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The Good, the Bad, and the Broccoli

Most people thought that the health care decision would hinge on the Court’s interpretation of the Commerce Clause. That’s why I wrote the first three posts in this series; to catch everyone up on the clause’s history before the ruling. Thankfully, the Roberts Court ruled the right way on commerce. They decided that forcing someone uninvolved in commerce to enter into it is not legitimate regulation. That’s good. But they still upheld the mandate under Congress’ power to lay and collect taxes. That’s very bad. The now-infamous broccoli question -- whether it would be constitutional for Congress to require all Americans to eat broccoli -- turned out not to be a yes-or-no question. Technically, the answer is no. Practically, the answer is yes. While the government can’t force you to buy broccoli, it can now penalize you with taxes if you don’t. Whatever your opinion of the health care bill, nobody in America should feel comfortable with this precedent. Soon the power to tax your inaction will be out of Obama’s hands, out of the Democratic Senate, and into the tool-box of someone you don’t like. Still, this outcome is better than if the mandate was upheld under the commerce clause. “Tax” is a dirty word for voters, and Congress will be reluctant to pass laws that employ a behavioral tax, as opposed to the readiness -- giddiness, almost -- with which they pass laws claiming to regulate interstate commerce. For individuals concerned about the massive growth of federal power, this decision is bad news overall. But the limit placed on the commerce clause is a definite victory, and the biggest of its kind since the Lopez case nearly two decades ago. It’s a spoonful of sugar, if you will, to help the broccoli go down.