Can the gov’t force you to eat broccoli?

Andrew Napolitano: Exploitation of Commerce Clause led to defense of Obamacare

hat tip: World Net Daily
by Andrew Napolitano

This week, the Supreme Court measured Obamacare to see whether it fits within the confines of the Constitution. The big picture is whether the Constitution limits the behavior of the federal government to the plain meaning and historical context of the Constitution, or whether clever lawyers and politicians can interpret language in the Constitution so as to justify whatever Congress wishes to do. Does the Constitution mean what it says? Does it limit the federal government to the powers it has delegated to Congress? Or is it a blank check for Congress to do whatever it can get away with?

One of those delegated powers is the power to regulate interstate commerce. The language in the Commerce Clause authorizes Congress “to regulate” commerce among the states. When James Madison wrote that phrase, he and the other framers were animated by the startling lack of interstate commerce among the states under the Articles of Confederation. This was the period after the Revolution and before the Constitution when the merchants and bankers who financed the Revolution also controlled the state legislatures. They were both creditors, because they had lent money to the state governments to finance the war, and debtors, because they now controlled the machinery of state government that owed them money.

What did they do? They were the original corporatists and crony capitalists. They formed cartels to diminish in-state competition, and they imposed tariffs to discourage out-of-state competition. Thus, in order to turn 13 mini-economies into one large economy, and to protect the freedom to trade, Madison used the word “regulate,” which to him and his colleagues meant “to keep regular.” So, the Constitution delegated to Congress the constitutional power to keep interstate commerce regular by prohibiting state tariffs, and it did so.

But Congress was intoxicated with its new powers, so it began to keep commerce regular by regulating the fares charged by ferries going from Hoboken, N.J., to New York City – and the Supreme Court said yes. From there Congress regulated the wages of workers who produced goods that were put onto those ferries – and the Supreme Court said yes. Then Congress regulated the wages, working conditions and methods of manufacture of facilities whose goods never moved in interstate commerce, so long as the economic activity generated by the production of those goods had a measurable effect on interstate commerce – and the Supreme Court said yes.

This jurisprudence has resulted in the courts approving the congressional regulation of the thickness of leather in shoes, the water pressure in home showers, the amount of sugar in ketchup, ad infinitum. Wherever you go in the United States, it is impossible to avoid confronting federal regulation of human behavior unmentioned in the Constitution, but justified by Congress under the Commerce Clause. It will be necessary for the court to put a backstop on this absurd progression of congressional power in order to invalidate Obamacare’s individual mandate.

The other line of Commerce Clause jurisprudence the court will confront started with a farmer growing wheat exclusively for the consumption of his family during the Great Depression, and the feds ordering him to grow less wheat. He resisted that order, and his resistance led to an infamous Supreme Court opinion that upheld the feds’ order. That 1942 case stands for the propositions that even infinitesimal economic behavior, even behavior that is not numerically measurable, even behavior that is not of a commercial nature, even behavior that does not move products across interstate lines can be regulated by Congress if, when all the similar behavior in the land is taken in the aggregate, it could have an effect on interstate commerce. This aggregation theory is the most anti-historical, hysterical, disingenuous, convoluted ruling in the court’s history. But it is still the law today, and it will be necessary for the court to distinguish or to overrule this case, too, in order to invalidate the individual mandate.

Justice Antonin Scalia reminded his colleagues during oral arguments this week that the Constitution is the supreme law of the land and it means today what it meant when it was written and ratified. If Congress can compel you to buy health insurance because that’s good for you and for the country’s economic health, he asked, can it force you to eat broccoli? And if it can, what is the value of having a Constitution that was written to limit the government’s powers?

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel and anchor of “FreedomWatch” on Fox Business Network. His most recent book is “It Is Dangerous to Be Right When the Government Is Wrong.” To find out more about Judge Napolitano and to read features by other Creators Syndicate writers and cartoonists, visit

Jason Rink is the Editor-in-Chief of The Liberty Voice. Executive Director of the Foundation for a Free Society. He is the producer and director of Nullification: The Rightful Remedy, and the author of “Ron Paul: Father of the Tea Party” the biography of Congressman Ron Paul. See more of his work at his writing at and his film production work at


  1. Dwayne Stovall

    March 30, 2012 at 12:45 pm

    Excellent. Just excellent. Common sense and the actual intent, well documented by the founders, as well as the sponsors of the following amendments must be upheld. This argument is literally federalism v Nationalism.

  2. Edward G. Nilges

    April 22, 2012 at 10:20 pm

    Absurd. “Regulate” does not merely mean “to make regular”. Its root is from the Latin word regula which means to rule. If anything, the Founders’ usage was closer to Latin since they learned Latin.

    Whence this childish belief that it’s the government’s job to stay out of the way of white male id? Whence this fear of a government partially consisting of nonwhite and non male authority telling little Antonin Scalia to eat his broccoli?

    “Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice without constraint.”

    Who wrote that?

    Some French guy?

    No, a Founding Father wrote it (Alexander Hamilton, Federalist Papers.)

