American children can rest easy that there is no mandate to eat broccoli in the health reform law. Justice Antonin Scalia used the vegetable as an example in trying to establish what the government could get away with if the individual mandate portion of the health reform law is upheld. “If the government can do this, what, what else can it not do?” Scalia asked. Up to now, the Court has taken a broad view of the commerce clause – even at the sacrifice of individual freedom – and stressed that Congress needs only a “rational basis” for concluding that activity might affect interstate commerce. The Court itself has said the basic limit on the federal commerce power is state participation in federal governmental action. “The political process ensures that laws that unduly burden the states will not be promulgated,” the Court said.
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