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Can the Government Force You to Eat Broccoli?
Townhall.com ^ | March 29, 2012 | Judge Andrew Napolitano

Posted on 03/29/2012 4:52:56 AM PDT by Kaslin

This week, the Supreme Court measured Obamacare to see whether it fits within the confines of the Constitution. The big picture is whether the Constitution limits the behavior of the federal government to the plain meaning and historical context of the Constitution, or whether clever lawyers and politicians can interpret language in the Constitution so as to justify whatever Congress wishes to do. Does the Constitution mean what it says? Does it limit the federal government to the powers it has delegated to Congress? Or is it a blank check for Congress to do whatever it can get away with?

One of those delegated powers is the power to regulate interstate commerce. The language in the Commerce Clause authorizes Congress "to regulate" commerce among the states. When James Madison wrote that phrase, he and the other Framers were animated by the startling lack of interstate commerce among the states under the Articles of Confederation. This was the period after the Revolution and before the Constitution when the merchants and bankers who financed the Revolution also controlled the state legislatures. They were both creditors, because they had lent money to the state governments to finance the war, and debtors, because they now controlled the machinery of state government that owed them money.

What did they do? They were the original corporatists and crony capitalists. They formed cartels to diminish in-state competition, and they imposed tariffs to discourage out-of-state competition. Thus, in order to turn 13 mini-economies into one large economy, and to protect the freedom to trade, Madison used the word "regulate," which to him and his colleagues meant "to keep regular." So, the Constitution delegated to Congress the constitutional power to keep interstate commerce regular by prohibiting state tariffs, and it did so.

But Congress was intoxicated with its new powers, so it began to keep commerce regular by regulating the fares charged by ferries going from Hoboken, N.J., to New York City -- and the Supreme Court said yes. From there Congress regulated the wages of workers who produced goods that were put onto those ferries -- and the Supreme Court said yes. Then Congress regulated the wages, working conditions and methods of manufacture of facilities whose goods never moved in interstate commerce, so long as the economic activity generated by the production of those goods had a measurable effect on interstate commerce -- and the Supreme Court said yes.

This jurisprudence has resulted in the courts approving the congressional regulation of the thickness of leather in shoes, the water pressure in home showers, the amount of sugar in ketchup, ad infinitum. Wherever you go in the United States, it is impossible to avoid confronting federal regulation of human behavior unmentioned in the Constitution, but justified by Congress under the Commerce Clause. It will be necessary for the court to put a backstop on this absurd progression of congressional power in order to invalidate Obamacare's individual mandate.

The other line of Commerce Clause jurisprudence that the court will confront started with a farmer growing wheat exclusively for the consumption of his family during the Great Depression, and the feds ordering him to grow less wheat. He resisted that order, and his resistance led to an infamous Supreme Court opinion that upheld the feds' order. That 1942 case stands for the propositions that even infinitesimal economic behavior, even behavior that is not numerically measurable, even behavior that is not of a commercial nature, even behavior that does not move products across interstate lines can be regulated by Congress if, when all the similar behavior in the land is taken in the aggregate, it could have an effect on interstate commerce. This aggregation theory is the most anti-historical, hysterical, disingenuous, convoluted ruling in the court's history. But it is still the law today, and it will be necessary for the court to distinguish or to overrule this case, too, in order to invalidate the individual mandate.

Justice Antonin Scalia reminded his colleagues during oral arguments this week that the Constitution is the supreme law of the land and it means today what it meant when it was written and ratified. If Congress can compel you to buy health insurance because that's good for you and for the country's economic health, he asked, can it force you to eat broccoli? And if it can, what is the value of having a Constitution that was written to limit the government's powers?


TOPICS: Culture/Society; Editorial; Government
KEYWORDS: healthcare; individualmandate; obamacare; supremecourt

1 posted on 03/29/2012 4:53:00 AM PDT by Kaslin
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Comment #2 Removed by Moderator

To: Kaslin

Hang on we will see. If they had one more Liberal judge then yep the could force you to Eat Broccoli. Force you to be Vegan just about whatever the Usurper in charge wants.

That is why this next Election is so important.


3 posted on 03/29/2012 4:58:21 AM PDT by Bailee
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To: NoBaloney

They forced a young child IN SCHOOL to eat chicken nuggets...and took away her homemade lunch which they said was not up to government specs.


4 posted on 03/29/2012 5:08:20 AM PDT by Sacajaweau
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To: Kaslin

They’re actually forcing you to eat pink slime by not disclosing the meat that the schools use. Bet all the milk is hormone/antibiotic infested, too.


5 posted on 03/29/2012 5:10:38 AM PDT by Sacajaweau
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To: Kaslin

This situation is like a small drip in the basement. You let it go and soon the basement is flooded. This is our government. It is flooded with bad law and it is time to return to the original intent of the creation of this country. FREEDOM!!!!! However, it might take an armed conflict to achieve this.....as predicted by the founders.


