nos-trum. pronunciation: \nos'-trum\. noun. Etymology: Latin, neuter of noster our, ours.
1. a medicine of secret composition recommended by its preparer but usually without scientific proof of its effectiveness.
2. a usually questionable remedy or scheme.
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Friday, March 4, 2011

HCR Expert Says, "Yeah, You Have To Buy Broccoli"

According to Harvard professor and HCR supporter, the Constitution does allow the government to make you buy broccoli.

There were a lot of horse laughs at Judge Vinson's comparison between the individual mandate under the new health care reform law and the government forcing you to buy broccoli.  Recall that this is the judge in the 26-state suit claiming that the requirement to buy health insurance is unconstitutional.  Vinson said, "Yep, it's unconstitutional,"  and wrote a long opinion as to why.  In that opinion he made the statement that if not buying something comes under the government's power to control or coerce, then you could be forced to buy this tasteless vegetable.

I think the judge chose broccoli as a humorous exaggeration...not many people eat broccoli.  But some tried to ridicule the comparison by taking it seriously.

Now, former Solicitor General and Harvard professor Charles Fried, one of the experts testifying before Congress that the mandate is constitutional, admitted that...well, yes...the government could force you to buy broccoli.  See here.

All this talk of broccoli is beside the point.

I think what's at stake here is whether Congress has the authority to pass laws that compel persons to purchase a specific product.

A more realistic example would be for the government to compel purchasing an American-made product because a large company that makes that product is failing, and people would be laid off.  One example others have used is automobiles.  Suppose a US car company is about to go under, unable to compete with foreign makers or with their competitors in the US.  Interpreting Professor Fried, the Congress could compel you to purchase one of their cars, as being in the best interest of the country.  Note that I don't mean compelling people who are already in the market for a new car, but people who don't want a new car.

I think Congress would have been better advised to write the law in such a way that defined health care as a special case.  That is, it's not like any other industry.  This would have carved out a limitation:  that is, the government can make you get health care insurance, but they can't make you buy other things you don't want.

Had they done that, there wouldn't be a "slippery slope" argument that risks the Supreme Court saying, "The government did not define a constitutional limit on what it can compel citizens to purchase, a vagueness that we are unable to rule in favor of."

But they didn't choose this route.  That would have started a different legal battle, but it's one that doesn't involve expanding the scope of the US constitution in an unprecedented manner.  Even the judges who have ruled the mandate constitutional (so far) have admitted that their interpretation of a decision not to buy something as "economic activity"  and, therefore, covered by the Commerce clause of the Constitution, has no legal precedence. 

In any case, Congress decided to write the law in such a way that "mental activity" (the thinking you do about whether to buy something) is "economic" and therefore, commerce.

Go figure.

Doc D

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