Originally published March 29, 2012
The fate of universal healthcare coverage that the United States has been trying to achieve for over 100 years may boil down to broccoli.
The broccoli argument is simple and was frequently referred to in the recent Supreme Court arguments: If the government can require people to buy health insurance, why couldn’t it require people to buy broccoli, which also enhances people’s health? This question, at the heart of the conservative objection to the individual mandate to buy health insurance, illustrates the so-called limiting principle the Supreme Court must rule on: Under the Commerce Clause, does Congress have the constitutional power to compel people to act, in ways they might object to, when their inaction can harm others?
The High Court never got clear on why health insurance is not like broccoli and can thus be constitutionally regulated. There are two important differences that inform the principle for limiting congressional power to compel people to purchase goods and services.
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The difference between broccoli and health insurance is simple. It leads to a clear limiting principle. Congress can urge people to eat their broccoli, but not compel them to buy it, because the broccoli market will function regardless of what people do. Congress can compel people to buy their health insurance because otherwise there will be no health insurance market.
The entire story is here.
