HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Saturday, March 24, 2012

The Individual Mandate, Broccoli and Slippery Slopes

Garden-Vegetables2For two years, critics of the individual mandate have made significant headway in the battle for public opinion--and with some courts--by invoking an appealing slippery slope argument. If Congress can require people to buy a good or service solely becaue they are living in the United States, we will become vulnerable to an unlimited federal authority. Today, we must buy health care coverage, tomorrow we might have to buy vegetables or GM cars.

Not only is this a specious argument, but the slippery slope runs the other way. If the Supreme Court were to prohibit the federal government from making us buy things, then the commerce clause power would be seriously eroded.

First, the speciousness of the constitutional challenge. If the goal is to protect the public against an expansive federal power, striking down Obamacare will not in fact serve that purpose. If the Supreme Court invalidates the individual mandate, the justices will protect the public only against mandates to purchase health care insurance and a few other kinds of insurance that must be procured in advance of a voluntary economic transaction.

To be sure, a ruling against the mandate would mean that Congress could not force us to go out and buy vegetables or GM cars. But the government has other ways to make us buy those goods. Congress still would have the power to require grocery stores and restaurants to include vegetables with every sale, and it still would have the power to require service stations to sell gasoline only to owners of GM vehicles.

Now the slippery slope implications of the constitutional challenge.

To protect us from unwanted purchase mandates, the Court would need to curtail the ability of Congress to regulate the terms of economic transactions. The justices would have to prohibit Congress from mandating the purchase of product A as a condition of purchasing product B. But then the Court would have to invalidate all kinds of laws that impose important conditions on economic transactions. Currently, you cannot buy a new automobile without seat belts, a new baby’s crib without safety latches, or a new television set without a V-chip. There is no way for the Court to draw a principled line between requiring sales of seat belts with every sale of a car and requiring sales of vegetables with every sale of food (say with an exception if you could prove you had already bought vegetables that day or week).

In fact, we do not need the courts to protect us from being overwhelmed by purchase mandates. History tells us that Congress has exercised considerable self-restraint when it comes to telling us what we must buy. For example, as the 11th Circuit pointed out, Congress never has required homeowners to purchase flood insurance as a condition of building a house in a flood plain, even though the Constitution clearly would allow for that and even though taxpayers end up footing the bill for flood relief. When all is said and done, Obamacare critics simply have not explained why the Court must strike the individual mandate down.

[DO; with a similar post at Faculty Lounge]

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