Friday, January 28, 2011

Thoughts on "The Broccoli Objection"

Over at Balkinization, Andrew Koppelman discusses what he calls "the Broccoli Objection" to the constitutionality of the individual mandate aspect of Obamacare.  The Broccoli Objections was first made by U.S. District Court Judge Roger Vinson, during the oral argument preceding his decision to strike down the individual mandate:
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. If [the federal government] decided everybody needs to eat broccoli because broccoli makes us healthy, they could mandate that everybody has to eat broccoli each week?
Koppelman thinks this objection "rests on a simple mistake: treating a slippery slope argument as a logical one, when in fact it is an empirical one."  He quotes Frederick Schauer for the proposition that "any slippery slope argument depends on a prediction that the instant case will in fact increase the likelihood of the danger case," and dismisses the Broccoli Objection because "Congress is never going to force you to eat your broccoli."  Q.E.D.

I think Koppelman misunderstands the logical structure of the Broccoli Objection.  It really is not a slippery slope argument -- it is a reductio ad absurdum.  Here is the structure of the objection, as I see it:

1)  The constitution imposes significant limits on the power of Congress;
2)  If the individual mandate is within Congress's power under the Commerce Clause, then, by the same principle, so would be the Broccoli mandate;   
3)  If the Broccoli mandate is constitutional, then there are no significant limits on Congress's power.

If all three premises are true, absurdity results because it would be both true and false that there are limits on Congress's power.  So not all three premises can be true.

So is the Broccoli Objection effective?  Not in my opinion.  I think premise 2, and probably premise 3, are actually false.  For example, you can craft a principle by which the individual mandate is within Congress's power (as necessary and proper to an otherwise clearly constitutional attempt to regulate the market for health insurance) and the Broccoli Mandate is not (because it is not necessary and proper to any otherwise constitutional exercise of Congressional power).   

But the objection is best defeated on its own terms -- not by transforming it into a more-easily dismissed slippery slope argument.


  1. Perhaps they could not make us eat brocoli, but could they make us purchase brocoli?

  2. The one thing we know for sure is that they can force us not to grow broccoli.

  3. I take it as a given that the congress could have (constitutionally) accomplished the same objective by taxing citizens for the cost of the health insurance and then buying it for them (tax & spend clauses)... leading to the ironic conclusion that, the opinion of the tea party notwithstanding, the Constitution is actually friendlier to the concept of a National Health Service than the People are.

    So, if this law were beyond the scope of the commerce clause, then we might find that illegality of the regime comes down to a pure technicality of the mechanism by which it was implemented (forcing a purchase rather than taxing and providing). Of course, the mechanism that was chosen was (probably) largely based on the idea of "soft peddling" the mandate to the people (still preserving as much illusion of private action as possible); so maybe there would be a certain political legitimacy in striking the law down on these technical grounds (if the people need a spoonful of sugar, then straight medicine just won't do).

    But it also seems a little asinine, from that perspective.

    How about that takings clause? Maybe it's time for a bold new interpretation of that bad boy. By negative inference, the government CAN take property (real or personal) from the people if it provides just compensation; in this case, it takes by directing them to turn over money to the insurers, and provides compensation by requiring the insurers to provide service.

    probably a dead end there but was just musing about it this morning...

  4. I think you're right that the argument against the individual mandate is ultimate formal, in that there are certainly other ways Congress could accomplish exactly the same result. Indeed, it's an alternative argument for the government that provision is a tax that is constitutional under the General Welfare clause even if it isn't within Congress's commerce-clause powers. And certainly Congress could have just given people a tax credit for being insured -- thus penalizing, in the same amount, anyone who failed to purchase insurance.

    But, as you imply, form kinda matters. Congress didn't want to have to justify this mandate as a tax increase, or as a spending bill, because that changes the politics. In a slightly different context, Judge Vinson considered the argument that his ruling amounts to empty formalism, and cited this passage form the Supreme Court:

    "Much of the Constitution is concerned with setting forth the form of our government, and the courts have traditionally invalidated measures deviating from that form. The result may appear “formalistic” in a given case to partisans of the measure at issue, because such measures are typically the product of the era’s perceived necessity. But the Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day ...."

  5. Not to beat a dead horse, but Vinson's argument is ultimately concerned with defending the separation of powers. Here, we do not have a separation of powers issue; Congress indisputably has the power to do this. The law does not aggrandize Congress in the least.

    Now, as we've discussed, the technicality of the alleged problem doesn't necessarily invalidate the problem (perhaps the tax & spend method wouldn't have passed, and in any case we have no way of going back and finding out); but it SHOULD reframe the issue. Instead of people screaming about federal aggrandizement and socialism, the only thing they can legitimately complain about (on a constitutional dimension) is that Congress is having people buy the insurance themselves rather than taking their money and buying it for them. Which, frankly, isn't really worth complaining about. :P

  6. Good point. The political rhetoric surrounding these challenges to the individual mandate ("socialism," etc.) is wrong-headed if ultimately it just boils down to a constitutional technicality.

    Here's the only problem I see. Let's assume for argument's sake that the individual mandate is actually outside of Congress's power under the commerce + necessary and proper clauses but could be justified under some other enumerated power. What is a judge supposed to do when the government tries to justify the act under the commerce clause? If he stretches the commerce clause to cover it, under the theory that it is clearly within some other power, that sets a bad precedent. The potential harm is that the stretched reasoning will justify a future act of Congress that can't be justified under any other enumerated power.

    So that's why I think formalism can matter: without it, we get incoherent doctrine, and eventually that leads to an incoherent constitution. Obviously, there's a pretty good argument that we are already there...


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