Harvard Law Prof Tells Senate that Congress Can Make You Buy Broccoli


They can make you buy it, but not eat it.

Broccoli lovers, rejoice: According to Harvard Law Professor Charles Fried, Congress has the power to make everyone buy George H.W. Bush's least favorite vegetable—or, for that matter, just about anything else.

Yesterday, the Senate held a hearing on the constitutionality of the health care overhaul's individual mandate to purchase health insurance. Democrats brought in Harvard Law's Charles Fried to make the case that the mandate passes constitutional muster. Inevitably, Fried, who formerly served as Ronald Reagan's solicitor general, was asked a series of questions that have come to dominate the debate about the mandate's constitutionality and the limits of congressional power under the Commerce Clause: If Congress can force everyone to buy health insurance, what can't it do? Can it force people to buy broccoli too?

Unlike Elena Kagan, who ducked a similar question about asparagus last year, Fried answered directly: The Constitution prohibits Congress from making you eat broccoli, he said, but there's no reason Congress couldn't make you buy it.

Via Avik Roy, here's the relevant exchange:

Sen. Durbin: The point raised by Senator Lee – the "buy your vegetables, eat your vegetables" point? I'd like you ask to comment on that because that is the one I'm hearing most often. By people who are saying "Well, if the government can require me to buy health insurance, can it require me to have a membership in a gym, or eat vegetables?" We've heard from Professor Dellinger on that point, would you like to comment?

Prof. Fried: Yes. We hear that quite a lot.  It was put by Judge Vinson, and I think it was put by Professor Barnett in terms of eating your vegetables, and for reasons I set out in my testimony, that would be a violation of the 5th and the 14th Amendment, to force you to eat something. But to force you to pay for something? I don't see why not.  It may not be a good idea, but I don't see why it's unconstitutional.

"Broccoli mandate" will make a terrifying Halloween costume this year.

Fried was defending the administration's mandate, but he came to a different conclusion about he constitutionality of a broccoli mandate than the administration's legal team did. Arguing for mandate before a federal judge last year, Obama's lawyers tried to draw a distinction between insurance and physical products such as broccoli, shoes, and trucks. Health insurance, the White House's legal team claimed, was somehow different because of its status as a "financing mechanism." The distinction never made much sense, and Fried's more honest response suggests the absurdity of the administration's hair-splitting on the matter.

His answer also paints a rather stark picture of exactly what's at stake in the legal fight over the mandate and the commerce clause. If Congress can compel everyone to purchase health insurance, then it is reasonable to surmise that it has the power to compel everyone to purchase any other product or service—shoes, trucks, and broccoli included.

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  1. Yes! We can now cure homelessness! Make everyone by a house!

    1. by=buy, duh.

      Why can’t we edit posts?

      1. You might edit something after someone has responded to make them look stupid. Or (more likely) a poster could edit his post after he realizes how stupid it makes HIM look.

      2. Would need registrations and logins for that sort of feature. Unless we want Maxrrisonywin editing everything we post.

        1. There’s no crying in anarchy.


    1. Oh, yes. Except for me, I get Godiva chocolates.

      1. And the thunder thighs to prove it.

  3. Buy broccoli? They can make you EAT broccoli. If you don’t eat your broccoli, you might get sick and miss work and that will affect…..wait for it…..Interstate Commerce!

    1. They can make you buy broccoli, they can make you eat broccoli, but they can never make you LIKE broccoli!

      Isn’t freedom grand?

      (Personally, I like broccoli.)

      1. Boiling broccoli. BAD WRONG STOP NO.

        Toss that shit in the oven, sprinkle a lil parm on it, bit of oil. Now we’re talking about something that’s actually palatable.

        1. Stir fried.

          1. Ok, I fold. That’s too rich for my blood.

        2. Make that a little olive oil and mizithra!

        3. ..they could make you like it, too.

        4. Toss that shit in the oven, sprinkle a lil parm on it, bit of oil.

          Hopefully not in that order…

      2. I’m pretty sure not liking broccoli can be made a hate crime.

      3. I love Big Brother!

        Err… broccoli, that is.

    2. Also, if you are forgoing calories from broccoli, that means you will have to get those calories from somewhere else, thus affecting interstate commerce.

    3. If they mandate you eating broccoli, does that obligate the government to provide it since it doesn’t have the power to make YOU buy it? Maybe they have the power to make you make your own in lieu of purchase?

      The clown’s logic is like goddamned circular reference error on Excel spreadsheet.

      What the fuck do they smoke up at Harvard and how do I get some?

      1. They smoke broccoli at Harvard.

        You can get some when the government issues it to you as part of the induhvidual mandate.

  4. Can I put that broccoli on my credit card?

    1. I believe Congress already did. Not to mention sugar, corn, a dozen aircraft carriers, a couple of wars, social security, the DHS, etc.

      1. The carrier never got delivered, so I’m still expecting a credit on that purchase.

        1. You thought it would be delivered to YOU? *snort*

          Just think of your credit card in the hands of the world’s greatest con artists, the bank won’t let you cancel the card and you WILL have to pay.

          (BTW., the interest rate may change without notice.)

          1. You thought it would be delivered to YOU? *snort*

            So I spent all that time on the site customizing a carrier for nothing? wtf?

            Spinners, baby.

