Obamacare and the broccoli defense
posted at 2:45 pm on March 4, 2012 by Jazz Shaw
Our friend Matt Lewis of The Daily Caller has an amusing and still quite relevant piece this weekend regarding the Supreme Court’s upcoming review of Obamacare in general and the individual mandate in particular. In it, he describes a meeting he had with Karen Harned of the National Federation of Independent Business (NFIB) who are knee deep in the battle. She turns out to be relatively optimistic about the challenge to the law.
It’s crowded at the Caribou Coffee on 17th and L streets in Washington, but over the din of lobbyists and caffeine fiends, I ask her to sketch out the NFIB’s arguments. “What we’ve seen in all the cases,” she explains — “the one question they cannot answer is: ‘Where does it end?’”
Hers is a slippery slope argument, but that doesn’t mean questioning the government’s ability to regulate economic “inactivity” isn’t legitimate. “You could say, ‘Well it’s good for everybody to exercise — so let’s mandate everybody to join the gym.”
I stir my coffee nervously. As if the thought of being forced to (gulp!) exercise isn’t horrifying enough already, Harned continued: “It’s good for everybody to take vitamins … It’s good for people to eat five fruits and vegetables a day! — Why don’t we make all grocers give those foods away for free — and [require] more people buy broccoli?”
At first, the broccoli reference threw me, but it’s actually pertinent. During a previous trial — when appeals court Justice Laurence Silberman asked Deputy Assistant Attorney General Beth Brinkmann if requiring Americans to buy broccoli would be unconstitutional — she answered: “No. It depends.”
This may sound trite at first blush, but in the end it does seem to be the pertinent question which the justices will have to consider. I agree that “slippery slope” argument are frequent, easy targets for critics, and many are little more than straw men. But there are still some cases where they would apply, and this seems to be one of them.
Handing the federal government the power to regulate a lack of economic activity – as opposed to their recognized power to regulate some actual activity for the public good – opens up a door to a hallway which would seem to stretch to infinity. Can the President, in fact, force us to eat our peas as opposed to saying it in a rhetorical fashion?
The government’s argument would seem to be that such a mandate could be construed as being “for the common good” of society, and would save money in the long run. And while that may prove to be true, is it their place to make that determination? This smells suspiciously like the court’s decision in Kelo vs. New London when the phrase “public use” was not very subtly morphed to include “for the public benefit.” And as soon as you let Washington have the final say as to what is in your personal best interest, all bets are off.
Broccoli? I happen to like it.. sometimes. But I don’t want Washington, DC telling me to buy it. Do you?