If you’ve been paying attention to the debate over the constitutionality of the health reform law, you’ve probably heard mention of the hypothetical “broccoli mandate.”

The question, if the federal government can make everyone buy health insurance at a particular coverage level and type, can it make everyone buy anything?

For example, could the federal government require everyone to buy a certain amount of broccoli every year, and assess penalties for a failure to do so? After all, like health insurance, broccoli has the potential to improve health, thereby reducing health care spending and perhaps enhancing economic productivity of the workforce. If the argument works for health care, why not for broccoli?

More to the point: What about the real “broccoli mandate” that the administration is already enforcing?

The idea of a broccoli mandate is a whimsical way of making a serious point.

Both as originally written and subsequently amended, the Constitution is structured under the assumption of limited government – the idea that the federal government’s power is limited to those powers specifically designated as such. Anything else a government might do is either given to the states (for example, highway patrol) or prohibited to government entirely (for example, infringing freedom of speech). The point made by raising the prospect of a “broccoli mandate” is to point out that a few of the powers granted to Congress – such as the regulation of interstate commerce – have been interpreted so broadly over the last several decades that the very idea of limited government has been called into question.

In addition to finding it’s way into arguments against the health law from a diverse group ranging from the center-right American Action Forum to the libertarian Cato Institute, the “broccoli mandate” has indeed popped up in some very serious contexts. During her Supreme Court confirmation hearings, now-Justice Elena Kagan was asked Senator Tom Coburn (R-OK) if a broccoli mandate would be constitutional. Kagan didn’t exactly say it would be, but conspicuously ruled out the notion that a law could be unconstitutional just because it was silly. Which is true, but that wasn’t the question – the question was whether a law could be unconstitutional because it exceeded limits on the power of the federal government.

That question went unanswered – until federal district Judge Roger Vinson asked the administration’s lawyer during oral arguments if his logic would also allow Congress to mandate the purchase and consumption of broccoli – and then used that example in his written opinion striking down the law on the grounds that the there was no “limiting principle” of federal power that could allow the health care law without allowing any other imaginable federal power.

What everyone seems to be missing is the fact that a broccoli mandate or something like it may be unthinkable to the average American, but to the administration it is not only not unthinkable – it is already in the process of being implemented.

Last month a story broke about a preschooler at a public school in North Carolina who was told to eat a cafeteria lunch when a state inspector said the lunch she brought from him didn’t meet nutritional guidelines because the (otherwise healthy) lunch didn’t have a vegetable. (In a twist typical of government programs, she was provided with a school lunch consisting of chicken nuggets, and if there was a vegetable included she didn’t eat it.) School officials dismissed the case as a “misunderstanding” and an isolated mistake – until two more preschoolers came forward with similar stories, and someone leaked a letter the school principal sent to parents describing the policy, detailing exactly what must be in each child’s lunch, and specifying that if not everything is included, “Students, who do not bring a healthy lunch, will be offered the missing portions which may results in a fee from the cafeteria.” (Incorrect comma placement and grammatical error in the original.)

The incident was not only in accordance with the school policy, but that policy was in direct response to incentives provided by the Obama Administration, through regulations issued by the Department of Agriculture under the Healthy Hunger-Free Kids Act signed by President Obama in December 2010.

Notwithstanding the “hypothetical” broccoli mandate dismissed by the administration’s lawyers, the administration actually is prescribing exactly what children are allowed to eat for lunch, and paying public schools to enforce those rules.

If the Supreme Court upholds the health insurance mandate, can mandatory dietary requirements for adults be far behind?

Avik Roy is a health care analyst at Monness, Crespi, Hardt & Co., and writes on health care policy for Forbes at his blog, The Apothecary where this post first appeared. You can follow him on Twitter at @aviksaroy.

