Einer Elhauge

  • April 16, 2012

    by Jeremy Leaming

    Plenty of legal scholars and others have been unmoved by the primary argument leveled against the Affordable Care Act, the broccoli argument, and justifiably so.

    But after oral argument in HHS v. Florida, where Supreme Court Justices Antonin Scalia and Samuel Alito appeared to embrace the simplicity of the argument – if Congress can make you purchase health care insurance, there will be no limiting principle on congressional power and it will soon mandate us all to buy broccoli – expressions of astonishment and concern abound.

    In a piece for The Atlantic, Harvard Law School Professor Einer Elhauge details why the broccoli argument is not only wobbly, but dangerously flawed.

    Scalia cited the the broccoli concern during oral argument when demanding the government’s lawyer to articulate a limiting principle on Congress’s power to regulate commerce among the states.  

    Elhauge notes first that the limiting principle has already been articulated the Supreme Court as follows: “a federal law must (1) involve economic regulation (2) that addresses a national problem (3) that affects interstate commerce.”  

    Walter Dellinger, former Solicitor General, articulated a limiting principle slightly differently during an ACS briefing on oral argument, saying “the power to regulate commerce among the states extends to regulation of those purchases, which are inevitable, of goods and services, which will be provided to the individual even if they have made no arrangements to pay for them, where the cost will be shifted to others in a way that undermines an undoubtedly constitutional regulatory scheme.”

    It’s the limiting principle already adopted by the Supreme Court through other cases that the challenges are itching to change, Elhauge says. (In an ACS Issue Brief, Simon Lazarus explains the radical nature of the challengers’ agenda to topple health care reform.)

    “They want the justices to read into the Commerce Clause a new limiting principle, one that bars laws mandating the purchase of any product,” Elhauge writes. “But however attractive that kind of new limiting principle might seem, it cannot be inserted into the Constitution by judicial fiat when it lacks support in constitutional text, history, or precedent.”