Can Congress Make You Buy Broccoli?

Is it constitutional for Congress to make you buy broccoli for your own good, ask three professors of health law at Boston University in the New England Journal of Medicine for December 22nd. The ringing answer that they give to this question is "We don’t know." They have decided to sit on the fence until others, in the shape of the Supreme Court, decide for them.

The Affordable Care Act enjoins millions of citizens to buy private health insurance. The authors say that it is difficult to decide whether refusal to buy such coverage counts as an activity that bears on interstate commerce.

The administration claims that it does. After all, failure to buy insurance has as many economic consequences as does buying it, perhaps even more consequences for third parties. But the problem with this argument is that it is totalitarian in its corollary. Every single decision to purchase or not to purchase something has economic consequences. Prudence in not living above one’s means, for example, lessens aggregate demand, at least for a time. Can you therefore be forced to take out a loan to buy something you don’t need in order (supposedly) that the economy should revive? This would give monstrous power to legislators, even if, as is impossible, they could be relied upon to use it wisely.

But, replies the administration, health care is different from ordinary products; at some time in his life, everyone will need and use it. For while you can live without a car or a television, you cannot live without health care, at least not your whole life through.