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49 Responses for “The Broccoli Mandate”

  1. John Ballard says:

    Fascinating.
    I just came across an interesting broccoli reference about this week’s upcoming ACA assault at SCOTUS which has this:

    In challenging the Affordable Care Act’s insurance coverage requirement, the law’s opponents seek an unprecedented expansion of judicial power that would eradicate all limits on what the nine unelected judges on the Supreme Court can do. Because their entire legal argument has, in the words of conservative judge Laurence Silberman, no basis “in either the text of the Constitution or Supreme Court precedent,” it eliminates any bounds on what judges can do to impose their will on the American people. If the Supreme Court has the power to strike down the individual mandate, there is nothing preventing it from forcing you to eat broccoli.

    I guess the analogy works both ways.

    http://thinkprogress.org/justice/2012/03/23/450960/scotus-preview-part-iv-the-big-scary/

    • I think these guys are mixing their broccoli with oranges. The individual mandate and the Medicaid expansion are two very different things. One is without precedent and the other is seeking a reversal of many precedents. One is an expansion of power and the other is an exercise of existing powers.

      The Court can’t make you eat anything that Congress hasn’t legislated that you should eat. The only thing the Court can do is to protect you from having to eat new things.
      The Court has been almost from its inception a very inconvenient thing for many Presidents. I find that to be as it should be.

  2. BobbyG says:

    “The idea of a broccoli mandate is a whimsical way of making a serious point.”
    _

    The idea of a broccoli mandate is a whimsical way of making a fatuous slippery slope “point.”

    Although, maybe were there an ICD-9 px code for “8 oz serving Broccoli Therapy” for which you could submit a reimbursement claim for $14,371 the analogy would work a bit better.

  3. John Ballard says:

    Perhaps this is where IPAB becomes part of the safety net. Prior to ACA that body was limited to recommendations only, most of which were routinely ignored by Congress. My understanding is that under the new law IPAB recommendations will become policy unless Congress intervenes to reverse or modify them.
    (Which means that Congress would have to become pro-active, an occurrence not likely to happen. )

  4. steve says:

    I think it necessary and proper that Avik make a better argument.

    Steve

  5. DeterminedMD says:

    Hmm, and yet no one favoring this garbage legislation mentions all those crony agreements, er, waivers that Obama, Pelosi, and Reid personally arranged for personal gains. And the mandate was part of the issue for some of these groups pining for exceptions.

    If the legislation was so wonderful and fair, why are your own supporters asking out? Do any apologists here have a soul, forget about a conscience!?

    • John Ballard says:

      I think this is a fair criticism.

      When I see “exceptions” allowed for El Cheapo ersatz group medical plans like those at fast food and other low-wage companies it makes me cringe. I have seen those so-called insurance plans up close and as far as I can tell they rarely, if ever, pay out a dime more than has been paid in by beneficiaries who think they have real insurance.

      At the same time I realize that they legislation was basically crafted by and for the insurance industry, so those plans are the industry equivalent of peddling overpriced goods and services at airports. Three dollar cups of coffee and ten-dollar sandwiches are small potatoes compared with the expenses of operating airplanes and airports. And those plans are peanuts compared with the serious money at stake with real health insurance policies.

      As one of those favoring this garbage legislation I simply bite my tongue, swallow hard and try to keep my attention on the future. After all, separating health insurance from employment is a worthwhile long-term goal for many reasons, not the least of which is getting beneficiaries to have real skin in the game. (The shift of retirement security from old-fashioned defined benefits company paid pension plans to employee-paid arrangements is a similar shift for the better.) So like all big changes, this part of health care and insurance reform is taking place incrementally. And those despicable “exceptions” are part of the price being paid.

      As for souls or consciences it’s best not to bring those up when discussing political issues. Dr. Determined, not everyone has your measure of sensitivity and compassion.

  6. john irvine says:

    As arguments go, the broccoli argument is a great one: ridiculous enough that it gets the argument across in a soundbite and at the same time completely trivializes what the other side is saying. Any time you make the other guy’s point look patently absurd and make people laugh at him you’re three quarters of the way to making your point …

    The counter is the public health and national interest card, which supporters haven’t done much with in my opinion. Is it constitutional for government to require vaccinations? (There is some argument about this, but most of us get it.) The national interest.? This is a matter of national economic security.

