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?


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I guess he gave up on the Chewbacca defense.

BDavis on March 4, 2012 at 2:48 PM

Grab your shovel, comrade. We need you to be physically fit.

John the Libertarian on March 4, 2012 at 2:49 PM

George Bush hated broccoli. It’s a done deal in their eyes.

LeftCoastRight on March 4, 2012 at 2:52 PM

That’s why they call him Broc Obama.

Emperor Norton on March 4, 2012 at 2:52 PM

If they don’t rule in our favor…then the country as we have known it in the past…is done!

KOOLAID2 on March 4, 2012 at 2:53 PM

That’s why they call him Broc Obama.

Emperor Norton on March 4, 2012 at 2:52 PM

Bwaaah. So funny. Where did you find that one?

SparkPlug on March 4, 2012 at 2:55 PM

There is no such thing as limited government in the leftist playbook, only obstacles to their theft and power games.

rob verdi on March 4, 2012 at 2:55 PM

Every time the question is asked “where does this power end?” The government is unable to articulate a response. This should be a 9-0 decision.

Mord on March 4, 2012 at 2:57 PM

This is nowhere near a gray area. It is razor sharp. Regulating ‘inactivity’ has no threshold to trigger any ‘regulation’, unless democrats come up with multiple levels of non-activity which would be quite amusing. Couch potato 1, couch potato2, long-term pre-traumatic inactivity disorder… Come on.

If I travel 10MPH over the speed limit in a single county, yet pass through 3 speed-trap cameras along the way before finally being stopped by a police officer and given a ticket, is that 4 total tickets I receive or one single speeding offense? What if I change counties or States and never changed my speed? How many times was I speeding? Once, right? Now that is gray area.

HopeHeFails on March 4, 2012 at 2:57 PM

Oh a world of Rated G movies..yippee..

hillsoftx on March 4, 2012 at 3:07 PM

Oh, I like these arguments.

Blake on March 4, 2012 at 3:13 PM

Broccoli always gives me really bad digestion… similarly, Government mandates do too…

notunderabushel on March 4, 2012 at 3:16 PM

They’ll force us to drive a Chevy Volt to a prescribed grocer to procure our mandated quota of broccoli for consumption, or it’s off to the reeducation camp. Camp Crucifer for you, fat boy.

Philly on March 4, 2012 at 3:16 PM

I wish people would stop using the “eat your peas” reference. I actually love peas!

BierManVA on March 4, 2012 at 3:16 PM

I don’t think this is really a slippery slope. It’s a single step from a government that DOESN’T have the power to regulate economic inactivity, to one that DOES. Not a slope, just a step.

Allowing the federal government to assume power over economic inactivity is, in itself, a sufficient evil. It doesn’t require that they follow through on it to be a bad thing.

Dee2008 on March 4, 2012 at 3:17 PM

“Can the President, in fact, force us to eat our peas as opposed to saying it in a rhetorical fashion?”

Of course a president and an administration as soft tyrannical as this one can. As long we take it, and do no more than moan and groan. “Please sir, may I have another?” Americans are not Europeans. A tipping point will come; the states, like the 13 colonies, will say “enough!”. The individual mandate battle is a first, small skirmish. What form will the next battles take?

Take a minute today and read the Declaration of Independence, replacing King George with Washington, DC.

runningpundit on March 4, 2012 at 3:18 PM

Grab your shovel, comrade. We need you to be physically fit.

John the Libertarian on March 4, 2012 at 2:49 PM

Ever see the movie Holes? I am sure they can put us to good use.

CW on March 4, 2012 at 3:19 PM

How are these folks gonna feel if someone like Sarah Palin or Rick Santorum is named HHS Secretary and then has sole power to tell the country what they must do?

Liberals NEVER think two steps ahead – they are convinced that they are always going to be in power, telling us what to do….

TeresainFortWorth on March 4, 2012 at 3:24 PM

old joke:What’s the difference between broccoli and boogers?

old answer:Kids won’t eat broccoli

new answer: shut up, because government mandate.

batterup on March 4, 2012 at 3:26 PM

How are these folks gonna feel if someone like Sarah Palin or Rick Santorum is named HHS Secretary and then has sole power to tell the country what they must do?

