Monday, January 31, 2011

Update on the Broccoli Objection

The other day I did a little post on the "Broccoli objection" to the individual mandate aspect of Obamacare.  I mistakenly -- or perhaps presciently -- wrote that the author of the Broccoli objection (Judge Vinson, during oral argument in the attorneys general case against the law in Florida) had already struck down the mandate as unconstitutional.  In fact he had not -- until today.

Happily, Judge Vinson expounded at length today on his Broccoli objection: 
After all, there are lots of markets -- especially if defined broadly enough -- that people cannot “opt out” of.  For example, everyone must participate in the food market. Instead of attempting to control wheat supply by regulating the acreage and amount of wheat a farmer could grow as in Wickard, under this logic, Congress could more directly raise too-low wheat prices merely by increasing demand through mandating that every adult purchase and consume wheat bread daily, rationalized on the grounds that because everyone must participate in the market for food, non-consumers of wheat bread adversely affect prices in the wheat market. Or, as was discussed during oral argument, Congress could require that people buy and consume broccoli at regular intervals, not only because the required purchases will positively impact interstate commerce, but also because people who eat healthier tend to be healthier, and are thus more productive and put less of a strain on the health care system. Similarly, because virtually no one can be divorced from the transportation market, Congress could require that everyone above a certain income threshold buy a General Motors automobile -- now partially government-owned -- because those who do not buy GM cars (or those who buy foreign cars) are adversely impacting commerce and a taxpayer-subsidized business.
 And, similarly, this:
There is quite literally no decision that, in the natural course of events, does not have an economic impact of some sort. The decisions of whether and when (or not) to buy a house, a car, a television, a dinner, or even a morning cup of coffee also have a financial impact that --- when aggregated with similar economic decisions --- affect the price of that particular product or service and have a substantial effect on interstate commerce. To be sure, it is not difficult to identify an economic decision that has a cumulatively substantial effect on interstate commerce; rather, the difficult task is to find a decision that does not.
Judge Vinson explicitly takes on Andrew Koppelman's argument that his "slippery slope" argument supposedly fails because it is untethered to reality:
I pause here to emphasize that the foregoing is not an irrelevant and fanciful “parade of horribles.” Rather, these are some of the serious concerns implicated by the individual mandate that are being discussed and debated by legal scholars. For example, in the course of defending the Constitutionality of the individual mandate, and responding to the same concerns identified above, often-cited law professor and dean of the University of California Irvine School of Law Erwin Chemerinsky has opined that although “what people choose to eat well might be regarded as a personal liberty” (and thus unregulable), “Congress could use its commerce power to require people to buy cars.” When I mentioned this to the defendants’ attorney at oral argument, he allowed for the possibility that “maybe Dean Chemerinsky is right.” Therefore, the potential for this assertion of power has received at least some theoretical consideration and has not been ruled out as Constitutionally implausible. 
The General Motors hypothetical reminds me of a blog post by Orin Kerr raising whether the real objection to the GM hypo is based on substantive due process.  Because I don't think the visceral objection to being forced to buy a GM car comes from a place of federalism.  In other words, I don't think people would be comfortable with the idea that state governments could force us to buy a car, or a particular brand of car, either.  We are just uncomfortable with that kind of government power --whether at the state or federal level.  Which means the commerce clause has nothing to do with it...

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