If the Supreme Court ends up upholding the Affordable Care Act’s individual mandate, there is no danger that Americans will be forced to buy and eat broccoli, despite Justice Scalia’s suggestion to the contrary during oral argument on Tuesday. As conservative law professor and former Solicitor General during the Reagan administration Charles Fried put it, “the whole broccoli argument is beneath contempt”, a Tea Party talking point. There’s a wife gulf between requiring Americans to pay for health care they cannot be denied rather than shifting the costs to others and forcing people to buy and eat a vegetable that no grocer is required to give them regardless of their ability to pay. The real question is not whether the Court will give the Court too much power but whether it will give it enough. After the Court’s decision, which is expected this June, will Congress have the tools it needs to respond to crises in an interdependent modern world?
The Framers of the U.S. Constitution, though they had fought a revolution against oppressive government, recognized that, while there was certainly danger in giving government too much power, there was also danger in giving it too little. In 1787, the United States was on the edge of failure. Under the Articles of Confederation, the federal government lacked the power needed to govern a nation. Individual states functioned more as independent countries than part of one nation. The federal government could not make or enforce treaties, regulate the national economy, or even collect the revenues needed to pay bills run up during the Revolutionary War. It was quite possible that the country would break into separate nations. A few months before the Framers met in Philadelphia, Shays’ Rebellion in Massachusetts made clear how serious the crisis was.
During the summer of 1787, the Framers of the Constitution averted crisis and saved the nation by giving the federal government the power it needed. One of the most important powers they gave Congress was the power to regulate commerce among the states, to regulate a national economy.
The early Supreme Court fully understood the choice the Framers had made, and why they had made it. In 1819, Chief Justice John Marshall recognized that Congress had been given the flexibility to choose the means necessary to achieve the responsibilities assigned to it, to “adapt  to the various crises of human affairs.” As he said, “let the end be legitimate, let the scope be within the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.” In Marshall’s view, Congress had the implied power necessary to carry out its responsibilities. Even though the Constitution says nothing about a national bank, Congress could create one if it believed this was needed to carry out its power to regulate commerce, raise armies, and collect taxes.
The concept of nationhood was tested during the Civil War. The victorious Union expanded and strengthened the power of the federal government. However, in the late nineteenth and early twentieth centuries, the Supreme Court failed to give meaning to the post-Civil War amendments and prevented Congress from dealing with national crises posed by racial violence, segregation, and the Great Depression. Finally, in 1937, in the midst of the Depression and with public opinion turning against it, the Court relented, recognizing, as Marshall had in 1819, that it could be dangerous to restrain the federal government. In the Jones & Laughlin case, the Court concluded that the power to regulate interstate commerce must be “a practical conception” so that Congress would have the tools necessary to prevent the consequences of the federal government’s inability to address national problems.
For 75 years, the Court has continued to recognize that the federal government must have the power to deal with national problems. Even the Rehnquist Court would say only that this power was not unlimited and refused to overrule the long line of cases since Jones & Laughlin.
Now, the Court stands poised to rely on the rhetoric of the Tea Party to stand in the way of Congress’s ability to deal with a truly national problem—if tens of millions of people without health insurance who pass on tens of billions in costs to other Americans isn’t a national problem, then what is? When the Court issues its decision, the question won’t be whether Americans might be forced to eat broccoli. That is a non-starter, constitutionally, as Prof. Fried, to his great credit, has observed and is frantically reminding the Court. What we’ll really find out is whether Congress has the power to govern a nation, a problem the Framers seemed to have settled long ago. In the modern world, the question is more vital—hyper-individualist rhetoric notwithstanding, the reality is that Americans are interconnected. When the uninsured get sick and receive treatment, someone must pay. The ultimate question, in fact, is whether the United States is a nation or merely a group of 300 million people who happen to share living space.