Let the broccoli rot!

Mickey Kaus Columnist
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You can make a horse buy water, but you can’t make it drink: I’d just as soon get rid of the Commerce Clause and have a simple constitutional principle: “The Federal government can do anything a state government can do, and if there’s a conflict the Federal rule wins.” It would shorten legal textbooks considerably. Unfortunately, it’s not what the document at issue says.

Nevertheless, in the course of arguing for the constitutionality of Obamacare’s “individual mandate,” Einer Elhauge pretty much rules out the possibility that limiting the federal government to the regulation of “commerce … among the several states” inhibits the feds from doing anything.  To counter the charge that then Washington could make you buy broccoli, Elhauge argues … um, Washington could make you buy broccoli! But don’t worry, there are other limitations:

There are, of course, limits to what Congress can do under the commerce clause. If it tried to enact a law requiring Americans to eat broccoli, that would be likely to violate bodily integrity and the right to liberty.

Well, OK then! As long as we can just leave it rotting in the fridge.** … But it’s a little suspicious–and surely not a selling point–that under Elhauge’s argument the only limits on government would be the rights — like “bodily integrity” and privacy — that liberal  lawyers have dreamed up but not the limit — i.e. whether or not something is “interstate commerce” — the Founders dreamed up. …


** — Rotting broccoli might breed disease and suppress appetites, inhibiting interstate commerce. Could Congress ban every means of disposing of the broccoli (that it has made you purchase) other than eating it? Is that any different from making you eat it? To enforce the right to “bodily integrity,” would the courts have to step in and void at least some of these rules for broccoli disposal, even if they are obviously regulations of commerce and do not, in themselves, violate bodily integrity? Elhauge’s rule may not get the courts out of the complicated business of meddling with federal regulations and striking down some of them. They’d just be meddling on grounds that he likes. …

Mickey Kaus