The irrelevance of the broccoli argument against the insurance mandate.

10.1056/nejmp1113618 nejm.org e1(1) ulation of only commercial activity, not inactivity, and thus gives Congress no power to force individuals to buy a product. They argue that if the Supreme Court were to hold otherwise, then Congress could force us all to buy anything, from General Motors cars to broccoli. This claim is a red herring, however, because Congress could force precisely the same purchases even if the Supreme Court were to accept their arguments. Accepting the challengers’ line between activity and inactivity would do nothing to curb Congress’s feared power to force purchases, because Congress could easily sidestep that line by rephrasing the law to provide that if we have ever engaged in commercial activity, then we must buy insurance, broccoli, or anything else — just as Congress can and does mandate nondiscrimination by private firms, for instance, simply because those firms engage in commerce. Such a law would regulate activity, but because everyone buys things, it would have the same effect as a simple mandate. One might try to make this line more meaningful by adding a requirement that the obligation be germane to the commercial activity, but such requirements have proven fuzzy in the past — and, in this case, could easily be satisfied in a way that still creates a mandate by providing that anyone who has ever received health care from a paid provider must buy health insurance. Nor are the challengers correct that Congress can regulate only commercial activity. The Supreme Court has held since 1942 that Congress has Commerce Clause power to limit our ability to grow wheat that we consume ourselves and do not sell, reasoning that it suffices that this noncommercial activity encourages a commercial inactivity that in turn affects commerce — because those who grow their own wheat are not buying wheat from others, which reduces commerce in wheat.1 If Congress can regulate a noncommercial activity that causes commercial inactivity that in turn The Irrelevance of the Broccoli Argument against the Insurance Mandate