            1. Wait until the carrier’s from China too. Then it will be fun.

  5. As long as the Feds subsidize a weekly allotment of Vegetable Magic to every citizen regardless of race, class, or religion- then this a perfectly good use of government power.

  6. The founders made everyone buy a musket. Or you paid a fine.

    There’s a city that makes every household buy a gun. You can’t tell me that’s for national defense.

    Hell, the healthcare bill doesn’t MAKE you buy anything.

    It says:

    Get health insurance ANYWAY YOU WANT – get a job, beg, have a friend buy it for you, medicaid, medicare, whatever. Self insure.

    And if you don’t provide it to yourself one way or another? Pay a fine.

    Why the strawman? Who is making you “buy” anything?

    1. Don’t pay the fine. see what happens.

    2. Not sure if you’re trolling, but I’ll bit.

      “The founders made everyone buy a musket. Or you paid a fine.”

      Citation please?

      “There’s a city that makes every household buy a gun. You can’t tell me that’s for national defense.”

      There’s a huge difference between a locality requiring a purchase, and our federal government requiring a purchase.

      1. The Milita Act of 1792.

        The difference is that it was empowered to do so under the Second Amendment, not the Tenth.

      2. The Militia Act of 1792.

        Though Congress was empowered to do that by the Second Amendment, not the Tenth.

      3. Uniform Militia Act. 1792.

        I thought you people would know your history if you were going to talk about the constitution?

        Yes, it is a completely different government…because i’m sure it has more of a right…

        1. Also NOT done via the Commerce Clause. Providing for the Common Defense is actually an enumerated responsibility of the Federal Government.

          1. We are talking about this part, right?

            The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

            To borrow money on the credit of the United States;

            To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

            To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

            To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

            To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

            To establish Post Offices and Post Roads;

            To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

            To constitute Tribunals inferior to the supreme Court;

            To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

            To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

            To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

            To provide and maintain a Navy;

            To make Rules for the Government and Regulation of the land and naval Forces;

            To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

            To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

            To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And

            To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

            1. Shit, I don’t own a musket right now.

              1. And I bet SCOTUS would not uphold that requirement.

        2. I’m not sure anyone here is for the Sedition Acts, either.

        3. It conscripted every “free able-bodied white male citizen” between the ages of 18 and 45 into a local militia company overseen by the state. Militia members were to arm themselves with a musket, bayonet and belt, two spare flints, a cartridge box with 24 bullets, and a knapsack. Men owning rifles were required to provide a powder horn, 1/4 pound of gun powder, 20 rifle balls, a shooting pouch, and a knapsack.[3] Some occupations were exempt, such as congressmen, stagecoach drivers, and ferryboatmen. Otherwise, men were required to report for training twice a year, usually in the Spring and Fall.

          This is the first conscription act of the United States.

        4. ‘Well regulated militia.’ If ‘regulate’ appears in Constitution, that means truck fits in keyhole with American politicians. UMA is good example of that precedent, and like its children it’s crap law.

          Also, ‘regulate’ doesn’t mean ‘no militia’ in same way ‘regulate’ in Commerce Clause doesn’t indicate ‘no Commerce.’ Sorry gun-control nuts.

          And you know what? If someone tried telling me I had to have a gun…well, I’d shoot that dude.

        5. Just so we’re all clear on this.

          You are equating the following two situations:

          (1) Mandating the securing of a musket by each individual CONSCRIPTED into the militia, for the purpose of national defense in case of War or Rebellion, enumerated in the Constitution as a Power and Responsibility of the Federal Government;
          (2) Mandating the purchase of health insurance, on pain of fine or prison, for the purpose of extending health insurance to the entire population, enacted in a time of Peace and with Powers NOT enumerated in the Constitution.

          Doesn’t this mean, in effect, that the entire population of the U.S. has been conscripted by the Federal Government, to be commanded as said government sees fit? How is this different from a Communist or military dictatorship, where all individuals are the property of the State, to be disposed of in war and peace as the State deems appropriate? How, pray tell, is this consistent with the intent and spirit of the Constitution (and the Declaration of Independence) as understood by the Founders?

    3. I see that Sandi has been here.

    4. Did I have to buy a musket every month for the rest of my life?

      1. Thankfully, no. American craftsmanship was much better, and no Chinese imports, so most of the muskets available would last…I dunno, forever? (with proper care)

        1. You nationalist basterd.

      2. You just had to have one until you were old enough not to need one, and others defended you instead.

        (In which case you get medicare…)

        1. Militia
          Defense of the

        2. You just had to have one if you were a free able-bodied white male citizen between the ages of 18 and 45.

    5. The militia clause in Article 1 Section 8 specifically allows congress to provide for the arming of the militia. There isn’t anything in the constitution that allows the federal government to force you to buy health insurance.

      The city that makes people buy guns does so under a different set of powers than the federal government. States and municipalities have much more leeway in terms of what laws they can create and enforce. They’re only restricted by their own constitutions and the parts of the bill of rights that either apply directly to them or were made to apply to them under the 14th amendment.

      1. “General welfare…”

        And where does it say that they are allowed to make you buy a musket in the constitution? Shouldn’t your argument be, they could make you show up and fight, but can’t make you buy a gun from a private company? How is making you buy a musket “providing” you with arms?

