1 Patient Protection and Affordable Care Act (PPACA), Pub. L. No. 111-148, 124 Stat. 119 (2010), amended by Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029 (to be codified primarily in scattered sections of 42 U.S.C.).

2 PPACA § 1501, 42 U.S.C. § 18091 (2006 & Supp. IV 2011). It is unclear, even to the PPACA's staunchest defenders, whether the penalty, which is enforced through a new section 5001 of the Internal Revenue Code, is more properly characterized as a fine or a tax. See, e.g., Gostin, Lawrence O., The National Individual Health Insurance Mandate, 40 Hastings Center Rep. 8, 8 (2010)CrossRefGoogle ScholarPubMed (“If anything, the tax penalty is too low … .” (emphasis added)); Vikram David Amar, Reflections on the Doctrinal and Big-Picture Issues Raised by the Constitutional Challenges to the Patient Protection and Affordable Care Act (Obamacare) 6 n.33 (UC Davis Legal Studies Research Paper Series, Research Paper No. 278, Oct. 2011), available at http://ssrn.com/abstract=1936330 (referring to “the tax penalty imposed by the Act … . If individuals wish to escape the coverage mandate, conceivably they could refrain from undertaking the economic activity (earning income) that triggers the duty to file a tax return.” (emphasis added)).

3 See, e.g., Hall, Mark A., Commerce Clause Challenges to Health Care Reform, 159 U. Pa. L. Rev. 1825, 1864 (2011)Google Scholar; Huhn, Wilson, Constitutionality of the Patient Protection and Affordable Care Act Under the Commerce Clause and the Necessary and Proper Clause, 32 J. Legal Med. 139, 163-64 (2011)CrossRefGoogle ScholarPubMed.

4 For objections to the PPACA's constitutional legitimacy under the Commerce Clause, see, example, Barnett, Randy E., Commandeering the People: Why the Individual Health Insurance Mandate Is Unconstitutional, 5 N.Y.U. J.L. & Liberty 581 (2010)Google Scholar. Other challenges to the PPACA, such as those based on First Amendment Free Exercise and Establishment Clause grounds, see Grover, Samuel T., Note, Religious Conscience Exemptions to the PPACA Health Insurance Mandate, 37 Am. J.L. & Med. 624 (2011)CrossRefGoogle Scholar, and on federalism objections to congressionally mandated expansion of the Medicaid program, see Huberfeld, Nicole, Federalizing Medicaid, 14 U. Pa. J. Const. L. 431 (2011)Google Scholar, are not discussed in this Article.

5 Florida ex rel. Att’y Gen. v. U.S. Dep't of Health & Human Servs., 648 F.3d 1235 (11th Cir. 2011), cert. granted sub nom. Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 603 (2011) (mem.), and cert. granted, 132 S. Ct. 604 (2011) (No. 11-398) (mem.) (argued Mar. 26-27, 2012), and cert. granted in part, 132 S. Ct. 604 (2011) (No. 11-400) (mem.) (argued Mar. 28, 2012).

6 Notwithstanding the cavalier assertions of some commentators, the outcome of litigation challenging the PPACA is hardly an “obvious” or foregone conclusion. See, e.g., Koppelman, Andrew, Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform, 121 Yale L.J. Online 1 (2011)Google Scholar, available at http://yalelawjournal.org/2011/04/26/koppelman.html.

7 See Claeys, Eric R., Obamacare and the Limits of Judicial Conservatism, 8 Nat’L Affs. 56, 58 (2011)Google Scholar (“In the end, a legislative repeal—signed by a president who supports it—remains the surest way to undo Obamacare.”).

8 Regarding CER generally, see Kinney, Eleanor D., Comparative Effectiveness Research Under the Patient Protection and Affordable Care Act, 37 Am. J.L. & Med. 522 (2011)CrossRefGoogle ScholarPubMed.

9 Paul Singleton, J., The Good, the Bad, and the Ugly: How the Due Process Clause May Limit Comprehensive Health Care Reform, 77 Tenn. L. Rev. 413 (2010)Google Scholar; Stopa, Emily S., Harnessing Comparative Effectiveness Research to Bend the Cost Curve and Achieve Successful Health Reform: An Assessment of Constitutional Barriers to Limiting Health Care Treatment Options, 13 U. Pa. J. Const. L. 815 (2011)Google Scholar; cf. Ann Baily, Mary, Futility, Autonomy, and Cost in End-of-Life Care, 39. J.L. Med. & Ethics 172 (2011)CrossRefGoogle Scholar (arguing that we cannot achieve universal access to quality care at affordable cost without a better public understanding of the moral legitimacy of taking cost into account in healthcare decisions).

