They Can Force You To Buy Broccoli

Abolishing the diktat of a bunch of 18^th C. idealists

The case of Department of Health and Human Services v. Florida is one of the most important cases to ever come to the US Supreme Court. If the government wins, it can force you to do anything it wishes. Today’s arguments in this case do not exaggerate the threat.

We have not had a true constitution since FDR threatened to pack the court in order to get his New Deal programs adopted. The Court folded and the famous “switch in time that saved nine” (West Coast Hotel Co. v. Parrish, 1937) allowed the Court to make any interpretation it wanted to carry out an administration’s social policy. I was taught in constitutional law courses in college and law school that this marvelous thing was a “living constitution”, that we were not bound by the diktat of a bunch of 18^th C. idealists whose ideas didn’t favor an intrusive government. The important thing, I was taught, was to advance social policy for the benefit of the people.

If the Constitution is a living document, meaning that it can be interpreted in a way to favor government power in direct contradiction to its original intent, then it is meaningless. It can be whatever the Court and the Administration wants it to be. There are of course some limits on their power, but a long line of cases since 1937 have chipped away at the Constitutional limitations on Executive and legislative powers. ‘Death by a thousand cuts’ is one way to describe the process of Justices looking for precedent to justify a policy they wish to adopt.

If you believe that government is mostly a force for good, then you would be willing to sacrifice your liberties in exchange for services the government provides, usually not at your cost. That is, getting benefits from the government is worth the loss of liberty. That loss of liberty is precisely what we are talking about in the current case being argued at the Supreme Court.

I have discussed Obamacare in other articles, so I don’t need to reiterate the argument again. Mostly I have discussed it in economic terms. That is, how it is based on economic fallacies about the nature of providing a service that the public wants, in the most efficient way. But, this case is not really about that. It is the context of the case, but the real issue is power. 

Can the government force you to buy something? That is the  boiled-down issue. Does the Constitution permit the government to do that?

The reason this case is so significant is twofold. First, it will allow the government to ultimately “run” a substantial portion of the economy (estimated to be 16%-17%). That will create an entitlement program which we will never get rid of until we go broke, because, based on theory and empirical evidence from other countries with some sort of national system of health care, we will.

Second, if not struck down, there is almost no limit to government power. Think about that and then see these comments from today’s arguments that really put the issue in perspective. These arguments are made with reference to the government’s power to regulate interstate commerce. Are you engaged in interstate commerce by needing medical care? It is the means by which the government is trying to mandate you to buy health insurance.

I hope Justice Kennedy is sincere in his concern (lines 18-23), for it is a profound statement.