    The Sixties saw the dawn of modern conservatism in which it isn’t fashionable to talk of the passions of certain men and the need to regulate them. Entirely too many white males took away the illusion that they had no unseemly “passions” that needed to be regulated, ruled, by government, and “government was the problem” unless it was using its police and military power to defend white guys against the Other.

    Ted Nugent (who I sat next to in high school) is what results: a completely indisciplined man, a pig, who calls for anyone who doesn’t look like him or agree with him to be destroyed because ever since he got thrown out of St Viator, he’s never been able to manage his passions. The very idea that he should do so is anathema to him.

    Now we’re supposed to cater to the passions of people who can’t be bothered to get health insurance while they make the black, the brown and the university student jump through hoops to vote with Draconian ID laws passed to ensure a Republican majority in 2012.

    The negative passions, the sloth, of people who want to homeschool (some of whom believe that this means parking their kids in front of TV).

    Because these clowns have in fact no way to regulate, self-rule, their passions, their favorite argument is the slippery slope: give them an inch, and they will (surely) take a mile (boys). The fallacious use of slippery slope is psychological transfer. It’s the fantasy that if we allow x, all sorts of ys will immediately ensue when in fact it is hard to get new laws passed.

    If for some reason, eating broccoli turned out to be the only way to save the Republic, a patriot would eat broccoli, and a patriot would support a law “forcing” people to eat broccoli.

    And note that the language of weakness, the idea of being “forced to do” is strange to the Augustan prose of the Founding Fathers. They simply never say that they might be “forced” to do anything like children.

    This is because they subscribed to Hobbes’ and Locke’s doctrine of natural right of resistance, a right that cannot be coded. In it, beyond law, as John Rambo, you already have the right to disobey any law you like, but must realize that the Sovereign has a matching right to punish you. Government starts when you abandon the exercise of the natural right, not by being forced to do anything, but by choosing the fetters of constraint.

  3. Edward G. Nilges

    April 26, 2012 at 10:49 am

    In order to balance their books and keep functioning, hospitals are now retaining debt collectors dressed as caregivers who demand payment BEFORE the dying and women in labor are assisted!

    THIS IS COMMERCE, PEOPLE. It is INTERSTATE commerce. The hospitals need the money to pay suppliers out of state and abroad.

    United States Constitution, Sec I/8: Powers of Congress: “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”.

    Regulate as in rule according to the Latin root.

    Commerce as in maxing out your credit card so your kid isn’t left to die on a gurney.

    Regulate as in control. Kick ass. Take names.

    Commerce as in paying the out of state bond holders of the hospital. Commerce as in paying doctors to go to Harvard for a residency so they can save lives.

    The Chicago hospital has to pay the software firm in Palo Alto. It has to pay the doctor who lives in Wisconsin. It has to pay the Chinese manufacturer of the X ray machine (foreign nations). All commerce today save in the Arcadian fantasies of losers, is global. If you go local your kids die.

    Damn your freedom and damn your sniveling Liberty. In 1756, Liberty was the Liberty to serve in a Militia to defend homes in the wilderness against the French and their savage Huron allies. YOU want the freedom to be “left alone” like children who want to snivel and play, singing weak songs of the doomed, until the lights fail.

  4. Edward G. Nilges

    May 2, 2012 at 1:50 am

    Scalia’s counterexample is absurd. If as it happened, the United States (let us say) was under attack by aliens with some sort of death ray that could only be counteracted by “eating broccoli”, then Patriots would … eat broccoli.

    This isn’t meant as a joke. The Founding fathers knew full well that the world of 1590 was different from that of 1790, and that the world of 1690 was MORE unlike that of 1790 that 1690 was in relation to 1590. For one thing, the very idea of the nation-state had been more or less invented at the Peace of Westphalia in 1648.

    They could not anticipate, but they apprehended, that progress in medicine would be exponential. In 1790, very little could be done for the gravely ill save making them comfortable with whiskey, the analgesic of the time, and setting the bones of the injured, and the doctor could be paid in kind.

    Medicine was trivial commerce at that time. But today, merely to survive, hospitals and doctors must engage in interstate commerce. If they fail as private (for profit or not for profit businesses) then our health care system will regress to that of the erstwhile Third World…while in India and China today, medicine is gradually progressing to First World standards, and many Americans go to India and Thailand for medical care that’s unaffordable in the US.

    This means that Americans will die on the streets in front of emergency rooms once the informal understanding that “if you are gravely ill, you will get the best care we can provide and then we’ll talk about your bill” is canceled…once ACA is labeled “unconstitutional” by that clown Scalia and the rest of the conservatives.

    A man in constant pain from cancer is NOT a Lockean subject able to make choices. Eventually, you a society made up of sick and addicted zombies. Night of the Living Dead.

  5. Ian Schumacher

    August 17, 2012 at 9:16 pm


    Your points are scattered and hard to follow.

    Let me see if I got it right:

    1.) Because hospitals have to buy equipment and services from out-of-state, healthcare is therefore interstate commerce and a valid area for federal regulation.

    2.) Health care is too expense for the average man, therefore government should pay for it.

    I’m not even going to post counter-points.

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