Subscribe via RSS Feed

The Broccoli Menace

[ 72 ] March 28, 2012 |

While I’m waiting for my other piece on yesterday’s argument, since it’s relevant again I thought I’d dip into my nostalgia file and link to my piece about why the slippery slope arguments against the ACA are really dumb. Namely, 1)there’s a lot of traction on that slope, and 2)in any case the fact that the government could do a dumb thing with a given power isn’t actually an argument that the power is unconstitutional because it applies to every valid power.

By the way, it seems odd that a required purchase of broccoli is the most frightening reductio ad absurdum they can come up with for the ad hoc arguments against a policy nobody but the most radical libertarians thought was unconstitutional four years ago. I think the anti-New Dealers are ignoring Belle Waring’s dictum that wishes are totally free. If you’re going to come up with a SCARY exercise of government power that has no chance of ever happening, can’t you do better than the forced purchase of a reasonably tasty, very nutritious food? How about, “the government might force you to buy every movie Tom Shadyac and Michael Bay have ever directed in every available format and check to make sure that you watch them!” Or “the government could force you to buy a an expensive annotated edition of the Complete Works of Jonah Goldberg and make you read it!” Hell, I’d start to wonder if maybe getting rid of the Articles of Confederation was a mistake myself…

Share with Sociable

Comments (72)

Trackback URL | Comments RSS Feed

  1. Dana says:

    Sadly, just before you posted this, I made a long comment on this post discussing in part the spuriousness of the broccoli argument.

  2. c u n d gulag says:

    Yesterday afternoon, I happened to be walking by the TV, and my father was watching CNN. A woman reporter was mouthing the same stupid question I would expect to hear on FOX – “If the government can make you buy health insurance, what else can they make you do?”

    I screamed at the TV set, “There’s already A LOT THEY CAN MAKE YOU DO!!!”

    Sweet Jaybus!

    -Like pay taxes. And charge you, and fine or imprison you, if you don’t.
    -Arrest you for breaking a law.
    -Have you serve a sentence. Including taking your LIFE, in a capital crime.
    -Institute a draft, and force you to either go in the military, serve a prison sentence, or make your case as to why you’re a “Conscientious Objector,” among other things.
    -Take/use your land as part of Eminent Domain.
    Make you pay SS and Medicare.
    Etc…

    In this nation, we have laws so that those things are not done arbitrarily or capriciously – by either the government, or fellow citizens.

    America was NEVER some Libertarian paradise.

    So, yeah, picking (not literally) broccoli is an odd choice.
    Scalia, like “Papa Doc” Bush, must really, really hate the stuff!

  3. SP says:

    Modern conservatarianism- more worried about whether government can put broccoli in your mouth than a bullet in your head.

  4. Charlie Sweatpants says:

    “If you’re going to come up with a SCARY exercise of government power that has no chance of ever happening, can’t you do better than the forced purchase of a reasonably tasty, very nutritious food?”

    No, you can’t do better, because the broccoli thing serves as a convenient sexist dog whistle. Broccoli is one of those vegetables that your mother always made you eat, and now big nanny government is going to do the same. It’s pitch perfect for people who think of the Democrats as the party of girly men and rule crazed feminists.

    The free market, can’t-make-me-buy-what-I-don’t-want argument works with any example. It’s broccoli specifically that makes it a way to tell women who want you to do things to go fuck themselves, neener neener, and no I will not brush my teeth before I go to bed.

  5. Cameron Ashby says:

    It occurs to me that there are, in the context of food stamps and school lunch programs, actual, current legislative proposals to mandate what people should and shouldn’t eat.

    Strangely, I haven’t noticed anybody hyperventilating about the unconstitutionality of prohibiting the purchase of soda with food stamps or including mechanically separated meat in school lunches. In fact, these proposals seem to come from mostly the same people who are terrified of the broccoli mandate.

    • Tcaalaw says:

      You do realize that there’s a pretty clear difference between a government agency saying “We will give you money, but if you accept it you must do X” and an agency just saying “You must do X, or you will be penalized,” right? In the former situation, if you reject the agency’s offer you’re in the same position as you were before. In the second situation you are being commanded by the agency to do something and can be penalized if you don’t.

