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THE DARK SIDE: Hold the broccoli, Congress

Unless it’s served with lots of beef and slathered with Hunan sauce, I don’t much care for broccoli.

But since arguments about the constitutionality of the Affordable Care Act and the Commerce Clause keep venturing into discussions of broccoli, and I do love arguing about the Commerce Clause, I guess I’ll have to write about broccoli, too.

The argument against the law says that if Congress can force people to buy health insurance, there’s nothing to stop it from forcing them to buy broccoli, too.

I recently heard a professor dismiss this argument as illogical, largely relying on “externalities.” He remarked that when people don’t buy health insurance they impose external costs on everyone else when they show up in the emergency room without any insurance. He contrasted this with broccoli, noting that an individual’s decision not to buy broccoli imposes no external costs down the road on anyone else.

It sounds like a reasonable distinction on its face, but it ignores that the only reason externalities exist in the health care market is because the government has created them.

Suppose that Congress passed a law requiring broccoli farmers to provide free broccoli to anyone who couldn’t afford it. Of course, the broccoli farmers would soon go bankrupt and then nobody could have broccoli. Now imagine that, to prevent this, Congress passed a second law requiring everyone who can afford broccoli to buy it, at an inflated price, of course, to cover the cost of all the broccoli given away for free to others.

Then the Supreme Court upholds the second law, concluding that it is a necessary component of Congress’ earlier plan to provide broccoli to those who can’t afford it, and thus, a valid exercise of the Commerce Clause power.

The scenario sounds absurd. And yet, that is exactly what Congress has done to the health care market. It created the very externalities it now claims it must eliminate.

St. Michael’s Hospital was recently torn down in Milwaukee County. Mt. Sinai loses tens of millions of dollars per year and will likely go the same route. The reason is hospitals that accept Medicare are required by the federal Emergency Medical Treatment and Active Labor Act to provide free emergency care, whether patients can afford it or not.

Other laws exacerbate the problem as well, but for purposes of this column, we’ll pretend this is the only way in which Congress has ruined the health care market. So now, the Progressives say, we need the individual mandate to keep the system afloat.

Just how is that different from our broccoli hypothetical, in which the government effectively bankrupted the broccoli farmers and then required everyone to purchase broccoli to keep them in business?

The Progressives are right that it would be a good thing if everybody had health insurance. It would also be a good thing if I ordered beef and broccoli in Hunan sauce tonight for dinner.

But that doesn’t mean Congress has authority under the Commerce Clause to compel either.


  1. This is one Dark Side that I completely agree with. Congress has no authority to require that individuals buy anything, much less Obama care. Of course, Congress passing laws it ignores or exempts itself from is nothing new. Perhaps if government officials had to buy their own health care in the open market they would feel differently about it. But they don’t, they receive it for free on the backs of the very taxpayers their incompetence has harmed. Health care in this country is a scandal. It is a system that costs the most in the free world and provides the least. Wellness rankings for individuals are appalling low compared to dozens of other countries. Worse yet, it is a reactive system, not a proactive one. In any event, those who dismiss the fact that Congress and the president are once again overreaching are deluding themselves.

  2. Kevin Scheunemann

    Brilliant column.

    Sounds like Obama’s lawyers, before the high court, were horribly unprepared to deal with the basic liberty argument.

    I was not surprised one bit.

    It would shock me if the Supremes do not strike the whole law. I think the debate is whether it will be 6-3 or 5-4 vote on the strike down.

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