This week, the National Constitution Center featured arguments for and against the Affordable Care Act.
I find both of these arguments to be weak and unconvincing.
Arguing against the individual mandate, Shapiro comes up with a bunch of scenarios in which the government could mandate you to do something that sounds silly, like buying broccoli. If they can do this, what’s to stop them from forcing broccoli down your throat! But this argument can be applied to any governemt regulation or mandate. I hear it all the time from folks on the right, and it just isn’t any good. It always strikes me as an attempt to reframe the debate on more favorable grounds. Winning an argument about healthcare might be hard. But winning one about broccoli won’t be.
Arguing in favor of the mandate, Amar and Brewster just get down to semantics. If you don’t purchase insurance under the mandate, you pay a penalty. Had they called that a tax, rather than a penalty, all would be well. The constitution gives the power to tax.
Neither argument actually takes on the mandate on the merits. We should evaluate the mandate based on its effectiveness and impact (or lack thereof) and not on semantics or the hypothetical tyranny of broccoli.
520 Chestnut 
Arguments on the merits of a law belong in the houses of Congress. When it comes to the courts and legality of legislation is in question, merit matter little. For example, if a confession has been obtained as the result of torture, it is not appropriate to argue the merits of the confession nor the merits of the torture techniques, but only whether what was done is torture and whether torture is a legal way to obtain a confession.
The reason people, myself included, use extreme examples is to simply make people think more about potential consequences. Law does get argued to its extremes over time. When an argument comes down to “does the government have to power to…” the current application of that proposed power is not nearly as important as what that power may be used for in the future.
Here’s a simple, non-political example. Let’s say we have data and are arguing about the fundamental relationship underlying the data. It looks a little like a curve, and a second order polynomial fits the data 20%, and better than a linear function. Most often, the more appropriate formulation can be revealed looking at the extreme values. If the polynomial performs poorly at an extreme value compared to the line it is appropriate to summarily rejct the polynomial.
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