First comes government health care, then broccoli

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Updated: December 17, 2011 8:20AM

Acouple of months ago, Deputy Assistant Attorney General Beth Brinkmann was standing before the U.S. Court of Appeals for the D.C. Circuit, defending the law requiring Americans to buy health insurance, when Judge Laurence Silberman asked her about broccoli. Specifically, he wanted to know whether a law requiring Americans to buy broccoli would exceed the federal government’s authority to regulate interstate commerce. “No,” Brinkmann said. “It depends,” she added.

Silberman evidently was troubled by that shifty answer. Last week he expressed “discomfort with the Government’s failure to advance any clear doctrinal principles limiting congressional mandates that any American purchase any product or service in interstate commerce.” Oddly, he voiced that concern in the context of a majority opinion upholding the health insurance mandate. Dissenting Judge Brett Kavanaugh congratulated the majority for its candor in “admitting that there is no real limiting principle to its Commerce Clause holding.”

For the sake of our teetering federalist system, which helps preserve liberty by restricting the national government to specifically enumerated powers, let’s hope the Supreme Court can locate the limit Silberman could not. On Monday the Court agreed to review a decision by the 11th Circuit U.S. Court of Appeals, which unlike the D.C. Circuit deemed the insurance mandate unconstitutional, saying Congress may not “compel individuals to enter into commerce so that the federal government may regulate them.”

If Congress had that authority, Judge Joel Dubina warned in the majority opinion, it would be free to dictate all manner of transactions, beginning with other forms of insurance and extending to decisions about housing, education and saving for retirement. In fact, he said, if a decision not to buy something can trigger federal intervention, provided it has a “substantial effect” on interstate commerce when combined with similar choices by millions of other individuals, “we are unable to conceive of any product whose purchase Congress could not mandate.”

Which brings us back to broccoli. Dissenting from the 11th Circuit’s decision, Judge Stanley Marcus said health insurance is not like broccoli because failing to buy it imposes costs on others. Taxpayers and insurance policyholders pick up the tab for treating the uninsured.

By contrast, Marcus said, the rationale for a broccoli mandate is that eating more green vegetables would “improve overall worker productivity.” He noted that the Supreme Court has rejected such productivity-based reasoning precisely because it could apply to almost any activity.

You could also argue that the failure to eat green vegetables imposes costs on others, because it makes people less healthy and therefore more likely to need medical treatment.

That sort of argument becomes increasingly powerful as the government’s role in health care expands. When the government forces you to pay for other people’s medical treatment, either directly through taxpayer subsidies or indirectly by requiring insurers to take all comers and charge them the same rates regardless of health, you have a financial stake in other people’s lifestyle choices.

If you value your freedom to spend your money as you choose, you should hope the Supreme Court rejects the Obama administration’s open-ended view of the Commerce Clause — no matter how you feel about broccoli.