Don't Worry: Congress Can Make You Buy Broccoli, but You Don't Have to Eat It (Maybe)

The other day, Peter Suderman noted the tendency of ObamaCare's defenders to insist that its constitutionality is beyond question, even though the policy of forcing Americans to buy government-approved health insurance is unprecedented and judges (including a Democratic appointee who voted to overturn the law) have come down on both sides of the issue. While the Supreme Court seems to think ObamaCare's opponents have raised arguments that need to be addressed, many supporters of the health insurance mandate (but not all) prefer to pretend there is no real controversy. Writing in The New York Times, Harvard law professor Einer Elhauge offers a fresh example of this genre, claiming that ObamaCare must be constitutional because Medicare is.

Leaving aside the question of whether Medicare actually is authorized by the Constitution, there is little doubt that the current Supreme Court would say it is, based on a long line of decisions that have expanded the power of the federal government beyond anything contemplated by the Framers. Elhauge says forcing Americans to buy medical coverage from private insurers is essentially the same as making them pay for Medicare. But the Supreme Court might well conclude that making people buy a product or service from a private company—something that Congress has never tried to do before—is fundamentally different from taxing them to fund an entitlement program. Aside from the public/private distinction, Americans are required to pay for Medicare, but they are not required to enroll in it. By contrast, the health insurance mandate demands that people obtain a minimum level of coverage but does not necessarily require that they pay for it (since the mandate can be satisfied by employer- or government-provided insurance). Furthermore, Medicare taxes current workers to cover the medical expenses of current retirees, whereas private insurers collect premiums to cover the medical expenses of the people who pay the premiums. In the latter case, people are paying for a service; in the former case, they are not really buying anything. 

If Elhauge's Medicare analogy is not the ironclad argument he thinks it is, the Commerce Clause conclusions he draws from the program's presumed constitutionality are downright alarming. Instead of grounding Medicare in the power to collect taxes, he portrays it as an exercise of the power to regulate interstate commerce. Why? Because paying Medicare taxes is "a condition of entering into a voluntary commercial relationship, namely employment." That means "Congress can mandate the purchase of health insurance as long as it conditions that mandate on engagement in some commercial activity," which "is effectively the same as the mandate, because it is hard to believe that anyone in this nation has never bought or sold anything in his life." So according to Elhauge, if you buy a pack of gum, you thereby authorize Congress to make you buy health insurance.

Since the Supreme Court has allowed Congress to regulate intrastate economic activities when they have a "substantial effect" on interstate commerce, Elhauge argues, "a statute saying 'anyone who has engaged in any activity that affects commerce must buy health insurance' would clearly be constitutional." Although the "substantial effects" doctrine is perniciously permissive (and should be abandoned for that reason), it is not quite as malleable as Elhauge implies, since the regulated activity itself has to affect interstate commerce. Hence the Court has said Congress may stop people from growing wheat or marijuana for their own consumption because such cultivation, when aggregated across all the people engaged in it, substantially affects the interstate markets in those commodities. It has never said that growing wheat or marijuana makes people subject to federal regulation in areas completely unrelated to those activities, which is what Elhauge seems to be suggesting.

Elhauge does not shrink from the implications of his argument. If you engage in any activity that affects interstate commerce, he says, Congress has the authority to make you buy not just health insurance but anything it thinks you should have, including broccoli:

That certainly sounds like a stupid law. But our Constitution has no provision banning stupid laws. The protection against stupid laws that our Constitution provides is the political process, which allows us to toss out of office elected officials who enact them. This is better than having unelected judges decide such policy questions, because we cannot toss the judges out if we disagree with them.

Is there any limit to what Congress can do in the name of regulating interstate commerce? While forcing people to buy broccoli is clearly constitutional, Elhauge says, forcing them to eat broccoli "would be likely to violate bodily integrity and the right to liberty." So "the right to liberty" may include decisions about what you consume (a point that Congress seems to have overlooked when it formulated our drug laws), but it does not include decisions about how to spend your money. I would ask about the basis for this distinction in the text or historical understanding of the Constitution, but Elhauge clearly is unconcerned about such matters.