It's Not About Broccoli: The False Case Against Health Care

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The law's challengers argue that mandating insurance is like forcing Americans to buy more vegetables. Here's what makes that logic so flawed -- and dangerous. 

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The challengers of the health insurance mandate have focused on the Commerce Clause of the U.S. Constitution. As conservative Judge Silberman held, the text giving Congress the power to "regulate commerce" does seem to include a power to mandate purchases, given 1780s dictionary definitions of "regulate." The challengers argue that this plain meaning should nonetheless be resisted because otherwise the clause would lack any "limiting principle," and thus could be used to force us to buy GM cars, cell phones, burial insurance, or -- their favorite bugaboo -- broccoli.

But there is a limiting principle; it is the one the Supreme Court has actually articulated in its cases. To be justified by the Commerce Clause, a federal law must (1) involve economic regulation (2) that addresses a national problem (3) that affects interstate commerce. That is a broad power, but it is not a limitless one. It does not, for example, authorize a federal law against committing violence against women or possessing a gun in a school zone because those are not economic regulations, as the Supreme Court has ruled.

So the problem is not that there is no limiting principle. It's that the challengers don't like the limiting principle that exists. They want the justices to read into the Commerce Clause a new limiting principle, one that bars laws mandating the purchase of any product. But however attractive that kind of new limiting principle might seem, it cannot be inserted into the Constitution by judicial fiat when it lacks support in the constitutional text, history, or precedent.

How does one address the terrible specter of a broccoli mandate? One response is that a broccoli mandate might not be valid under those existing limits, because there does not seem to be any national economic problem that has resulted from the failure of some of us to buy broccoli. But let us suppose one can concoct one by arguing that some hypothetical Congress might rationally think that the failure of some of us to eat broccoli makes us less healthy in a way that raises costs for others in our insurance pools. Let me further assume that, although such a hypothetical claim would be just plausible enough to meet the prevailing constitutional standard, a broccoli mandate would seem stupid to almost all of us. Does this ensnare us in a logical trap, forcing us to modify existing constitutional limits, to add a ban on purchase mandates? Not at all, for many reasons.

First, just because we may all agree that a certain type of law would seem stupid, does not mean the courts can insert a ban on such laws into the Constitution. The Constitution has no ban on stupid laws. The constitutional remedy for the enactment of a stupid law is voting out the stupid legislators who enacted it.

Second, if we all agree that a broccoli mandate seems stupid, then our political process will never impose it. Indeed, even the challengers admit that the states could adopt purchase mandates, and yet none of the 50 states has ever required us to buy broccoli, cell phones, cars, or anything else from the parade of horribles offered by the challengers.

Third, the challengers' argument would imply that the Commerce Clause must not give Congress any power to ban purchases of any product. After all, if Congress has such power, couldn't it enact outrageous laws prohibiting us from buying broccoli, GM cars, cell phones, or for that matter health insurance or even health care? The challengers' argument logically implies that because a power to prohibit could be used in these stupid ways, Congress's power to prohibit commerce also lacks a limiting principle. By that logic, judges should thus read new limits into Congress' power to prohibit commerce. But no one believes that would be proper constitutional law.

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Einer Elhauge is the Petrie Professor of Law at Harvard Law School and founding director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics.

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