10 Moncrieff, Abigail R., Safeguarding the Safeguards: The ACA Litigation and the Extension of Structural Protection to Non-Fundamental Liberties, 64 Fla. L. Rev. (forthcoming 2012)Google Scholar, available at http://ssrn.com/abstract=1919272.

11 See, e.g., Kinney, supra note 8; Singleton, supra note 9; Stopa, supra note 9; cf. Baily, supra note 9.

12 See, e.g., Baker, Arthur J.R., Fundamental Mismatch: The Improper Integration of Individual Liberty Rights into Commerce Clause Analysis of the Patient Protection and Affordable Care Act, 66 U. Miami L. Rev. 259, 296 (2011)Google Scholar (“There is a history of efforts to show that congressional legislation enacted pursuant to the Commerce Clause violates some implicit—and typically poorly articulated— liberty right. The Court has rejected these claims in the past and should do so here with respect to the individual mandate.” (citations omitted)).

13 See Moncrieff, Abigail R., The Freedom of Health, 159 U. Pa. L. Rev. 2209, 2247 (2011)Google Scholar (“[M]ost scholars and lawyers have focused on structural questions, particularly whether Congress has authority to require individual insurance coverage under either its power to tax or its power to regulate interstate commerce. Indeed, even those scholars who argue that the mandate is unconstitutional because it infringes individual liberty do not rely on substantive due process—much less on a freedom of health—to support their claims.” (citations omitted)). Baker objects to this legal strategy, contending that it is “important to address the question [of substantive due process] forthrightly— rather than smuggle it into the analysis under the guise of the Commerce Clause … .” Baker, supra note 12, at 310.

14 U.S. CONST. art I, § 8, cl. 3 (giving Congress “power to regulate Commerce … among the several States”).

15 For example, the Court in Gonzales v. Raich held: We have never required Congress to legislate with scientific exactitude. When Congress decides that the “total incidence” of a practice poses a threat to a national market, it may regulate the entire class … . In this vein, we have reiterated that when “a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.” 545 U.S. 1, 17 (2005).

16 See Cuccinelli, Kenneth T., II, Getchell, E. Duncan Jr., & Russell, Wesley G. Jr.,, Why the Debate over the Constitutionality of the Federal Health Care Law Is About More Than Health Care, 15 Tex. Rev. L. & Pol. 293, 295 (2011)Google Scholar.

17 Id.; see also Somin, Ilya, A Mandate for Mandates: Is the Individual Health Insurance Mandate Case a Slippery Slope?, 75 Law & Contemp. Probs. (forthcoming 2012)Google Scholar; Editorial, ObamaCare Goes to Court, WALL ST. J., Nov. 15, 2011, at A18.

18 See Virginia ex rel. Cuccinelli v. Sebelius, 728 F. Supp. 2d 768, 786-88 (E.D. Va. 2010), vacated, 656 F.3d 253 (4th Cir. 2011), petition for cert. filed, 80 U.S.L.W. 3221 (U.S. Sept. 30, 2011) (No. 11-420) (rejecting the government's attempt to construe the individual mandate as a tax).

19 Berkowitz, Scott A. & Miller, Edward D., The Individual Mandate and Patient-Centered Care, 306 JAMA 648, 649 (2011)CrossRefGoogle ScholarPubMed. But see Kahn, Douglas A. & Kahn, Jeffrey H., Free Rider: A Justification for Mandatory Medical Insurance Under Health Care Reform?, 109 Mich. L. Rev. 78, 79 (2011)Google Scholar (“[C]onclud[ing] that the free-rider problem, if it exists at all, likely is of minor significance and can hardly be said to justify the adoption of an intrusive and expensive health care program.”).

20 Hunter, Nan D., Health Insurance Reform and Intimations of Citizenship, 159 U. Pa. L. Rev. 1955, 1977-78 (2011)Google Scholar.

21 Baker, supra note 12, at 311-12.

22 Hodge, James G. Jr., et al., Congress, Courts, and Commerce: Upholding the Individual Mandate to Protect the Public's Health, 39 J.L. Med. & Ethics 394, 394-95 (2011)CrossRefGoogle ScholarPubMed.

