Not since the Broccoli Incident of the first Bush Administration -- in which President George H.W. Bush declared at a press conference that he did not like broccoli and wasn't going to eat it -- has the cruciferous vegetable been getting the kind of attention from our nation's leaders that it has been lately. From district court judges to the Senators at this week's Judiciary Committee hearing on the constitutionality of the Affordable Care Act, it seems no one can talk about health care reform without mentioning broccoli.
It's time to stop talking about broccoli and start talking about the Constitution.
The broccoli meme has been very useful to critics of health care reform, and the individual responsibility provision (which critics have also successfully branded as the more ominous sounding "individual mandate"), in particular. The idea is that if Congress can constitutionally require individuals who can afford it to obtain health insurance or pay a tax penalty, then Congress will be able to force people to eat broccoli. For lovers of liberty and haters of broccoli, this is a scary proposition.
It is also totally irrelevant.
It is irrelevant because it has nothing to with sound constitutional reasoning. While anyone interested in gaining a deep understanding of the Constitution should read Yale Professor Akhil Amar's outstanding book, America's Constitution: A Biography, for those who don't have time to read its more than 600 pages, here is a very simple breakdown of how congressional power works under the Constitution.
The delegates to the 1787 Constitutional Convention instructed the committee charged with drafting the legislative powers section of the Constitution to make sure that Congress would have the authority to "legislate in all Cases for the general Interests of the Union, and also in those cases to which the States are separately incompetent, or in which the harmony of the United States may be interrupted by the Exercise of individual Legislation." Following this guiding principle, our Constitution's framers wrote Article I, section 8 of the Constitution, which expressly gives Congress the power to, among other things, "regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes." The powers enumerated in Article I, section 8 are not, of course, unlimited, but they are sufficiently broad and substantial to give the federal government the power to pass laws in areas that are truly of national interest and that affect more than a single state. While some have portrayed the Constitution as a document that is all about limiting government, its text and history show that the Founders were just as, if not more, concerned with creating an empowered, effective national government.
Congress can pass legislation pursuant to its enumerated powers; one of the enumerated powers that supports Congress's authority to pass health care reform is the Commerce Clause. Since the health care industry comprises nearly 20 percent of the U.S. economy, no one can seriously dispute that Congress has the authority to regulate health care and the health insurance industries under its Commerce Clause power. The question then is whether, as part of regulating health care, Congress has the power to require individuals who can afford it to purchase health insurance or pay a tax penalty if they refuse to do so.
This brings into play another clause of the Constitution's Article I, section 8: the Necessary and Proper Clause, which gives Congress the power to make "all laws which shall be necessary and proper" for carrying out the powers given to the federal government by the Constitution. As the Supreme Court explained in last year's ruling in United States v. Comstock, "the Necessary and Proper Clause makes clear that the Constitution's grants of specific federal legislative authority are accompanied by broad power to enact laws that are 'convenient, or useful' or 'conducive' to the authority's 'beneficial exercise.'" As conservative scholar Orin Kerr--no fan of the health care reform law as a matter of policy -- phrased it, "[t]he point of the Necessary and Proper Clause is that it grants Congress the power to use means outside the enumerated list of Article I powers to achieve the ends listed in Article I."
Given that the trillion-dollar health care industry is clearly commerce, which Congress expressly has the power to regulate, the individual responsibility provision then is a quintessential example of a law that is "necessary and proper for carrying into execution" this power to regulate commerce among the several States. The Affordable Care Act is designed to make health care coverage affordable to all Americans and to prohibit certain insurance practices, such as denying coverage to individuals with pre-existing conditions. Among many other reasons, if Americans can go uninsured until they get sick and then impose these costs on those who already have health insurance policies, the ban on pre-existing conditions will be prohibitively expensive and the cost of insurance will increase across the board.
The Act contains an individual responsibility provision for a very basic reason: if you don't require people who can afford it to get insurance, they impose costs on taxpayers, hospitals, and local, state and federal governments. According to statistics compiled by Families USA, in 2005, 48 million Americans were uninsured and they incurred $43 billion in medical costs that they could not pay, an average of nearly $900 per uninsured individual. But don't take my word for the proposition that we can't fix our broken health care system without the requirement to purchase insurance: more than 30 top economists -- including three Nobel laureates--filed a brief in the Florida challenge to the Affordable Care Act explaining precisely why the individual responsibility provision is necessary to reform health care.
So, if all the broccoli-baiters want to suggest that upholding the constitutionality of the Affordable Care Act and the individual responsibility provision means that the government will be able to force you to eat four servings a day of vegetables or go to the gym, they need to actually engage in some constitutional reasoning. First, start at the beginning: what subject would Congress be regulating, pursuant to which enumerated power, that would need such a silly regulation to effectuate that power? Second, in what context would eating broccoli be necessary and proper to making a legitimate regulation work? In other words, what is the appropriate end, to which government-forced broccoli eating would be a necessary means?
With respect to health care, we've got a trillion-dollar health care industry that Congress can clearly regulate under its Commerce Clause power, and an individual responsibility mandate that Congress--and a bunch of Nobel Prize-winning economists -- say is necessary to carrying out regulation of that commercial industry. While I'll bet a lot of these folks would agree that you'd probably be healthier if you ate more vegetables, I cannot imagine any of them would say that it is necessary or proper to force people to buy broccoli in order to reform a health care system that shifts millions of dollars in costs to taxpayers and premium-holders while excluding millions of Americans with pre-existing conditions from the insurance market.
Let's stop talking about broccoli and start talking about the Constitution. Surely, people can in good faith disagree about whether the individual responsibility provision is necessary to make the Affordable Care Act work, but it isn't productive to pretend the Necessary and Proper Clause doesn't exist and just march out a parade of horribles intended to scare people. While the first President Bush may have hated broccoli, and the current First Lady apparently doesn't like beets, all Americans can agree that framing our constitutional debates in the document's actual text and history is always a good idea.
It's time to go cold turkey on the broccoli references.