Begging the broccoli question

The slippery slope argument for why the individual mandate must be found unconstitutional only makes sense if one already assumes it’s unconstitutional. If one assumes the opposite, it proves the opposite.

Of all the arguments why the individual mandate must be found unconstitutional, the one that seems to have the most emotional purchase among conservatives is the slippery slope argument. As Judge Vinson put it in his decision (p. 46), citing oral argument, if we accept the arguments for the insurance mandate’s being constitutional,

Congress could require that people buy and consume broccoli at regular intervals, not only because the required purchases will positively impact interstate commerce, but also because people who eat healthier tend to be healthier, and are thus more productive and put less of a strain on the health care system.

While lots of people have torn into this argument (and Charles Fried, inimitably but cogently, claims that it’s constitutional to make people buy broccoli but not to eat it), I don’t think anybody’s noticed that it clearly begs the question. It only makes sense if we already assume the insurance mandate is unconstitutional.  If one assumes the opposite, it proves the opposite.

Upholding the Affordable Care Act is supposed to open the floodgates for regulation of all kinds of personal things that are none of government’s business on the following logic: the legislature (though strangely for a fundamental liberty argument, only the one in Washington—it’s a Commerce Clause argument), which has previously refrained from the broccoli mandate only because it thought such things unconstitutional, will now know that its power is unchecked.  But this assumes that the insurance mandate was always unconstitutional and that Congress knew it.  And that begs the question.

Assume instead that Congress has unambiguously had the power to mandate the purchase of insurance for decades, and that both parties in Congress, while disagreeing over the individual mandate’s wisdom, never questioned its constitutionality until, say, summer 2009.  (The mandate was in fact a long-standing Republican idea, endorsed by everyone from Nixon to Bush senior to Dole to John McCain: politicians like Hatch and Grassley who now call it unconstitutional used to advocate it and even co-sponsor bills that would have enacted it.)

In this alternative scenario, which one might for convenience call “reality,” the slippery slope argument is not just invalid but demonstrably disproven by events. Congress has had the constitutional power to make us buy broccoli for a very, very long time now, and it hasn’t—for the obvious reason that, unlike the Affordable Care Act, the broccoli mandate would be contrary to the public welfare, unenforceable, and wildly unpopular.  We don’t need to wonder whether politics is a sufficient check on dunderheaded mandates. The contrary proposition has already been tested and falsified.  Quod erat demonstrandum: but it’s the opposite of the quod that conservatives intend.

Author: Andrew Sabl

I'm a political theorist and Visiting Professor (through 2017) in the Program on Ethics, Politics and Economics at Yale. My interests include the history of political thought, toleration, democratic theory, political ethics, problems of coordination and convention, the realist movement in political theory, and the thought of David Hume. My first book, Ruling Passions: Political Offices and Democratic Ethics (Princeton, 2002) covered many of these topics, with a special focus on the varieties of democratic politics and the disparate qualities of mind and character appropriate to those who practice each of them. My second book Hume's Politics: Coordination and Crisis in the History of England was published in 2012; I am currently finishing a book on toleration, with the working title The Virtues of Hypocrisy, under contract with Harvard University Press. A Los Angeles native, I got my B.A. and Ph.D. from Harvard. Before coming to Yale I taught at Vanderbilt and at UCLA, where I was an Assistant, Associate, and Full Professor; and held visiting positions at Williams, Harvard, and Princeton. I am married to Miriam Laugesen, who teaches health policy and the politics of health care at the Mailman School of public health at Columbia, and we have a twelve-year-old son.

42 thoughts on “Begging the broccoli question”

  1. Mold the evidence to uphold the predisposed conclusion!
    Where’s the justice in that?

    Vinson’s ruling smacks of political activism!
    He’s legislating from the bench – just not in a liberal way!

  2. “Assume instead that Congress has unambiguously had the power to mandate the purchase of insurance for decades, and that both parties in Congress, while disagreeing over the individual mandate’s wisdom, never questioned its constitutionality until, say, summer 2009.”

    If we change “never questioned” to “never considered,” wouldn’t we come closer to the reality of the situation? If so, then we cannot rule out the slippery slope argument. I say that as a lawyer who believes that the individual mandate is clearly constitutional.

  3. Henry: if Congress never considered the constitutionality of the individual mandate, how can we coherently say that it was prevented from enacting a bunch of other outrageous mandates out of fear they were unconstitutional?

