Frank Pasquale has a piece up responding to legal issues surrounding the individual mandate, one of which reminded me of a post I've been meaning to write:
Counteracting imaginary slippery slope concerns about absurd hypothetical laws are the legitimate concerns about insurmountable barriers that a prohibition of purchase mandates would erect. Forbidding Congress from any purchase mandate could cripple necessary efforts, for instance, to require preventive measures in the face of a massive pandemic that threatened tens of millions of lives.
When I wrote my piece on the individual mandate, a scenario occurred to me under which a "broccoli mandate" might be constitutional. Let's say the U.S. is beset by a zombie epidemic, and the plague of the undead is spreading far more quickly than the government can neutralize on its own. Suddenly, a scientist at the CDC discovers that the consumption of broccoli makes an individual immune to the contagion.
Under that scenario, a broccoli mandate passed by Congress might be considered "necessary and proper" as a way for the federal government to deal with a problem that the states couldn't handle on their own. Fortunately, the broccoli mandate is only slightly more realistic than the zombie apocalypse scenario under which it might be constitutional. Of course, if such a scenario actually occurred, conservatives would probably argue that the president would have the "inherent" authority to impose such a mandate and bypass Congress altogether.
Anyway, my take on Judge Roger Vinson's ruling on the constitutionality of the ACA is up here.
(The Walking Dead/Wikia)
