Skip to main content

View Diary: Mitt Romney's defense of RomneyCare gives him a broccoli problem (66 comments)

Comment Preferences

  •  States have plenary power (7+ / 0-)

    So states can require you to buy broccoli.  Not even controversial.

    On the other hand, it is also not controversial that the Federal government is a government of enumerated powers and therefore cannot do certain things which the states can.

    The "broccoli argument" is a simple illustration of the second fact:  in defending the healthcare law, one must be able to articulate continuing limits on Congressional power under the commerce clause.  

    •  Not controversial? (3+ / 0-)
      Recommended by:
      wsexson, RethinkEverything, hmi

      I know that the state can require me to insure my daughter if she participates in athletics at school (she does),

      I know that they can require me to get physicals for both of my school-aged kids.

      They can even make my buy insurance if I want to drive and get a permit if I want to build a house.

      But -- I don't understand the power that can let them send a cop to my house if I don't buy broccoli.

      Is there any limitation on that power?
      What if I'm allergic to broccoli?
      What if I can't afford to buy broccoli?
      Can I be imprisoned for the simple act of existing without broccoli?

      LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

      by dinotrac on Fri Feb 25, 2011 at 11:48:40 AM PST

      [ Parent ]

      •  General Police Power (2+ / 0-)
        Recommended by:
        SMWalt, hmi

        The states have general power to do anything except where:

        (1) specifically forbidden by the Constitution (e.g. states cannot coin money)

        (2) generally forbidden by the Constitution (e.g. the First Amendment prohibitions on restricting freedom of speech)


        (3) forbidden by the relevant State Constitution.

        Economic regulations of the you must or may not buy x variety are reviewed under the rational basis test; which means (usually) that if anyone can think of a rational reason why the law should exist, it does not offend the Constitution.

        So, the states can (absent a provision of the state constitution which says otherwise)  require you to buy broccoli or get vaccinated or the items in your list.  All of these things are ultimately from the same source of general police power.  

        •  Do you have an example of a state that (0+ / 0-)

          has required people to buy something for the simple act of being that has withstood Supreme Court scrutiny?

          The Massachusetts mandate would come under that category, but I'm not aware of it coming before the Supreme Court.

          That obviously would not include something like car insurance -- which is a pre-requisite for the grant of a privilege.

          Vaccinations for school-aged children come pretty close, because kids are almost required to go to school (and, honestly, in most places, only almost required to get vaccinated).

          LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

          by dinotrac on Fri Feb 25, 2011 at 12:37:50 PM PST

          [ Parent ]

      •  Most state constituions limit their power (0+ / 0-)

        But the point is there is no federal constitutional limitation on the state power, other than those enumerated.  So, if the state constitution allows it, the state could force you to buy broccoli.  Or not eat meat on Fridays presumably.  

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site