I am a slowpoke.* Usually, by the time I get around to writing about an issue, the rest of the liberal blogosphere has already expressed its collective outrage, and my own post ends up as more a summary of everyone else’s talking points than an explication of unique ideas. There are only so many responses to any particular outrage; it’s difficult to come up with something new to say when guys with decades of pithiness and insight under their belts get there first. Ed Kilgore of the Washington Monthly and Jonathan Chait of New York Magazine have the ability to reduce conservative gobbledegook to tart lines of sarcasm, and Washington Post wunderkind Ezra Klein can cut through layers of economic obfuscation in less time than it takes me to ramble through an introduction.
So imagine my surprise to find that no one else had really glommed on to the ridiculousness of last week’s New York Times article on the history of the Supreme Court’s broccoli obsession. The story, by business writer Floyd Norris, tracked the spread of the analogy between a (hypothetical) forced vegetable purchase and the insurance mandate at the heart of the Affordable Care Act. Though it began as an unlikely metaphor in conservative legal briefs, the healthcare-as-broccoli meme eventually made its way into Justice Scalia’s acid commentary during March’s three days of oral arguments. I don’t object to the premise of Norris’s article; it’s interesting, actually, to see how the conservative commentariat has spun a constitutionally specious argument into the rhetorical highlight of court hearings in which the panel’s “antireform justices appeared to embrace any argument, no matter how flimsy, that they could use to kill reform,” in the words of Paul Krugman.
Unfortunately, while this evolution of an idea is interesting, Norris limits his interviews to conservative players whose explication veers into advocacy. In his attempt to explain the allure of the broccoli analogy to the anti-ACA crowd, Norris offers its proponents a platform on which to trumpet their version of reality. The article is dismally one-sided, completely ignoring the consensus opinion of health care experts that health insurance is nothing like George W. Bush’s least-favorite vegetable. There are valid arguments to be made against the “broccoli mandate,” but you’d never know it by reading the NYT piece. It’s as if the paper’s science section ran an article exploring the “theories” of global warming deniers without giving mainstream scientists a chance to rebut such fringe ideas. My complaint is not that Norris fails to give what I’ll call broccoli realists equal time; it’s that he fails to give them any time at all.
The protagonist of Norris’s article is David B. Rivkin Jr., the libertarian attorney who has devoted the last 20 years to nurturing the broccoli argument. Rivkin opposed President Clinton’s attempt at health care reform, and when Obama took his own stab at legislation, Rivkin hit on broccoli as a “simplistic metaphor” that, in the words of Constitutional scholar Akhil Amar, is nevertheless “politically brilliant.” Unfortunately, though Norris gives Amar a single quotation in which to express his grudging admiration for Rivkin’s rhetorical cunning, he neglects to explain exactly why Amar finds the dangers of forced broccoli purchases such a “bad argument.” Instead, Norris barrels on to catalog the exploits of Terrence Jeffrey, the editor-in-chief Conservative News Service (CNS) and the author of the column that single-handedly resurrected the broccoli analogy for the 21st century. Convinced that the government’s power to regulate commerce did not extend to the “inaction” of refusing to purchase health care, Jeffrey “figured most Americans would not understand an abstract debate over the limits of the commerce clause. Searching for an easy-to-grasp analogy, he hit upon something “that would go more to health care, something that people would universally recognize was good for you.” Norris quotes extensively from Jeffrey’s 2009 CNS column:
Can President Barack Obama and Congress enact legislation that orders Americans to buy broccoli? This is not a question about nutrition. It is not a question about whether broccoli is good for you. It is a question about the constitutional limits on the power of the federal government. It is a question about freedom.
In fact, most Constitutional experts and health care economists would argue that hypothetical broccoli legislation has nothing to do with limited government or freedom. But you’d never know that from Norris’s article. He guides the reader through the mainstreaming of the broccoli argument, from a video produced by the libertarian (and Koch-funded) Reason Foundation to the opinion by Federal District Judge Roger Vinson that not only relied that argument but even, in a nod to the power of conservative propaganda, provided a link to the video in question. Vinson wrote:
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.