        Plus, the founders also had the act for the relief of sick or disable seamen in 1798, requiring merchant sailors to pay a payroll tax, collected by the captain and remitted to the treasury, to set up government run healthcare and hospitals…where was that in the constitution? I mean, just because THE FOUNDERS were in congress and one of them signed it into law…maybe they were against it?

        1. And one of the founders created the Sedition Acts and one of the others brutally put down the Whiskey Rebellion.

          So, because they were already contradicting themselves in ’98 anything goes, is that your ultimate point?

          1. No, not anything goes – just what some people want.

          2. that was my understanding of his posts so far.

        2. The U.S. Constitution is a compact among the states.

          The promote the general welfare bit is a promotion of good feeling among the various states.

          It has nothing to do with the individuals living within the respective states.

          Those who stretch the meaning to imply 20th century socialist welfare programs like Medicaid, SNAP and TANF have tortured the meaning.

      2. Oh, and you’re a different type of statist? I thought it said, “or to the people”? Where does it say that states have those rights to make you buy guns? Wouldn’t that be unconstitutional too? Its not a militia, its for home protection…

        1. SM, you must be confused, the constitution wasn’t written by libertarians, nor is it a libertarian document.

      3. The town SM is thinking of is Kennesaw, GA. And NOBODY in Kennesaw has EVER been prosecuted under that law for not having a gun. The Kennesaw ordinance was passed as a publicity-stunt rebuke to Morton Grove, IL, which made the news when the city council there outlawed handguns. Crime went up in Morton Grove, while it declined in Kennesaw.

        1. There’s town in Idaho with same ordinance.

    6. The founders made everyone buy a musket. Or you paid a fine.

      No they didn’t. You could make your own and satisfy the requirement.

      Besides, what good is a musket without ammo?

      1. You can get a job and get provided healthcare. You can self insure. Hell, you can opt out for religious reasons.

        Thanks for proving my point.

        1. or you can pay the fine.

      2. PS, dumbass, read the law, it said ammo too, plus a “pouch” and some other crap…they figure it would cost $2k today…and it wasn’t any old musket, it had to be one good enough, and they checked on it…so you pretty much had to buy one unless you were provided one or made them for a living…

        1. And the other option was a standing army/navy. Which most liberty minded folks didn’t want back then and only grudgingly excepted as a reality in the early (18)00’s.

          So it still made a kind of libertarian sense.

          As opposed to: if you can’t pay to save extend your own life, we’ll fine you.

    7. “”The founders made everyone buy a musket. Or you paid a fine.””

      That’s outright false. The Militia Act required you to have a firearm, but it did not say how you were to aquire it. You could have bartered for one, received one as a gift, or if skilled enough with the tools, make one for yourself.

      The act does not mandate that you buy one for an arms dealer.

      1. You could have stole one for that matter, if you didn’t get caught.

      2. The Militia Act required you to have a firearm, but it did not say how you were to aquire it.

        Sry, Vic, but….did you just argue with SM by using the exact same argument as him? Am I missing a joke?

        1. The Milita act did not mandate a purchase. While it did require you to posess a firearm, there were other ways to aquire one that a purchase. So it is not an apt analogy unless I can borrow my neighbors health insurance, or make one on my own.

          1. …or get a job that provides it for free, etc…that’s my point. It doesn’t make you buy one anymore than the militia act made people buy a musket…it said “provide” yourself with one…just like you must “provide” yourself with healthcare now…

            Thanks for agreeing with me.

      3. Yes, just like healthcare. You just have to be covered – medicaid, medicare, from your boss, your wife or parents, a gift, whatever. Self insure.

        Again, thank you for proving my point.

        1. Let me just head back to the workshed and fashion me up some health insurance plan…

          Your belief in the flexibility of this requirement is amusing. This law mandates that you buy a narrow set of government-approved insurance plans, none of which are cheap.

          Why doesn’t it bother liberals that the law now requires you to hand over money to one of the insurance corporations?

          1. “”Let me just head back to the workshed and fashion me up some health insurance plan…””


            Or perhaps my neighbor will let borrow his health insurace.

        2. “”Again, thank you for proving my point.””

          I didn’t prove your point, unless you think people can get health insurance without making a purchase.

          1. …you mean like, an employer giving it to you, going on medicaid, etc?

            Plenty of ways…

            …again, thanks for proving my point…

        3. “”Yes, just like healthcare. You just have to be covered – medicaid, medicare, from your boss, your wife or parents, a gift, whatever. Self insure.””

          Do you think self insure = making your own?

          You can’t borrow your wife’s plan. It would cost her extra to put you on the policy.

          If your relative borrows your car, how much more money does that cost you?

          1. There are companies that provide healthcare to your entire family free of cost…go get one of those jobs.

            …or go on medicaid, or get a religious exemption, or self insure…so many ways…i’m sorry you can’t think of these on your own…

    8. “Why the strawman?”

      Yes, SM, why the strawman? Can’t you form an argument that is based on facts?

      1. Well, when all you got is a hammer hayfarm….

    9. Evidently “SM” stands for stupid motherfucker.

      Nice try, but next time, learn something about (a) actual history and (b) the Constitution before chiming in.

