Greg Sargent explains that health care is not like broccoli:
Since [sickness or injury] will inevitably happen to everyone aside from those in perfect health who suffer sudden accidental death, it's inevitable that virtually all of us will participate in the health care market whether we have insurance or not. Those who do so belatedly without insurance will drive up prices for all of us. Therefore, the individual mandate constitutes the regulation of participation in commerce that is inevitable. Congress isn't compelling that participation. It's just establishing the terms of that participation by placing a check on a certain mode of participation that harms all of us.Nobody is arguing that states don't have the right to impose a health insurance mandate. We have a state in which a Republican government signed into legislation a health insurance mandate that remains in effect to this day. That state does not have a broccoli mandate, and there is no sign that it will be passing one. Ever.
Could this be used as a precedent for a future Congress to compel you to eat or buy broccoli or purchase any other product it fancies? It's hard to see how.
Another mandate that exists without controversy at the state level? The mandate that you insure your car. Ah, you respond, but you don't have to buy a car. Well, I guess technically you don't have to buy groceries, either - you could start a farm, grow your own food, and completely avoid a "broccoli mandate". Not realistic in the modern world, you say? Something only a few people could actually do? Right. And for most people it's not realistic for them to participate in society without owning a car. But more to the point, if you've already conceded that states can impose health insurance mandates, the issue of whether or not you can choose not to own a car is beside the point - states have the power.
So why, if its uncontroversial for states to have the power to impose health insurance mandates, and if not one state in the entire history of this country has slid down the slippery slope to a "broccoli mandate" or anything like it, are we supposed to live in terror that President Obama is going to make us buy broccoli? Technically speaking, most (but not all) states created the auto insurance mandate and stopped there, and one also created a health insurance mandate and stopped there. The other exceptions make provisions that allow car owners to avoid buying insurance.
The fact that the power to impose a mandate of this nature has not previously been exercised by Congress may be much less an indication that Congress lacks the power to impose such a mandate, and much more a reflection of the fact that the circumstances that call for such a mandate are exceedingly rare, arising in circumstances when people who are uninsured can impose massive costs on other individuals or on the rest of society.
Here's something else to consider. There presently exists a federal law, the Emergency Medical Treatment and Active Labor Act (EMTALA) that requires hospitals with emergency rooms to admit and stabilize the condition of patients who present themselves for care, without regard for the patients' ability to pay. Prior to the passage of that law, patients were literally known to die in the parking lot, or in an ambulance that shuttled them from E.R. to E.R. looking for one that would admit them and provide care. If we're to be worried that the health insurance mandate requires you to pay money to a private company if you want to avoid a minor penalty, why aren't we concerned that the nation's emergency departments and their on-call physicians are required to transfer wealth to private individuals if they want to avoid significant consequences and potential civil liability to the patient. As applied to physicians on call, how is EMTALA less of an intrusion on personal freedoms than an insurance mandate? How can the Commerce Clause authorize that mandate while being simultaneously construed to exclude any possibility of an individual mandate to purchase insurance?
And, if we go back to the "broccoli" argument, why did Congress stop there? Why doesn't a law similar to EMTALA apply to broken down cars - the mechanic doesn't have to fix everything, but must at least restore a broken down vehicle to running condition without regard for a customer's ability to pay? Why don't gas stations have to give unfortunate drivers "just enough gas to get home"? Or, if you're hung up on broccoli, why doesn't a restaurant or grocery store have to give you free food if you claim to be hungry - but only enough to make your hunger go away. (In our Homer Simpson nation, that could be a lot of food.) The slippery slope, as applied by the broccoli theorists, should have us enjoying free "emergency" services and merchandise in any number of contexts, yet it hasn't happened - and won't.
If I need to again say it, I don't like the mandate approach and would prefer a simple payroll tax and associated health insurance tax credit. There is no need to take the approach of a mandate so, whatever you think of its constitutionality, most can agree that we could find a better approach that would render this entire discussion moot. But I find the "broccoli" slippery slope argument to be unconvincing, from every angle.