      To put it another way, do you think there’s no difference between the government saying, “We’ll give you a grant to go to college, but you can only use the money to attend certain accredited colleges” and the government saying to all high school graduates, “You must attend specific college ‘X’ and if you don’t, we’ll assess a $1000 a year penalty against you for attending a different institution.”

      • catclub says:

        Of course, since this is going to be run by the IRS and how you fill out the forms, it also means that which checkboxes you check determine what taxes you pay.

        Blind? less tax (that is a condition, i know)
        Paid for child support? => less tax
        Paid for health insurance, or carried through employer? =>less tax
        Did not? => more tax
        1. Why is this not a tax – or adjustment of tax rates?

        I am nowhere forced to buy insurance, but if I do, my tax assessment is lower.

        I hope some brief makes this argument.

      • joe from Lowell says:

        “We will give you money, but if you accept it you must do X”

        You do understand that the insurance mandate is part of a larger body of subsidies, regulations on insurers, and other benefits that accrue to people with health insurance, right?

    • rea says:

      I haven’t noticed anybody hyperventilating about the unconstitutionality of prohibiting the purchase of soda with food stamps or including mechanically separated meat in school lunches.

      Of course, they really have had hysterics about Michelle Obama and her advocacy for kids eating healthier.

  6. sven says:

    “a dumb thing with a given power isn’t actually an argument that the power is unconstitutional because it applies to every valid power”

    As has been the case in so many areas, I think there has been a failure to appreciate the radicalism of the conservative project. What we are seeing isn’t a challenge to the ACA but rather a conservative legal community using the ACA as an opportunity to re-define the “valid powers” you mention.

  7. bcinaz says:

    So here’s the thing about the the Broccoli Menace. The government mandates that I have to buy broccoli. however when I get to the market the checkout clerk will not allow me to buy the vegetable I’ve selected due to the following factors: I’m female, over 55, with a history of prior disease (br. cancer), and a history of prior vice. I’m single, straight, and still have my uterus. Infact there is no broccoli for me in this store. I have to go to Whole Paycheck to buy my free market Organic, Imported, Hand Picked, special season broccoli, which is priced at 4 times what I wanted to pay at the other grocery store. Because broccoli is just like Health Insurance.

  8. Richard says:

    I agree. The answer to the broccoli question is that Congress could compel you to eat it as part of a healthcare plan but that they wouldn’t do so and, if they did, they would be voted out of office. (Just like they could draft ten year olds under their war powers but wouldn’t do that)

    The problem with making that argument is that this strikes most of the people in this country as wrong – they have a belief that there must be something in the Constitution to prevent the guvmint from forcing broccoli down our throats (other than the good sense of the politicians in Congress). Thats why the SG should have been prepared to argue that a broccoli law doesn’t violate the Constitution but, that if the justices were concerned about this, there are several other ways to limit the reach of the commerce clause provision so that the broccoli law would not fall within its reach.

    • Josh G. says:

      I agree. The answer to the broccoli question is that Congress could compel you to eat it as part of a healthcare plan but that they wouldn’t do so and, if they did, they would be voted out of office.

      I disagree. Congress could certainly force people to buy broccoli under the Commerce Clause, but if they forced people to actually eat it, this would almost certainly violate protected liberty interests under the 4th, 9th, and 14th Amendments.

  9. Seitz says:

    Let’s also not forget that under a broccoli mandate, nobody would actually be forced to buy broccoli, the same way that no one would be forced to buy health insurance. You have a choice. Buy broccoli, or pay a penalty. Doing either one is still complying with the law.

    I’m sure there are plenty of constitutional arguments that would tell me otherwise, but honestly none of this seems all that different to me than what is essentially the “home ownership mandate” we have now. I don’t own a home. As such, I essentially pay a penalty insofar as I don’t get a deduction for mortgage interest. I realize that because a large portion of the public is stupid, and the vast majority of Republican politicians are liars, passing the mandate via a tax-and-credit program wouldn’t have flown politically. But saying that type of program is really all that different from the mandate strikes me as a bit of distinction without a difference.

