Broccoli, Slippery Slopes, and the Individual Mandate

Opponents of the constitutionality of the individual mandate have emphasized that upholding the mandate would give Congress the power to mandate virtually anything, including forcing people to eat broccoli. Northwestern law professor Andrew Koppelman appears to agree, but argues that this slippery slope is nothing to worry about:

One of the most rhetorically effective arguments that has been made against President Obama’s health insurance mandate is that it places us on a slippery slope to totalitarian government. If the federal government can make us buy insurance, what can’t it do?…

The Broccoli Objection, as I will call it, rests on a simple mistake: treating a slippery slope argument as a logical one, when in fact it is an empirical one.

This basic point was made long ago in Frederick Schauer’s classic article, Slippery Slopes, 99 Harv. L. Rev. 361 (1985). Schauer showed that any slippery slope argument depends on a prediction that the instant case will in fact increase the likelihood of the danger case. If there is in fact no danger, then the fact that there logically could be has no weight. For instance, the federal taxing power theoretically empowers the government to tax incomes at 100%, thereby wrecking the economy. But there’s no slippery slope, because there is no incentive to do this, so it won’t happen.

Similarly with the Broccoli Objection. The fear rests on one real problem: there are lots of private producers, including many in agriculture, who want to use the coercive power of the federal government to transfer funds from your pockets into theirs. But the last thing they want to do is impose duties on individuals, because then the individuals will know that they’ve been burdened. There are too many other ways to get special favors in a less visible way.

Koppelman makes an interesting point. But I think it ultimately fails for two reasons. First, even if Congress would never actually enact the broccoli mandate, the fact that it could so under the same logic as the health insurance mandate highlights a logical flaw in the argument made by defenders of the latter. It strains credulity that a constitutional text that gives Congress the power to regulate interstate commerce gives it unlimited authority to force people to buy products they don’t want, even within the borders of a single state.

Second, I think that Koppelman is right to point out that slippery slope scenarios must be evaluated based on their actual likelihood of occurring, as opposed to merely the logical possibility. But I think the likelihood of this is much greater than he admits. It’s true that subsidies are easier to hide from the voters than purchase mandates. But the latter have their own advantages for politicians and interest groups. For example, in a time of tight budgets, a purchase mandate can transfer money to a favored industry without requiring additional government spending or tax increases. It’s very hard for the federal government to directly transfer as much money to an industry as it would get from forcing millions of new customers to buy their products.

Moreover, there is a wide variety of ways that purchase mandates could be sold to the public. Congress need not admit that they’re intended to help powerful interest groups. They could instead be defended as efforts to stimulate the economy by helping a vital industry (the same justification as was used to justify government bailouts of the banks and auto industry). Forcing people to purchase broccoli or other food could be defended as a public health measure. Indeed, paternalists of both the “libertarian” and traditional varieties have successfully advocated numerous coercive regulations on precisely those kinds of grounds. There is no reason why they couldn’t use similar strategies to justify purchase mandates. An alliance between well-intentioned paternalists and industry interest groups is precisely the kind of “baptist-bootlegger” coalition that has often been successful in the past. Given widespread political ignorance, voters will often be hard-pressed to tell whether such proposals will really increase public health or not.

Finally, it’s important to emphasize the sheer range of interests that come into play here. The logic of the pro-health care mandate argument can justify virtually any mandate to purchase or do anything. This opens the door to the machinations of a extraordinarily large number of interest groups. It seem very likely that at least a few of them will figure out a way to take advantage of the opportunity. Even if I can’t figure out exactly how to do it, interest group leaders and other professional political strategists probably can.

Indeed, at least one industry interest group already has managed to do it. After all, the health insurance mandate was included in the health care bill in large part because insurance companies support it, and in spite of the fact that President Obama had strongly opposed the idea when Hillary Clinton proposed it during the 2008 presidential campaign. Where the insurance industry leads, others might well follow.

UPDATE: In the original version of this post, I forgot to link Andrew Koppelman’s post on Balkinization that I was responding to. I apologize for the error, which has now been corrected. Unfortunately, I was unable to fix it for several hours, because I had to catch a plane, and then could not access the internet while I was in flight.

UPDATE #2: I suppose I should note that my reference to Barack Obama’s reversal of position on the individual mandate in no way denies that Republican politicians are also often inconsistent, including, in some cases, on the very same issue. My point, rather, was that interest group influence played a role in pushing through the individual mandate (even in spite of widespread hostility to the idea), and could easily have a similar impact in enacting other purchase mandates in the future.