Jacob Sullum
A couple 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 federal law requiring Americans to buy government-approved 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 an Aug. 12 decision by the U.S. Court of Appeals for the 11th Circuit, 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, investing 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. Thanks largely to a federal law that requires hospitals to treat people regardless of their ability to pay, taxpayers and 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 people's health," which would in turn "improve overall worker productivity, thus affecting our national economy." He noted that the Supreme Court has rejected such productivity-based reasoning, precisely because it could apply to almost any activity.

But that is not the only way to justify a broccoli mandate. 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, including their diets, their exercise levels, their sleep patterns, their oral hygiene and their risky habits.

These decisions, aggregated together, have a substantial effect on health care spending, which the Obama administration has vowed to control. Imagine the fun that Congress could have coming up with mandates aimed at coercing healthier lifestyles once it has a constitutional blessing as well as a fiscal justification. Even if it sticks to regulating purchases, the possibilities for meddling will be wide and varied, ranging from food to recreational activities.

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.


Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
 
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