06/28/2012 02:36 pm ET Updated Jun 28, 2012

The 'Broccoli Horrible': Obama Loses The Broccoli Battle, But Wins The War

The Supreme Court on Thursday upheld the Affordable Care Act's individual mandate, but not before rejecting the government's main argument -- that it was valid under the Constitution's Commerce Clause.

The majority opinion written by Chief Justice John Roberts bluntly insisted that the clause does not vest Congress with "police powers … to regulate an individual from cradle to grave." It also explicitly embraced the conservative argument regarding health care and broccoli.

In oral arguments three months ago, Roberts and Justice Antonin Scalia famously demanded that Solicitor General Donald Verrilli explain why, if the government can compel someone to buy health insurance, it can't also compel them to buy broccoli.

That comparison outraged progressives and horrified health care experts, because it seemed to trivialize the enormous societal significance of health care.

Roberts, however, enshrined the broccoli-related concerns in his opinion, writing:

According to the Government, upholding the individual mandate would not justify mandatory purchases of items such as cars or broccoli because, as the Government puts it, “[h]ealth in-surance is not purchased for its own sake like a car or broccoli; it is a means of financing health-care consumption and covering universal risks.” Reply Brief for United States 19. But cars and broccoli are no more purchased for their “own sake” than health insurance. They are purchased to cover the need for transportation and food.

In their concurrence, the four liberal justices, led by Ruth Bader Ginsburg, nevertheless took issue with some of Roberts' conclusions -- including the one about broccoli.

Ginsburg tried to explain some of the ways in which broccoli (or a car) are different from health care:

Although an individual might buy a car or a crown of broccoli one day, there is no certainty she will ever do so. And if she eventually wants a car or has a craving for broccoli, she will be obliged to pay at the counter before receiving the vehicle or nourishment. She will get no free ride or food, at the expense of another consumer forced to pay an inflated price.

And she even seemed to poke fun at Roberts for swallowing such an argument:

As an example of the type of regulation he fears, The Chief Justice cites a Government mandate to purchase green vegetables. Ante, at 22–23. One could call this concern “the broccoli horrible.” Congress, The Chief Justice posits, might adopt such a mandate, reasoning that an individual’s failure to eat a healthy diet, like the failure to purchase health insurance, imposes costs on others. See ibid.

Consider the chain of inferences the Court would have to accept to conclude that a vegetable-purchase mandate was likely to have a substantial effect on the health-care costs borne by lithe Americans. The Court would have to believe that individuals forced to buy vegetables would then eat them (instead of throwing or giving them away), would prepare the vegetables in a healthy way (steamed or raw, not deep-fried), would cut back on unhealthy foods, and would not allow other factors (such as lack of exercise or little sleep) to trump the improved diet.

Then Ginsburg got serious:

When contemplated in its extreme, almost any power looks dangerous. The commerce power, hypothetically, would enable Congress to prohibit the purchase and home production of all meat, fish, and dairy goods, effectively compelling Americans to eat only vegetables. Cf. Raich, 545 U. S., at 9; Wickard, 317 U. S., at 127–129. Yet no one would offer the “hypothetical and unreal possibilit[y],” Pullman Co. v. Knott, 235 U. S. 23, 26(1914) , of a vegetarian state as a credible reason to deny Congress the authority ever to ban the possession and sale of goods. The Chief Justice accepts just such specious logic when he cites the broccoli horrible as a reason to deny Congress the power to pass the individual mandate.

Finally, in their dissent, the four conservative justices energetically cited broccoli as part of their argument that upholding the act under the Commerce Clause could lead Congress "to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity."

They wrote, specifically in response to Ginsburg's anti-broccoli argument, that she "dismisses the conclusion that the power to compel entry into the health-insurance market would include the power to compel entry into the new-car or broccoli markets." But her arguments, they insisted, "do not show that the failure to enter the health-insurance market, unlike the failure to buy cars and broccoli, is an activity that Congress can 'regulate.'"

They concluded, archly, with this parenthetical comment:

(Of course one day the failure of some of the public to purchase American cars may endanger the existence of domestic automobile manufacturers; or the failure of some to eat broccoli may be found to deprive them of a newly discovered cancer- fighting chemical which only that food contains, producing health-care costs that are a burden on the rest of us—in which case, under the theory of Justice Ginsburg’s dissent, moving against those inactivities will also come within the Federal Government’s unenumerated problem-solving powers.)

Political Reaction To Health Care Ruling