    • Jonathan H says:

      I would rephrase that: as far as attempts at political persuasion go, this is a good argument, for the reasons you state. But as for getting at the truth, not so much.

      Take the school example. This is a case where the “mandate” is conditional on going to that public school, and no one is mandated to go to public school. If you are tempted to reply: true, but lots of people are too poor to go to private school or don’t have the resources to home-school, so there isn’t real freedom from the mandate, that is exactly the liberal response on how the health insurance mandate doesn’t diverge substantially from precedent.

      This is like the example of compulsory car insurance which we all agree is constitutional. Having a car is not an option for most people if they want a job and an income. But these are subtle points for lawyers and not so much for low-information voters. For them, and not just them, John is probably right that the better response is to go on the offensive and speak of national health and economic security. Lack of vaccines spreads contagion and ruin.

      • Nate Ogden says:

        Actually in many juristictions there is a mandate to go to school. Parents can be locked up and have been for their kids not going to school. You can’t just keep your kid home and say you don’t want to educate them. The system needs feed and doesn’t allow that.

      • School is a great example. There is a mandate to obtain education, which is publicly financed from tax revenues, but if you want private Cadillac school, you can get it on your own.
        If the health insurance mandate were constructed the same way, everybody would be paying taxes to cover the expense, and everybody would be covered for no additional fees by a public option, and if you want Cadillac insurance, by all means go buy some.
        The education “mandate” does not force individuals to forever funnel money to private corporations at a price TBD.

  7. Paolo says:

    Yes, the federal government has the right to tax you if you do not purchase enough broccoli. It also has the right to tax you if you do not get vaccinated. It has the right to force your employer to buy you a hybrid car. It has the right to give you a tax credit if you buy broccoli for you neighbor’s dog. It can decide to pay your social security benefits in broccoli instead of dollars. It has the right to tax you at 99.9% rate and spend the money building bridges to nowhere. It has the right to conscript you and send you to your death fighting a pointless war.

    The slippery slope argument is as silly the broccoli law. The federal government already has plenty of power to do extremely stupid laws. The purpose of the Supreme court is not to put a check on government’s stupidity or incompetence. That’s the purpose of the ballot box.

  8. BobbyG says:

    IDEOLOGICALLY DIVERSE MOOT COURT PANEL VOTES 8-1 THAT ACA INDIVIDUAL MANDATE IS CONSTITUTIONAL

    http://www.theusconstitution.org/text-history/1351/ideologically-diverse-moot-court-panel-votes-8-1-aca-individual-mandate

    I watched all 2 hr and 2 minutes. The arguments here were only about the “individual mandate,” they did not extend to “Severability, Medicaid, and Ripeness.”

  9. John Ballard says:

    The “constitutional or not” game, like discussions of the intent of the founding fathers, makes tiresome reading.
    Slavery was okay until it wasn’t.
    Women couldn’t vote until they could.
    Plessy was okay until Brown.
    Drinking was okay until it wasn’t then it was again.
    Japanese citizens could be rounded up in camps during WWII.
    A military drone has now assassinated at least one citizen when all the conditions were met.
    As a draftee I know well that the government can put people in deadly harm’s way.
    And incidentally the UCMJ trumps all civilian law when you’re in uniform.

    So don’t tell me about what’s constitutional or not. I find the argument disingenuous. What the Supreme Court decides in the matter under consideration this week has little to do with what’s Constitutional and everything to do with what the political ramifications may be.

    Lot’s of smart people are saying the law is solid. (Never mind the fact that an army of lawmakers, their staff people, and the medical and insurance heavyweights and their legal departments all had input into it’s creation.) But the next step is the decision of nine appointed judges, none of whom, by the way, has ever run for political office.

  10. I suggest reading Merrill Goozner’s article in the Fiscal Times http://bit.ly/GPHIsg
    If compulsory legislation is not absolutely necessary to reform health care, why enact it?

    • steve says:

      There are alternatives, but they dont project out to work as well. Every OECD country with quality, cheaper care has a mandate.

