Can President Barack Obama and Congress enact legislation that orders Americans to buy broccoli? If so, where did they get that authority? What provision in the Constitution empowers the federal government to order an individual to buy a product he does not want?
This is not a question about nutrition. It is not a question about whether broccoli is good for you or about the relative merits of broccoli versus other foods. It is a question about the constitutional limits on the power of the federal government. It is a question about freedom.
Can President Obama and Congress enact legislation that orders Americans to buy health insurance? They might as well order Americans to buy broccoli. They have no legitimate authority to do either. Yet neither Obama nor the current leadership in Congress seems to care about the constitutional limits on their power.
They are now attempting to exert authority over the lives of Americans in a way no president and Congress has done before.
In 1994, when Congress last pondered a national health care plan that would require all Americans to purchase health insurance, the Congressional Budget Office studied the issue.
"A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action," the CBO concluded. "The government has never required people to buy any good or service as a condition of lawful residence in the United States."
When the Senate Finance Committee was debating its version of health care reform legislation this month, Republican Sen. Orrin Hatch of Utah tried to offer an amendment that would have expedited judicial review were the bill enacted because Hatch saw multiple constitutional problems with the proposal. Ordering individuals to buy health insurance was one of them.
"The only conceivable constitutional basis for Congress requiring that Americans purchase a particular good or service is the power to regulate interstate commerce," said Hatch.
"Even if the Supreme Court has expanded the commerce power, there has been one constant," Hatch continued. "Congress was always regulating activities in which people chose to engage. They might be non-commercial activities or intra-state activities, but they were activities."
Yet the committee's health care proposal, Hatch said, did something entirely different.