    • Richard says:

      I dont think that this is right. Under the current law, you have the choice of buying insurance or paying a penalty. But that isn’t required. I think Congress under its commerce clause powers could have made it a crime punishable by jail not to buy insurance (or not to buy broccoli). It wouldn’t do that, of course, but the option of paying a penalty isn’t what saves the law.

    • BradP says:

      You have a choice. Buy broccoli, or pay a penalty. Doing either one is still complying with the law.

      Remarkable way to look at it, Seitz.

  10. Emily68 says:

    The government can force you into the military where someone from another country can shoot and kill you. The government isn’t doing this right at the momemt, but they certainly could.

    Me, I’d rather be forced to buy health insurance.

  11. Dave says:

    So far I have seen no one anywhere marveling at the fact that Supreme Court justices are just flinging right-wing shibboleths. So, here I am, marveling.

    The Scalia/Alito/Thomas opinion is going to read like a Townhall column.

  12. DrDick says:

    The government already has the power to forcibly conscript me, force me to endure strenuous physical training, ship me anywhere in the world they want to, and make me kill people and face death or mutilation daily (which, in fact, they attempted to do 41 years ago), but conservatives are worried about being forced to eat broccoli?

  13. Just the Facts says:

    This bill will be overturned and accomplished nothing. Even if a public option didn’t get through we would be left with the exact same thing we are going to get out of this–nothing. And at least the Overtone Window would be moved left instead of screeching rightward as it is now.

    But I do know its in bad form, according to certain people, to question the wisdom of Our Leader. I am sure He Has Got This.

    • Concern Troll says:

      Please, for God’s sake, someone pay attention to me!

      • Just the Facts says:

        “Don’t worry, be happy” may be your mantra, joe, but I prefer a more realistic take on things. Remember Bush v. Gore?

        • joe from Lowell says:

          Piss off, ratfucker.

          “Dear Leader.”

          “I’m sad.”

          I hope you aren’t actually getting paid for this. Oh, wait, yes I do.

          • Just the Facts says:

            Why so angry, joe?

            HE’S GOT THIS!

            • joe from Lowell says:

              I’m just baiting you, to get you to show your ass.

              Thank you for the cooperation. Are you getting paid by the word, or by the post?

              • Just the Facts says:

                Well Nancy Pelosi did say we had to pass the bill so we could find out of what’s in it.

                • joe from Lowell says:

                  I’m not interesting in having a discussion with you, ratfucker.

                  I’m quite pleased just to pants you, and to point out the tell-tale signs.

                  For instance, “I’m sad.”

                  Or, the Pelosi line you’re pushing, and did on the other thread as “Nation Wide Girl.”

                  Then there’s the really transparent effort to start up an Obot/firebagger argument.

                  Or the claim that Republicans challenging the constitutionality of Democratic policies is an indictment of the Democrats.

                  Please, demonstrate some more, so other ratfuckers will be that much easier to spot next time.

                • Just the Facts says:

                  What on Earth are you babbling about? I didn’t post as “Nationwide girl” or on the other thread at all. Ask the mods if you don’t believe me.

                  You’re in some serious denial about this bill, this President, and the outcome of this case, and lashing out. Understandable. You must have a lot of emotional investment in Obama.

                  Good thing there are more rational people out there like Greenwald and Hamsher who look at the facts rather than following Leaders.

                • joe from Lowell says:

                  Thank you for your continued cooperation.

                  In addition to the above, ratfuckers say:

                  You’re in some serious denial about this bill, this President, and the outcome of this case, and lashing out. Understandable. You must have a lot of emotional investment in Obama.

                  Good thing there are more rational people out there like Greenwald and Hamsher who look at the facts rather than following Leaders.

          • Walt says:

            Let’s suppose they’re getting paid. What’s the goal exactly?

            To somehow lower the opinion of Pelosi among liberals? No liberal is going to see that quote and think anything other than “well that’s taken out of context.”