      Steve

      • True. and the mandate, the way we are proposing, doesn’t project out to work as well as those other countries either. For example, what happens to those who pay the penalty if they get into a car accident? How much “care” are they entitled to in return for paying the penalty, if any? Are they still considered uninsured? Perhaps they should be considered insured under a public option…..

        • John Ballard says:

          Georgia has what is called “no-fault” auto insurance. Any medical claims are paid by the insurance company of that driver regardless of which party may have been “at fault.” This covers all who are in compliance with the state’s required (er, MANDATED) insurance coverage. I don’t know what happens to a driver without insurance.

          If there are “at fault” issued, then one insurance company tries to collect from the other via subrogation. All of this is in addition to any civil claims that may arise from an accident. I have no idea how widespread the no-fault concept may be.

        • spike says:

          Margalit, under EMTALA, they are entitled to the care required to stabilize them. Then, they could go out and buy an insurance policy the very next day and the insurance company couldn’t deny coverage for the follow-up care because the accident led to “pre-existing conditions”. That’s the whole point. EMTALA provides enough care to let them live long enough to but an insurance policy, a situation which, without the individual mandate, would lead to rampant adverse selection.

          We all know all of these things, but people get too cute with this stuff when someone they don’t like is the one taking credit for the legislation. Not saying anything about your personal opinion about Obama, but I have a feeling I know where Mr. Roy’s political allegiance lies.

          • Happy to oblige, spike: I voted for Mr. Obama, and I plan to vote for him again this year.

            There are ways to mitigate these problems, which may not be as “perfect” as the mandate, but will be good enough for most cases. I am not convinced that dealing with a few outliers is a compelling enough reason to fundamentally alter the relationship between citizens and government, as one of the Justices put it today.

          • Nate Ogden says:

            “I voted for Mr. Obama, and I plan to vote for him again this year.”

            NNNNNNOOOOOOOOOOOOOOOOOOO

            But you have been saying such smart and agreeable things lately. How could you?

          • Well, Nate, I disagree with the administration on this one (and maybe a couple others :-) ), but all in all I disagree with the GOP even more. There is no liberal candidate, so I’ll go with the closest thing to one.

          • spike says:

            Margalit, they can always just pay the fine. Nobody HAS to buy insurance.

      • Nate Ogden says:

        your forgetting what OECD is again Steve. If everyone has a mandate why are there so many uninsured Mexicans here?

    • John Ballard says:

      Goozner’s comments are totally rational and reasonable (which is to say rare these days). And in so many words he admits that the politics of the issue may trump reason, history, law or actuarial/accounting realities. And forget about the fact that textbook Conservatives were fer it before they were agin’ it.

      I guess all we can do now is wait, watch the show (er, listen without watching since there are no cameras in the Court) and wait for the outcome.

  11. Saúde says:

    I think it may be good, but need more arguments!

  12. BobbyG says:

    Day 1 Orals in a nutshell:

    CHIEF JUSTICE ROBERTS: “… the idea that the mandate is something separate from whether you want to call it a penalty or tax just doesn’t seem to make much sense. It’s a command. A mandate is a command. If there is nothing behind the command, It’s sort of well what happens if you don’t file the mandate? And the answer is nothing. It seems very artificial to separate the punishment from the crime… Why would you have a requirement that is completely toothless? You know, buy insurance or else. Or else what? Or else nothing.”

  13. Jeff Pilisuk says:

    The Broccoli mandate is an utterly ridiculous analogy to use as an excuse against implementing health care reform. No one cares whether or not anyone else buys broccoli. Individuals who don’t buy broccoli are not being subsidized by those who do.

    The picture is entirely different for health care. People who don’t have health insurance coverage still use health services. They typically use the most expensive type of health services received through the emergency room and hospital. Without insurance, who do you think pays? These large medical bills go unpaid, so hospitals, labs, and other health professionals take the hit. But these health providers already now a certain portion of their billings will be noncollectable, and therefore their pricing for medical services is increased accordingly. That’s right, it’s you, me, and everyone else who actually pays their medical bills that is subsidizing the medical costs of those who go without health insurance. If you don’t care whether other people have medical insurance or not, you should because you are paying for their medical services.