    10. Musket defense debunked.

      1. My favorite part of that is how these fucking disingenuous cocksuckers who make this incredibly stupid argument will totally dismiss offhand anything the Framers had to say about what the Constitution means regarding the limits of government, because it was sooooo long ago, and things were different then, and the country has changed so much since then, but then they’ll wave and yell and point to this 218 year-old law to show how what Congress is doing today is totally consistent with what the Framers intended.

        I hate them all.

        Ooops, sorry, let a little violent rhetoric slip there.

        1. “Editor’s Note: We invite comments and request that they be civil and on-topic”

      2. That was a nice opinion of his. I agree with him on all the facts, i’m not sure why he draws a different conclusion. People had to buy guns as required by law. Done.

        We use the commerce and welfare clauses, they used the militia clause.


        Guess what, the poor will not suffer as badly under this law as they did under that PERFECTLY CONSTITUTIONAL LAW.

        1. i’m not sure why he draws a different conclusion

          Because you’re a stupid motherfucker who completely missed the point that the HC mandate draws it’s authority from the commerce clause, and not from the Militia Clause – from the article:

          Because the two mandates have such different foundations, the constitutionality of one is essentially independent of the other.

          You’re also completely ignoring Vinson’s thorough debunking of the contradictory ideas behind the commerce clause’s authority for the mandate.


        2. just because the US government has at one point in time enacted something does not in any way legitimize it as either moral or constitutional.

          Surely I don’t have to give you examples?

          1. just because the US government has at one point in time enacted something does not in any way legitimize it as either moral or constitutional.

            This does, however unfortunately, legitimize it as “legal”.


          So what is the due process before the fine in levied?

    11. You’re thinking of Kennesaw, Georgia. The law you’re talking about is more symbolic than anything; it provides an out for anyone who objects on religious or moral grounds.

      1. As does the healthcare law…read it sometime.

        1. Why should I? From what I understand, few of those who voted for it did.

          1. Then shut your mouth…you insult them for not having read it…

            1. Funny, I feel pretty insulted that they expect me to obey legislation that they didn’t read. Works both ways, i guess.

        2. I object on moral grounds, yet I still have to buy healthcare. Dumbass.

        3. The mandate allows me to object based on moral grounds? [Citation Needed]

    12. *muffled screams*
      See, I’m not “making” you take your clothes off so I can sodomize you. I’m giving you OPTIONS. What’s the big deal? Be quiet or I slit your throat. Perfectly reasonable!

      1. I’m giving you OPTIONS.

        We can do this the hard way, or the easy way…..oohhh, I see you gonna pick the hard way.

      2. I know, i can’t believe they made them buy muskets either. Oh well. They were the founders.


          1. No, just accept its constitutional.

    13. OK, now try to convince those of us who don’t believe our rights come from the government.

    14. “The founders made everyone buy a musket. Or you paid a fine.”

      Was it Constitutional?

      Is health insurance now a matter of national defense?

      “There’s a city that makes every household buy a gun. You can’t tell me that’s for national defense.”

      So what? Massachusetts requires everyone have insurance. States are able to do things the Feds can not.

  7. They already do make us pay for broccoli…

    But lets not give the agricultural lobby any ideas about making us pay for it twice.

  8. How can they make me buy anything if I don’t have any money? Can they force me into labor?

    1. They’ll just force everyone else to buy it.

    2. They’ll fine you, which you can’t pay, which will put you in contempt, so then they’ll throw you in jail. Isn’t compulsion fun?

    3. Oh, I’m sure there will be some kind of refundable credit so that anyone below some magical income level ends up getting their broccoli for free, while “the rich” (evil is implied) pay double for theirs.

      1. I think the question was “can they”, not “would they”. Under Fried’s interpretation there’s no reason why Congress couldn’t compel everyone to buy something regardless of income.

        1. Sure the would – but then for certain people, they would buy it for them. Or rather, they would take other people’s money and use that to buy it for the people who can’t afford it.

          Government broccoli!!!


          1. Government broccoli!!!

            Boiling is the mandated method of preparation to boot. Nooooo, they can’t just force us to get raw broccoli, it has to be boiled by a trained and licensed professional.

    4. Great question!

      Under the militia act, you went to jail.

      Under healthreform, you get medicaid – they provide it to you!

    5. They’ll subsidize your brocolli purchase with a new entitlement program.

  9. Off-topic but I know that someone will pop in here that can help me.

    Irrumabo – how would you change this verb to a noun for one that performs this action? Simply put – how do you say face-fucker in Latin?

    1. With a lot of flair

    2. Actually I’d say that’s right on topic.

    3. Irrumans for someone who does it.

      Irrumatus for a man having it done to him

      1. Thank you sir.

      2. Do you want face-fucker or face-fucking? Because the latter would be a gerund.

        1. I believe what he is looking for is a noun of agency, a nomen agentis. For a standard -are conjugation verb like irrumo, irrumare, you would tack on -or to the past participle: irrumator, (gen. irrumatoris). Cf., amator, amatoris.

          1. Yess. I think that’s right. (Seven Years of Latin + 20 years of rust = Unreliable results)

            What I gave you was the participle, which acts like an adjective.

            Thus uir irrumans would be the facefucking man. In the cobwebby recesses of my memory I remember that in latin if you have the adjective but leave out the noun, it’s assumed that you are referring to someone with that property, so I figured irrumans standing alone would mean the facefucking one

            Of course, you have to get the ending right, so a girl who facefucks would have a different ending than a boy who facefucks.

