Via Austin Frakt, Alex Koppelman of Balkinization and Northwestern University School of Law writes about the so-called "originalist" objections to the commerce clause power claimed by the Affordable Care Act.
They claim originalist credentials, but these are bogus. The framers' most important decision was to replace the weak Articles of Confederation with a central government strong enough to address common problems. According to those who claim that the law is unconstitutional, however, the problem of preexisting conditions can't be solved at all. A regime in which huge national problems can't be solved by anyone is precisely what the framers were trying to get rid of.
He also addresses the "slippery slope" argument, by pointing out that in some ways we've already reached the bottom. The Broccoli Mandate is a myth not just because it's dumb policy but because the government already uses the tax code to manipulate us into buying things that aren't good for us, so a "Broccoli Mandate" would be unnecessarily reinventing the wheel:
So Congress is never going to force you to eat your broccoli. On the other hand, you're probably already consuming more high-fructose corn syrup than is good for you. Subsidies for the production of corn have produced huge surpluses of the syrup, which in turn becomes a very cheap ingredient of massproduced food, and turns up in a remarkable amount of what you eat. So consumers have to face obesity, diabetes, and dental caries – but no mandate! You and I are paying for this travesty, but in such a low-visibility way that many of us never realize that Dracula has been paying regular visits. The Broccoli Objection distracts attention from the real problem. And the judiciary hasn't got the tools to deal with that problem. If the Supreme Court is going to invent new limits on the legislature, it should do so in a way that has a real chance of preventing actual abuses. Otherwise it is hamstringing the legislature for no good reason.
In a way, we're already living under a high-fructose corn syrup mandate, but agriculture subsidies are so popular among politicians that none have dared to suggest that "forcing" Americans to get fatter and die earlier is unconstitutional.
I've written this before, but the reason I don't buy the slippery slope argument, beyond the unique aspects of the health insurance market that make it necessary, is that Madisonian democracy has a great deal of built-in choke points meant precisely to prevent government from doing stupid and capricious things. Now obviously those don't always work. But to say that, if the individual mandate is ruled constitutional, we're a few hundred idiot legislators and judges away from a Broccoli Mandate is to put us exactly where we started, which is at the mercy of a political system that requires an engaged citizenry and accountable polity to prevent abuses of power.