    If you choose not to by broccoli, fine. Your decision not to purchase broccoli does not make by broccoli more expensive. However, your decision not to buy health insurance increases the price of health care for everyone else.

  14. BobbyG says:

    From the Department of “Be-Careful-What-You-Ask-For”:

    If the Individual mandate is overturned because the court decides it is unconstitutional to require private citizens to buy products from private companies, that would also mean that Social Security, Medicare, Medicaid, and VA Health benefits can’t be privatized or voucherized (sorry, Mr. Ryan).

    Privatization, recall, means that we would force people to buy products from private companies to replace Social Security, Medicare, Medicaid and VA Benefits.

    Overturn the individual mandate and it also means putting an end to right-wing privatization dreams.

    • Nate Ogden says:

      that is some pretty sad failed logic. Maybe if you actually read their proposals you wouldn’t make such gaffes. Medicare vouchers would be giving money to people to buy a product, your not forcing them to spend their money on anything. Not even close to the same. SS again is giving people money to invest in individual accounts, and further that is funded by social security taxes, not social security fees unless we need it to be a tax in which case its a tax until tomorrow when its a fee again.

      Keep spining Bobbi

      • BobbyG says:

        6-3 to Uphold.

        ” not forcing them to spend their money on anything.”

        Indeed. They can just “choose” to go without access. Fell and broke your irreparable hip, Grandma? Don’t have the $39k for the hip job?

        Die, bitch.

        Yeah, Nate, I need logic lessons from you.

  15. DeterminedMD says:

    Ok, so in writing the bill, the mandate was specifically NOT called a tax, then when challenged in court, then was a tax. Which term do honest and fair people want to call people who try to unilaterally change the rules?

    Crass opportunists, or as I believe kindergarten taught it more simply, liars!?

  16. Hunzer says:

    I think the main thing that throws people off isn’t so much that because of the public good, we are all forced to broccoli but more of being forced to buy broccoli from less than reputable vendors. I think most can accept paying into a system if if helps overall to lower costs for everyone & deliver benefits more efficiently. The main problem with that is when I’m forced to buy from some company. This isn’t like paying taxes or paying Social Security to govt. Now most can be reluctant about surrendering money to govt but u know the govt isn’t some profiteering enterprise only worried about their profits. Private insurance is different. And their reputations today haven’t been stellar. Year after year of galloping premium increases have led to accusations of profiteering and overpaid execs. It’s a different thing to be “forced” to be a customer to one of them.

    • John Ballard says:

      @Hunzer
      You may not be aware that included in PPACA is something called “medical/loss ratio” which limits how much insurance companies can spend on extravagant excess. The ratios are not exactly the same in all instances but generally it means that eighty percent of all premium dollars collected must be used for actual medical expenses, with only twenty percent left for administrative and all other expenses.

      Insurance companies, of course, have many types of policies. I’m by no means an expert but I’m smart enough to know if they sell life insurance, annuities, auto, fire, theft, liability and a string of permutations — they have plenty of revenue to work with in addition to what comes in from health insurance premiums.

      But you make an excellent point since Medicare and the VA, like Social Security, are single-payer systems. Those government-run programs have plenty of problems, but I don’t think profiteering and excessive executive bonus payouts are on the list.

    • Nate Ogden says:

      “Now most can be reluctant about surrendering money to govt but u know the govt isn’t some profiteering enterprise only worried about their profits.”

      Solyndra
      Fisker
      That BC global internet celluer play his crony was trying to do that interfers with GPS
      The bailouts for Wall Street

      They sure as heck aren’t worried about the tax payers.

      Medicare loses $700 PER MEMBER to fraud everey year.

  17. Jeff Pilisuk says:

    Actually, on closer examination of the bill, you aren’t forced to buy anything. For those who elect not to buy insurance, they’ll just pay a penalty. Just think of the penalty as a tax. Those who purchase insurance have a tax incentive (since they don’t pay this penalty “tax”). Those who don’t buy insurance are subject to this tax, to help offset their contribution to the costs of medical care.