23 Id. at 399.

24 Cf. Joondeph, Brad, Our Pending National Debate: Is Health Care Reform Constitutional?, 62 Mercer L. Rev. 605, 615 (2011)Google Scholar (challenging proponents of the “health care is different” position to delineate exactly where—if anywhere—they would draw the limits of the Commerce Clause power).

25 Gostin, supra note 2, at 8 (“Opposing a mandate is understandable when viewed from an individual perspective: it interferes with economic freedom and constrains personal choice. In economic terms, it represents a compelled cross-subsidy. However, when viewed from a collective perspective, the [individual health insurance purchase] mandate offers valuable social benefits … . [G]overnment is responsible for the well-being of the community, not particular individuals. Even if the decision were primarily self-regarding, its effects—illness and death—can be felt by all.”); see also Brief for Am. Cancer Soc’y et al. as Amicus Curiae in Support of Appellants Urging Reversal, Florida ex rel. Att’y Gen. v. U.S. Dep't of Health & Human Servs., 648 F.3d 1235 (11th Cir. 2011) (Nos. 11-11021, 11-11067), cert. granted sub nom. Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 603 (2011) (mem.), and cert. granted, 132 S. Ct. 604 (2011) (No. 11-398) (mem.) (argued Mar. 26-27, 2012), and cert. granted in part, 132 S. Ct. 604 (2011) (No. 11-400) (mem.) (argued Mar. 28, 2012).

26 Parmet, Wendy E., The Individual Mandate: Implications for Public Health Law, 39 J.L. Med. & Ethics 401, 406-07 (2011)Google ScholarPubMed.

27 See generally Grover, supra note 4.

28 A medical contraindication is “a condition in a recipient that increases the risk for a serious adverse reaction.” See Kroger, Andrew T. et al., Recommendations of the Advisory Committee on Immunization Practices (ACIP), 55 Morbidity & Mortality Wkly. Rep. (Ctrs. for Disease Control & Prevention, Atlanta, Ga.), Dec. 1, 2006Google Scholar, at 9, available at http://www.cdc.gov/mmwr/PDF/rr/rr5515.pdf.

29 There also are important moral arguments for opposing, in some situations, a person's right to refuse treatment. See, e.g., Gunderson, Martin, Being a Burden: Reflections on Refusing Medical Care, 34 Hastings Center Rep. 37, 37 (2004)CrossRefGoogle ScholarPubMed.

30 For a criticism of judicial abandonment of constitutional principles in order to promote particular factual results, see ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 261-65 (1990). See also Griffith, Thomas B., Was Bork Right About Judges?, 34 Harv. J.L. & Pub. Pol’Y 157 (2011)Google Scholar.

31 See infra Part III.B.

32 Seven-Sky v. Holder, 661 F.3d 1, 14-15 (D.C. Cir. 2011), petition for cert. filed, 80 U.S.L.W. 3359 (U.S. Nov. 30, 2011) (No. 11-679).

33 Ruger, Theodore W., Can a Patient-Centered Ethos Be Other-Regarding? Ought It Be?, 45 Wake Forest L. Rev. 1513, 1519 (2010)Google Scholar (discussing the problem of selfish patients harming the collective interest by consuming too many non-cost-effective medical services).

34 See id.

35 See Hodge et al., supra note 22, at 399 (concluding that, given the economic and public health ramifications of non-insurance, PPACA's mandate is crucial to improve healthcare access and to ensure future economic success).

36 See id.

37 But see Cohen, Joshua T., Neumann, Peter J., & Weinstein, Milton C., Does Preventive Care Save Money? Health Economics and the Presidential Candidates, 358 New Eng. J. Med. 661, 661 (2008)CrossRefGoogle ScholarPubMed (“Sweeping statements about the cost-saving potential of prevention, however, are overreaching.”); Vessely, Katherine, Is Preventive Care Really the Answer?, 20 Annals Health L. Advance Directive 159 (2010)Google Scholar, http://www.luc.edu/healthlaw/research_and_pubs/annals/pdfs/Advance%20Directive%20Ar/Online%20Issue%2020.1/Vessely_159-166.pdf (questioning the costefficiency of preventive care)

38 Regarding the heavy utilization of health services by persons with chronic illnesses and resulting cost implications, see, for example, Yoon, Jean et al., Recent Trends in Veterans Affairs Chronic Conditions Spending, 14 Population Health Mgmt. 293 (2011)CrossRefGoogle ScholarPubMed.

