Steven Pearlstein is upset with the conservative Supreme Court justices. He hoped “to see the best and the brightest engage in a reasoned debate on the limits of federal power.” But instead he saw “political posturing, Jesuitical hair-splitting and absurd hypotheticals.”
He is particularly upset about those “absurd hypotheticals,” that tendency of Scalia and Alito to “to latch on to an opposing argument and take it to its illogical extreme in order to show how silly it is.” If the individual mandate is unconstitutional, the conservatives argued, couldn’t the government make people eat broccoli or join a gym, since those mandates could also lower health care costs?
Of course giving Congress the power to force people to buy health insurance implicitly gives it the power to force people to eat broccoli, Pearlstein concedes, but the latter law would just be “stupid.” So Congress wouldn’t pass such a law. And if it did, that’s why we have elections.
But if you accept Pearlstein’s premises–that the free market is to blame for the high cost of health care and that Congress has the right and the responsibility to fix these problems by forcing people to buy things–why would forcing people to eat broccoli be a stupid law? Congress could create jobs by employing federal health officers to search the nation for people not getting their recommended daily intake of vegetables and imposing on the rest of us with their poor health. It could fund these new positions with punitive taxes on sugar and fast food. Meanwhile, the Department of Education could issue new rules that force cafeterias to serve healthy fare (as defined by the government) and forbid students from bringing their own lunches with them to school, as some schools have already done. Would these laws be stupid?
Fortunately, the constitution delegates no power to the federal government that would allow it to engage in such futile and tyrannical attempts at the central planning of the American diet. But unfortunately, people like Pearlstein are engaged in a never-ending attempt to render the constitution “a blank paper by construction.”