  4. If the government could make you eat your broccoli, would that really be much worse than the government’s being able to imprison you for smoking a particular plant? I know that one would be a requirement and the other a prohibition, but, nevertheless, if the people of this nation cannot see how insane it is to allow their government to imprison them for ingesting a plant, why should they be concerned about having to eat broccoli? It’s good for you, after all, so, on balance, it’s less insane than is drug prohibition, the primary purpose of which is to keep in force a form of Jim Crow laws.

  5. Andrew asks, “if Congress never considered the constitutionality of the individual mandate, how can we coherently say that it was prevented from enacting a bunch of other outrageous mandates out of fear they were unconstitutional?”

    That may be true, but maybe Congress never thought about other outrageous mandates, and the insurance mandate will give them the idea.

  6. It’s not a slippery slope argument. That would require opponents to actually object to Obamacare on the basis that they genuinely don’t want to be compelled to eat broccoli, not because they find Obamacare itself offensive. It’s a reductio ad absurdum.

  7. I’d say the reason Andrew didn’t recognize that it’s a reductio, is simply that he doesn’t find the federal government having the authority to order us to eat our broccoli, or for that matter to stand on our heads while picking our noses, particularly absurd. Asking him to recognize an absurd over-reach by the federal government is like asking a blind man to recognize a rainbow; He’s absurd over-reach recognition impaired.

  8. It’s a tricky thing. I think the Constitution, and its traditional, prevailing modes of interpretation do try to put some procedural and some substantive limits on crazy. The opponents of Obamacare are trying to thread a needle, here, though. The mandate is not crazy, and the Justice Department argued at length for why it was a rational policy with a sensible purpose.

    If the mandate is not, itself, absurd, what’s the point of arguing the absurdity of other, entirely hypothetical policies?

  9. If the Constitution put limits on crazy, then the drug laws — at least marijuana prohibition — would be regarded as crazy and struck down under Griswold, in which the Supreme Court found a right of privacy that rendered unconstitutional a state law that banned the sale of condoms. But we tend to view as crazy only things that we don’t do, not the crazy things that we do do. The Griswold case was an exception, and the reason that it had to rely on “penumbras,” and consequently be viewed as unprecedented judicial activism, is that the statute in question was crazy. Of course the Constitution didn’t explicitly protect the right to use condoms, because it went without saying that it would be crazy for the government to try to stop people from using condoms (or smoking pot). Who could imagine anything so crazy? Unfortunately, the framers lacked imagination.

  10. Through agricultural-purchase programs run by the U.S. Department of Agriculture, the federal government already requires us (collectively) to buy products we (as individuals) might prefer not to purchase (e.g., oilseeds). In effect, in this real-world example, the government skips the step of requiring an individual to purchase each product in the commercial market (and imposing a tax on those who don’t, or subsidizing or forgiving the purchase by those who couldn’t afford an individual mandate) and instead goes straight to a direct collective purchase. If the government can constitutionally compel us to purchase stuff collectively that we wouldn’t otherwise purchase (as I think it can, and as the government has done throughout our history), I don’t see why it couldn’t substitute an individual mandate that would add up to the same thing as the collective mandate.

  11. The government could have just enacted a health insurance tax, like the Medicare tax, and there would be no problem. That doesn’t mean that it would have to have a single-payer system like Medicare (although it should). It could instead offer a tax credit, up to the amount of the health insurance tax, to offset premiums that people pay to private health insurers.

  12. It’s rational-basis legislation. Under the power granted, it flies if there is any reason for it.

    Yes, it’s politically absurd to think of such a broccoli law, but *political* absurdity has nothing to do with it. It’s whether the *basis for the legislation* is absurd, or has any rational connection (meaning, not absurd).

    Also, Brett’s argument about Andrew’s blindness is just an argument from “I know it when I see it; you are blind if you don’t see it my way.” I don’t know what the Latin term is, but that ain’t no good argument.

  13. [[If we change “never questioned” to “never considered,” wouldn’t we come closer to the reality of the situation?]]

    Well, no, we wouldn’t. Congress has quite frequently considered whether an individual purchasing mandate is constitutional. Heck, George Washington himself signed into law a bill requiring sailors to purchase health insurance. This question was considered, and answered, a long time ago. It’s just that the right, desperately reaching for excuses to hate the Affordable Care Act, are now pretending that this is some major controversy.