            Moreover, whether the facefucker is the subject or object of the verb also affects the proper ending.

            With that being said, irrumator it the correct word.

            One last asside irrumanda would mean one who is fit to be facefucked or one who must be facefucked which opens up all sorts of possibilities.

            In fact, I would give a substantial sum of money to someone who could get the sentence Sum irrumanda on the Obama’s teleprompter when he gives a major speech. 😉

            1. I never thought I would spend so much time talking about Latin grammar and face-fucking, but since they are two things that interest me, it’s just as well.

              Your use of the gerundive would be correct assuming that the person being face-fucked is female. “Illa irrumanda mihi” would translate to “that woman ought to be face-fucked by me.” (Note the use of “mihi” rather than “a me” – with the gerundive and passive periphrastic, one uses the dative rather than the ablative, cf. the use of the dative of agency in ancient Greek with the perfect tense). If Obama were to say “I ought to be face fucked (by all of you)”, because he’s male, it would be “Sum irrumandus vobis.” And yes, I would pay eleventy billion dollars to have that smuggled onto his teleprompter.

    4. Which raises the question, how do you say, “People who face-fuck, they go the house.”

  10. The founders made everyone buy a musket. Or you paid a fine.

    Not under the commerce clause.

    And if you don’t provide it to yourself one way or another? Pay a fine.

    Why the strawman? Who is making you “buy” anything?

    But wait, you just said having to pay a fine if you don’t buy a musket means you have been “made” to buy a musket. Which is it?

    1. I’ll take “I’m a Raging Moron” for $500, Alex.

      1. It’s an abbreviation for both the term Simple Model, and the city of San Marino.

    2. Yes, the enforced a different clause. They still made you buy something.

      Thanks for the concession.

      I said you could procure it in any way you wanted – my point is, if you call getting healthcare “making” you buy it, then making you show up with a musket must be “making you” buy it too.

      Or its not, i’ll accept that too.

      1. Yeah, they made people buy a musket. What’s your point?

        It’s irrelevant to the insurance mandate because they were using a different part of the Constitution to justify it.

      2. “”I said you could procure it in any way you wanted – my point is, if you call getting healthcare “making” you buy it, then making you show up with a musket must be “making you” buy it too””

        That’s false but you obviouly don’t want to acknowledge why.

        Can you prove every musket aquired for Militia Act compliance was bought? No. People could make their own. You can not make you own health insurance.

        I aquired a handfull of dirt, how much did I pay?

        1. Start a healthcare company and give it to yourself free of charge.

          Go on medicaid.

          Lost of ways to get health insurance without buying it..

  11. Since the linchpin of the argument that ObamaCare is Constitutional is that everyone will need healthcare eventually, Fried’s argument that Congress can’t make you eat broccoli falls apart.

    All Congress has to do, under Fried’s approach, is make a finding that eating broccoli has indirect effects, in the aggregate on the healthcare you will consume at some point.

    Under his approach to the Commerce Clause, there is no principled distinction between the power to make you buy broccoli and the power to make you eat it.

    1. Do Christian Scientists eventually NEED health care? Or is it just that everyone else WANTS the luxury item called health care?

      1. Not just Christian Scientists, but all kinds of people use health care that is not covered by health insurance.

        The rather blithe assumption that, at some point, every single person in the country will access the medical-industrial complex strikes me as unwarranted.

        1. “”The rather blithe assumption that, at some point, every single person in the country will access the medical-industrial complex strikes me as unwarranted.””

          It’s close to being true if you count the folks that pickup your dead body. 😉

          It’s a stretch. Buy hey humans can’t exist without the professional health care establishment. I’m waiting for someone to argue man was created by God in the late 20th century.

          1. “… humans can’t exist without the professional health care establishment.”

            Funny how we managed to last about 49,000 years without it.

            1. And that’s my point.

      2. “”Do Christian Scientists eventually NEED health care””

        Usually, but they would rather die than get it.

    2. To be fair, he’s claiming that even though the Commerce Clause grants that power, the amendments forbid it. I don’t find either of those facets of his argument terribly compelling, but that’s what it is.

    3. Yes, and the only thing they’ll need is a “rational argument,” whatever that means.

  12. It may not be a good idea, but I don’t see why it’s unconstitutional.

    Just because YOU are a giant moron who doesn’t seem to understand that the constitution LIMITS government, not give it ideas on how to force citizens to do something, doesn’t mean that it’s “constitutional”. It just means you are poor legal scholar.

    Good lord I hate these people.

  13. In ‘Jacobsen v. Mass’ all citizens were required to obtain a smallpox vaccination or face imprisonment/quarantine.

    The Supremacy Clause could uphold such a ruling at the Federal level.

    So it may all be in Justice Kennedy’s hand – after 4/4 on the usual suspects.

    This is one game I would not bet on – 50/50.

    1. SHRIKE missing the whole goddamn point yet again. Has shrike EVER NOT missed the fucking point?

      Jacobsen V MASS is not the same thing as Jacobsen V THE FEDERAL GOVERNMENT.

      1. Yup. As I stated before, state governments operate under a different and more expansive set of powers than those that were granted to the federal government. That’s why they can create vaccine and health insurance mandates (such as the ones in Massachusettes) that the federal government can’t.