Liberals NEVER think two steps ahead – they are convinced that they are always going to be in power, telling us what to do….

TeresainFortWorth on March 4, 2012 at 3:24 PM

Karma.

CW on March 4, 2012 at 3:28 PM

Dunno if it’s everyone or just me, but eating a lot of broccoli leads to evental, uhh, ‘discomfort’ for anyone who happens to be around me. will the gov’t subsidize my broccoli with carbon offsets..?

affenhauer on March 4, 2012 at 3:32 PM

If they’re gonna make me pay for some chick to screw around, I’m gonna make sure that they pay for me to sit on my ass and pop bon-bons:

http://teresainfortworth.wordpress.com/2012/03/01/pay-to-play-or-no-i-dont-want-to-subsidize-your-sex-life/

Are we also going to be required to pay for fertility treatments for these gals 15 years from now when they realize that they are too old to get pregnant on their own?

You just KNOW they’re going to argue that having a baby is a “right”….

TeresainFortWorth on March 4, 2012 at 3:32 PM

“Come the revolution everyone will have strawberries and cream.”

“But I don’t like strawberries and cream.”

“Come the revolution you WILL LIKE strawberries and cream!”

LizardLips on March 4, 2012 at 3:35 PM

*sigh*
When will ever end?! You know, considering this lady’s argument, I bet they constructed Obamacare specifically to leave the option open for this very thing.
Even though I live a healthy lifestyle, it’s because I want to. I made that decision for myself. Since Chucky Shumer already wants to outlaw caffeine like cocaine, how long will it be before they take away chocolate? Or anything made with sugar?

I hope beyond all hope that SCOTUS sees this for it is: an unprecedented and shameless attempt to control all aspects of American lives

RadioAngel on March 4, 2012 at 3:38 PM

Slippery slope is right. If they take this freedom from us, it won’t end.

Will at-home moms/dads be forced to join a childcare worker’s union? What about greater punishment for those not packing an “approved” lunch? You haven’t been approved to have a 4th child. Step up over here. This won’t hurt a bit…

This far, no farther.

redmama on March 4, 2012 at 3:43 PM

I would remind you that the government is already sending in the Food Policy to Schools to confiscate little Susie’s lunch if it fails to meet their ‘standards’, substituting their union-prepared lunch in its place, and sending Mommy the bill.

(this recently happened in North Carolina)

LilyBart on March 4, 2012 at 3:45 PM

Why can’t I just eat my waffle?

Roy Rogers on March 4, 2012 at 3:47 PM

Are we also going to be required to pay for fertility treatments for these gals 15 years from now when they realize that they are too old to get pregnant on their own?

You just KNOW they’re going to argue that having a baby is a “right”….

TeresainFortWorth on March 4, 2012 at 3:32 PM

Of course.

CW on March 4, 2012 at 3:51 PM

Silly wingnuts, always voting against your best interests, and by best interests i of course mean letting democrats run your life cuz they know what’s best.

clearbluesky on March 4, 2012 at 3:53 PM

I have a sneaking suspicion Obamacare is going down in June. Not just the individual mandate but all 2700 pages. Besides the sound legal arguments for doing this–there’s the political environment surrounding the law that surely bodes ill regarding survival of the law:

1. First, there’s the truly grotesque and undemocratic way it was pushed through Congress to begin with. Who can forget how Democrats defied the public will on this, how corrupt deals were made and legislative corners cut?

2. Second, there’s the continuing unpopularity of the law as reflected in all the most recent polls. Nothing seems to change this. It’s a festering sore that would hover in the background of any SC decision.

3. Third, there’s the recent legislation-by-bureaucratic-fiat mandating that religious institutions must support principles that run counter to their own consciences. While this regulation is not being decided upon directly, it will still have an indirect impact. No justice can fail to wonder how many other unconstitutional time bombs are set to detonate by bureaucratic decree but are now buried in obscure sub-clauses somewhere in those 2700 pages.

4. Fourth, it’s already clear the law is well on its way to bankrupting the states and further wrecking the economy. Just this past week Congress was asked for an additional 111 billion dollars to set up the program–beyond initial estimates.