    If someone asked me this broccoli question, my response would be, “Why **doesn’t** Congress have the authority to pass that law?”

  14. bugmenot, I assume that the law that George Washington signed made the purchase of health insurance a condition of employment; if so, it is different from a law imposed on everyone. I believe that the present health insurance mandate is clearly constitutional under the Commerce Clause, the Necessary and Proper Clause, and the taxing power, but I’m not aware of precedents for it. Can you cite any others?

  15. “If the mandate is not, itself, absurd, what’s the point of arguing the absurdity of other, entirely hypothetical policies?”

    This is how the reductio works: You take the premises which lead to the result you’re trying to prove. You use them to prove something else, which IS absurd. If those same premises can prove something absurd to be true, then there’s something wrong with one or more of the premises. This doesn’t mean the original conclusion can’t be true, there might be some proof of it which does not lead to absurdity. But it does establish THAT proof is invalid.

    So, if the same arguments which prove Obamacare constitutional also prove that the broccoli mandate is constitutional, AND the broccoli mandate can’t be constitutional, (Is absurd.) then those arguments do not prove Obamacare constitutional.

    Andrew demonstrates the weakness of the reductio, which is that you’ve got to get somebody to admit the other, second result is absurd. And believers in the Leviathan don’t find ANY claim of power on the part of the federal government absurd. They might think a federal demand that we all paint ourselves blue and run naked in the rain to be stupid, but don’t admit it’s beyond the federal government’s power.

    Rather, what they find absurd is the idea that there’s any actual limit to the power of the federal government.

  16. Henry, if the power can be legitimately exercised over anyone, then it can be legitimately exercised over everyone. Exercising the power over the entire set doesn’t bring it into a different category of authority than exercising it over a subset.

  17. Brett — re limits to federal power — sure, the limits are almost none under Commerce Clause jurisprudence.

    I’d argue that’s the Commerce Clause is wondrously crafted to confer authority over fewer situations in a national economy that’s mostly pre-industrial, local, and as slow as a fast pony, — and to cover more situations in an economy that is massively interlinked to global currencies, hyperindustrial production, international trade, and instantaneous communication.

    Amazing thing, the Constitution; drafted so nicely that way. Enduring (well, amendments, of course) yet adaptable. Some would say because adaptable. No lesson to you, of course.

  18. Betsy, if the law that George Washington signed made the purchase of health insurance a condition of sailors’ employment, then the sailors could have rejected it and it wouldn’t have been imposed on them. Now, you could argue that it would nevertheless be an unconstitutional condition; i.e., that, if mandating the purchase of insurance is unconstitutional, then it’s unconstitutional to make it a condition of receiving a governmental benefit such as employment. That is generally the case when the condition consists of a limitation on protected speech; I don’t know and am not going to research whether it is the case when the condition limits a constitutional right other than protected speech.

  19. If the individual mandate provision of Obamacare, loathed by conservatives, is unConstitutional, what of the mandatory-saving-and-investment provisions of the hypothetical Social Security privatisation so eagerly pursued by (some) conservatives?

    I don’t see a big difference between “buy health insurance or pay a tax penalty”
    and “save some of your income or pay a tax penalty”.

  20. joel hanes,

    Good point, and one I had not yet considered. I will file that argument away under “conservatives are dishonest”. It is a large file, I assure you.

  21. Could I just point out that some of us *like* broccoli. It’s the possibility of an eggplant mandate that we object to.

  22. Brett, I believe you need to calm down. A few things: (1) Right in my original post I endorsed Charles Fried’s argument that no level of government could constitutionally require the *eating* of broccoli (click through and you’ll see the reason: it would violate several individual-rights provisions of the constitution); so the scariest thing on the table is being required to buy broccoli. I’m not sure why this is a reductio compared to being required to buy health insurance. (2) If you really think the only thing standing in the way of being made to *eat* broccoli is the Commerce Clause, then you’ve got more troubles than Fried does (or I do), since you’re then bound to believe that state governments can, er, cram broccoli down your throat. (3) Neither you nor anyone else has really answered my main point: whether this other stuff is constitutionally horrible or not, there’s no reason to suppose that finding the Affordable Care Act constitutional would have any impact on it, since everybody until know has regarded the individual health insurance mandate constitutional *and none of the other stuff was passed or even proposed.*

  23. @ Betty

    The latin term you’re looking for is reductio ad ignorantia deliberata. They’re all cognates, so it means just what it appears to mean. No bekommen/become fake cognates here.

