Like former President George H.W. Bush and millions of other
eminently sensible Americans, I have always hated broccoli. And one
of the few complaints I can make about a generally idyllic
childhood is that, occasionally, I would sit down at the family
dinner table and find that my mother had deliberately ruined a
perfectly good meal by including that dreaded vegetable among the
otherwise palatable fare. My normal strategy for dealing with such
maternal perfidy was to ignore the noxious plant, but this was
invariably countered by a peremptory command from Mom to eat it
immediately. When I further temporized, per my standard policy, she
would appeal to my father for a final ruling on what should be done
about my refusal to eat something that was so obviously good for
me. He inevitably imposed the statutory penalty: failure to comply
with the broccoli mandate would result in forfeiture of dessert. I
always took the penalty.
Apparently, similar episodes remain green in the memory of
U.S. District Judge Roger Vinson. On December 16, while presiding
over a hearing in which attorneys representing Florida and nineteen
other states challenged Obamacare’s individual mandate as
unconstitutional, he asked its hapless defenders this question
about the powers of Congress: “If they decided everybody needs to
eat broccoli because broccoli makes us healthy, they could mandate
that everybody has to eat broccoli each week?” Ian
Gershengorn, the same Justice Department lawyer who unsuccessfully
defended the mandate before U.S. District Judge Henry Hudson in
Commonwealth of Virginia v. Sebelius,
told Judge Vinson that the health care market has special
qualities that somehow necessitate a federal law forcing everyone
to buy health insurance: “It is not shoes, it is not cars, it is
not broccoli.”
This answer manifestly failed, of course, to address the
point. The judge wasn’t inquiring about economics or the dynamics
of any particular market. He was trying to get Gershengorn to talk
about constitutional limits on the power of the central government.
The attorney representing the various plaintiffs in the case was
far less reluctant to discuss the constitutional implications of
Obamacare. David B. Rivkin argued, “The act would leave more
constitutional damage in its wake than any other statute in our
history.” That argument clearly resonated with Vinson, whose
questions to the DOJ lawyer betrayed skepticism about the claim
that a decision not to buy insurance constitutes economic
activity that Congress can regulate by virtue of the Constitution’s
interstate commerce clause: “In the broadest sense every decision
we make is economic: the decision to marry, the decision to keep a
job or not has an economic effect.”
If Gershengorn had been permitted to provide a candid
response to the judge’s observation, he would probably have said
something like, “What’s your point?” He, like everyone else in the
Obama administration, presumably believes that the commerce clause
gives the federal government the authority to regulate virtually
every decision we make in our day-to-day lives. Indeed, the belief
that Washington can — and should — supervise us as if we were a
nation of children is the core tenet of their nanny-state political
philosophy. This is the belief system that prompted First Lady
Michelle Obama to say, as her husband signed a
law that will regulate what children
eat during summer vacations and what can be sold in school vending
machines, that child nutrition is something “We can’t just leave…up
to the parents.” Without the “help” of the federal government, some
mother might fail to force broccoli on her kids.
Likewise, we “can’t just leave it up” to the patients to
decide for themselves if they should buy health insurance. Indeed,
according to the Obama administration, there is something sinister
in the very suggestion that we must allow them to do so. In a
recent
editorial published in the Washington Post under the
names of Secretary of Health & Human Services Kathleen Sebelius
and Attorney General Eric Holder, we are told that the twenty odd
lawsuits challenging the right of Congress to impose the individual
mandate are “troubling.” Why are they so troubling? “We saw similar
challenges to laws that created Social Security and established new
civil rights protections. Those challenges ultimately
failed, and so will this one.” In other words, the
officials of twenty states, including the old Confederate bastions
of Michigan, Colorado, Washington, and Nebraska, are actually
modern equivalents of Bull Connor and Orval Faubus.
Sebelius and Holder also write that “these attacks are
wrong on the law,” an argument that notably failed to convince U.S.
District Judge Henry Hudson in the Virginia case and doesn’t seem
to have fared much better with Judge Vinson. Nonetheless, they
continue to send Mr. Gershengorn out to make the Orwellian argument
that failure to do business with an insurance company substantially
affects interstate commerce because “inactivity is just an
illusion.” And he dutifully soldiers on, even as irascible Judges
like Hudson and Vinson glare incredulously at him from the bench.
Gershengorn was “handpicked” for this thankless job, the New
York Times
tells us, because he was seen by DOJ leadership as “a real
star.” One wonders, however, if he really understood that his first
high-profile assignment as a government lawyer would be to make
America eat its vegetables.
