The Broccoli Test (New York Times)

Can we truly force Americans to buy health insurance, or any other product? The answer hinges on the commerce clause, which stipulates just how far Congress can go to regulate commerce. To opponents who maintain health care reform’s individual mandate is about as intrusive and unconstitutional as the federal government requiring us to buy broccoli in order to stay healthy, Harvard law professor Einer Elhauge says that, while ridiculous, even a broccoli mandate is not outside Congressional reach. In fact, he says, the argument that the commerce clause does not authorize the insurance mandate is beside the point. Here’s why: Without the mandate, the other, widely supported elements of health care reform would fail. Thus, the mandate is authorized by the “necessary and proper clause,” which the Supreme Court has held gives Congress the power to pass any law that is “rationally related” to the execution of some constitutional power.