5. Finally, Roberts et al. have a keen sense of history. The conservatives on the Court must surely be aware that Obama is radically liberal and is challenging the Court much as FDR did in his day–and is just as surely overdue for the same kind of slap-down FDR suffered when his NIRA Act was struck down with Schecter Poultry vs. the United States.

None of this will be the legal basis for the decision of course. But it certainly suggests the political environment surrounding the Health Care Act is toxic and unfavorable regarding its survival. It doesn’t hurt at all that a soundly reasoned legal strike-down would be hugely popular with the public.

writeblock on March 4, 2012 at 3:56 PM

Every time I ask my lefty comrades the “where does it end” question…the response is always …”well THIS isn’t unreasonable…”

They have no idea that they are the frogs and the heat is being turned up…

CycloneCDB on March 4, 2012 at 3:57 PM

Are we also going to be required to pay for fertility treatments for these gals 15 years from now when they realize that they are too old to get pregnant on their own?

You just KNOW they’re going to argue that having a baby at someone else’s expense is a “right”….

TeresainFortWorth on March 4, 2012 at 3:32 PM

Agreed with mild fix. And you’d better believe we’ll see $hit like this coming in the future.

How are these folks gonna feel if someone like Sarah Palin or Rick Santorum is named HHS Secretary and then has sole power to tell the country what they must do?

TeresainFortWorth on March 4, 2012 at 3:24 PM

This is partly why I was trying to sound the warning bells about laws being passed in the post-9/11 panic – “WTF will happen when the liberals get their hands on this stuff?”

…I was alternately ignored or called every name in the bitter-clinger playbook. Now the leftists are classifying the right as terrorists.

MelonCollie on March 4, 2012 at 3:58 PM

Broccoli gives me gas…

But I will need an EPA permit to release it.
And then a monitor to catalog it.

We are all Borg.

Electrongod on March 4, 2012 at 4:06 PM

MelonCollie on March 4, 2012 at 3:58 PM

Everybody jumped on the bandwagon with the laws being passed after 9/11. No one asked themselves the simple question of where we ignorant humans would logically (illogically) take the laws. Well in the end it looks like my mentor was correct people would exchange their freedoms for the illusion of personal peace and affluence.

chemman on March 4, 2012 at 4:19 PM

Mama/Obama Super Progressive Nanny,

welcome to:

“Its Takes a Village”,the year is “1984″,the place is “Brazil”,
and your Peas are being served on “Animal Farm”!!
(snark).

canopfor on March 4, 2012 at 4:25 PM

I’m a, ABP
Anything But Pees!

angrymike on March 4, 2012 at 4:28 PM

That’s why they call him Broc Obama.

Emperor Norton just killed me.

In order to win, Romney must..

A) ..concede Romneycare is flawed because of this – the Broccoli argument. (He does that, he overwhelmingly wins Conservatives and the underestimatedTea Party.) He won’t, though.

B) ..target an ad campaign about this concession.. (He does that, he wins Independents.) He won’t though.

C) Learn how to tell a joke – In fact, use THIS joke at the right point in his campaign. (He does that, he turns a relatively healthy Obama campaign into a vegetable (Ok, I couldn’t resist.) He’ll need to do better. He does that, he wins the women’s vote. He won’t, though.

Alas, he won’t though and therefore loses baaaad in November..

Quetzal on March 4, 2012 at 4:29 PM

Canopfor
lmao
funny stuff!

angrymike on March 4, 2012 at 4:30 PM

Add in the Obama administration decision that says the government can dictate to the church and you have to ask the question what the government can’t do? Could the government require that people donate to a church? Why not? Many church’s provide help to the poor, for example the Catholic hospitals. So it isn’t a matter of conscience, it is just for the good. Don’t like having to donate directly? No problem. We will just require that each employer donates 10% of what they pay an employee to the church. See, now you aren’t paying any money to the church just like the church isn’t having to pay for contraceptives because they are “free”.

