Clipboard: The broccoli mandate

By Chelsea Conaboy, Globe Staff

Parties in the Supreme Court case challenging the constitutionality of the national health law filed briefs late last week, in the first of several rounds before oral arguments are scheduled to take place in late March.

See the briefs, filed by the Obama administration and officials from 26 states challenging the law, and a round up by Kaiser Health News here.

Jennifer Haberkorn of Politico wrote:

The Justice Department argues in the brief that the mandate is part of a broad law that’s needed to break the “cycle” of cost-shifting that ultimately makes health insurance more expensive for everyone.

“The uninsured shift tens of billions of dollars of costs for the uncompensated care they receive to other market participants annually,” administration lawyers wrote. “That cost-shifting drives up insurance premiums, which, in turn, makes insurance unaffordable to even more people.”

The litigation, potentially the most high-profile case the court takes up this term, has already generated friend-of-the-court briefs from scores of congressional Republicans, trade and advocacy groups, economists and the insurance industry. More are expected to weigh in.

During a press briefing, an unnamed administration official was asked whether the law opens the door to requiring the American public to buy broccoli, a nod, as Phil Galewitz of Kaiser Health News points out, to an argument explored in the New York Times by Harvard law professor Einer Elhauge.

The administration official dismissed the idea, saying the comparison was “wildly unrealistic,” Galewitz writes.

Elhauge offered a more comprehensive dissection, saying there is precedent for requiring Americans to buy a health plan. Workers here have no choice but to buy in, over time, to Medicare, he writes:

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.

Nor are all required purchases stupid. It is not stupid to require us to buy air bags for our cars and pensions for our retirements. Nor would it be stupid to require us to buy life and disability insurance to make sure we have provided for our children. Whether the law should is up to our political process, not judicial second-guessing.