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

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.

Fourth, suppose we imagine a future world where the political process has adopted one of the seemingly silly purchase mandates. If so, we might question our easy supposition that it was so stupid; the very fact of enactment would mean our democratic process us had concluded otherwise. If the Supreme Court imposes its judgment that such a law would be undesirable, despite the lack of any constitutional basis, it will simply be allowing its preferences to trump democratic preferences.

Fifth, like any constitutional power, the Commerce Clause is subject to other constitutional limits. In particular, the constitutional right of liberty has been interpreted in a way that bans laws violating our bodily integrity. This means that even if Congress could make me buy broccoli, it cannot make me eat it. All it can do is make me pay money, a classically commercial act. Likewise, the health insurance mandate does not require anyone to actually undergo medical treatment. It just makes us pay money.

Sixth, because purchase mandates are just an obligation to pay money, they are really no different from taxes. Indeed, the challengers conceded that Congress could have imposed a financially identical requirement if it had just used the language of taxes and tax credits. Thus, the challengers themselves have no limiting principle that precludes any of their parade of horribles. Under their theory, Congress could still impose the dreaded broccoli mandate by just calling it a tax that one can avoid if one buys broccoli.

Seventh, while the challengers' argument relies on imaginary mandates that no one is even thinking of proposing, the parade of horribles on the other side is very real. Adopting the challengers' new principle banning federal purchase mandates would throw into doubt a long list of existing federal laws that mandate commercial transactions. One federal mandate requires corporations to hire independent auditors. Another requires that unions buy bonds to insure against officer fraud. Federal statutes also mandate that hotels and restaurants commercially deal with minorities and disabled persons. Federal antitrust law sometimes requires monopolists to supply their rivals. The list is endless. Are all such federal mandates now going to be the subject of new constitutional challenges?

The more fundamental problem with the challengers' method is that it asks judges to impose new constitutional limits based on their own policy preferences about how to treat various hypotheticals. This method is even worse than directly asking judges to create new limits based on their policy preferences, because it never confronts the question of whether the health insurance mandate itself is so clearly a bad policy. Instead, it invites the justices to create a new limit based on their policy preferences about hypothetical other laws like the broccoli mandate--laws that Congress is likely to never enact--and then applies that limit to laws like the health insurance mandate that are far less silly as a policy matter.

Worse, this whole "limiting principle" methodology itself has no limiting principle. One could take any Congressional power that is defined by existing doctrine and argue that the doctrine would have no limiting principle if Congress could use it to adopt stupid laws. Judges would have to limit Congress' power to prohibit commerce, because it could be used to adopt stupid prohibitions like a ban on broccoli or health insurance. Judges would have to limit Congress' power to tax, because it could be used to tax us all 110% of our income and then throw us all in jail when that proved impossible to pay. Judges would have to limit Congress' power to declare war, since it could be used to declare war on Bermuda if Congress didn't like Bermuda shorts.

The deepest problem with the challengers' method is thus the parade of horrible judicial decisions that would be unleashed by allowing judges to create new constitutional limits unsupported by constitutional text, history, or precedent in order to preclude imaginary laws no one wants to enact. I share the challengers' aversion to the "nanny state," but it would be far worse to replace our democracy with "nanny judges" who tell us which laws we can adopt.

Presented by

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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