Perhaps the government can require you to buy a gun. Why not require you to buy a Chevy Volt? Perhaps the government can decide that those who have IQ’s below 100 must be sterilized so we can raise the IQ of the nation? Why not have the government decide who will partner with whom to make children. Need more people to pump up social security? Why not have the government decide how many children you will have? If you don’t follow the government mandates above, they will just impose fines until you are bankrupted. If Obamacare is constitutional, then what stops any of the above from being constitutional. The only question becomes if the people who are elected like the idea or not. There is no constitutional protection that would limit government action.

The bottom line is that any government that is big enough to give you anything you want (e.g. “free” healthcare) is also big enough to take away anything you have.

yetanotherjohn on March 4, 2012 at 4:34 PM

Broc Obama, ha ha ha

SansJeux on March 4, 2012 at 4:54 PM

Lock me up I will NOT eat broccoli.

katy the mean old lady on March 4, 2012 at 4:57 PM

Better to die on my feet than live at a salad bar.

Machismo on March 4, 2012 at 5:05 PM

Broccoli gives me gas…

But I will need an EPA permit to release it.
And then a monitor to catalog it.

We are all Borg.

Electrongod on March 4, 2012 at 4:06 PM

Doctor Chu is working on a personal catalytic converter that you will have to wear on your butt. It will be another mandate from HHS.

slickwillie2001 on March 4, 2012 at 5:10 PM

…would save money in the long run

This is only a valid argument if you first accept the premise that the federal government should be in the health care business.

If you reject it, as most conservatives do, then the easiest way for the federal government to reduce its health care expenditures is to get out of health care entirely. Saving money is not a legitimate excuse for this power grab.

Charlemagne on March 4, 2012 at 5:47 PM

Perhaps the government can decide that those who have IQ’s below 100 must be sterilized so we can raise the IQ of the nation?

yetanotherjohn on March 4, 2012 at 4:34 PM

But then where would we get the next crop of democrat politicians? People like Cynthia McKinney, Maxine Waters, and Debbie Whatshername Schultz don’t come from the upper echelons of the Bell curve you know.

AZfederalist on March 4, 2012 at 5:53 PM

I wish people would stop using the “eat your peas” reference. I actually love peas!

BierManVA on March 4, 2012 at 3:16 PM

Here’s some Primo Pea-Eating Music, courtesy of longtime James Brown Horn leader Maceo Parker…

https://www.youtube.com/watch?v=jgkhThEMRr8

Del Dolemonte on March 4, 2012 at 5:54 PM

If the SCOTUS doesn’t rule against Obamacare and throw out the entire bill then our only remaining recourse is through the states. Obamacare is unconstitutional. Period. And because it is so, the states and citizens have every right to disregard it. The states IMO have a duty to protect their citizens from Obamacare and all other unconstitutional legislation coming out of DC.

Last time I checked there was no enumerated power granting the federal government license to legislate PPACA. And also, the last time I checked the 10th Amendment was still in force and since the states created the federal government they are not subservient to it.

If the twenty six states suing the Feds instead refused to implement Obamacare and refused to allow its implementation within their borders it would collapse. It couldn’t survive without the voluntary cooperation of the states.

Charlemagne on March 4, 2012 at 5:54 PM

writeblock on March 4, 2012 at 3:56 PM

It would be a good opportunity to place some boundaries on the over stretched Commerce Clause as well.

Charlemagne on March 4, 2012 at 6:01 PM

Grab your shovel, comrade. We need you to be physically fit.

John the Libertarian on March 4, 2012 at 2:49 PM

To turn a phrase

“arbeit macht frei”

What amazes me is that they think we are the ones who want to force our ideas on them…

Bunsin2 on March 4, 2012 at 6:01 PM

Perhaps the government can decide that those who have IQ’s below 100 must be sterilized so we can raise the IQ of the nation?

yetanotherjohn on March 4, 2012 at 4:34 PM

I submit to you that IQ and wisdom don’t necessarily go hand in hand. Example one Ms. Fluke

Bunsin2 on March 4, 2012 at 6:06 PM

‘… asked Deputy Assistant Attorney General Beth Brinkmann if requiring Americans to buy broccoli would be unconstitutional — she answered: “No. It depends.”, on who owns the big broccoli acreage.

burt on March 4, 2012 at 6:08 PM

Broccoli gives me gas…

But I will need an EPA permit to release it.
And then a monitor to catalog it.

