A head of broccoli a day keeps the individual mandate away

By Hudson Kingston

Not having read the full opinion in National Federation of Independent Business et al. v. Sebelius, Secretary of Health and Human Services, et al. I still believe that Justice Ginsburg’s concurrence/dissent contains one particular passage that bears noting:

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. Cf.  Raich, 545 U. S., at 9;Wickard, 317 U. S., at 127–129.  Yet no one would offer the “hypothetical and unreal possibilit[y],” Pullman Co. v. Knott, 235 U. S. 23, 26 (1914), 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.  Cf. R. Bork, The Tempting of America 169 (1990) (“Judges and lawyers live on the slippery slope of analogies; they are not supposed to ski it to the bottom.”).  But see, e.g., post, at 3 (joint opinion of Scalia, Kennedy, Thomas, and Alito, JJ.) (asserting, outlandishly, that if the minimum coverage provision is sustained, then Congress could make “breathing in and out the basis for federal prescription”). at 30

A few reactions spring immediately to mind. First of all, the broccoli horrible trulywould be horrible, implying that the government can try to mandate healthy living rather than supporting all sorts of industries that thrive on our bad habits. While it is interesting to say that the federal government is one of limited powers, it is also worth noting that even mayors can figure out ways around jurisdictional roadblocks of this sort. Bloomberg’s tactics of side-stepping federal regulators is the kind of meat-and-potatoes politicking that shows that creative thought can garner cities more power than the Chief Justice thinks (in dicta mind you) resides in the federal Commerce Clause. Meat and potatoes can get you to the broccoli horrible, you heard it here first.

Secondly, an important foodie Supreme Court case on the beauty of Constitutional parallel structure, or lack thereof, makes it clear that Ginsburg is right. Congress could try to ban foods under its commerce powers, its treaty powers (as in Holland), or probably under its military powers if it really wanted to. Providing for the common defense against obesity and chronic health problems may seem ridiculous today, but someday Congress may deem it something worth doing – and at that point people will either vote ‘em out or eat their vegetables. Ignoring time constraints, Congress can always begin again with a new clause.

Third, one has to appreciate it when Justice Ginsburg can cite Bork to highlight the logical failings of five of her colleagues.

For those who have read the full opinion, or plan to someday, please do read this commentary. The assertion found herein, that the opinion of four of the justices would have returned us to a pre-New-Deal understanding of how the Federal Government can, or cannot, provide social services should chill you to the bone – that is, if you expect any regular government assistance between here and the grave. If you do not so expect, and you would like to head back to the pre-1930s way, you had better eat your broccoli: if only to stave off the gout as long as possible.


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