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.

But is this actually true? Insofar as there is no choice in the matter — in the immunization of children, for example — it is because the law has removed that choice. But there is no reason other than their choice to do so why people should seek medical attention. Indeed, it is now a fundamental principle of medical ethics that no person of sound mind and with the mental capacity to decide for himself may be coerced into medical treatment, even if he will die without it. Every doctor knows of, and has been frustrated by, patients who have refused life-saving treatment.

Besides, other products are much more important in sustaining human life than health care. With a good physical constitution you can live for decades without a doctor; you cannot survive more than a few days without water. Food too is essential, much more essential than medicine. Moreover, if failure to buy health care insurance bears on interstate commerce, so does eating hamburgers instead of broccoli, and this is so even if it subsequently turns out (as has happened many times in the history of nutritional advice) that eating broccoli is bad for you.

The question that the authors ask is whether the Commerce Clause in the Constitution “authorizes Congress to require individuals to buy products that Congress thinks they should buy to further the general welfare.” To search for a sharp line of demarcation between what legislators may and may not legitimately do has baffled the minds of political philosophers for centuries; but there is no doubt that, left to their own devices, most politicians would like to make you eat up your greens.