    Alternatively, if the courts don’t like granting the ability to mandate purchase of health insurance in the private sector, that always leaves the option of converting health care to a single-payer system funded by taxes. Be careful what you ask for. The government already has the capability to implement taxes.

  18. John Ballard says:

    Actually we already have a tax-funded single-payer system in the form of Medicare. That’s the basis of the Medicare-for-all argument.

    Then there is the VA, with government owned facilities staffed by government paid health care professionals, most of whom are on salary.
    It’s not a crazy idea.

    Don’t forget, the idea of a mandate originated with Conservative advocates for privatization over “gubment control” cuz they knew well that without it for-profit providers and insurers would be facing what they delicately call “adverse selection” which is another way of saying “gaming the system.”

    You’re correct about the tax angle. But that puts you in the common sense group, which looks today like a small and shrinking population.

    • Nate Ogden says:

      “cuz they knew well that without it for-profit providers and insurers would be facing what they delicately call “adverse selection” which is another way of saying “gaming the system.”

      In the real world most payments go to non profit providers and most insurance is non profit, but don’t let that ruin a good rant.

  19. John Ballard says:

    …most payments go to non profit providers and most insurance is non profit…

    Riiiight.

    Somebody — anybody — get me out of this…
    I feel like that guy yesterday who fell in the mud.
    http://statter911.com/2012/03/28/must-see-video-atlanta-mud-rescue-firefighter-falls-trying-to-free-man-drowning-in-mud/

    • Nate Ogden says:

      BCBS are still mostly non profit. Many of the other large plans are mutual.

      From the provider side most of your money still goes to hospitals/health systems and most of those are Catholic or county/state owned.

      A number of your large none profit health systems also sponsor non profit health plans.

      Sorry that reality doesn’t agree with your propoganda.

    • Nate Ogden says:

      http://www.factcheck.org/2009/06/pushing-for-a-public-plan/

      government-run programs are hardly without their own money issues. The Government Accountability Office reported that in 2008 half of improper payments made by the federal government came from Medicare and Medicaid. The Medicare fee-for-service program had an estimated $10.4 billion in improper payments, plus Medicare Advantage doled out $6.8 billion that it shouldn’t have. Medicaid’s improper payments totaled $18.6 billion for the year. Those figures surpass the profits reaped by insurance companies and the pay their CEOs took home.

      Public plans sound like a great alternative!

  20. John Ballard says:

    When dinosaurs roamed the earth the term non-profit had meaning and mutual insurance companies flourished. But those days are nearly gone from living memory. Today’s so-called non-profits operate with multi-million dollar advertising and marketing departments and are run by executives with obscenely large compensation packages. And in the case of providers and insurers every dollar comes either from someone’s medical bill (or a government grant which is tax money). The term “non-profit” is just another accounting term having more to do with the tax codes than operational profits. You are in a position to know that the operational profits are huge.

    After busting my butt in the real private sector my whole life I took an early retirement and worked five years in one of those “not-for-profit” healthcare systems. The place was awash with money. It was one of the finest systems of its kind and an A-1 operation, but I saw wholesale waste of both human and material resources. It became clear to me after a short time that it was essentially a money-laundering center for numerous for-profit clinics, individual practices and specialty centers clustered around its several campuses.

    Call it propaganda all you want. My only regret is that I didn’t find an environment like that thirty years before.

    • Nate Ogden says:

      What is government with all of its grants and handouts? It gave 5 billion to Unions to reduce gaps in their funding. Just gave it to them, here is 5 billion becuase you can’t afford to fund your health plan and contribute to my campaign. All the green money they handed out to companies that went BK as soon as the handouts ended.

      You bash the private sector and ignore the fact that government programs are many times worse.

      Why is it the end of the world for a for profit insurance company to waste a dollar but your perfectally ok with the government wasting 10?

      Compare government waste and fraud to total proifit and salaries in private insurance, many times bigger problem.

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