Legal Commentary

Jonathan Adler over at Volokh Conspiracy had a post a couple days ago about the mandate and the broccoli question.  Adler has a good couple sentences summarizing things here:

This, in the end, is why mandate defenders need to be able to provide a doctrinally satisfying answer to the broccoli question: If the federal government may require everyone to purchase qualifying health insurance plans from private companies, why can?t it also require everyone to purchase broccoli? 

I come at this as an outsider; I haven?t yet taught the Commerce Clause; I don?t have strong feelings about it.  For me, the Commerce Clause debate seems similar to a whole lot of other debates we have about making constitutional provisions nonjusticable because of line-drawing problems.  One side (here the political right--though I'm not trying to label anyone, I'm just trying to make my descriptive point clear) can?t imagine giving up on a constitutional provision altogether, and thinks of the most extreme examples of why that would be intolerable (the broccoli thing).  The other side (the left) sits back, asking for some proposed line, knowing that they can criticize any suggestion into the ground.  It?s Caperton, or Vieth, or whatever, but with the political sides flipped.

What surprises me about the mandate litigation is how well the attackers of the mandate have flipped the burden of line-drawing back onto the defenders of the mandate.  I don?t know if it will work in the long run, but it?s really interesting.  If it gets to the Supreme Court, I have a feeling that the Court will demand that the mandate?s attackers themselves come with a judicially manageable line.  But perhaps I?m dead wrong about this. 

I say this as someone concerned a lot about the Free Exercise Clause, where concerns about line-drawing deeply eroded the constitutional right in question.  Being able to flip the burden of line-drawing is a useful thing.  I wonder what general lessons there are here.