During a Senate Judiciary Committee hearing on the constitutionality of the Affordable Care Act, Sen. Mike Lee (R-UT) pressed the GOP’s argument that if Congress can force you to purchase health insurance, it can also compel citizens to eat broccoli or go to the gym or take part in some other activity. “Congress could assemble a panel of experts,” Lee began, “that say that if you eat four servings of green leafy vegetables every single day, you’re 50 percent less likely from heart disease, cancer, stroke and a whole host of other ailments, that’s going to cost the government more money. That’s a pretty tight nexus there.”
Walter Dellinger, former Solicitor General in the Clinton administration, disagreed suggesting that Lee’s hypothetical was used to attack Social Security and the minimum wage:
DELLINGER: This is a direct regulation of a commercial activity, not something that merely affects a commercial activity.
LEE: Okay, let’s change the hypothetical. Instead of having to eat them, you have to take the first $200 out of each month’s earnings and purchase the equivalent of fours servings of green leafy vegetables to eat each day. This all of the sudden is economic activity…
DELLINGER: This is a provision to buy something that you cannot be assured you will never use and cannot be assured you won’t transfer the costs to others. So I think it’s distinguishable. And secondly, the very form of that argument was used to attack the minimum wage and Social Security…If the issue was the constitutionality of the minimum wage law and it was 1937, you would be asking me, is it a regulation of commerce for Congress to have a minimum wage of $500,000 an hour. And that has never been a legitimate…that form of argument I think was used against Social Security, was used against Medicare and Congress in fact has never abused that. It has never set the retirement age at 35 as the opponents of Social Security said would be possible if you upheld a retriement plan for people over 65.
The implications of Lee’s hypothetical are quite significant: he’s suggesting that Congress is unable or unwilling to make rational distinctions between sound policy (making sure everyone takes responsibility for their health care expenditures so that those costs aren’t passed on throughout the system) and unreasonable requirements (like requiring people to eat a certain vegetable or purchase it). If that’s true, then we’re all in some trouble. And if one were to take his logic further, I’m sure we can find all sorts of existing laws that if expanded, could potentially circumvent cherished liberties, but nobody is proposing going to those extremes — and for good reason.