6 posted on 03/29/2012 5:12:01 AM PDT by New Jersey Realist (America: home of the free because of the brave)
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To: Kaslin
Eat it? Probably not...buy it? Yes.
7 posted on 03/29/2012 5:12:34 AM PDT by n230099 ("When no one knows who is armed...everyone is.")
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To: Kaslin
Can the government force you to .....fill in the blank .....?

Under this regime, the answer is always an emphatic YES.

8 posted on 03/29/2012 5:19:40 AM PDT by SERKIT ("Blazing Saddles" explains it all.......)
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To: n230099

We will have to report for a quarterly serum broccoli level.

It’s for your own good!


9 posted on 03/29/2012 5:23:28 AM PDT by seton89 (Are the Ten Commandments a living document?)
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To: SERKIT
And Napolitano misquoted Scalia. Scalia did not make the argument that the government could force you to eat broccoli (which is not a logical extension of the ACA). But he did ask the rhetorical question of whether it could force you to buy broccoli (or anything else), which is a logical extension of the ACA's reasoning.
10 posted on 03/29/2012 5:27:41 AM PDT by Bruce Campbells Chin
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To: Kaslin
The problem is that you may not get hit by a truck and be forced to eat broccoli nor fall into a coma and need years and years of treatment and be forced to eat broccoli or or give birth to a premature child and be forced to eat broccoli. If you don't have insurance you wont be forced to eat broccoli but taxpayers will be forced to eat your bill. This is something that needs to be dealt with. The country needs to either stop giving anyone getting sick all the care in the world they need or figure out a way to pay for it without infringing on basic personal freedom
11 posted on 03/29/2012 5:28:46 AM PDT by montanajoe
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To: Kaslin
That 1942 case stands for the propositions that even infinitesimal economic behavior, even behavior that is not numerically measurable, even behavior that is not of a commercial nature, even behavior that does not move products across interstate lines can be regulated by Congress if, when all the similar behavior in the land is taken in the aggregate, it could have an effect on interstate commerce. This aggregation theory is the most anti-historical, hysterical, disingenuous, convoluted ruling in the court's history. But it is still the law today, and it will be necessary for the court to distinguish or to overrule this case, too, in order to invalidate the individual mandate.

And could it be why they passed the Food Safety Modernization Act (FSMA) 2011. Convenient eh?

12 posted on 03/29/2012 5:30:19 AM PDT by EBH (God Humbles Nations, Leaders, and Peoples before He uses them for His Purpose)
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To: Kaslin

Although the premise of the broccoli analogy makes sense, it’s not entirely the same. It would be the same if say, healthy people presently paid more for broccoli in order to subsidize the cost of broccoli for sick people - who needed broccoli more and ate more of it.

I like the line of questioning that went after Verreli when he claimed that health insurance was necessary for everyone to have because at some time in their lives they would most certainly avail themselves of health care.

Alito or Roberts (can’t recall) extrapolated that if the above was the case, then should everyone be required to buy a cell phone because at some point in their lives they would have an emergency and need to dial 911 or should everyone be required to buy burial services because death is a given and everyone will need burial services. Those analogies work better for me.

We already subsidize the cost of food for those at or close to the poverty level through our taxes - but Obamacare was sold as NOT being a tax. If they had designed it as a tax, it’s highly unlikely it would have passed.


13 posted on 03/29/2012 5:30:49 AM PDT by randita
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To: Bruce Campbells Chin; xzins

Actually if the government is in charge of your heath care, they could theoretically force you to eat broccoli if they determined that it was necessary as part of a disease prevention Protocol. They could fine you or jail you for not eating it. They could even force you into the hospital and force feed it to you.

Tyranny knows no bounds.


14 posted on 03/29/2012 5:44:52 AM PDT by P-Marlowe
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To: Kaslin

Maybe, maybe not.

What they would definitely do first is to charge you more for insurance if you don’t eat it.

That’s how those “wellness plans” work. You get a discount if you live a healthy way of life and are charged extra if you do not. The government/insurance company defines what that way of life is.

Right now, the only unhealthy things are smoking and being obese. More to come, I’m sure.


15 posted on 03/29/2012 5:59:31 AM PDT by fruser1
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To: P-Marlowe; Bruce Campbells Chin

I agree. Any government that can tell you to buy this or that can order you to do just about anything.

And, there’s the precedent of accepting that the government can order you to take particular acts. As those multiply over the years, the shorthand explanation that will get accepted is: “The government told us to.”

When that becomes common in thought and language, any speech about freedom is mere pretense.

People will come to believe eventually that the role of government is to tell them what to do.


16 posted on 03/29/2012 6:01:39 AM PDT by xzins (Retired Army Chaplain and Proud of It! Pray Continued Victory for our Troops Still in Afghan!)
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To: montanajoe

The only reason this whole thing is a “problem” is because it’s so expensive. As noted during oral arguments, there are plenty of things that people will need in their lifetime that we don’t force them to buy (life insurance for their eventual death, food, water, housing). The solution is not to force everyone to buy this, but for Congress to create an environment for the free market to regulate itself.

