With a majority of states now challenging the constitutionality of requiring Americans to buy health insurance or pay a penalty, Northwestern law professor Andrew Koppelman, writing at Balkinization, takes a swipe at one of the plaintiffs’ biggest concerns: If the federal government can force us to buy insurance, doesn’t that mean it could also force us to buy broccoli, vitamins, automobiles or almost anything that affects interstate commerce?
Koppelman mocks that valid question by claiming “any slippery slope argument depends on a prediction that the instant case will in fact increase the likelihood of the danger case. If there is in fact no danger, then the fact that there logically could be has no weight…Congress is never going to force you to eat your broccoli.”
By treating what he dubs The Broccoli Objection as a prediction, Koppelman makes the supposed prognosticators look silly. But I don’t think such “slippery slope” questions about the insurance mandate are intended to be predictive so much as they are meant to clarify what authority Congress has or doesn’t have.
Moreover, the concern is not, specifically, that we’ll be forced to buy broccoli; it’s that if the mandate is constitutional, there will be an increased likelihood that some other economic mandate(s) will be imposed on us, and it’s unclear under what circumstances that could happen.
In his post, Koppelman essentially says Congress has the power to require us to buy broccoli, but it will never happen. He’s probably right that we needn’t fear compulsory produce purchases, and in any event, he is certainly entitled to his opinion. One wonders, though, what the defendant’s position is. After months of litigation, we’re still in the dark, because President Obama’s Department of Justice lawyers have failed to address the question.
It’s one thing for the federal government to believe it lacks authority to require us to buy broccoli, and another to assert that although it has such authority, it won’t be exercised.
Don’t the American people deserve to know which it is?
This story was also published by The Huffington Post.