39 Lai, Piero L. et al., Burden of the 1999-2008 Seasonal Influenza Epidemics in Italy: Comparison with the H1N1v (A/California/07/09) Pandemic, 7 Hum. Vaccines Suppl. 217, 218 (2011)Google ScholarPubMed; Xue, Yiting, Kristiansen, Ivar S., & de Blasio, Birgitte F., Modeling the Cost of Influenza: The Impact of Missing Costs of Unreported Complications and Sick Leave, 10 Bmc Pub. Health 1, 1 (2010)CrossRefGoogle ScholarPubMed.

40 Hylton, Wil S., How Ready Are We for Bioterrorism?, N.Y. TIMES MAG. (Oct. 26, 2011)Google Scholar, http://www.nytimes.com/2011/10/30/magazine/how-ready-are-we-for-bioterrorism.html?_r=1.

41 Lee, Bruce Y. et al., From the Patient Perspective: The Economic Value of Seasonal and H1N1 Influenza Vaccination, 29 Vaccine 2149, 2149 (2011)CrossRefGoogle ScholarPubMed.

42 See Fiore, Anthony E. et al., Seasonal Influenza Vaccines, 333 Current Topics Microbiology & Immunology 43, 71 (2009)Google ScholarPubMed (describing influenza vaccines as a mainstay of efforts to reduce the substantial health burden from seasonal influenza); see, e.g., Beigi, Richard H. et al., Economic Value of Seasonal and Pandemic Influenza Vaccination During Pregnancy, 49 Clinical Infectious Diseases 1784 (2009)CrossRefGoogle ScholarPubMed; Lee, Patrick Y. et al., Economic Analysis of Influenza Vaccination and Antiviral Treatment for Healthy Working Adults, 137 Annals Internal Med. E225 (2002)CrossRefGoogle ScholarPubMed.

43 See Medicare & Medicaid Programs: Influenza Vaccination Standard for Certain Participating Providers and Suppliers, 76 Fed. Reg. 25,460, 25,460 (May 4, 2011).

44 N.Y. PUB. HEALTH LAW § 2192 (McKinney 2011) (requiring every long-term care facility in New York to immunize residents and employees against influenza).

45 E.g., National Swine Flu Immunization Program of 1976, Pub. L. No. 94-380, 90 Stat. 1113 (1976); see also Richards, Edward P. et al., The Smallpox Vaccination Campaign of 2003: Why Did It Fail and What Are the Lessons for Bioterrorism Preparedness?, 64 La. L. Rev. 851 (2004)Google Scholar (analyzing the failure of a civilian smallpox vaccination campaign in the United States).

46 See, e.g., Barkin, Robert L. et al., Recognition and Management of Depression in Primary Care: A Focus on the Elderly. A Pharmacotherapeutic Overview of the Selection Process Among the Traditional and New Antidepressants, 7 Am. J. Therapeutics 205 (2000)CrossRefGoogle ScholarPubMed.

47 See, e.g., Blumenthal, James A., New Frontiers in Cardiovascular Behavioral Medicine: Comparative Effectiveness of Exercise and Medication in Treating Depression, 78 Clev. Clinic J. Med. S35 (2011)CrossRefGoogle ScholarPubMed; Gierisch, Jennifer M. et al., Smoking Cessation Interventions for Patients with Depression: A Systematic Review and Meta-Analysis, 27 J. Gen. Internal Med. 353 (2011)Google ScholarPubMed.

48 Regarding the cost-effectiveness of treating depression, see Tovino, Stacey A., A Proposal for Comprehensive and Specific Essential Mental Health and Substance Use Disorder Benefits, 38 Am. J.L. & Med. 472, 502-13 (2012)Google ScholarPubMed.

49 See CTRS. FOR DISEASE CONTROL & PREVENTION, DEPRESSION (May 2, 2011), available at www.cdc.gov/workplacehealthpromotion/implementation/topics/depression.html (last visted Mar. 7, 2012); Greenberg, Paul E. et al., The Economic Burden of Depression in the United States: How Did It Change Between 1990 and 2000?, 64 J. Clinical Psychiatry 1465 (2003)CrossRefGoogle ScholarPubMed.

50 See, e.g., Friedman, Edward S. et al., Baseline Depression Severity as a Predictor of Single and Combination Antidepressant Treatment Outcome: Results from the CO-MED Trial, 22 Eur. Neuropsychopharmacology 183 (2012)CrossRefGoogle ScholarPubMed.

