Don't worry: Congress can make you buy broccoli, but you don't have to eat it

Elhauge does not shrink from the implications of his argument. If you engage in any activity that affects interstate commerce, he says, Congress has the authority to make you buy not just health insurance but anything it thinks you should have, including 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.”

Is there any limit to what Congress can do in the name of regulating interstate commerce? While forcing people to buy broccoli is clearly constitutional, Elhauge says, forcing them to eat broccoli “would be likely to violate bodily integrity and the right to liberty.” So “the right to liberty” may include decisions about what you consume (a point that Congress seems to have overlooked when it formulated our drug laws), but it does not include decisions about how to spend your money. I would ask about the basis for this distinction in the text or historical understanding of the Constitution, but Elhauge clearly is unconcerned about such matters.