HLS Professor Einer Elhauge ’86, the founding director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, wrote “The Irrelevance of the Broccoli Argument against the Insurance Mandate,” which was published online Dec. 21 by the New England Journal of Medicine.
An expert in antitrust, contracts, and health care law, Elhauge served as chairman of the Antitrust Advisory Committee for the Obama campaign and is the author of several books, including “Statutory Default Rules” and “United States Antitrust Law & Economics.” Most recently, he edited and contributed to a book on health care in the United States, “The Fragmentation of U.S. Health Care: Causes and Solutions” (Oxford University Press, 2010).
In the article, Elhauge argues against legal challenges that have occurred in reaction to the Accountable Care Act’s individual mandate to obtain health insurance:
The Irrelevance of the Broccoli Argument against the Insurance Mandate
By Einer Elhauge
Published: Dec. 21, 2011
The parties who have brought legal challenges to the Accountable Care Act’s (ACA’s) individual mandate to obtain health insurance claim that the Constitution’s Commerce Clause authorizes the regulation of only commercial activity, not inactivity, and thus gives Congress no power to force individuals to buy a product. They argue that if the Supreme Court were to hold otherwise, then Congress could force us all to buy anything, from General Motors cars to broccoli. This claim is a red herring, however, because Congress could force precisely the same purchases even if the Supreme Court were to accept their arguments. …” Read the full article at NEJM.org »