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84 S. Cal. L. Rev. Postscript 9 (2011)
Can Congress Make You Buy Broccoli - And Why It Really Doesn't Matter

handle is hein.journals/pstscrpt83 and id is 9 raw text is: CAN CONGRESS MAKE YOU BUY BROCCOLI?' AND WHY IT REALLY DOESN'T MATTER DAVID ORENTLICHER, MD, JD* Critics of the individual mandate to purchase health care insurance make a simple but seemingly compelling argument. If the federal government can require people to buy insurance because that would be good for their health, then the government can require people to buy all sorts of things that are good for their health, like broccoli or membership in an exercise club.2 To avoid the prospect of the ultimate nanny state, U.S. district court judges in Florida3 and Virginia4 concluded that while the federal government may regulate economic activity, it may not regulate economic inactivity. Thus, once you decide to purchase health care insurance, the government can regulate the terms of your insurance policy. However, you cannot be forced to purchase the policy in the first place. To breach the activity-inactivity line, wrote Judge Roger Vinson, would invite all kinds of well-intended, but liberty-destroying, laws.5 * Visiting Professor of Law, University of Iowa College of Law; Samuel R. Rosen Professor of Law, Indiana University School of Law-Indianapolis. MD, JD, Harvard University. I am grateful for the comments of Judy Failer, Shelly Kurtz, Todd Pettys and Rebecca Zietlow and the research assistance of Taylor Wright. 1. Wendy K. Mariner, George J. Annas & Leonard H. Glantz, Can Congress Make You Buy Broccoli? And Why That's a Hard Question, 363 NEw ENG. J. MED. 201 (2011). 2. Ilya Shapiro, State Suits Against Health Reform Are Well Grounded in Law-And Pose Serious Challenges, 29 HEALTH AFFAIRS 1229, 1232 (2010). 3. Florida v. U.S. Dept. HHS, 2011 WL 285683 (N.D. Fla., Jan. 31, 2011). 4. Virginia v. Sebelius, 728 F. Supp. 2d 768 (E.D. Va. 2010). 5. U.S. Dept. HHS, 2011 WL 285683.. 9

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