Jens 'n' Frens
Idle thoughts of a relatively libertarian Republican in Cambridge, MA, and whomever he invites. Mostly political.

"A strong conviction that something must be done is the parent of many bad measures."
  -- Daniel Webster

Saturday, March 24, 2012 :::

The Supreme Court will be hearing arguments next week that the federal individual mandate to buy health insurance is unconstitutional. David Bernstein has comments and I wish to pick a nit.

Bernstein asks -- as have lawyers before him -- whether the mandate can be squared with any limit on Congress's authority under the Interstate Commerce clause or whether upholding the mandate means upholding Congress's authority to "require everyone to eat broccoli?" But the clearer analogy is to a requirement that everyone buy broccoli.

Perhaps the logic being used to justify the mandate to buy a product would also apply to a mandate to use that product, but if the proponents of the law want to draw a distinction, it seems like there's one there. Besides, my (not partially uninformed) impression is that, until the late 1930s the clause in question gave Congress the power "To regulate Commerce... among the several States," that from 1942 until the mid-1990s it effectively gave Congress the power "to regulate," (or, if there was some constraint on the clause, perhaps "to regulate activity by people who either might some day be capable of engaging in commerce with other states or use the postal service") and that since Lopez and Morrison, Congress has had the power "to regulate economic activity".

I think the Lopez-Morrison-Raich line of cases could suggest a finding that Congress may require people to buy broccoli but must stop short of actually forcing it down people's throats. The power to make you eat broccoli would be left to the states and municipalities. If you live in Bloomberg's New York City, you should probably expect that power to be used.

Incidentally, a few weeks ago I saw another common version of this analogy, asking whether Congress could require that we buy GM cars. Someone responded (to the best of my recollection), "they did force us to buy GM cars. We just didn't get the cars."

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::: posted by Steven at 12:10 AM

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Idle thoughts of a relatively libertarian Republican in Cambridge, MA, and whomever he invites. Mostly political.

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