Supreme Court Must Answer “The Broccoli Question”

Supreme Court Must Answer “The Broccoli Question”

With the recent decision by the Supreme Court to hear the challenge brought by states against President Obama’s national healthcare plan, the justices will be left to answer the broccoli question. Namely, “If Congress can order you to buy health insurance, why can’t it order you to buy (and eat!) broccoli?”

The answer isn’t as simple as it seems. If the Supreme Court finds the insurance mandate in the healthcare reform act is constitutional, it is endorsing a very expansive view of Congress’ power to regulate interstate commerce under Article I of the Constitution. The Obama administration argues Congress is well within its rights to regulate an interstate industry that delivers a product virtually every American will use at some point in his or her life. That administration argues that for an individual to go without health insurance is to impose costs on other Americans.

But that same argument works for broccoli, the eating of which is believed to protect against colon cancer. Reducing the rate of colon cancer would reduce healthcare costs and thus have a direct economic impact on the interstate healthcare market.

Advocates of Obama’s plan have had difficult identifying what makes healthcare different from many other markets. David Kopel, a conservative constitutional law expert with the Cato Institute points out, “You can think of lots of products everybody consumes. Clothing. Food.”

In fact, health insurance is one of the few products that by law can’t be purchased on an interstate basis as states aggressively protect their power to regulate the industry. So on that basis, Kopel said, healthcare might be one of the least interstate markets Congress can regulate.

The dispute hinges on the meaning of the Commerce Clause of the Constitution, which gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” The Necessary and Proper Clause says Congress may do whatever is “necessary and proper” to enforce its Commerce Clause authority and other “enumerated powers” contained in the Constitution.

The key cases concerning the Commerce Clause are U.S. vs. Lopez and U.S. vs. Morrison, two modern decisions that set limits on Congress’s Commerce Clause powers. In Lopez, the court struck down a law prohibiting guns near schools as being too disconnected from any reasonable concept of interstate commerce. And in Morrison, the court did the same. Congress tried to tie both laws to the aggregate effects of criminal acts on the economy, but in Morrison the majority held that was constitutional overreach.

In the majority opinion in Lopez Chief Justice William Rehnquist said the law was “invalid as beyond Congress’ power under the Commerce Clause.” The “possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, have ... a substantial effect on interstate commerce,” the opinion said.

In Morrison, Justice Steven Breyer penned a dissent making the very point Obamacare critics make. It’s impossible to formulate a rule, he wrote, that allows Congress to, say, outlaw growing marijuana for your own consumption but not violence against women. “Virtually every kind of activity, no matter how local, genuinely can affect commerce, or its conditions, outside the State,” Breyer wrote. Instead of being a defect, the idea of almost unlimited Commerce Clause powers is a fact of the modern world.

But Breyer lost that argument. The majority “wanted a limiting principle” on Congress and came up with one by deciding that federal laws can regulate a lot of seemingly uneconomic activity but must have a firm economic basis at their core.

To answer the broccoli question, when the Court hears the healthcare case the justices could rule that requiring people to buy insurance fulfills an interstate regulatory scheme, while forcing them to eat broccoli is too distant from any rational economic goal.

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