    2. Shrek, you seem to think the Supremacy Clause means that the federal government can do anything the states can. You might want to reread the Supremacy Clause.

      1. And the 10th Amendment.

        And maybe a book that explains the history of the Constitution.

        1. How bout we just teach him to read first?

        2. That highlights the commerce problems among the states prior to the Constition.

      2. No, dipshit, my point was clear. I don’t know how the SCOTUS will rule nor do you. I predicted a narrow decision (safe there).

        As I have repeatedly said – the part I like most is the death of subsidies for Medicare.

        Medicare is the monster destroying our federal cost structure.

        Fuck Medicare costs over and I am happy.

        1. At the cost of creating a new health insurance for everyone entitlement?

          What makes you think the new insurance subsidies aren’t going to become an even bigger monster?

          1. What makes you think

            Stop right there.

        2. “”Medicare is the monster destroying our federal cost structure.””

          We are still paying for those who can’t pay. Call it Medicare, or something else. It still keeps the burden on those who work via an increase in insurance premiums, or tax dollars.

          The finance aspect seems nothing more than a shell game that benefits the insurance industry.

          Or parts of the law should be considered hidious by liberals, but they won’t realize that until a republican administration uses the HSS to modify minimum coverage in a way they don’t like.

    3. So why haven’t liberals tried to get mandatory federal immunizations?

      1. The States beat them to it?

    4. Perfect example of what I’m talking about. Congress CAN make you do morning calisthenics, after all.

      How is doing morning calisthenics any different than vaccinations and immunizations, anyone?

  14. but I don’t see why it’s unconstitutional

    This guy is a professor? No wonder so many college graduates are unable to think clearly. Does he really believe that he’s making a valid–or even coherent–argument?

    1. Does he really believe that he’s making a valid–or even coherent–argument?

      How does that even remotely matter once you have tenure?

    2. This guy is a professor?

      Obama taught constitutional law.

      1. “”ama taught constitutional law.””

        Even he stated that if government can solve the health care problem by mandating health insurance, it can solve the homeless problem my mandating everyone purchase a house. The pre-President Obama knows why it’s wrong.

        1. I’d pay to see a reelection campaign ad that showed a clip of him saying that on the campaign trail followed by some clips from his (I think) 60 Minutes interview where he defends the mandate, including accusing the interviewer of “reaching” by quoting the dictionary definition of a tax.

  15. Fried?

    Sounds like his mental state.

  16. “(Personally, I like broccoli.)”

    So did I. Until now.

    1. How To Win The War On Some Drugs: force people to buy the drugs.

      (hey, it’s just crazy enough that it might work.)

  17. Notice that Fried is implicitly saying that yes, the Commerce Clause DOES give Congress the power to compel broccoli eating. The amendments forbidding Congress from doing so would be irrelevant if the power weren’t given in the original document.

    By the way, the Fifth Amendment:

    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

    I’m not seeing anything there that would forbid the govt from forcing you to eat broccoli. Maybe he’s referring to the prohibition on “depriv[ing] of life, liberty, or property without due process of law” but that’s a serious stretch, and could just as easily be applied to being forced to buy broccoli (which deprives one of property).

    1. Apologies for the close tag fail. I’ll eat a floret as punishment.

  18. Whatever those old dead, wealthy slave owners who wrote that dusty old Constitution thing had to say about it has zero bearing on today’s society. THEY’RE DEAD!!111!!

    1. Hey, not all the Founders were slave owners. Many abhorred slavery. Franklin and San Adams among them. Thomas Paine started one of the first anti-slavery organizations.

      1. They all held people who were treated like property. They were called wives.

        1. Hobie Hanson|2.3.11 @ 6:49PM|#
          “They all held people who were treated like property. They were called wives.”


          1. Women lose the right to vote in all states in 1777.

            They are not allowed to own property in all states until Mississippi in 1839 passes a law allowing a married woman to own property in her name with her husband’s permission.

            Marital rape exemptions still existed in the 1970s.

            I’m not a feminist but I can spot when someone’s rights are being egregiously violated. I don’t believe all husbands treated their wives like property though. I’m sure the same hen-pecking nags existed back then too.

        2. Tell that to Dolly Madison.

    2. ^This

  19. Who died and made Prof. Fried the authority on the constitution?

    Bring a law professor in front of a Congressional committee is the height of corruption. We already have a court system to decide these matters, and most of the committe members are lawyers.

    By this little action the committee is openly acknowledging that they are both too stupid to have their law degrees and also trying to subvert the court system.

    I don’t see how their actions can be considered anything other than terrorist activity subject to the death penalty. (If the “I don’t see” game is good enough for them, it’s good enough for me.)

  20. Also, does anyone believe for one second that the Congress critters who call the witnesses to testify don’t already know that witness’s position on the subject and exactly what that witness is going to say to the committee?

    It’s just another act in the whole theater of ugliness.

    They find some credentialed law professor who will say what they need him or her to say, then call them before the committee, and then use that as the basis to establish “Congressional findings” that establish the foundation for the law.

  21. for reasons I set out in my testimony, that would be a violation of the 5th and the 14th Amendment, to force you to eat something.

    Unless he is one of those “privileges and immunities” radicals, the 14th is irrelevant here.

