The Broccoli Question: Can the Supreme Court Make You Eat Your Vegetables?

In analyzing the constitutionality of Obamacare's individual mandate, the Supreme Court must address just how far it's authority under the Commerce Clause extends.
David Fisher from Forbes asks an interesting question in one of his recent articles, a question he says the United States Supreme Court must answer when analyzing the constitutionality of the individual insurance mandate under the healthcare reform legislation enacted by the Obama administration:
If Congress can order you to buy health insurance, why can't it order you to buy (and eat!) broccoli?
As discussed in a previous article, the Supreme Court has just agreed to hear legal challenges to Obama's health care reforms, including the provision that requires individuals to purchase and maintain a minimum level of health insurance coverage. Fisher explains that the answer to the broccoli question isn't quite as simple as it seems:
If the Supreme Court finds the insurance mandate in the healthcare reform act is constitutional, it is endorsing a very expansive view of Congress’ power to regulate interstate commerce under Article I of the Constitution.
Those arguing for the individual mandate assert that Congress is authorized under the so-called Commerce Clause to regulate the business of health insurance because it is an interstate industry in which almost every American will participate at some point in his or her life. Additionally, proponents argue that the millions of the uninsured significantly impact all American citizens because of the billions of dollars of costs created by those who go without health insurance, according to Fisher's article.
But that same argument works for broccoli, the eating of which is believed to protect against colon cancer. Reducing the rate of colon cancer would reduce healthcare costs and thus have a direct economic impact on the interstate healthcare market.
Fisher quotes David Kopel, a constitutional law expert with the Cato Institute, who suggests that Obamacare advocates have "had trouble articulating anything that makes the health-care insurance market special." Kopel suggests that there are lots of products that almost every Amercan consumes, such as clothing and food, about which the same kind of argument can be made.
In fact, health insurance is one of the few products that by law can’t be purchased on an interstate basis (the states zealously protect their power to regulate the insurance industry). So on that basis, Kopel said, healthcare might be one of the least interstate markets Congress can regulate, Kopel said.
Fisher cites Michael Dorf of Cornell University Law School to help proponents of the individual mandate bolster their arguments with jurisprudence:
The key cases are U.S. vs. Lopez and U.S. vs. Morrison, two modern decisions that set limits on Congress’s Commerce Clause powers. In Lopez, the court struck down a law prohibiting guns near schools as being too disconnected from any reasonable concept of interstate commerce. And in Morrison, the court did the same. Congress tried to tie both laws to the aggregate effects of criminal acts on the economy, but in Morrison the majority held that was constitutional overreach.

"Petitioners’ reasoning …will not limit Congress to regulating violence but may …be applied equally as well to family law and other areas of traditional state regulation since the aggregate effect of marriage, divorce, and childrearing on the national economy is undoubtedly significant."

In Morrison, Justice Steven Breyer penned a dissent making the very point Obamacare critics make. It’s impossible to formulate a rule, he wrote, that allows Congress to, say, outlaw growing marijuana for your own consumption but not violence against women. “Virtually every kind of activity, no matter how local, genuinely can affect commerce, or its conditions, outside the State,” Breyer wrote. Instead of being a defect, the idea of almost unlimited Commerce Clause powers is a fact of the modern world.

"Since judges cannot change the world, the “defect” means that, within the bounds of the rational, Congress, not the courts, must remain primarily responsible for striking the appropriate state/federal balance."

But Breyer lost that fight. The majority “wanted a limiting principle” on Congress, Dorf said, and came up with one by deciding that federal laws can regulate a lot of seemingly uneconomic activity but must have a firm economic basis at their core. Even the Civil Rights Act of 1964 was passed under Commerce Clause powers because it targeted employers, schools and businesses, all arguably economic actors.
Thus, because the pro-individual mandate is directed at the person engaging in the behavior, it's more constitutionally palatable, according to Dorf's reasoning. Further, proponents could successfully argue that requiring citizens to buy health insurance is part of an overall interstate regulatory scheme including health insurance and the health care industry.

A particular "oddity" about the health care reform legislation, according to Fisher and Dorf: if Congress had made the mandate a tax, then it would have been clearly valid under congressional taxing authority. However, the political liability of asserting a health care tax in the economic climate of Obamacare's passage made proponents of the mandate classify it as anything but a tax, leaving it subject to constitutional attack.

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