George Will thinks he has expanded the infamous broccoli argument into something more persuasive:
During a recent discussion, “Battle for the Constitution,” on ABCNews’s “This Week,” Will claimed that obesity impacts interstate commerce, and therefore does it not follow that Congress has the constitutional power to require overweight people to join Weight Watchers. Time’s Richard Stengel said he did not know, and Georgetown University professor Eric Dyson said the question is open.
Their responses didn’t satisfy Will, who kept demanding to know whether Congress can force heavy Americans into Weight Watchers. But Will’s spin on on the broccoli law argument did excite the right-wing blogosphere. (Breitbart.TV, “George Will Brilliantly Traps Liberal Panelists With Obamacare Constitutional Challenge.”) Will’s spin is not that new by the way – he has been asking the Weight-Watchers question for some time. See his columns here and here.While many of us may have the intuition that it's unconstitutional to force American to lose weight, that gut feeling does not come from the reason that the ACA is being attacked as unconstitutional. Remember: the court challenges are primarily based on federalism and the Tenth Amendment of the US Constitution, which states that matters not specifically enumerated as being within Congress's powers are left to the states or the people. The individual mandate of the ACA doesn't fall afoul of the Tenth Amendment because it falls under Congress's power to regulate matters having a substantial effect on interstate commerce (the recent decision by the 5th Circuit was pretty compelling) and, arguably, Congress's power to levy taxes. Even if not purchasing insurance, itself, isn't interstate commerce (i) the Constitution makes no distinction between activity and inactivity and (ii), as Scalia put it in Raich, “where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.”
Maybe Will thinks it's self-evident, but I don't see the problem. Sure, I'll fall right into his ingenious trap: Such a law probably doesn't violate the Tenth Amendment! Someone could probably make the argument that obesity has a substantial effect on interstate commerce and that the Weight Watchers mandate is necessary and proper to effectuate obesity regulations.
But you might still have an intuition that there is something constitutionally fishy about the weight watchers mandate. And you would be right. Your bad feeling is probably coming from the fact that the law might violate notions of substantive due process stemming from the Fifth and Fourteenth Amendments. The American Constitution Society post discusses this, but I want to point out that our intuition goes further than Will wants to take it.
Under Will's and Breitbert's reading, the Constitution invalidates only the federal Weight Watchers mandate. But what about states that force me to lose weight? Isn't that also a violation of my individual liberty to govern myself? You're going to need the Fourteenth Amendment to invalidate that law, not the Tenth. The gut feeling that leads them to think that this is a silver bullet argument comes from something more fundamental than the balance between federal and state power. It comes from our ideas about personal autonomy and decisionmaking. Sure, this same argument could be applied to the individual mandate, but that's not what they're doing. The real debate about the individual mandate has been about federalism, not substantive due process. That's why Romney is able to defend the Massachusetts health bill while attacking the ACA.
This brings me back to the bigger problem with the faux libertarianism of the modern Republican Party. They don't really care about individual liberty per se. The whole states' rights movement could care less if state or local governments infringe on your rights. Will cries these crocodile tears about people being forced into weight watchers and limiting government intrusion in our lives but throws up his hands when it comes to a state forcing the same thing upon unwilling citizens. This is supposed to be some kind of brilliant checkmate for the conservative cause, but it actually shows the limits of the modern GOP's notion of liberty.