Of all the arguments why the individual mandate must be found unconstitutional, the one that seems to have the most emotional purchase among conservatives is the slippery slope argument. As Judge Vinson put it in his decision (p. 46), citing oral argument, if we accept the arguments for the insurance mandate’s being constitutional,
Congress could require that people buy and consume broccoli at regular intervals, not only because the required purchases will positively impact interstate commerce, but also because people who eat healthier tend to be healthier, and are thus more productive and put less of a strain on the health care system.
While lots of people have torn into this argument (and Charles Fried, inimitably but cogently, claims that it’s constitutional to make people buy broccoli but not to eat it), I don’t think anybody’s noticed that it clearly begs the question. It only makes sense if we already assume the insurance mandate is unconstitutional.Â If one assumes the opposite, it proves the opposite.
Upholding the Affordable Care Act is supposed to open the floodgates for regulation of all kinds of personal things that are none of government’s business on the following logic: the legislature (though strangely for a fundamental liberty argument, only the one in Washingtonâ€”it’s a Commerce Clause argument), which has previously refrained from the broccoli mandate only because it thought such things unconstitutional, will now know that its power is unchecked.Â But this assumes that the insurance mandate was always unconstitutional and that Congress knew it.Â And that begs the question.