The Broccoli Argument Isn’t About Broccoli

Yesterday’s New York Times has an interesting article about how the broccoli mandate analogy came to play a major role in the cases challenging the constitutionality of the Obamacare individual health insurance mandate. It traces the analogy back to various libertarian and conservative sources and suggests that broccoli is a key reason why the mandate case has turned out to be closer than most liberal pundits expected.

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.