            To demoralize liberals? If the ACA is overturned, then liberals will be totally demoralized, and the fact that someone babbled about it in a comment section won’t make much difference. If the ACA isn’t overturned, then the only effect of the comments is that it gives people here something to gloat about.

            There are lots of wacko billionaires out there with all kinds of wacko agendas, so they could be getting paid. But I’m not seeing the point.

            • joe from Lowell says:

              No liberal is going to see that quote and think anything other than “well that’s taken out of context.”

              Do you think that’s the mindset of Breitbart fans? “The liberals will see right through this?”

              I think the purpose is to try to get liberals to attack other liberals, instead of blaming this loss – if it ends up being a loss – on the corrupt Republicans on the court. To get liberals blaming Nancy Pelosi and the Democratic leadership in general, and to stir up shit between factions of liberals. Notice how all of these comments are sprinkled with buzz words intended to set off Obot/firebagger wars.

              Notice this:

              But I do know its in bad form, according to certain people, to question the wisdom of Our Leader. I am sure He Has Got This.

              Gee, not too transparent.

    • Davis X. Machina says:

      Thank God. I’ve still got a garage full of “Kill the Bill” merch to unload from the last go-round, and this time should do the trick in unloading it.

      It goes surprisingly fast, considering you can sell it to both sides, right and left, but not quite fast enough.

    • Scott Lemieux says:

      The OVERTRONE WINDOW is still not as powerful as the BULLYE PULPITE, which provides much more POLITCALE CAPITALE. Get your meaningless bullshit talking points right!

      Also, Clinton’s health care failing sure moved the OVERTRONE WINDOW to the left, amiright?

  14. dave says:

    The broccoli mandate is a perfect analogy.

    I am sure you are all aware that according to state and federal law as well as “the grocer’s ethic” grocers are compelled to provide broccoli free of charge to anyone who want it but can’t afford to pay.

    In addition, as we all know, all of us, at some point in our lives will be faced with a choice of eating broccoli or suffering severe medical consequences including death. Meaning that each of us will, at some point need to eat Broccoli.

    Also, a quick look at the price of broccoli reveals that it can currently costs thousands of dollars per serving and that that cost continues to rise much faster than inflation.

    As a result of these costs, many of us currently purchase broccoli insurance, so that we can afford to purchase broccoli as necessary.

    Those of us that don’t purchase broccoli insurance still have to eat broccoli on occasion and thus request broccoli form grocers free of charge.

    Grocers provide this broccoli but must raise prices even further in order to afford providing free broccoli pursuant to their ethical and legal obligations.

    This raises the cost of broccoli insurance for everyone else. It also requires govenrment subsidies to grocers which are paid out of general tax revenues.

    As a result, millions of people receive free broccoli, paid for by everyone else.

    Clearly, the govenrment mandate that these people purchase broccoli insurance to pay for the broccoli they will consume is utterly unconstitutional.

  15. herr doktor bimler says:

    After Wickard vs. Filburn established that it is constitutional for the federal govt. to force someone to buy wheat (rather than grow a surplus), why is broccoli control so outrageous?

    The answer to the broccoli question is that Congress could compel you to eat it as part of a healthcare plan but that they wouldn’t do so and, if they did, they would be voted out of office.

    In Wickard v. Filburn, “…Chief Justice Marshall [...] made emphatic the embracing and penetrating nature of this power by warning that effective restraints on its exercise must proceed from political rather than from judicial processes.”

  16. wengler says:

    I still don’t understand why we allow nine dictators to consult their own political preferences to determine whether or not some law is constitutional. They are striking down our workers’ rights, picking our Presidents, and generally making the world safe for corporations.

    What’s the positive trade-off here? Keeping elected officials from making actual decisions?

    • Richard says:

      We allow it because its been the rule since Madison v. Marbuy. And the consequence of not having the courts do it is no Brown v. Board, no overturning of McCarthy era laws on free speech, no establishment of rights for people accused of crimes, no Gideon v. Wainright, etc. In general, the courts have been more protective of minority rights than Congress and the legislatures. I don’t think you would like the world that would be created if there were no curbs on Congress or state legislatures.

