One of the most important questions the Justices will likely bring up tomorrow in the deliberation about the individual mandate will be: Is health care — or health insurance — actually unique?
This raises the important issue sometimes called the “broccoli question.” The general idea behind it is that if the federal government has the constitutional power to require people to buy private health insurance simply as a condition of being alive, is there is any limit to what the federal government can force you to buy or do? If it can make you buy insurance, can the government also make you buy and/or eat broccoli?
The Obama Department of Justice and many of the law’s supporter have argued that health care is somehow unique. They note the health insurance market is such a large part of the economy, that everyone will eventually use a health care service at some point, that the mandate is necessary for the federal government to achieve its goal of expanding coverage.
All the arguments I’ve seen for the uniqueness of health care are, in my opinion, seriously lacking as a legal and logical argument. Of course a federal mandate to buy insurance would greatly affect the interstate commerce for health care, but any mandate would do that. If the government mandated everyone to buy cars, guns, gym memberships, emergency phones, or vegetables it would result in significant changes to the economics of these products and society as a whole.
If the Supreme Court decides that health care is unique for some reason that allows it to uphold the individual mandate, it will presumably do so in a way that limits the precedent it sets. The precise contours of the logic the Court uses to define health care’s uniqueness could help shape the scope of the federal government’s powers for a generation.
It is also possible that the Court could decide that health isn’t unique, but determine that isn’t legally required to uphold this mandate. The Court could find this mandate to buy insurance, and by default almost any mandate to buy a product, constitutional under the commerce clause since such action would impact interstate commerce.