My question has always been, why do we need health insurance for every little thing that ailes us? Most of us have auto insurance, but that doesn’t cover routine maintenance such as oil changes, front end alignments, new tires etc.. It only covers the catastrophic type of situations with your car. To me, that is what health insurance should be. Only coverage of catostrophic things. It should not be delivered through your workplace (as most of us have it), but through the marketplace. Everyone should go out and shop for the best plan, like we do with car insurance. These changes alone would bring health insurance costs under control IMHO.


17 posted on 03/29/2012 6:03:48 AM PDT by Old Teufel Hunden
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To: NoBaloney

Moochelle is sure as heck gonna try


18 posted on 03/29/2012 6:20:50 AM PDT by Buckeye McFrog
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To: NoBaloney

There’s a lady I know
If I didn’t know her
She’d be the lady I didn’t know.

And my lady, she went downtown
She bought some broccoli
She brought it home.

She’s chopping broccoli
Chopping broccoli
Chopping broccoli
Chopping broccoli

She’s chopping broccoli
She’s chopping broccoli
She’s chop.. ooh!
She’s chopping broccola-ah-ie!


19 posted on 03/29/2012 6:28:39 AM PDT by dfwgator (Don't wake up in a roadside ditch. Get rid of Romney.)
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To: P-Marlowe
Maybe, but that wasn't the issue before the Court. The justification for the ACA mandate was that non-participation in an economic market affects those who do participate. Therefore, non-participation may be regulated.

The problem with that argument is that non-participation in any market affects those who do participate. The failure of people to buy Chevy Volts, for example, surely affects the price for those who do, as well as affecting the workers, who manufacturer it, etc.. The failure to purchase broccoli affects the market for broccoli, etc..

As Clement said, it is an argument with no limiting principle.

20 posted on 03/29/2012 6:34:21 AM PDT by Bruce Campbells Chin
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To: NoBaloney

...and 3 presidents later, the federal government is contemplating saying “yes, you will.”


21 posted on 03/29/2012 6:35:26 AM PDT by ctdonath2 ($1 meals: http://abuckaplate.blogspot.com/)
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To: Kaslin

Don’t give them ideas.


22 posted on 03/29/2012 6:40:30 AM PDT by BenLurkin (This is not a statement of fact. It is either opinion or satire; or both)
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To: dfwgator
Heh, heh. Back from when SNL was still really funny (Dana Carvey and Phil Hartman were two good reasons to watch).

Personally, I like broccoli - steamed, not boiled and smothered with Hollandaise... mmmm. But the day the government tells me to buy it, I'll find a way of turning it into an IED.

23 posted on 03/29/2012 6:41:37 AM PDT by andy58-in-nh (America does not need to be organized: it needs to be liberated.)
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To: fruser1

That’s the problem I have with any form of a national sales tax: the feds will able to monitor, document, and tax/fine EVERY PURCHASE. Buy broccoli? tax credit. Buy beer? cross-referenced with federalized medical records for enhanced “unhealthy lifestyle” tax. Buy ammo? 200% “threat to society” tax plus a bump up the watch list.

The only reason smoking & obesity are triggers now is because they’re nigh unto impossible to conceal.


24 posted on 03/29/2012 6:49:27 AM PDT by ctdonath2 ($1 meals: http://abuckaplate.blogspot.com/)
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To: BenLurkin

Personally, the government can not force me to eat broccoli, because I like the vegetable any which way


25 posted on 03/29/2012 7:00:00 AM PDT by Kaslin (Acronym for OBAMA: One Big Ass Mistake America)
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To: Old Teufel Hunden
Granted the expense makes it a “problem” but it is the fact that many people game the system figuring if they really need health care they can just go to the emergency room and let someone else pay for it that is the bigger problem. Employers not providing health insurance will only make the the problem of folks freeloading on others worse.
Face it there is a ever growing portion of the American population who want other people to pay for their stuff irregardless of political ideology.

If this goes unchecked all the spending cut in the budget will never work as eventually the cost of free health care (that is paid for by the government) will bankrupt the federal state and local governments.

I spend alot of time in third world countries. There they have private hospitals where good care is available but you have to pay for it in advance. You can have gunshot wounds or massive head trauma and they wont treat you without payment. I've seen both laying on the street in front of these hospitals. The government runs some hospital where anyone can go but you are simply given a place to die.
In those countries children born prematurely or with birth defects die, folks suffering brain injuries resulting in coma or semi vegetative states die, old folks that fall and break a hip die the list goes on but the result is always the same they die if they can not pay up front.

This is where American health care is headed if the folks gaming the system continue to increase ....

26 posted on 03/29/2012 9:01:56 PM PDT by montanajoe
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To: montanajoe

“You can have gunshot wounds or massive head trauma and they wont treat you without payment. “

I wonder if fatso Michael Moore is aware of this. Maybe he’ll make another movie.


27 posted on 03/29/2012 9:07:27 PM PDT by Mears (Alcohol. Tobacco. Firearms. What's not to like?)
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