IT'S THE REPUBLIC THEY OPPOSE, NOT THE MANDATE:

The Broccoli Test (EINER ELHAUGE, 11/16/11, NY Times)

THE new mandate to buy health insurance has now reached the Supreme Court, which agreed on Monday to judge its constitutionality. The crux of the constitutional complaint against the mandate is that Congress's ability to regulate commerce has never been understood to give it the power to force Americans to buy insurance, or anything else.

But not only is there a precedent for this, there is also clear support for it in the Constitution. For decades, Americans have been subject to a mandate to buy a health insurance plan -- Medicare. Check your paystub, and you will see where your contributions have been deducted, whether or not you wanted Medicare health insurance.  [...]

Opponents of the new mandate complain that if Congress can force us to buy health insurance, it can force us to buy anything. They frequently raise the specter that Congress might require us to buy broccoli in order to make us healthier. However, that fear would remain even if you accepted their constitutional argument, because their argument would allow Congress to force us to buy broccoli as long as it was careful to phrase the law to say that "anyone who has ever engaged in any activity affecting commerce must buy broccoli."

That certainly sounds like a stupid law. But our Constitution has no provision banning stupid laws. The protection against stupid laws that our Constitution provides is the political process, which allows us to toss out of office elected officials who enact them. This is better than having unelected judges decide such policy questions, because we cannot toss the judges out if we disagree with them.

Posted by oj at November 16, 2011 6:04 AM
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