51 E.g., AGENCY FOR HEALTHCARE RESEARCH AND QUALITY, CHOOSING ANTIDEPRESSANTS FOR ADULTS: CLINICIAN's GUIDE (2007), available at http://www.effectivehealthcare.ahrq.gov/ehc/products/7/9/AntidepressantsClinicianGuide.pdf; Alex Apler, Citalopram for Major Depressive Disorder in Adults: A Systematic Review and Meta-Analysis of Published Placebo-Controlled Trials, BMJ OPEN (Sept. 6, 2011), http://bmjopen.bmj.com/content/1/2/e000106.full.pdf+html.

52 Herman, Jeff, Improving the Treatment & Prevention of Heart Disease, 4 St. Louis U. J. Health L. & Pol’Y 223, 226 (2010)Google Scholar (attributing, in 2009, over $300 billion in direct and indirect costs in the United States to heart disease); Thom, Thomas et al., Heart Disease and Stroke Statistics— 2006 Update: A Report from the American Heart Association Statistics Committee and Stroke Statistics Subcommittee, 113 Circulation e85, e90 (2006)Google ScholarPubMed (estimating national annual costs associated with cardiovascular disease in 2006 as exceeding $250 billion).

53 Ingelsson, Erik et al., Clinical Utility of Different Lipid Measures for Prediction of Coronary Heart Disease in Men and Women, 298 JAMA 776 (2007)CrossRefGoogle ScholarPubMed; Staessen, Jan A. et al., Task Force II: Blood Pressure Measurement and Cardiovascular Outcome, 6 Blood Pressure Monitoring 355 (2001)CrossRefGoogle ScholarPubMed.

54 ALLHAT Officers & Coordinators for the ALLHAT Collaborative Research Grp., Major Outcomes in High-Risk Hypertensive Patients Randomized to Angiotensin-Converting Enzyme Inhibitor or Calcium Channel Blocker vs. Diuretic: The Antihypertensive and Lipid-Lowering Treatment to Prevent Heart Attack Trial (ALLHAT), 288 JAMA 2981, 2994 (2002)Google Scholar; McDonald, Ruth, White, Joseph & Marmor, Theodore R., Paying for Performance in Primary Medical Care: Learning About and Learning from “Success” and “Failure” in England and California, 34 J. Health Pol. Pol’Y & L. 747, 756 (2009)Google ScholarPubMed (commenting on the cost-effectiveness of treating hypertension); Ramsey, Scott D. et al., An Economic Evaluation of Atorvastatin for Primary Prevention of Cardiovascular Events in Type 2 Diabetes, 26 Pharmacoeconomics 329 (2008)CrossRefGoogle ScholarPubMed.

55 Laura Landro, Many Pills, Many Not Taken: Tracking Prescriptions with Technology, Personal Touch, WALL ST. J. (Oct. 11, 2011), http://online.wsj.com/article/SB10001424052970203388804576616882856318782.html.

56 Heart Disease and Stroke Prevention, CTRS. FOR DISEASE CONTROL & PREVENTION, www.cdc.gov/chronicdisease/resources/publications/AAG/dhdsp.htm (last updated July 21, 2010).

57 See Einer Elhauge, The Broccoli Test, N.Y. TIMES (Nov. 16, 2011), available at www.nytimes.com/2011/11/16/opinion/health-insurance-and-the-broccoli-test.html (asserting, without any supporting argument or citation, that “[i]f [Congress] tried to enact a law requiring Americans to eat broccoli, that would be likely to violate bodily integrity and the right to liberty”). The concept of bodily integrity, though, can actually work against protection of autonomous decision-making. When bodily integrity is defined in terms of human dignity,

Rao, Neomi, Three Concepts of Dignity in Constitutional Law, 86 Notre Dame L. Rev. 183, 234 (2011)Google Scholar.

58 As Moncrieff notes,

Moncrieff, supra note 13, at 2226-27. But see Cruzan v. Mo. Dep't of Health, 497 U.S. 261, 305 (1990) (Brennan, J., dissenting) (“[F]reedom from unwanted medical attention is unquestionably among those principles ‘so rooted in the traditions and conscience of our people’ as to be ranked as fundamental.”).