  24. Remember the Our Gang episode where liver is being served at Spankey’s house:

    Spankey: “I don’t like liver.”
    Dad: “That’s your dinner and you’re gonna eat it.”
    Spankey: “I’m not gonna eat it!”
    Dad: “You’re gonna eat it and you’re gonna like it!”
    Spankey: “I might hafta eat it but I don’t hafta like it.”

  25. In today’s (Tuesday’s) NY Times, Laurence Tribe argues that the individual mandate is clearly constitutional and that only Clarence Thomas will disagree. Tribe attempts to shame the other justices into voting for it, as when he writes, “To imagine Justice Scalia would abandon that fundamental understanding of the Constitution’s necessary and proper clause because he was appointed by a Republican president is to insult both his intellect and his integrity.”

  26. I think it’s a reductio because that’s the structure of the argument, whether or not you think it works as a reductio. You’re just having trouble identifying it as a reductio because you’re absurdity blind.

    So, what you’re saying is that the federal government DID have the power to order people to eat broccoli, and not just buy it, for several years before the Bill of Rights was ratified? Because eating broccoli violated freedom of religion, or some such? Please identify the specific constitutional right this mandate falls afoul of. Surely you’ll have no trouble doing that.

    This is, as I said, why the reductio argument does not work on liberals when it comes to federal power. You’ve got this internal conception of a federal government that has the power to do ANYTHING, except that some of the things it has the power to do are are precluded by explicit clauses forbidding them. (Which clauses are only operative when you approve of them, see the 2nd…) It’s impossible to get liberals to admit that any claim of federal power is constitutionally absurd. Precluded by something in the Bill of Rights, maybe. Bad policy, maybe. But not an absurd over-reach, because you can’t over-reach infinity.

    It’s of a piece with your rejection of textualism and other forms of orginalism. What makes the power to mandate broccoli eating absurd is that it’s an insane stretch given the actual text, but the actual text doesn’t matter to you. And it’s absurd because Madison and crew would never have created a federal government with that sort of power, but you don’t care that they didn’t.

    If it really were a slippery slope argument, you’d be camping at the bottom of the slope, and not caring about the rest of the population up their with their stupid pitons and ropes trying desperately to go back the other way.

  27. But Brett, doesn’t that work both ways? I might claim your assumption is the government has the power to do *nothing* unless specifically outlined. (I’m no constitutional scholar, but would this relate to the conceptual framework of the 9th amendment?) The question of what the government can and cannot do is a matter of debate in a democracy. I don’t think it is unreasonable to say that the government, as the manifestation of social desires, in principle can indeed do anything not disallowed by law. Your ANYTHING becomes much smaller when you take into consideration the constitution, the courts, and the public’s represented expression of interest in *some* thing.

    I think as a libertarian, you’re “pragmatically blind”, in that an emphasis on first principles often gets in the way of practical compromises that can be held in check under very specific circumstances. An example of this was the recent Rand Paul Civil Rights Act flap. He was expressing first principles, that would seem to void the act’s limitation of constitutional personal freedoms. Yet this was an example of compromise under strict circumstances – namely the very real oppression of racial minorities. Similarly, the ACA might in some sense violate a first principles reading of the constitution, yet is a specific compromise designed to thread the very tight needle of insuring millions of uninsurable Americans.

  28. The problem with Brett’s reductio is that the Constitution permits Congress to enact absurd laws. So a reduc tio is meaningless when it comes to constitutional interpretation.

    A real slippery slope argument might be different. But simply arguing that the Constitution theoretically permits absurd laws? Yeah? So?

  29. “I might claim your assumption is the government has the power to do *nothing* unless specifically outlined. “

    That would be an affirmative, and that’s what the Constitution actually says, as little as it matters, in the 10th amendment. The federal government gets the powers it’s delegated, the states get everything else.

    Well, there’s a difference between an absurd law, (Requiring carriers in interstate commerce to paint their noses green.) and an law that it’s absurd to say Congress has the authority to pass.

    But, as I say, the argument is a reductio whether or not you think it works as one, because opponents of Obamacare are not opposing it out of a fear of being forced to eat broccoli, they are arguing that the arguments that Obamacare is constitutional would prove a broccoli eating mandate constitutional, and therefore can’t be valid.

    I’m not sure why this emphisis on claiming it’s a slippery slope argument instead, unless it’s just that the reductio IS a valid form of logical argument, (Where the slippery slope isn’t.) and you don’t want to admit your opponents are capable of mounting logical arguments.

