Can the Government Require You to Eat Asparagus?

While hearing oral arguments about the constitutionality of the new health care law yesterday, a Virginia judge suggested that the legal logic underlying the law's individual mandate, which requires everyone to purchase health insurance, could give the federal government "boundless" power over U.S. citizens. From The Wall Street Journal's report on yesterday's hearing:

Allowing [the individual mandate], Judge Hudson said, could open the door for the federal government to require residents to buy a car, join a gym and "eat asparagus," he said. "It's boundless."

Ian Gershengorn, a deputy assistant attorney general arguing for the administration, responded that "the appearance of inactivity is just an illusion." Almost all Americans end up getting medical care, he said, and requiring them to carry insurance simply regulates the way that care is paid for. "This is not a police power because it is tethered quite precisely to an economic market," he said.

Judge Hudson appeared skeptical of the administration's argument that the fee for not carrying insurance amounts to a tax. He said President Barack Obama vehemently denied it was a tax while Democrats were securing votes to pass the legislation. "Was he trying to deceive the people?" the judge asked.

Mr. Gershengorn responded that the president was conveying that it wasn't a tax increase, and that Mr. Obama hadn't been deceptive.

Regardless of the outcome of this case, I doubt we'll see the asparagus lobby pushing for a mandate any time soon. But Gershengorn's arguments are still suspect.

First, it's notable that Judge Hudson seemed irritated with the Obama administration for selling the public on the idea that the law isn't a tax and then trying to sell the court on the idea that it is. He isn't the first judge to point out the administration's rhetorical bait and switch, either: In Florida, Judge Roger Vinson, reviewing a similar case on the constitutionality of the mandate, scolded the government for its "Alice in Wonderland" rhetoric on the question of whether the mandate is or is not a tax. David Barnes at E21 seems to think that the administration lost this section of the argument. But if nothing else, the White House's messaging flip flops have made making their case marginally more difficult by annoying several of the judges.

As for Gershengorn's claim that declining to purchase health insurance is just a deferred economic decision, it strongly resembles the position taken by Michigan Judge George Caram Steeh earlier this month. Steeh's ruling on the mandate boiled down to the idea that not purchasing insurance is a form of economic activity, and therefore fair game under the Constitution's Commerce Clause, because it's an implicit decision to buy health care later, some other way. But one problem is that although many individuals who decline to buy insurance eventually pay for health care in another fashion, not all of them do. The Journal's summary of Gershengorn's position indicates he knows this: He reportedly indicated that "almost all Americans" eventually get medical care, but not all. No matter what, individual participation varies. As Ilya Somin argued, "those who choose not to buy health insurance aren't necessarily therefore going to buy the same services in other ways later." The problem, then, with Steeh's vision of the health insurance mandate is that it "makes no distinctions on any such basis. It sweeps in nearly everyone."

And stretched to its logical conclusion, the mandate's policy implications are absurd. As one successful political opponent of the mandate once said: "If a mandate was the solution, we could try that to solve homelessness by mandating everybody buy a house." That's probably somewhat exaggerated, but it's basically a fair point. And it was first made on the campaign trail by President Obama.

Read Jacob Sullum on the thorny constitutional question of whether eating fruits and vegetables is an economic activity.