59 Regarding an individual's right to refuse to participate in biomedical and behavioral research, see generally 45 C.F.R. § 46.116 (2011). Even the right to refuse to be a research subject is not absolute. See Orentlicher, David, Making Research a Requirement of Treatment: Why We Should Sometimes Let Doctors Pressure Patients to Participate in Research, 35 Hastings Center Rep. 20 (2005)Google ScholarPubMed.

60 Moncrieff, supra note 10 (manuscript at 6).

61 Brennan, Patrick M., The Individual Mandate, Sovereignty, and the Ends of Good Government: A Reply to Professor Randy Barnett, 159 U. Pa. L. Rev. 1623, 1640-41 (2011)Google Scholar.

62 Arver v. United States, 245 U.S. 366, 378 (1918).

63 See, e.g., Jacobson v. Massachusetts, 197 U.S. 11, 26 (1905) (defendant argued his “liberty [was] invaded” by mandatory vaccine).

64 Moncrieff, Abigail R. & Lee, Eric, The Positive Case for Centralization in Health Care Regulation: The Federalism Failures of the ACA, 20 Kan. J.L. & Pub. Pol’Y 266, 266 (2011)Google Scholar.

65 See, e.g., Koppelman, supra note 6, at 19-20 (disparaging what he terms the “Broccoli Objection”); Stoltzfus Jost, Timothy, Can Congress Regulate “Inactivity” (and Make Americans Buy Health Insurance)?, 364 New Eng. J. Med. e17(1), e17(2) (2011)Google Scholar (“It is hard to imagine a ‘broccoli mandate’ as essential to the regulation of a commercial market.”). Actually, it is not at all hard to imagine this, given the extra financial resources likely to be devoted to providing medical treatment to persons whose illnesses may be attributed, at least in part, to their unwillingness to eat broccoli. Regarding the long-term benefits of eating broccoli, see Cramer, Jenna M., Teran-Garcia, Margarita, & Jeffery, Elizabeth H., Enhancing Sulforaphane Absorption and Excretion in Healthy Men Through the Combined Consumption of Fresh Broccoli Sprouts and a Glucoraphanin-Rich Powder, Brit. J. Nutrition Firstview 1 (Sept. 13, 2011)Google Scholar, http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=8376012&fulltextType=RA&fileId=S0007114511004429; Mukherjee, Subhendu, Gangopadhyay, Hironmoy, & Das, Dipak K., Broccoli: A Unique Vegetable that Protects Mammalian Hearts Through the Redox Cycling of the Thioredoxin Superfamily, 56 J. Agric. Food Chem. 609 (2008)CrossRefGoogle ScholarPubMed; Song, Wei et al., Cellular Antioxidant Activity of Common Vegetables, 58 J. Agric. Food Chem. 6621 (2010)CrossRefGoogle ScholarPubMed; Vasanthi, Hannah R., Mukherjee, Subhendu & Das, Dipak K., Potential Health Benefits of Broccoli—A Chemico-Biological Overview, 9 Mini-Revs. Med. Chem. 749 (2009)CrossRefGoogle Scholar.

66 Orentlicher, David, Can Congress Make You Buy Broccoli? And Why It Really Doesn't Matter, 84 S. Cal. L. Rev. Postscript 9, 12 (2011)Google Scholar [hereinafter Orentlicher, Can Congress Make You Buy Broccoli?]; see also Orentlicher, David, Constitutional Challenges to the Health Care Mandate: Based in Politics, Not Law, 160 U. Pa. L. Rev. Pennumbra 19, 22 (2011)Google Scholar (opining that a broccolipurchasing and consuming mandate would pass constitutional muster if enacted as part of a larger public health program).

67 Elhauge, supra note 57; see also Elhauge, Einer, The Irrelevance of the Broccoli Argument Against the Insurance Mandate, New Eng. J. Med., e1(1) (Jan. 12, 2012)Google Scholar, http://www.nejm.org/doi/pdf/10.1056/NEJMp1113618.

68 Florida ex rel. Bondi v. U.S. Dep't of Health & Human Servs., 780 F. Supp. 2d 1256, 1289 (N.D. Fla.), order clarified, 780 F. Supp. 2d 1307 (N.D. Fla.), aff’d in part, rev’d in part, 648 F.3d 1235 (11th Cir. 2011), cert. granted sub nom. Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 603 (2011) (mem.), and cert. granted, 132 S. Ct. 604 (2011) (No. 11-398) (mem.) (argued Mar. 26-27, 2012), and cert. granted in part, 132 S. Ct. 604 (2011) (No. 11-400) (mem.) (argued Mar. 28, 2012) (suggesting that, if the individual health insurance purchase mandate is held constitutional, then Congress would also have the power to “require that people buy and consume broccoli at regular intervals, not only because the required purchases will positively impact interstate commerce, but also because people who eat healthier tend to be healthier, and are thus more productive and put less of a strain on the health care system.” (emphasis added)).

