When the Supreme Court heard oral arguments on Obamacare’s individual mandate earlier this week, Sen. Jim DeMint, R-S.C., was among those watching closely. “I feel like what they are deliberating is whether or not we are going to have a constitutional government,” DeMint told The Washington Examiner editorial board yesterday. “Because if you can justify this mandate on a national scale, I don’t see anything that the Congress could not legitimize.”
Even if DeMint’s words seemed a tad melodramatic, his reasoning was precisely what the Supreme Court’s justices were discussing during oral arguments Tuesday. Obama administration lawyers argued that the Commerce Clause — which has never before been used to compel a specific activity — justified the mandate in Obamacare that all individuals purchase health insurance that meets government specifications. But under questioning, President Obama’s lawyers found great difficulty answering this question: If the federal government can compel all Americans to enter the health insurance market as a condition of their living in the United States, then what line exists to prevent it from compelling anything?
Solicitor General Donald Verrilli’s best try was to argue that commerce in health care is “unique.” Everyone, he argued, is already involved in health care commerce whether they like it or not, and therefore all fall under Congress’s power to regulate interstate commerce. But Chief Justice John Roberts wondered aloud whether, if the court accepted this reasoning, the government would not soon return claiming another “unique” area in need of another mandate.
Justice Antonin Scalia was even more direct, noting that everyone must eat and is therefore already involved in food commerce. “Therefore,” he said, Congress “can make people buy broccoli.” The broccoli line drew disdainful reactions from liberals, but no convincing, substantive responses. The Obama administration still has yet to present any explanation of what constraints would remain on federal power if the insurance mandate is allowed to stand.
The Founding Fathers could have chosen a majoritarian model of government, with a national government empowered to do anything it could find the votes for. And under such a system, if broccoli farmers had enough clout, they could presumably get their mandate. But under the limited federal system the Founders actually established, the ballot box is not the only thing standing between Americans and a congressional mandate to purchase broccoli. They created a Constitution that maximizes individual rights and limits government power. In doing so, they provided safeguards against excessive and intrusive government meddling.
DeMint said that if the court throws out the individual mandate, it would be “almost like a jolt to us in the Congress that there is a limit to what we can do.” And it would be a welcome jolt. Just as a child needs broccoli for his own health, so do some members of Congress need a reminder of the limitations on their power.
