Regulating Inactivity

1 Comment

altAfter sitting for hours reading the transcript of the Supreme Court oral arguments on the constitutionality of the Affordable Care Act, I had worked up quite an appetite. “It’s about time you came to eat,” my wife said as I came into the dining room. “What have you been doing?” she said without hiding her annoyance. “You know we have the grandkids for the evening.”

After sitting for hours reading the transcript of the Supreme Court oral arguments on the constitutionality of the Affordable Care Act, I had worked up quite an appetite. “It’s about time you came to eat,” my wife said as I came into the dining room. “What have you been doing?” she said without hiding her annoyance. “You know we have the grandkids for the evening.”


The dining room seemed empty, but then I noticed the tiny boy sitting at the other end of the long table. All the plates on the table were mostly empty of their food and the other three children were chattering in the den over the noise of the TV. “Blaise, why are you still here?” I asked. He just sat there with a twisted look and gave me his usual three-year-old shrug. A single piece of broccoli sat on the plate mere inches from his face as he cradled his chin in his hands.

“Oh, I get it. It’s the ole ‘you can’t go play ‘til you eat your broccoli’ thing. Blaise, I don’t like broccoli either,” I said turning to the youngster with a look of commiseration.

“Don’t tell him things like that,” my wife said sternly.


“My daddy dothent like that either,” Blaise said with a lisp and a squint of his eyes.

“Your daddy was a little boy once, just like you,” my wife said with her look of parental firmness. “And he ate his broccoli, just like you’re going to. By the way,” she continued, ignoring Blaise’s continued inactivity,

“what were you doing upstairs that took so long?”

“I’ve been reading the transcripts of the oral arguments before the Supreme Court on the Affordable Care Act. However they decide this, it’s going to make history.”


“Really?” Rebecca said without really listening. Her attention was focused on Blaise’s intransigence.

“Did you know that the Supreme Court has set aside three days of oral argument for this case. That hasn’t been done since the Voting Rights Act in the ‘30s. And that’s about how long it’s going to take to convince Blaise to eat his broccoli. Don’t you remember the long evenings trying to convince his d-a-d-d-y to eat it?” I thought that would get her attention away from my little helpless buddy. It didn’t. She continued to stare sternly at Blaise.

“If they find that the Affordable Care Act is constitutional,” I continued, “it means that the Congress can pass a law to make you do anything they want. They can pass a law that says you have to eat broccoli every day.”

“What the heck are you talking about,” my wife said, finally turning her attention to me.

“Whaths Congreth?” asked Blaise before repeating, “My daddy thed that I don’t have to eat broccoli.” My wife gave me the ‘look what you started’ scowl.

Now I finally had everyone’s attention. “The only way the Affordable Care Act will work is if everyone, whether you are healthy or not, buys the government-mandated insurance plan. Everyone is guaranteed coverage for any and every problem no matter the cost, without any lifetime caps. But the only way that will work financially is if healthy people, especially the young, are forced to buy in.”

“That seems to make sense to me,” my wife, the pragmatist, opined.

“Sure, it make sense if you’re old and sick. You want all those young healthy people paying those hefty premiums to make up for the old geezers who are spending every last dollar of Medicare to take one more breath.”

“Wow, that’s pretty cynical, especially coming from one of those ‘old geezers’.”

“I’m not an ‘old geezer’ and I just said that to make a point.” I was on my soap box and lovin’ it. “First, the government mandated plan is expensive, it’s bureaucratic, it’s ‘one size fits all’. It might still be the best thing for some people. But some people would like to buy a different kind of plan or pay for their medical care out of their pockets.”

“That seems to make sense too,” she said with an easy shrug.

“I hate it when you take both sides of an argument.”

“So how are they going to decide?”

“It all comes down to how the Supreme Court interprets that Article I, Section 8, Clause 3 of the Constitution,” I said with a smirk.

“Well aren’t you a smarty pants? What the heck are you talking about?”

“The Commerce Clause says …”

“The Commerce Clause? Why didn’t you just say that?” she said dismissively.

“Article I, Section I, Clause 3, otherwise known as the Commerce Clause” I said slowly, “says that Congress ‘shall have the power to regulate commerce…”


“In other words, there has to be a commerce in order for Congress to have the authority to regulate it. If there is no activity, no commerce, Congress as no authority to compel that activity so they can regulate it. That’s called regulating inactivity.”


“Congress can regulate insurance. But they can’t make you buy insurance. Hey, it’s like you getting to say what is put on the table. But no one has to eat it.”

“You think not?” Rebecca said, rising to the challenge of her authority. “They can make you buy car insurance,” she said with a glare.

“No, actually, they can’t. They can make you have insurance if you want to operate a car on the public highways. But if you don’t want to drive off your property or you simply don’t want to buy a car, you don’t have to buy insurance just so the premiums for everyone else will go down.”

“But isn’t everyone going to eventually need health insurance? And doesn’t it make sense to spread the cost?”

“Of course, it makes sense to spread the cost of health care as broadly as possible to make access as universal as possible. But if Congress is going to attempt to do that, they are going to have to act within the restraints of the constitution. Because, as I said to start with, if Congress can enact a law that requires you buy a certain type of health insurance, whether you need it or want it, they can require you to do anything. They could enact a law that would require everyone to meet height/weight standards like we do in the Navy. And they would fine you if you were fat.”

“I like that,” she said reaching out to grab the spare tire that was developing around my middle.

“Seriously,” I said. “If Congress can mandate that you have to buy a product from a private company, they can make you do anything. They can even make you eat broccoli.”

“Speaking of eating,” Rebecca said, as she took my now cold dinner plate from the counter and put it in front of me. “Enjoy your broccoli. And be a good example for your grandson.”

“Hey, I object, your honor,” I said looking at the mountain of green stuff in front of me. “You know I don’t eat broccoli.”

“Thee,” Blaise chimed in. “Pop doethint like broccoli either.” He smiled broadly up at me. Then we bumped fists in an act of solidarity.

My wife was unmoved by our act of defiance. “Keep this up and tomorrow we’ll have brussels sprouts.”
I shuddered at the thought.

“My daddy thays that I don’t have to eat bwuthel thpouths, either.”

“I’m going to have to talk with your daddy,” Rebecca said with a reminiscing smile. “Would anyone eat their broccoli
if I put a cheese sauce on it?”

“I like cheeth,” Blaise said, perking up and smiling.

“Me, too,” I said with gusto.

“I think you’d eat a bowling ball if I smothered it with enough cheese.”

“See, you make my point. We don’t need Congress to tell us what we need to do. We just need a little cheese.”

1 Comment

  1. Fred Havko on

    It is sad, but people will not do the right thing unless forced. It is unlikely that someone not eating broccoli, would have an effect on anyone else, but those people who don’t have insurance can larger negative impact many others. A hospital can be shut down due to finacial hardship caused by the uninsured and pts die because of this.

Leave A Reply