We are all Borg.

Electrongod on March 4, 2012 at 4:06 PM

Doctor Chu is working on a personal catalytic converter that you will have to wear on your butt. It will be another mandate from HHS.

slickwillie2001 on March 4, 2012 at 5:10 PM

I have this picture of a guy with a tailpipe sticking out of his jeans…

:)

Bunsin2 on March 4, 2012 at 6:08 PM

Canopfor
lmao
funny stuff!

angrymike on March 4, 2012 at 4:30 PM

angrymike:-:)

canopfor on March 4, 2012 at 6:08 PM

Ever see the movie Holes? I am sure they can put us to good use.

CW on March 4, 2012 at 3:19 PM

Nope, but I saw a show once about how they built the Autobahns in Germany. With shovels. And those that complained about the back breaking labor were taken aside, never to be seen again. And no asked any questions.

Then I saw a similar movie about Pol Pot.

Both ended badly for the tyrants.

orbitalair on March 4, 2012 at 6:32 PM

I have this picture of a guy with a tailpipe sticking out of his jeans…

:)

Bunsin2 on March 4, 2012 at 6:08 PM

AS long as the tailpipe makes a right angle upwards and extends a minimum 7 feet above ground….
Persons in the immediate area are safe…
:)

Electrongod on March 4, 2012 at 6:35 PM

AS long as the tailpipe makes a right angle upwards and extends a minimum 7 feet above ground….
Persons in the immediate area are safe…
:)

Electrongod on March 4, 2012 at 6:35 PM

My sides are now hurting… :)

Bunsin2 on March 4, 2012 at 6:42 PM

Force is going to be necessary

Bulletchaser on March 4, 2012 at 7:06 PM

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.

There! Right there is the logical crux of the issue!

The “LACK” of something is, by definition, INFINITE! If the Federal Government can regulate the absence of something, the legal and logical boundaries of it’s grasp explode out beyond the known universe. This decision represents the last tattered shred of any real limit on Federal power. Beyond this there is nothing but empty space.

This is NOT a slippery slope, it’s the edge of a cliff.

Lew on March 4, 2012 at 7:24 PM

This is NOT a slippery slope, it’s the edge of a cliff.

Lew on March 4, 2012 at 7:24 PM

That statement right there puts the whole issue in perspective. You are right, if this is allowed to stand, there is no more slope; we will be fully in the era of federal tyranny.

AZfederalist on March 4, 2012 at 7:32 PM


Where does it end?

The answer is so simply.

When you have done your fair share.

Ufdaubet on March 4, 2012 at 8:14 PM

If the government, through healthcare, requires people to make ANY kind of lifestyle change, then I want a group to immediately forbid ANY homosexual anal sex or other “risky” behavior because it spreads disease and drives up healthcare costs.

mydh12 on March 4, 2012 at 8:23 PM

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.

Jazz, ‘slippery slope’ is exactly HOW we got to the point where the government can regulate inactivity in the name of ‘interstate commerce’. It started with Wickard v. Filburn when the court decided that ‘Interstate Commerce’ was affected by someone growing wheat on his own farm and feeding it to his own cattle stock for his own consumption, and therefore subject to ‘regulation’. I’m shocked it took THIS long to apply the obvious argument of NOT buying something also affects ‘Interstate Commerce’.

The slippery slope argument is fequently employed because it is often valid if you do more than simply look at a microcosm of ‘the now’. How do you think we managed to go from limited government to what we have now?

blindside on March 5, 2012 at 10:34 AM

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.

But if a free society, my money is mine to save or waste as I see fit. I choose where and how to save money (or not). Maybe I’d prefer a shorter life eating pizza every day to a longer life eating broccoli.

taznar on March 5, 2012 at 12:58 PM

I’ve probably said it before: I like broccoli & peas. I do not like the idea of our fluking government telling me to eat them.

Maybe we should start telling the administration what it can eat… ;-)

Olo_Burrows on March 6, 2012 at 5:01 AM