Vinson, who found the Affordable Care Act unconstitutional, is of course entitled to his own opinion — as are the nine justices who will rule in the next few days on the ACA’s ultimate future. However, by failing to offer the counterargument to what Vinson states as fact, Norris unintentionally allows the opponents’ argument to go unchallenged. A plethora of liberal law experts and pundits have questioned the premise of Vinson’s ruling, pointing out simply because Congress “could” do something as silly as mandating vegetable purchases does not make such an action unconstitutional. Ahkil Amar made the case against broccoli most strongly in a March interview with Ezra Klein; surely Norris could have asked Amar about this reasoning, or even just quoted from the Washington Post website. Klein asks Amar about the “slippery slope” argument, noting that opponents parse their position thus: “First you’re saying I have to buy health insurance. Then you’re saying I have to eat broccoli.” Amar’s response:
The most important limit, the one we fought the Revolutionary War for, is that the people doing this to you are the people you elect. That’s the main check. The broccoli argument is like something they said when we were debating the income tax: If they can tax me, they can tax me at 100 percent! And yes, they can. But they won’t. Because you could vote them out of office. They have the power to do all sorts of ridiculous things that they won’t do because you’d vote them out of office. If they can prevent me from growing pot, can they prevent me from buying broccoli? Perhaps, but why would they if they want to be reelected?
To bolster his case, Amar goes straight to the grandfather of judicial review, John Marshall himself: “And in paragraph 55 [of McCulloch vs. Maryland] he says that the main security against an abusive legislature ‘is found in the structure of government itself. In imposing a tax’ — or, I would add, a mandate — ‘the legislature acts upon its constituents. This is in general a sufficient security against erroneous and oppressive taxation.’ And against bad mandates and bad broccoli laws.”
Perhaps more importantly, the mandate to purchase health care serves a definable, real-world purpose in a way the forced purchase of broccoli would not. There are few failures in the market for fresh produce; anyone who wants to buy broccoli can walk into a grocery store and put a few bunches of the green stuff in their shopping basket. The same can’t be said for the market for health insurance, which by design encourages insurers to cover only a subset of consumers: the employed, the non-elderly, the healthiest. Farmers have no reason to deny potential broccoli consumers access to the crop; on the contrary, they’ll sell to whomever offers the best price, whether the buyer is a huge corporation like Safeway or the local organic co-op. Insurance companies, on the other hand, routinely refuse to sell coverage to people with pre-existing conditions, effectively locking vulnerable consumers out of the market. Just because someone wants to buy coverage doesn’t mean he is able to do so. Donald Verrilli, the U.S. Solicitor General who defended the ACA at the Supreme Court, explains to Justice Scalia what makes the market for health care unique from the vegetable market:
In the health care market, the health care market is characterized by the fact that aside from the few groups that Congress chose to exempt from the minimum coverage requirement — those who for religious reasons don’t participate, those who are incarcerated, Indian tribes — virtually everybody else is either in that market or will be in that market, and the distinguishing feature of that is that they cannot, people cannot generally control when they enter that market or what they need when they enter that market.
Paul Krugman picks up on the crucial differences between the insurance and broccoli markets. “When people choose not to buy broccoli, they don’t make broccoli unavailable to those who want it,” he writes in a recent column. A mandate is necessary to keep insurance costs from spiraling out of control; broccoli prices, by contrast, are no more outrageous than those of anything else in the produce section. Timing isn’t an issue in the purchase of broccoli; if it’s in season, a veggie stir fry or a broccoli rabe is as close as the nearest supermarket. “But when people don’t buy health insurance until they get sick — which is what happens in the absence of a mandate — the resulting worsening of the risk pool makes insurance more expensive, and often unaffordable, for those who remain. As a result, unregulated health insurance basically doesn’t work, and never has.”
Still, the justices seemed determined to force the ACA’s defenders to articulate a limit to the government’s power to compel commerce. While Ahkil Amar may be convinced that such a “limiting principle” lies more in democratic governance than in the Constitution, plenty of writers have proposed just such principles. The conservatives quoted in Norris’s article claim the individual mandate is the first step down the slippery slope to mandated broccoli purchases, but The Economist’s Ryan Avent disagrees, making an argument that Norris would have done well to highlight:
One such limiting principle might be that a measure had to be necessary as part of a reasonable piece of legislation intended to achieve a major, legitimate public end. I think this would be sufficient to rule out idiotic measures such as requiring Americans to buy broccoli or (in most cases) cell phones. Try, for example, to think of a major public goal that could be reasonably addressed by a programme which would entail the government ordering people to buy broccoli. What could such a goal possibly be? Increasing the public’s intake of vitamin B so as to reduce public health-care costs and improve public health? But mandatory private broccoli purchases would be completely ineffective at achieving this goal; the government might order people to buy broccoli, but it can’t force them to eat it. It would obviously be more effective (and incontestably constitutional) to subsidise broccoli so that those who do have some inclination to eat broccoli, rather than Big Mac’s or what have you, would be more likely to do so. Ordering people to buy broccoli would be an arbitrary, irrational and ineffective means to accomplish any public health goal, and for that reason such a law could be ruled unconstitutional.
