Charles Fried

by Jeremy Leaming

First it was broccoli, now it's Weight Watchers.

The right-wing blogosphere is gushing over George Will’s latest attempt to paint the minimum coverage provision of the Affordable Care Act (ACA), as a wild overreach by the Obama administration. If the government can force individuals to carry health care insurance, surely it can enact a law requiring us to eat healthy or force obese Americans to join Weight Watchers.

During a recent discussion, “Battle for the Constitution,” on ABCNews’s “This Week,” Will claimed that obesity impacts interstate commerce, and therefore does it not follow that Congress has the constitutional power to require overweight people to join Weight Watchers. Time’s Richard Stengel said he did not know, and Georgetown University professor Eric Dyson said the question is open.

Their responses didn’t satisfy Will, who kept demanding to know whether Congress can force heavy Americans into Weight Watchers. But Will’s spin on the broccoli law argument did excite the right-wing blogosphere. (Breitbart.TV, “George Will Brilliantly Traps Liberal Panelists With Obamacare Constitutional Challenge.”) Will’s spin is not that new by the way – he has been asking the Weight-Watchers question for some time. See his columns here and here.

But there are plenty of constitutional law experts who have had no problem quickly trashing outlandish slippery slope arguments, such as Will’s. (Will may fancy himself a constitutional law expert, but he is not. A decent pundit, he may be.)

Earlier this year before a Senate Judiciary Committee hearing on the “Constitutionality of the Affordable Care Act,” Charles Fried, a Harvard law school professor and former solicitor general under President Reagan and Walter Dellinger, partner at O’Melveny & Meyers and former acting solicitor general under President Clinton, both testified that liberty interests protected pursuant to the Constitution would prohibit the government from mandating that people engage in behavior like purchasing gym memberships or more broccoli, or joining Weight Watchers.

In his written testimony before the Committee, Dellinger states:

The minimum coverage provision of the Affordable Care Act tests no limits and approaches no slippery slope. Notwithstanding the improbable hypothetical put forth by those bringing these lawsuits, Congress never has and never would require Americans to exercise or eat certain foods. Were Congress to consider laws of that kind infringing on personal autonomy, the judiciary would have ample tools under the liberty clause of the Fifth Amendment to identify and enforce constitutional limits. What the Affordable Care regulates is not personal autonomy, but commercial transactions.

Suggestions that sustaining the minimum coverage provision would mean that Congress could mandate the purchase of cars or comparable items are also disingenuous. The provision requiring minimum health insurance cannot be viewed in isolation. It is an integral part of regulating a health care market in which virtually everyone participates. No one can be certain he or she will never receive medical treatment. Health care can involve very expensive medical treatments that are often provided without regard to one’s ability to pay and whose cost for treating the uninsured is often transferred to other Americans. These qualities are found in no other markets.

Dellinger also took a shot at slippery slope arguments, noting they too are often “slippery.”

“Where the issue is simply whether something falls within the scope of a subject matter over which Congress is given jurisdiction to legislate, the parade of horribles marches all too easily,” he wrote. “If it is within the scope of regulating commerce to set a minimum wage, one might argue, then Congress could set the minimum wage at $500 an hour. Would that force us to conclude that Congress therefore cannot set any minimum wage at all? Were Congress to legislate the extreme hypotheticals envisioned by those bringing these challenges, there will be ample constitutional doctrines available for the judiciary to use for the imposition of limits.”

David Orentlicher, a law professor at Indiana University School of Law-Indianapolis and co-director of the Hall Center for Law and Health, also dispatched the slippery slope argument in a recent op-ed for The Indianapolis Star.

“Today Congress requires us to buy insurance for the good of our health. Tomorrow, Congress might require us to buy broccoli for the good of our health or a General Motors car for the good of our economy,” Orentlicher wrote. “We would begin to slide down the slippery slope of officious government and hit bottom at the ultimate nanny state.

“Nothing could be further from the truth,” he continued. “It has been seven decades since the Supreme Court recognized the power of Congress to regulate the way we spend our dollars.”

In those decades, Orentlicher noted, Congress has never adopted such far-fetched mandates, like the one Will says could be coming if the high court upholds the constitutionality of the ACA’s minimum coverage provision. The liberty interests protected by the Constitution have prevented such mandates, and so has the political process. Orentlicher provides a lengthier defense of the minimum coverage provision for the University of Southern California law Review.

During a panel discussion on the ability of the federal government to address national problems at the 2011 ACS National Convention, Dellinger also blasted right-wingers for bemoaning the minimum coverage provision, especially since they are typically the same bunch that celebrates government efforts to force women to wait lengthy periods for abortions or to listen to tired lectures about alternatives to abortion.

Dellinger said, “We hear the talks about government intrusions into health care – that this represents an extraordinary step about liberty. And I just cannot, any longer, refrain from making the observation that it is really ironic and disturbing to hear that liberty lecture come from people talking about government takeover of medical care, many of whom would legislate the imposition upon women of unnecessary waiting periods, government scriptured lectures, compulsory sonogram viewings, and government mandated unsafe medical procedures.”