The Broccoli Test

November 23, 2011 • Commentary
This article appeared on National Review (Online) on November 23, 2011.

We should give it to the GOP presidential candidates.

Call it the broccoli test.

During oral arguments before the Court of Appeals for the District of Columbia Circuit on the constitutionality of Obamacare’s health‐​insurance mandate, the Obama administration’s lawyer, Beth Brinkmann, was asked whether a federal law requiring all Americans to eat broccoli would be constitutional.

“It depends,” she replied. But she could certainly envision cases where it would be.

That makes her only slightly less certain than Supreme Court justice Elena Kagan, who was asked the same question during her confirmation hearings. Kagan, who will help decide the fate of Obamacare’s mandate, had no doubts that a broccoli mandate would be constitutional.

Of course, it is unlikely that Congress will be mandating eating broccoli anytime soon — though given the Obama administration’s ongoing concern over what we eat, who knows? But it perfectly illustrates the stakes in the Supreme Court’s upcoming decision on the mandate’s constitutionality.

The Left wants to pretend that this is just a case about health‐​care policy. You can’t get to universal coverage without a mandate, they warn. Striking down the mandate may leave millions uninsured.

Those claims are debatable to say the least. But the question of the mandate is much bigger than health policy, good or bad. How the court decides will fundamentally define the boundary between government power and individual autonomy.

After all, if a government can order you to buy insurance, what can’t it do?

As even the judges upholding the mandate’s constitutionality have acknowledged, the government’s lawyers have never been able — and have rarely tried — to articulate any limiting principle to Congress’s power.

At the D.C. Circuit hearing, Brinkmann was asked whether people making more than $500,000 could be required to buy cars from General Motors to keep it in business.

“I would have to know much more about the empirical findings,” she replied.

Today, we have a federal government that consumes 25 percent of GDP — and it’s on its way to 42 percent by 2050. It is a government that intrudes on virtually every aspect of our daily lives — mandating, penalizing, incentivizing, criminalizing, or cajoling us to behave in a way that government thinks is best for us. If something is good, it should be required. If something is bad, it should be banned.

This ever bigger, pricier, and more intrusive government has been constructed by both the Left and Right, who want to use government to impose their versions of fairness, morality, and economic efficiency. Remember, many of the same people who are calling for the Court to strike down the individual mandate cheered when the Court upheld the federal government’s right to overrule California’s medical‐​marijuana law or struck down Oregon’s right‐​to‐​die initiative.

That is why it is particular troubling that the current frontrunners for the GOP presidential nomination, Mitt Romney and Newt Gingrich, both supported a health‐​insurance mandate. Romney insists that he supported only a state mandate, not a federal one, which avoids the constitutional threat. But his continued defense of a state‐​level mandate as “a conservative idea,” betrays an unhealthy affinity for government intrusion into individual decision‐​making. Gingrich, on the other hand, now disavows his previous support for the mandate, saying that he now believes it to be unconstitutional and unworkable. But his critique often sounds like a technocrat’s objection to the outcome, rather than an understanding of the threat to liberty. And, unlike Romney, when Gingrich supported a mandate, he supported a federal one.

We can certainly hope that the Supreme Court will strike down the individual mandate and establish a firewall against unlimited government power. But regardless of how the Court ultimately rules, we should demand more. Every candidate, for every political office, should be asked what they believe is the proper role for government and where they think government power ends.

After all, a government big enough to give you everything you want, is a government big enough to make you eat broccoli.

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