69 Mariner, Wendy K., Annas, George J., & Glantz, Leonard H., Can Congress Make You Buy Broccoli? And Why That's a Hard Question, 364 New Eng. J. Med. 201, 202 (2011)CrossRefGoogle ScholarPubMed.

70 Moncrieff, supra note 13, at 2237-38 (“[A]ll such [as the freedom to reject unwanted medical treatment] constitutional liberty interests must be balanced against competing regulatory interests. In the case of health care, especially public health, there are many … collective interests that might outweigh individual autonomy.”).

71 Hodge et al., supra note 22, at 397 (citing Hodel v. Va. Surface Min. & Reclamation Ass’n, 452 U.S. 264, 300 (1981)).

72 Hunter, supra note 20, at 1979.

73 Hall, Mark A., Constitutional Morality: Precedential Effects of Striking the Individual Mandate, 75 Law & Contemp. Probs. (forthcoming 2012)Google Scholar.

74 David B. Rivkin, Jr. & Lee A. Casey, ObamaCare and the Limits of Government, WALL ST. J., Nov. 15, 2011, at A19 (“[I]f Congress can require you to buy health insurance because your lack of insurance may, at some point in the future, impose costs on the wider economy, then on the same theory it can require the purchase (or sale) of virtually any good or service, since the failure to have or use the relevant product can always be said to have some economic impact.” (emphasis added)).

75 Parmet, supra note 26, at 403, 411.

76 Id. at 405.

77 CURTIS W. COPELAND, CONG. RESEARCH SERV., NO. 7-5700, REGULATIONS PURSUANT TO THE PATIENT PROTECTION AND AFFORDABLE CARE ACT (PUBLIC LAW 11-148) 2 (2010) (identifying more than forty provisions in the legislation “that require, permit, or contemplate rulemaking by federal agencies to implement the [Act]”).

78 For example, how would we handle the increased professional manpower needs implicated by recognition of a patient's duty to accept medical treatments that, at present, could be declined under the doctrine of informed consent? See Kapp, Marshall B., Conscripted Physician Services and the Public's Health, 39 J.L. Med. & Ethics 414 (2011)CrossRefGoogle ScholarPubMed. Would individual physicians be able to assert a right of conscience to refuse to participate in forced medical treatment of patients even if such treatment were congressionally authorized?

79 Some commentators try to assure us that the courts need not worry about the compelled broccoli-eating argument asserted in some challenges to the PPACA's individual health insurance purchase mandate, because political opposition would scuttle any silly bill compelling conduct like broccoli eating. See, e.g., Hall, supra note 3, at 1869-70. Hall's unqualified faith in “rational deliberation and democratic electoral constraints,” id. at 1870, as effective protections against Congress enacting broccoli-eating-like laws is unjustified, particularly as pressure mounts on politicians to constrain national healthcare expenditures. Similar reliance “on our democratic political process to protect us from unreasonable statutes,” Orentlicher, Can Congress Make You Buy Broccoli?, supra note 66, at 14, seems excessively optimistic. See, e.g., Oberlander, Jonathan, Health Care Policy in an Age of Austerity, 365 New Eng. J. Med. 1075 (2011)CrossRefGoogle Scholar (“The rise of austerity politics has important implications for health policy. The pervasive belief in Washington that deficit reduction is an economic imperative alters normal political rules. In a crisis environment, policymakers are more likely than usual to take on powerful interest groups and contemplate controversial reforms.”). Other attempts to blithely assume away, rather than confront, the possibility of federal laws coercing individual health-promoting behaviors are equally unpersuasive. See, e.g., Huhn, supra note 3, at 157 (“The constitutionality of such invasive and apparently arbitrary laws can be dealt with when and if our legislatures ever deign to enact them.”); Elhauge, supra note 57 (“[O]ur Constitution has no provision banning stupid laws.”). Evading analysis of the constitutional issues through wishful thinking likely would earn poor grades from any of these commentators if engaged in by one of their law students on a final examination.