Can Congress Make You Buy Broccoli? And Why That’s a Hard Question

By Wendy K. Mariner, J.D., M.P.H., George J. Annas, J.D., M.P.H. (corresponding author), and Leonard H. Glantz, J.D. (From the Department of Health Law, Bioethics, and Human Rights, Boston University School of Public Health)
The New England Journal of Medicine
December 22, 2010

The continuing uncertainty over the constitutionality of the Affordable Care Act (ACA), illustrated by conflicting trial court rulings and scholarly commentaries, raises the question of why this constitutional question is so hard to answer. There are at least four reasons.

(The four reasons are discussed in the article.)

A much easier question to answer is why we’re facing this constitutional turmoil. Why, for example, is there no constitutional fuss over Medicare, Medicaid, or veterans’ health care? These programs raise no constitutional issue because they are government benefit programs funded by taxes, and the Constitution explicitly authorizes Congress to tax and spend for the general welfare. Had the ACA expanded Medicare eligibility to everyone, or created a new government health benefit program, there would be no constitutional issue. The constitutional controversy is the direct result of the insistence by conservative legislators that any health insurance reform must preserve the private insurance industry, which necessitated the addition of the individual mandate that is now being fought in the courts by similarly conservative forces.

http://healthpolicyandreform.nejm.org/?p=13457&query=TOC

Although these views on the constitutionality of Medicare have been discussed by others, including PNHP’s leadership, this NEJM article is of prime importance in the continuing health reform debate because it represents the views of respected ethicist George Annas and his colleagues.

The editor’s decision to use broccoli in the title stems from the comments of Florida’s Judge Vinson who questioned whether Congress could require everyone to buy broccoli. Cute. But that distracts from the fundamental issue that should have been selected for inclusion in the title.

Our founding fathers drafted a Constitution that recognizes the primacy of government in the establishment of benefit programs, and explicitly authorizes Congress to tax and spend for the general welfare. That does not extend to taxing and spending for the welfare of the private insurance industry, especially when that is the most expensive and least efficient model of reform – one that leaves so many out, and creates financial hardship for many more.

Is anyone else ready for a national movement to petition Congress to grant us our right to a government health benefit program for everyone – an improved Medicare for all?