A Further Perspective

Obamacare and the Broccoli Mandate

Can the federal government make America eat its vegetables?

By 12.21.10

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Like former President George H.W. Bush and millions of other eminently sensible Americans, I have always hated broccoli. And one of the few complaints I can make about a generally idyllic childhood is that, occasionally, I would sit down at the family dinner table and find that my mother had deliberately ruined a perfectly good meal by including that dreaded vegetable among the otherwise palatable fare. My normal strategy for dealing with such maternal perfidy was to ignore the noxious plant, but this was invariably countered by a peremptory command from Mom to eat it immediately. When I further temporized, per my standard policy, she would appeal to my father for a final ruling on what should be done about my refusal to eat something that was so obviously good for me. He inevitably imposed the statutory penalty: failure to comply with the broccoli mandate would result in forfeiture of dessert. I always took the penalty.

Apparently, similar episodes remain green in the memory of U.S. District Judge Roger Vinson. On December 16, while presiding over a hearing in which attorneys representing Florida and nineteen other states challenged Obamacare's individual mandate as unconstitutional, he asked its hapless defenders this question about the powers of Congress: "If they decided everybody needs to eat broccoli because broccoli makes us healthy, they could mandate that everybody has to eat broccoli each week?" Ian Gershengorn, the same Justice Department lawyer who unsuccessfully defended the mandate before U.S. District Judge Henry Hudson in Commonwealth of Virginia v. Sebelius, told Judge Vinson that the health care market has special qualities that somehow necessitate a federal law forcing everyone to buy health insurance: "It is not shoes, it is not cars, it is not broccoli."

This answer manifestly failed, of course, to address the point. The judge wasn't inquiring about economics or the dynamics of any particular market. He was trying to get Gershengorn to talk about constitutional limits on the power of the central government. The attorney representing the various plaintiffs in the case was far less reluctant to discuss the constitutional implications of Obamacare. David B. Rivkin argued, "The act would leave more constitutional damage in its wake than any other statute in our history." That argument clearly resonated with Vinson, whose questions to the DOJ lawyer betrayed skepticism about the claim that a decision not to buy insurance constitutes economic activity that Congress can regulate by virtue of the Constitution's interstate commerce clause: "In the broadest sense every decision we make is economic: the decision to marry, the decision to keep a job or not has an economic effect."

If Gershengorn had been permitted to provide a candid response to the judge's observation, he would probably have said something like, "What's your point?" He, like everyone else in the Obama administration, presumably believes that the commerce clause gives the federal government the authority to regulate virtually every decision we make in our day-to-day lives. Indeed, the belief that Washington can -- and should -- supervise us as if we were a nation of children is the core tenet of their nanny-state political philosophy. This is the belief system that prompted First Lady Michelle Obama to say, as her husband signed a law that will regulate what children eat during summer vacations and what can be sold in school vending machines, that child nutrition is something "We can't just leave…up to the parents." Without the "help" of the federal government, some mother might fail to force broccoli on her kids.

Likewise, we "can't just leave it up" to the patients to decide for themselves if they should buy health insurance. Indeed, according to the Obama administration, there is something sinister in the very suggestion that we must allow them to do so. In a recent editorial published in the Washington Post under the names of Secretary of Health & Human Services Kathleen Sebelius and Attorney General Eric Holder, we are told that the twenty odd lawsuits challenging the right of Congress to impose the individual mandate are "troubling." Why are they so troubling? "We saw similar challenges to laws that created Social Security and established new civil rights protections. Those challenges ultimately failed, and so will this one." In other words, the officials of twenty states, including the old Confederate bastions of Michigan, Colorado, Washington, and Nebraska, are actually modern equivalents of Bull Connor and Orval Faubus.

Sebelius and Holder also write that "these attacks are wrong on the law," an argument that notably failed to convince U.S. District Judge Henry Hudson in the Virginia case and doesn't seem to have fared much better with Judge Vinson. Nonetheless, they continue to send Mr. Gershengorn out to make the Orwellian argument that failure to do business with an insurance company substantially affects interstate commerce because "inactivity is just an illusion." And he dutifully soldiers on, even as irascible Judges like Hudson and Vinson glare incredulously at him from the bench. Gershengorn was "handpicked" for this thankless job, the New York Times tells us, because he was seen by DOJ leadership as "a real star." One wonders, however, if he really understood that his first high-profile assignment as a government lawyer would be to make America eat its vegetables.

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About the Author

David Catron is a health care revenue cycle expert who has spent more than twenty years working for and consulting with hospitals and medical practices. He has an MBA from the University of Georgia and blogs at Health Care BS.