      • wengler says:

        Yeah dictators are good when they rule in your favor, but when they don’t…

        Conservatives ruling the courts is pretty much normal. The fact that there were a couple post-war courts that did some pretty good things was pretty abnormal. They are also the origination of Dred Scott, Plessy v. Ferguson, the treatment of corporations as persons under the law.

        They also have no army and no police force nor any way to fund them. They are completely dependent on other branches to enforce their dictates. Which as we saw Jackson decide not to do.

    • Murc says:

      I still don’t understand why we allow nine dictators to consult their own political preferences to determine whether or not some law is constitutional.

      Because someone has to make that call.

      We have a constitutional system. There is a body of laws (the Constitution) that legislators cannot touch. In a system like that, it is a good idea to have people OTHER than legislators deciding the constitutionality of your laws, because otherwise, for all practical purposes, you don’t have a meaningful constitution.

      You can get by without one, the Brits do just fine. The Canadians have one, and its subject to interpretation by their own high court, and they do pretty okay.

      • wengler says:

        The Supreme Court isn’t given this power by Article III though, nor is it implied from the Federalist papers or similar writings at the time.

        When you have self-declared arbiters of Constitutionality, you have an unelected, unshackled group of people making law for whatever reason they feel like. For any number of reasons liberals of this country like the idea that they can sue and get injunction against horrible laws going into effect but that isn’t really how the system is supposed to work. You elect people and if you elect fucking stupid people you get fucking stupid laws.

        We are going to have to fight for our lives against corporate power sometime and we are going to have to use legislatures to do it. By the time the anti-corporate majority starts passing laws, those same courts are going to be lining up to be the guardians of the 1 percent.

  17. catclub says:

    If they called those (forced – mandated) healthcare savings accounts ‘the medicare tax’, and one could use those proceeds to pay for healthcare – at any age. I could get behind that.

  18. joe from Lowell says:

    If only he’d used the Bully Pulpit on them instead.

  19. Walt says:

    If the ACA gets struck down, then that’s probably worse than if Obama had made a doomed stand for a more-progressive policy. The entire argument (which I believe) for the ACA was that it was the art of the possible. If it turns out to be not possible after all, then there’s not much to say in its favor.

  20. Better yet, just tell those Blue Dogs and Congress to go fuck themselves altogether and create a single payer system by executive order just like President Hamsher would!

  21. joe from Lowell says:

    Have you, by any chance, ever read anything about the 60-odd year history of health care reform efforts?

    There actually is some background we can use to judge the utility of this allegedly noble Pickett’s Charge you’re advocating. The result of every single “doomed stand for more-progressive policy” has been not just failure, but to actually set back the cause, and move political discourse to the right.

  22. Scott Lemieux says:

    Right. Obama certainly could have refused to compromise with Republicans and conservative Democrats. Of course, this would have resulted in nothing passing since they control majorities of both houses even in good circumstances. Although, of course, the bully pulpit could have turned Evan Bayh into Eugene Debs, so it’s all Obama’s fault.

  23. joe from Lowell says:

    Obama certainly could have refused to compromise with Republicans and conservative Democrats.

    Like President Clinton did!

    Hmmm, maybe he really was more progressive than Obama.

    Anyway, how’d that turn out again?

  24. Richard says:

    There were five options potentially on the table:

    Single payer – no votes

    Current law but without a mandate but with a public option – insurance companies would have opposed it and would never have passed

    Current law but without a mandate (no public option) – insurance companies would have opposed it and it palmost assuredly would have failed. Plus lack of mandate and requirement to cover pre-existing conditions would mean rapidly escalating prices for insurance.

    Current law plus a public option – no votes plus it still gets shut down if the court finds the mandate is outside the commerce clause power

    Current law –

    Even anticipating the problem with the Supreme Court, there was no way to get another health care plan passed

  25. Scott Lemieux says:

    Anyway, how’d that turn out again?

    IIRC, we got the French health care system, and Chief Justice Rehnquist declared it “the most constitutional legislation he had ever seen.” All of this paved the way for Ramsey Clark being elected president in 2000.

Leave a Reply

You must be logged in to post a comment.