Dahlia Lithwick at Slate hosted an online chat session today. This was the best part:
Ric Kidney: This ridiculous “broccoli” argument is wrong headed. The government has the right to require people do what is best for everyone. Yes, you can choose not to drive and not get car insurance but you cannot choose never to get sick or get injured. I live in California. We are required to cut the brush from around our homes—something I must pay for or do myself. The purpose of the law is not to save my house from fire, but to save the entire neighborhood. Of course the health care mandate is constitutional. It has nothing to do with the “right to have health care.” If this is the argument of the right, then they must pass a law saying those who do not pay can NEVER get health care.
Dahlia Lithwick: That’s all true and more. It’s not just that everyone eventually gets sick and needs health care. It’s that when they need it and they are uninsured they get it anyhow. It’s like choosing not to buy a car and then getting one for free. That’s what makes the market unique. But that said, the Obama admin had ONE job to do and that was answer the broccoli argument. They needed to explain a one-sentence legal limiting principle. I still maintain that Elena Kagan in her confirmation kind of articulated it when she said that if Congress tried to force everyone to eat broccoli it would be a “dumb law.” [Emphasis added]
So, just to be clear, Slate’s court reporter, someone they hold out to have some sort of expertise on the law (she writes two columns covering legal issues) believes that if a law is a bad idea, then it should be found unconstitutional, but if it is a good idea, then it should be found constitutional. That is one cherry of a limiting principle.