Common Sense and the Constitution, Or The Broccoli Mandate

The other day, I noted that yet another judge had found Obama's health care plan constitutional. While driving to lunch later that day (another time when great thoughts hit) I had the following epiphany: Congress can mandate that you buy broccoli - but any politician smart enough to get elected wouldn't do so.

See, the root of the "individual mandate is unconstitutional" argument is the broccoli argument - the idea that if the mandate is constitutional, then Congress could mandate anything, including the idea that Americans have to buy certain foods, such as the ever-popular broccoli. (I happen to like broccoli, so it's no skin off my nose.)

As I understand the Constitution, Congress certainly could so mandate - by passing a punitive tax that was waived or rebated if you bought broccoli, for example. I also suspect that the Founding Fathers (Sainted Be Their Names) knew and were okay with that. See, the Founders operated on the premise of "reasonable people." Reasonableness is a common legal theory. For example, to claim self-defense, one must have a reasonable belief that one's life is threatened.

So, the Founders said, in effect, "we'll make sure decisions get made (or at least reviewed by) elected officials, and if they do something stupid the voters will vote them out." Not being able to mandate good decisions, they set up a framework to reverse bad ones. By the way, this logic is not unique to America. Canada has socialized medicine and no individual broccoli mandate for just this reason. In fact, I wonder if whether in parliamentary democracies the lack of institutional firebreaks results in fewer wild ideas than in the US system. But that's another post.

Bottom line - just because one thinks a law is stupid doesn't mean it's unconstitutional.