NFIB Small Business Legal Center Healthcare Lawsuit Fact Pattern: The "Unique Market" Myth

Date: February 15, 2011

February 15, 2011

Myth: "Anyone arguing at some future time that the individual mandate gives Congress precedent to cite the commerce clause in order to force you to buy broccoli, or vouchers for it, would be laughed out of court.” – Greg Sargent, Washington Post 2/4/11

Fact: Federal District Judge Roger Vinson disagreed. He ruled that the individual mandate is unconstitutional because it sets a precedent of giving Congress unlimited power. In his view, trying to defend the mandate by arguing that the health insurance market is “unique” is “neither factually convincing nor legally sound.”


The Obama Administration argues that the “uniqueness” of the health insurance market would prohibit Congress from using the individual mandate as precedent to pass legislation forcing citizens to purchase other goods. But even legal experts who support the individual mandate disagree with this flawed argument.

During a Senate hearing on the constitutionality of the mandate, democratic witness and Harvard Law Professor Charles Fried admitted that if Congress can force us to buy health insurance, then they can force us to buy broccoli:

“The Constitution prohibits Congress from making you eat broccoli, he said, but there’s no reason Congress couldn’t make you buy it.”

This admission is telling and it highlights that the administration’s “uniqueness” argument is not convincing.

Ultimately, the U.S. Supreme Court must decide whether or not Congress has the constitutional power to force citizens to purchase things like insurance and broccoli. NFIB and the 26 states challenging the constitutionality of the healthcare law strongly believe that the Constitution does not give Congress this much power.

Learn more about our lawsuit and how you can support our efforts here.

Contact: Melissa Sharp 202-314-2068


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