    As Tulpa points out, its hard to see how the 5th amendment prohibition on being deprived of life, liberty, or property applies to eating broccoli, but not buying it. Maybe he’s arguing that being forced to eat broccoli violates your liberty, but I don’t think he wants to go there.

    1. How about eating a polio vaccine?

    2. There is an emanation of a penumbra from the 9th amendment that guarantees a right not to have the government do silly things that leftist jurisprudence would otherwise say it could.

  22. Here’s everything you need to know about Broccoli


  23. I would suggest the talented Mr. Prof request a prompt refund on his college education. Unless of course, he used state or federal funds. Thomas Woods is right on in his book titled “Nullification; How to Resist Federal Tyranny in the 21st Century: http://www.tomwoods.com/nullif…..bjections/

    1. John quoting the seccesionist Tom Woods approvingly?

      Now I’ve seen everything! 🙂

      1. It’s a different John. Check the email address.

  24. I liked this update in the Forbes link:

    “Anyway, getting back to Fried, my sense is that, while he once enjoyed being an enfant terrible, he got tired of being cast as the one outspoken HLS conservative/libertarian and decided instead to play the role of Moderate Establishment Sage.

    As for my personal opinion of him, I can’t say that it is favorable. He enjoys presenting himself to the world as a deeply cultured, literate man, which I suppose he is, but he never misses a chance to put it on display. He also believes very deeply in the aristocracy of lawyers. That is to say, he believes that it is altogether fitting and right that those with an extraordinary knack for distinguishing cases and connecting lines of authority ? that is, highly skilled lawyers ? should have the power to make the most important political decisions in this country.”

  25. Yeah, ok, so this is kinda non-serious as well as Beavis and Buttheadish, but. . .

    “I don’t like broccoli” was a code phrase among some swingers I met for use by guys declining the invites of bi-sexual men.

    Thanks for the chuckles at all the expressions of fondness for it. . .

  26. But to force you to pay for something? I don’t see why not. It may not be a good idea, but I don’t see why it’s unconstitutional.

    So, professor, what compulsory act, with fines and/or imprisonment for non-compliance, would be unconstitutional?

    1. You know, the ones that don’t fall under the general welfare clause or interstate commerce clause…

      1. So, nothing then. Got it.

  27. I would think that Nick and Tim would welcome this. Now they could get a law passed that says everyone has to be their friends so that they will have some.

  28. Got this off a site, thought some of you with a sense of humor would like it. Those who don’t have a sense of humor, well, you can purchase one at your nearest 7-11:

    A new federal mandate requiring American citizens to have passionate sex with bowlegged chickens has just been declared on the left side of Congress, made its way by the left side of the Senate, and signed into law with the left hand of the president. The new law states that American citizens over the age of 18 must go out in their front yards before the cock crows, grab the bowlegged chicken provided by government, and have unprotected sex with aforesaid critter. Women need not despair because under the new mandate, one legged Roosters, in lieu of bowlegged chickens, will be provided for their pleasure.

    When asked how the government could force such a mandate, Congressman Dong Jerk emphasized, “The Supremacy Clause found in the United States Constitution, in Article 6, Clause 2, let’s us get away with forcing our servants to have sex with bowlegged chickens, or in the case of women, with one legged roosters. In other words, federal law always trump state laws. We have provided everyone with their own critter, so there’s no need to share sloppy seconds with your neighbor. Everyone in America has their very own critter, and as we see it, everyone is now equal.”

    When our reporter, Thomas Jefferson Nullification asked Congressman Jerk about the citizens who prefer cows and goats over bowlegged chickens and one legged roosters, Jerk responded, “No. No cows and goats. Only bowlegged chickens and one legged roosters. If they prefer cows and goats, they will have to do those critters on their own time and own dime. The people can’t expect us to give them everything.”

    By now I hope you have realized that this is just satire to make a point. The Supremacy Clause is NOT THAT SUPREME!

    1. you can purchase one at your nearest 7-11

      Not in my county/state. Gotta hit the Department of Humor Control shops.

      1. LOL. Wow! No 7-11? For real?

        1. No, there’s a 7-11 nearby, they just aren’t allowed to sell humor.

        2. Fun facts:
          – There are more 7-11 stores than McDonald’s worldwide
          – 7-11 is owned by the Japanese

          And now you know.

          1. Well, Japanese ownership threw me for a loop. And I now know that 7-11 is bigger than McDonald’s. Interesting. Thanks for the info.

          2. 7-11 is the number one grocery store in Taiwan. They’re fucking everywhere. Before you visit, remember to retrieve all your lame how-many-Starbucks-stores-do-you-need jokes from 2002 from cold storage, as you will have a use for them. Also, try the tea eggs. They’re quite good.

  29. I like broccoli and i would not shed a tear if broccoli haters were forced to buy it.

    That said although I do not sympathize with broccoli haters I do think they deserve justice. I do support their right not to buy it.

    And yes tulpa I did just called you a moralizing idiot.

  30. Can anyone tell me why the Act for Relief of Sick and Disable Seamen was constitutional? 1798?

    What clause was that justified under, requiring private merchant sailors to pay for a government run healthcare system?

    Why’d the founders sign that one?

    1. Alternate Conclusion: the 1st cracks in the Great American Experiment started showing only ~20 years after it began.

      1. Thank you. Saved me from looking it up and finding out what sort of lies SM is using now to pitch his brain-dead ideology.

