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.
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.