Detractors of the broccoli metaphor abound, yet Norris cites none of them in his piece for the Times. Clive Crook of the Atlantic makes an argument similar to Amar’s, one that Norris could have cited to show that the broccoli dilemma is not quite the dilemma that conservatives make it out to be. Crook voices the uncomfortable notion that the highly sought “limiting principle” doesn’t actually exist. The century-long expansion of the Commerce Clause has already stripped away most of the meaningful limits on Congressional power — as Crook puts it, “the Court has all but erased the limits on the economic power of the federal government” — and to go back now would be an act of political vindictiveness, even for strict constructionists like Scalia and Thomas, not a measured return to form. In other words, hardly the definition of stare decisis.
Paul Clement, the solicitor who argued against the Affordable Care Act before the Supreme Court, announces that the court must find a “limiting principle” because the hypothetical implications of there not being such a limit can be turned into a “parade of horribles.” But government has a lot of powers that, if exercised unrestrained, would be horrible. The president can suspend habeas corpus in times of crisis, yet we have faith that he won’t. That’s part of the political compact we make, in which elected officials are held responsible for their actions and we all make the implicit bargain to trust each other. Conservatives want a limiting principle because they don’t believe government should rest on this unspoken trust. But no matter how uncomfortable it makes them, the fact is that government is all about trust.
Crook’s reasoning tracks closely with Amar’s:
Am I forgetting the Broccoli Question? If the government can force you to buy health insurance, what can’t it force you to buy? The common-sense answer to this, as we’ve just seen, is straightforward. Nothing. The government can make you pay for whatever it likes–that’s where things already stand, and striking down the mandate won’t change it. The Constitution as interpreted by the Court these past decades allows the federal government to put your taxes up and use the proceeds to send you a weekly box of broccoli. If Washington instructed you to choose your own basket of fruit and vegetables or else pay a penalty, that would be a smaller infringement of your freedom than the Constitution already allows.
A more strident skeptic of the broccoli argument, should the Times consider Amar and Crook insufficient, can be found in Michael Tomasky of the Daily Beast. Tomasky latches onto the “vote them out” line of thinking. The democratic process already protects Americans against overreaching government, whether that overreach is exemplified by mandated vegetable purchases or illegal wars. When Republicans were perceived to have overplayed their hand during the Bush years, voters delivered the electoral rebuke of 2006; likewise, Tea Party enthusiasm provided the notorious 2010 “shellacking” of Obama’s party. That victory for the GOP was predicated partially on the backlash against health care reform, providing proof positive that the current system of checks and balances is alive and well. Voters, by expressing their disapproval of the Affordable Care Act at the ballot box, did just what they were supposed to do. If conservatives wish to repeal Obama’s reforms, they should take their new legislative powers and overturn the ACA, not stretch to find non-existent Constitutional barriers to its implementation. That Republicans have not been able to finagle outright appeal on Capitol Hill says more about the slowness of the democratic process and the power of the minority than it does about the Constitutional soundness of the individual mandate. Essentially, by repairing to the courts, the GOP is attempting to do an end-run around democratic process, short-circuiting the frustrating (though perfectly legitimate) trudge toward dealing with an unpopular piece of legislation via the legislative channels.
“Nothing, at least in theory,” prevents Congress from requiring Americans to purchase broccoli, Tomasky writes bluntly. “If a future Congress wants to make such a law, it can do so and see what happens in the courts. Which means that the real answer is—politics. If you don’t want a law mandating the eating of broccoli, work to elect people to Congress who won’t pass such laws.”
It’s unfortunate, then, that broccoli has garnered so much attention lately. Norris’s article may be amusing, but there’s something sad in the fact that it had to be written at all. The history of the broccoli analogy is worthy of news coverage, but the Times should at least addressed the many substantial arguments against that analogy’s accuracy. By leaving out a major caveat to the conservative vegetable obsession, Norris did a disservice to readers.
Conservatives — and quite possibly a majority of Supreme Court justices — take the broccoli analogy seriously. Because I would argue that more enlightened people do not, it seems appropriate to end on a non-serious note. The New Yorker’s humor column recently ran a “Guide to Supreme Court Betting” that gave odds on upcoming decisions, the future of the Court’s reputation, and the likelihood of Justice Thomas ever breaking his long-running silence (90,000 to 1, if you’re interested). On the subject of everyone’s least favorite green vegetable, author Nathaniel Stein offered the following opinion:
Court’s opinion on health care mentions broccoli: 1-3
Press coverage of court’s opinion on health care mentions broccoli: 1-500
Justice Scalia eats a piece of broccoli: 15,000,000-1
* If the Supreme Court rules tomorrow morning against the Affordable Care Act, I will not only be a slowpoke but an out-of-date slowpoke who wasted a day writing about a moot point. So enjoy this blog post while you can, as it may be dead as a doornail by 10:30 a.m. and will be dead as a doornail by the time the court’s term wraps up next week.
. . . So Well Read. . . 