Saturday, June 16, 2012

It's Not About Broccoli!

It's kind of sad when a serious legal blog has to explain that it's not about the broccoli, it's about freedom.  But to be fair, they are  trying to explain it to the New York Times readers...
Yesterday’s New York Times has an interesting article about how the broccoli mandate analogy came to play a major role in the cases challenging the constitutionality of the Obamacare individual health insurance mandate. It traces the analogy back to various libertarian and conservative sources and suggests that broccoli is a key reason why the mandate case has turned out to be closer than most liberal pundits expected.

The article includes some interesting facts, but it ultimately misses the point. The mandate’s legal problems are not the result of some clever rhetorical gambit about broccoli. In fact, the broccoli analogy is not a significant point in itself, but merely a useful shorthand for the key flaw in the federal government’s defense of the mandate: the fact that all the arguments in its favor would also justify pretty much any other mandate Congress might care to impose, and would therefore lead to structurally unlimited federal power. If the government’s reasoning would make a broccoli mandate constitutional, it can be used to justify virtually anything...

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