The broccoli test

Harvard law professor Einer Elhauge writes a NY Times op-ed in support of Obamacare:

Opponents of the new mandate complain that if Congress can force us to buy health insurance, it can force us to buy anything. They frequently raise the specter that Congress might require us to buy broccoli in order to make us healthier. However, that fear would remain even if you accepted their constitutional argument, because their argument would allow Congress to force us to buy broccoli as long as it was careful to phrase the law to say that “anyone who has ever engaged in any activity affecting commerce must buy broccoli.”

That certainly sounds like a stupid law. But our Constitution has no provision banning stupid laws. The protection against stupid laws that our Constitution provides is the political process, which allows us to toss out of office elected officials who enact them. This is better than having unelected judges decide such policy questions, because we cannot toss the judges out if we disagree with them.

He uses broccoli as an example because of the obvious absurdity of any lawmaker or judge trying to dictate a broccoli policy. But I really did have a court psychologist take me to task for feeding my kids broccoli. He recommended that I be ordered to consult a dietician to determine whether my vegetable rotation would be acceptable to the family court.

I don't know about Elhauge's Obamacare analysis, but he is right about the absurdity of broccoli law. If it were really desirable to have govt oversight of a parent's vegetable rotation, then our elected officials should pass some such stupid law, assuming that they have the constitutional authority. The last thing we want is some unelected judge deciding broccoli policy on his own.

It seems as if I am belaboring the obvious, but I have gotten into many discussions about the authority of the family court, and heard someone say something like, "What's wrong with a disinterested expert applying common sense to force a parent to improve?" These so-called experts nearly always make things worse.

To placate my more liberal readers, I am not going to mention the psychologist's religion or sexual orientiation, but he was the one who was fussy about how I brushed my daughter's hair. Elhauge is a first-generation Argentine-American, and I don't know his religion or sexual orientation.