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.