One of the more curious aspects of the Court’s decision in NFIB v. Sebelius (2012) is the fact that the opinions mention the word broccoli a dozen times. This so-called broccoli mandate captured the imagination of Obamacare’s critics in the time leading up to the Court’s decision in Sebelius. The analogy goes like this: if Congress can make you purchase health insurance, does this mean they can make you buy broccoli?”
The opinions in the case did not use the example frivolously; they really engage the problem set out by the conservative opponents to the Patient Protection and Affordable Care Act (or “Obamacare). Conservatives in the Senate laid the groundwork for the broccoli mandate in the Kagan confirmation hearings:
Justice Scalia posed the broccoli question to the Solicitor General during oral arguments in the case.
“Could you define the market — everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli.”
The broccoli mandate question is intended to help us think about the breadth of the Commerce Power. But does this work as an analogy to the government’s argument in Sebilius? What does the Court actually say about the government’s power to mandate insurance purchases under the commerce clause? Here is the majority opinion’s take:
Indeed, the Government’s logic would justify a mandatory purchase to solve almost any problem to “identify any mandate to purchase a product or service in interstate commerce that would be unconstitutional” under its theory of the commerce power. To consider a different example in the health care market, many Americans do not eat a balanced diet. That group makes up a larger percentage of the total population than those without health insurance. The failure of that group to have a healthy diet increases health care costs, to a greater extent than the failure of the uninsured to purchase insurance. Those increased costs are borne in part by other Americans who must pay more, just as the uninsured shift costs to the insured. Congress addressed the insurance problem by ordering everyone to buy insurance. Under the Government’s theory, Congress could address the diet problem by ordering everyone to buy vegetables…. According to the Government, upholding the individual mandate would not justify mandatory purchases of items such as cars or broccoli because, as the Government puts it, “[h]ealth insurance is not purchased for its own sake like a car or broccoli; it is a means of financing health-care consumption and covering universal risks.” But cars and broccoli are no more purchased for their “own sake” than health insurance. They are purchased to cover the need for transportation and food. (Chief Justice Roberts in Sebelius, excerpt courtesy of Professor Linder’s Exploring Constitutional Conflicts)
Justice Ginsberg responds in her concurrence:
As an example of the type of regulation he fears, The Chief Justice cites a Government mandate to purchase green vegetables. One could call this concern “the broccoli horrible.”…Consider the chain of inferences the Court would have to accept to conclude that a vegetable-purchase mandate was likely to have a substantial effect on the health-care costs borne by lithe Americans. The Court would have to believe that individuals forced to buy vegetables would then eat them (instead of throwing or giving them away), would prepare the vegetables in a healthy way (steamed or raw, not deep-fried), would cut back on unhealthy foods, and would not allow other factors (such as lack of exercise or little sleep) to trump the improved diet. Such “pil[ing of] inference upon inference” is just what the Court refused to do in Lopez and Morrison….When contemplated in its extreme, almost any power looks dangerous. The commerce power, hypothetically, would enable Congress to prohibit the purchase and home production of all meat, fish, and dairy goods, effectively compelling Americans to eat only vegetables. Yet no one would offer the “hypothetical and unreal possibilit[y]” of a vegetarian state as a credible reason to deny Congress the authority ever to ban the possession and sale of goods. The Chief Justice accepts just such specious logic when he cites the broccoli horrible as a reason to deny Congress the power to pass the individual mandate…. (Justice Ginsburg in Sebelius, excerpt courtesy of Professor Linder’s Exploring Constitutional Conflicts)
What do you make of the use of this broccoli analogy debate? Does the Chief have a point here? Would it be more constitutionally defensible, as some have argued, if the government had mandated broccoli purchases? What impact does the Court’s decision in Sebelius have on the power of Congress to enact laws dealing with behaviors that impact citizen health (and, therefore, the cost of healthcare)?
A few additional thoughts:
- Did you know that there is a whole food freedom movement dedicated to protecting your right to eat whatever the heck you want?
- Certainly, a broccoli mandate never would have been signed into law by President H.W. Bush.