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Can Congress Make You Buy Broccoli? And Why it Really Doesn't Matter

Southern California Law Review Postscript, Vol. 84, p. 9, 2011

U Iowa Legal Studies Research Paper No. 11-20

7 Pages Posted: 14 Apr 2011 Last revised: 18 Feb 2012

David Orentlicher

UNLV William S. Boyd School of Law

Date Written: April 14, 2011

Abstract

Critics of the individual mandate to purchase health care insurance make a simple but seemingly compelling argument. If the federal government can require people to buy insurance because that would be good for their health, then the government can require people to buy all sorts of things that are good for their health, like broccoli or membership in an exercise club.

To avoid the prospect of the ultimate nanny state, U.S. district court judges in Florida and Virginia concluded that while the federal government may regulate economic activity, it may not regulate economic inactivity. To breach the activity-inactivity line, wrote Judge Roger Vinson, would invite all kinds of well-intended, but liberty-destroying, laws.

This argument, then, does not rely on problems with the insurance mandate itself. Rather, it rests on the implications for future laws if courts uphold the mandate. We would begin a slide down a slippery slope of officious government, and we would no longer have the federal government of limited powers that the founding fathers envisioned.

But the critics and judges have it backwards. If there’s a slippery slope, we would have reached bottom already. Even without blessing the regulation of inactivity, the Supreme Court opened the door decades ago for the federal government to make people buy insurance, broccoli or other things that are good for their health. That this is the first time Congress has done so is actually reassuring. In this essay, I show how the broccoli argument is misguided even when taken on its own terms.

Keywords: individual mandate, health care reform, commerce clause

JEL Classification: I18, K19

Suggested Citation

Orentlicher, David, Can Congress Make You Buy Broccoli? And Why it Really Doesn't Matter (April 14, 2011). Southern California Law Review Postscript, Vol. 84, p. 9, 2011; U Iowa Legal Studies Research Paper No. 11-20. Available at SSRN: https://ssrn.com/abstract=1809834

David Orentlicher (Contact Author)

UNLV William S. Boyd School of Law ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States

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