Some excellent reporting from the Times.
It turns out that broccoli did not spring from the mind of Justice Scalia. The vegetable trail leads backward through conservative media and pundits. Before reaching the Supreme Court, vegetables were cited by a federal judge in Florida with a libertarian streak; in an Internet video financed by libertarian and ultraconservative backers; at a Congressional hearing by a Republican senator; and an op-ed column by David B. Rivkin Jr., a libertarian lawyer whose family emigrated from the former Soviet Union when he was 10.
Even those who reject the broccoli argument appreciate its simplicity. Whatever the Supreme Court rules, Mr. Rivkin and his libertarian allies have turned the decision into a cliffhanger that few thought possible.
“I have some grudging admiration for them,” said Akhil Amar, a professor of law and political science at Yale and author of a book on the Constitution. “All the more so because it’s such a bad argument. They have been politically brilliant. They needed a simplistic metaphor, and in broccoli they got it.”
The seeds of the broccoli debate date back to the early 1990s, when President Bill Clinton first proposed a universal health care plan. It included a requirement that all businesses provide health insurance to their employees. “How can the government do that?” Mr. Rivkin wondered, explaining, “It’s just the way I am.”
Mr. Rivkin attended Georgetown University while working three jobs, including cleaning animal cages at a lab. He later worked in the White House counsel’s office under President George H. W. Bush and now, at 55, is a partner in the Washington office of the law firm Baker Hostetler.
“I’m driven by two things,” he said. “Enormous appreciation bordering on burning love for the American system. It gives people with drive and motivation and hard work an opportunity to be all you can be. And a healthy suspicion of governmental power, having come from an environment where you had an all-powerful totalitarian government.”
With his law partner Lee A. Casey, Mr. Rivkin took aim at Congress’s power under the commerce clause of the Constitution. It had become the source of ever-expanding legislative power since Chief Justice John Marshall wrote in 1824 that Congressional power to regulate commerce “may be exercised to its utmost extent.”
In a September 1993 commentary in The Wall Street Journal, Mr. Rivkin and Mr. Casey argued that the Clinton proposal was unconstitutional. Requiring Americans to buy insurance went a step beyond a famous 1942 case, Wickard v. Filburn, which has long been a thorn in the side of those who opposed the New Deal. In it, the Supreme Court ruled that Congress had the power to prevent a farmer from growing wheat for his own consumption on the theory that any wheat affected the total supply, and thus fell within interstate commerce.
Judge Roger Vinson, appointed to Federal District Court in 1983 by President Ronald Reagan, heard the case, and introduced the subject of broccoli. “If they decided that everybody needs to eat broccoli because broccoli is healthy, they can mandate that everybody has to buy a certain quantity of broccoli each week?” he asked.
“That is absolutely true, Your Honor,” Mr. Rivkin replied. “The analogy you’re talking about is entirely apropos.”
(Judge Vinson did not respond to the question of where he came up with broccoli. But Mr. Rivkin said he thought he had mentioned it to the judge. Vegetables also surfaced during oral arguments in October in a Virginia case challenging the health care law, when the judge asked if the government could force people “to buy an automobile, to join a gym, to eat asparagus.”)
Judge Vinson also indicated that he had seen the Reason video citing vegetables. He said, “You know, my friend Dean Chemerinsky says the government can, under the commerce clause, in his view, order Americans to buy G.M. cars.”
Ian Gershengorn, a lawyer from the Justice Department, replied: “But what this case is about is the purchase of a very particular product, and it is not shoes, it is not cars, it is not broccoli.”
Whatever the outcome, that such a small group of libertarian lawyers could harness the power of media in the digital age and have such an impact “has left the legal establishment reeling,” Mr. Shapiro of Cato said.
The article includes some interesting facts, but it ultimately misses the point. The mandate’s legal problems are not the result of some clever rhetorical gambit about broccoli. In fact, the broccoli analogy is not a significant point in itself, but merely a useful shorthand for the key flaw in the federal government’s defense of the mandate: the fact that all the arguments in its favor would also justify pretty much any other mandate Congress might care to impose, and would therefore lead to structurally unlimited federal power. If the government’s reasoning would make a broccoli mandate constitutional, it can be used to justify virtually anything.
You can make the same point using potatoes, tomatoes, cars, or movie tickets. The first district court decision striking down the mandate actually cited examples from the fields of “transportation, housing, and nutrition.” If the Supreme Court upholds the health insurance mandate, its reasoning could be used to justify any of these other mandates too. And, while it is unlikely that Congress will actually enact a broccoli mandate, there is every reason to fear that various interest groups will effectively lobby Congress to push through laws requiring people to buy their products. I discuss this “slippery slope” danger in more detail in this article.
Ultimately, therefore, the broccoli analogy isn’t nearly as important as the Times suggests. If no one had ever thought of it, the anti-mandate plaintiffs would still have zeroed in on this central flaw in the government’s case. Perhaps we would all be talking about potatoes or cars instead of broccoli. But the underlying point would still be a thorn in Obamacare’s side.
Update: Not everyone fears a broccoli mandate:
The broccoli gambit is something new: a slippery-slope argument that posits an upward slide—not a sickening, slither down to the sulfurous pits of hell but a gentle escalator ride to the produce department at Whole Foods.