  30. Brett, I’ve actually seen the argument run both as a reductio and as a slippery slope during the last several weeks. You’re right: as the second, it’s demonstrably false; as the first, the form of the argument is valid but it’s a very weak argument since the conclusion to which the premise is being reduced isn’t, in fact, absurd. You persistently ignore the fact that a mandate by any level of government to eat broccoli would be instantly struck down given current individual rights jurisprudence (as opposed, yes, to the imagined validity of originalist jurisprudence, under which the Supreme Court did nothing about the Alien and Sedition Acts—note I’ve avoided mentioning slavery, since I realize you’d claim the 13th Amendment as the proper, formal road for ending that).

    So the only live issue is whether it would be absurd for the federal government to be constitutionally allowed to require us to *buy* broccoli, and I don’t see why that would be so scary. Certainly the prospect of some nutty state government running amok on these matters scares me a hell of a lot more than the feds doing so. As Madison pointed out, repeatedly (not just in Federalist 10), narrow factions are much more likely to take control of a state than of the whole country.

  31. It may indeed be constitutional to compel people to buy broccoli if you construct the tax breaks just so, but I hear very little about the imposition of the expense of stabilizing destitute patients on private hospitals.

    Why is THAT constitutional. Unpaid labor by doctors? We had an amendment that covered something to that effect.

    Just askin’.

    Maybe if this weren’t a requirement and poor people died of treatable diseases maybe the evil, wicked, Satan-beckoning :socialized medicine migt strike people as far more reasonable than it currently seems to.

  32. Andrew, I’ve seen slippery slope arugments against Obamacare, too. Didn’t involve broccoli, though.

    The problem with slippery slope arguments against this monstrosity, (They’re not logically valid, that doesn’t make them “demonstrably false”.) is that it’s more of a slippery curb at this point, enumerated powers doctrine has been so thuroughly dismantled already.

  33. Brett, I think we’ve probably tapped out this thread. But I can’t resist a parting shot in favor of induction. Slippery slope arguments make causal claims: “If we allow X, Y will occur.” If we have already allowed X for a very long time without Y occurring, we have an inductive, not a deductive reason for doubting that the causal relationship exists. “If I sneeze today, the sun will explode” is not *logically* contradictory. But it’s “false” by the only standard to which such statements can be held: past experience.

  34. On that ground, “If we allow this expansion of federal power, it will become the baseline from which the next claim of more federal power expands.” seems pretty well founded to me…

    But, yeah, the topic is tapped out.

  35. Brett: If the government forces us to eat broccoli, I’ll switch to your side. It’s right around the corner. I can feel it.

  36. “Henry says:
    February 7, 2011 at 4:02 pm

    The government could have just enacted a health insurance tax, like the Medicare tax, and there would be no problem. That doesn’t mean that it would have to have a single-payer system like Medicare (although it should). It could instead offer a tax credit, up to the amount of the health insurance tax, to offset premiums that people pay to private health insurers”.

    I certainly wish they had. I think we have passed the time when employers benefit from offering insurance. The burden is too great on small businesses, so their workers go without, or buy it themselves. That’s fine for employees of small firms who make a wage which is high enough to pay for insurance plus costs of living, but for the great majority of us, that means, well, we go without.

    For those whose jobs include insurance (no doubt with a high copay at this point in our economic and commercial reality), what flexibility do they have should they wish to change jobs? What if they’re laid off? WHy should they lose health care because of an employer’s decision?

    The larger the pool, the lower the price; or it would be if the gov’t (our elected managers of the Purse)were able to negotiate with providers. As it stands, what will control the costs for people (including the gov’t) mandated to buy policies from the insurance industry?

  37. “Brett: If the government forces us to eat broccoli, I’ll switch to your side. It’s right around the corner. I can feel it.”

    Remember those words, they may come back to haunt you…

  38. What’s missing from all this is that, under our federal system, federal acts involving regulations can be PRESUMEd unconstitutional … The burden is on those who want the federal government to exercise police powers to show whence those powers are derived. So it’s not begging the question, it’s putting the onus where it belongs in the argument.

    Just as, when a state does it, the onus shifts … The states all have plenary power to regulate for public health and safety. Thus, the same plan that can be constitutional is a state, say, Massachusetts, can be UN constitutional if replicated by the Feds.

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