The latter is what lawyers call a "slippery slope" argument. If we allow this mandate, the thinking goes, we are allowing Congress to begin sliding down a long, steep, slippery slope with no obvious bottom. So the court needs to step in as the only force that can stop Congress' legislative momentum and put the brakes on its insatiable appetite for regulation and intrusion.
But this argument misses an essential point about American democracy. Our system relies on another powerful force to limit what Congress does: the American people.
Through regular elections, and through political action between elections, the people always have the opportunity and capacity to tell Congress what we think of the laws it passes. We can let our senators and representatives know that we approve of what they're doing, or we can signal that we want them to change course. And if they want to keep their jobs — and the extraordinarily high rates of congressional incumbency suggest they do — they will pay attention.
If Congress tries to force us to eat broccoli, we have the power to stop it. The slippery-slope argument undervalues the people's ability to control the national agenda, and it ignores the way our Constitution protects us from congressional overreach.
Worse, it overlooks a much more serious threat to American democracy. The institution most likely to start down a slippery slope is not Congress, but the Supreme Court.
While democratic forces are strong enough to control Congress, there is no such force acting directly on the court. The Supreme Court is made up of nine justices with lifetime appointments and very little political accountability (apart from the theoretical possibility of impeachment and removal from office). They have almost complete control over the cases they decide, and absolute control over how they decide them. They choose when to be restrained and when to be activist; when to let the political branches act and when to rein them in.
Throughout its history, the court has been mindful of the awesome power it has, and it has used that power sparingly. Only twice before the Civil War did the court limit Congress' power in any way, and only twice since 1937 has it limited Congress' power to decide what affects interstate commerce and how to regulate that which does. Generally, the court has chosen to let the branches with the constitutional authority to do the nation's work, and the political accountability to respond to the nation's will, take the heat for their own decisions.
In the case of the momentous health-care decision, the court once again has a choice: It can let the elected representatives of the people figure out how to control the cost of health care. Or it can take that power away from the people and their representatives and decide for them that the individual mandate is not an appropriate means of addressing the health-care crisis.
But if the justices take away that power, they can take away any power they want to. And that's a slippery slope.
The most important check on congressional power is the people's will. The most important check on the court's power is the court itself. We should worry not that Congress will slide down a slippery slope, but that the court will.
Erin Daly is a professor at Widener Law in Wilmington, Del.