    2. Why did all 50 states remove women’s right to vote in 1777? Oh right, because people who make laws aren’t perfect and quickly use their power for tyranny.

      1. There were 50 states in 1777?

        1. Do you have any evidence that women were allowed to vote in Idaho in 1777?

          1. If there were women in Idaho in 1777, they would have been so popular I’m sure the guys would have let them vote.

  31. SM|2.3.11 @ 7:24PM|#
    “Can anyone tell me why the Act for Relief of Sick and Disable Seamen was constitutional? 1798?”

    Got a brand new straw-grasper for Christmas, did you?

    1. This SM guy is entertaining. He is the human straw man, making liberal arguments in their weakest form. He should stick to the emotional overtures that are the left’s only strong play.

  32. If congress can make you pay for brocolli, I don’t see why it couldn’t make you eat it.

    After all, eating healthy will reduce healthcare expenses, and hence have an aggregate impact on interstate commerce. If you didn’t actually EAT the brocolli, what would be the point?

    And how exactly is making you eat brocolli a violation of the 5th or 14th amendments anyway. As long as EVERYONE is equally required to eat it.

    1. All noneating of broccoli is deferred consumption. At some point you will have to eat some broccoli.

  33. What about morning calisthenics?
    Can Congress make you do morning calisthenics ?

    After all, it doesn’t even cost you anything, so it’s not a deprivation of property. And Congress CAN make you perform time consuming actions such as filing taxes or taking your car to the emissions testers, in furtherance of a public good. So surely it can make you take some trivial positive actions that cost you nothing, like jumping up and down for 15 minutes a day.

    1. The state government makes you get your car’s exhaust checked. Unless it’s a really old car with really bad exhaust, for some reason.

      1. Do you think one could have one’s body declared a historical artifact?

  34. But can congress prohibit you from having pudding unless you eat your meat?

    1. Well that’s just absurd!
      How can you have any pudding if you don’t eat your meat?!

      1. Hey, Douchebag, leave those posters alone!

  35. Before the Militia Act of 1792 is held up as an example of Congress enacting constitutionally compliant legislation mandating private purchases it ought be established that the act was reviewed by the Supreme Court and found to be consitutional. I can’t find evidence that it has ever been found to be constituitional. So let’s stop using that as an example.

    1. “the act was reviewed by the Supreme Court and found to be consitutional. I can’t find evidence that it has ever been found to be constituitional.”

      Uh, try again?

      1. Tried again, can’t find anything that suggests the mandate in the Militia Act was ever tested, publically critized yes, tested by the courts no. Can you site the case?

        1. read the quote I copied:
          You say it was reviewed reviewed and found constitutional by the Supremes and then you say you can’t find where it was declared constitutional.
          Which is it?

          1. Ooops; my mistake.
            “it ought be established that the act was reviewed by the Supreme Court and found to be consitutional.”

            It ought to be established that is *was* reviewed. Sorry.

  36. But — can they make me buy myself a Harvard Law Degree?

  37. Speaking as a citzen of a country without a constitution, having a constitution looks more trouble than it is worth.

    1. I would strongly disagree. The benefits from the Bill of Rights alone has been worth it.

  38. Has anyone else who has spent significant time in Cambridge, Mass. in the last two years noticed what a dump Harvard has become of late?Ragged ass looking buildings, dog shit piled up on the walkways, sickly looking trees collapsing everywhere. Nasty looking place if I have ever seen one.

    Went out of my way to avoid the campus at night. Afraid a few of the professors would be hanging out on the street around the barrels begging to suck my dick for a little drug money.

    1. There are those kinds of professors on any campus.

    2. Excellent. Do you think Congress can mandate I buy fish to throw at them during hockey games?

    3. I stay in Allston afew times a year, and on the occasion that I walk through Harvard I have noticed the dog crap everywhere.

      1. Sadly I failed to make it to Alston in last year’s Beer Marathon. This summer I’m going to be more selective with my partners.

  39. Unfortunately, nobody is denying that congress has the power to levy a broccoli supply tax. But BHO promised not to levy a new tax on the poor and middle class. This is where the democrats shorted themselves out.

  40. Congress already requires us to purchase: the Social “Security” retirement plan, Medicare, a military empire, and a Congress, whether we want them or not.

  41. I love broccoli.

  42. Fuck broccoli, what I want to know is can the government force people to buy government bonds?

  43. So what about the various local ordinances that have been struck down, that required residents to purchase and maintain firearms in the home? On what grounds were they invalidated? Just curious, because there’s certainly a parallel, at least on the surface here. I would think that if they were struck down on the idea that the government cannot coerce economic activity where the individual’s preference is for inactivity, those cases would make good citations in a case against OC.

  44. So, basically, anything from the Alien and Sedition Acts to the Nuremberg Laws are permitted by the US Constitution. Good to know. This simply reinforces my earlier point that the only way to stop the kind of abuse represented by ObamaCare is to gain control of the legislature and either 1) make sure these laws are never passed in the first place or 2) repeal them once they are passed.

    And again, one way to get the attention of the legislature is for a very large number of doctors to strike against PPACA. They’ll repeal this monstrosity in the blink of an eye if the middle class has to suffer without doctors for non-emergency treatment for a few weeks. Doctors that support PPACA are Quislings in my view.

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