Coffee, broccoli, and why the Supreme Court might overturn Obamacare

Matt K. Lewis Senior Contributor
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At the end of March, the Supreme Court will take up the constitutionality of Obamacare, as the National Federation of Independent Business (NFIB) and 26 states will be the lead plaintiffs in the historic case to overturn the president’s signature law.

To get a sense of what to expect from The Trial Of the Century, I met up NFIB’s executive director, Karen Harned over coffee. “We’re two for two,” she boasted between sips.

Harned was referring to NFIB’s district court victory (the only time a judge has ruled the individual mandate cannot be severed from the law) — and their appeals court victory (the only time a judge appointed by a Democrat ruled the individual mandate was unconstitutional.)

It’s crowded at the Caribou Coffee on 17th and L streets in Washington, but over the din of lobbyists and caffeine fiends, I ask her to sketch out the NFIB’s arguments. “What we’ve seen in all the cases,” she explains — “the one question they cannot answer is: ‘Where does it end?'”

Hers is a slippery slope argument, but that doesn’t mean questioning the government’s ability to regulate economic “inactivity” isn’t legitimate.  “You could say, ‘Well it’s good for everybody to exercise — so let’s mandate everybody to join the gym.”

I stir my coffee nervously. As if the thought of being forced to (gulp!) exercise isn’t horrifying enough already, Harned continued: “It’s good for everybody to take vitamins … It’s good for people to eat five fruits and vegetables a day! — Why don’t we make all grocers give those foods away for free — and [require] more people buy broccoli?”

At first, the broccoli reference threw me, but it’s actually pertinent. During a previous trial — when appeals court Justice Laurence Silberman asked Deputy Assistant Attorney General Beth Brinkmann if requiring Americans to buy broccoli would be unconstitutional — she answered: “No. It depends.”

So here we have the government’s lawyer admitting that — yes! — the government could mandate broccoli consumption. (This may sound shocking, but President Obama has already threatened to make us all eat our peas.) And, eating healthy would, presumably, help lower health care costs.

The other government argument the NFIB intends to eviscerate is the free rider argument — the notion that health care mandates are vital because otherwise people will just “game” the system by refusing to pay for health care coverage while simultaneously using health services.

This, of course, is a conundrum. But the government’s “solution” would also open up a can of constitutional worms.

The government hopes to argue that the health market is unique — that the slope isn’t slippery at all. But cost shifting occurs all the time, everywhere. “We all pay in fees to our credit cards for the people who don’t pay their credit card bills,” Harned says. “We all pay in our mortgage interest for the people who default on their mortgage”…

It all comes back to this: If the government can mandate the purchase of health care insurance, what can’t they mandate?

“They could create a crisis a day if they want to,” Harned warns.