Obamacare and the Broccoli Mandate

     

Like former President George H.W. Bush and millions of other eminently sensible Americans, I have always hated broccoli. And one of the few complaints I can make about a generally idyllic childhood is that, occasionally, I would sit down at the family dinner table and find that my mother had deliberately ruined a perfectly good meal by including that dreaded vegetable among the otherwise palatable fare. My normal strategy for dealing with such maternal perfidy was to ignore the noxious plant, but this was invariably countered by a peremptory command from Mom to eat it immediately. When I further temporized, per my standard policy, she would appeal to my father for a final ruling on what should be done about my refusal to eat something that was so obviously good for me. He inevitably imposed the statutory penalty: failure to comply with the broccoli mandate would result in forfeiture of dessert. I always took the penalty.

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Apparently, similar episodes remain green in the memory of U.S. District Judge Roger Vinson. On December 16, while presiding over a hearing in which attorneys representing Florida and nineteen other states challenged Obamacare’s individual mandate as unconstitutional, he asked its hapless defenders this question about the powers of Congress: "If they decided everybody needs to eat broccoli because broccoli makes us healthy, they could mandate that everybody has to eat broccoli each week?" Ian Gershengorn, the same Justice Department lawyer who unsuccessfully defended the mandate before U.S. District Judge Henry Hudson in Commonwealth of Virginia v. Sebelius, told Judge Vinson that the health care market has special qualities that somehow necessitate a federal law forcing everyone to buy health insurance: "It is not shoes, it is not cars, it is not broccoli."

This answer manifestly failed, of course, to address the point. The judge wasn’t inquiring about economics or the dynamics of any particular market. He was trying to get Gershengorn to talk about constitutional limits on the power of the central government. The attorney representing the various plaintiffs in the case was far less reluctant to discuss the constitutional implications of Obamacare. David B. Rivkin argued, "The act would leave more constitutional damage in its wake than any other statute in our history." That argument clearly resonated with Vinson, whose questions to the DOJ lawyer betrayed skepticism about the claim that a decision not to buy insurance constitutes economic activity that Congress can regulate by virtue of the Constitution’s interstate commerce clause: "In the broadest sense every decision we make is economic: the decision to marry, the decision to keep a job or not has an economic effect."

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December 23, 2010