. That is Medicare, which covers the elderly and is run entirely by the federal government. Medicare gives no role to the states and therefore does not coerce them into anything. If the opponents of health-care reform prevail, Congress would be able to expand public health-care coverage only if the federal government does it alone.

Follow @brothersjudd