Can Congress Force Us to Buy Broccoli?

Donnachaidh

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Fri Feb-04-11 12:30 PM
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Can Congress Force Us to Buy Broccoli?

http://www.nybooks.com/blogs/nyrblog/2011/feb/04/can-congress-force-us-buy-broccoli/

The January 31 ruling by US District Judge Roger Vinson of Florida that the new health reform law is unconstitutional in its entirety was immediately hailed by Republicans and Tea Party activists, who have made overturning the law their chief goal. The second federal district court judge to invalidate President Obama’s health care law, Judge Vinson reasoned that if the Commerce Clause empowers Congress to require citizens to buy health care insurance as a means of regulating “interstate commerce,” there would be no limit to Congressional power. It could require us to buy cars, bread, or even broccoli, as all could equally be said to be economic actions that would promote commerce. Surely, Vinson maintained, there must be some limit on Congress’s power. Thus, he concluded that neither the Commerce Clause, which gives Congress the authority to regulate “interstate commerce,” nor the Necessary and Proper Clause, which authorizes any appropriate means that might further that goal, affords Congress authority to regulate “inactivity,” by requiring those who can afford it to purchase health insurance.

Yet just two days later, on February 2, Charles Fried, Harvard law professor, Solicitor General under Ronald Reagan, and one of the country’s leading conservative lawyers, told the Senate Judiciary Committee that Judge Vinson’s rationale was clearly wrong, and that the health care law is plainly constitutional.

Fried’s testimony carries particular weight, not only because of his conservative credentials, but also because he was counsel for the challengers in one of the only two cases in the last sixty years in which the Supreme Court has found a federal law beyond Congress’s authority under the Commerce Clause: United States v. Morrison. In that case, the Court ruled that Congress could not regulate violence against women because such violence was not a commercial or economic activity. Fried recognizes that the Commerce Clause has limits, but he testified that Congress was well within those limits when it enacted the health reform law, known as the Patient Protection and Affordable Care Act.

Fried began with the undisputed proposition that health insurance is interstate commerce, and therefore a proper subject of Congressional regulation. Requiring individuals to purchase health insurance, Fried argued, is in turn justified because it is an appropriate means to further the legitimate aim of reforming health insurance. Without such a mandate, the law’s most important and popular safeguard, which prohibits insurance companies from denying coverage to people with pre-existing medical conditions, would be unworkable, as people would have no incentive to purchase insurance until they are already sick. The Necessary and Proper Clause permits Congress to adopt any appropriate means to further Congress’s unquestionably legitimate end of regulating health insurance. Fried characterized the reasoning of opponents such as Judge Vinson, who maintain that the law impermissibly regulates “inactivity” rather than “activity,” as “entirely wrong and even worse quite confused.” In a rare show of bipartisanship on this most partisan of issues, Fried was joined in his defense of the law by Walter Dellinger, who was Acting Solicitor General under President Bill Clinton.

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