The "Broccoli" Argument and Health Care Reform's Constitutionality

Yesterday, U.S. District Court Judge Roger Vinson ruled that the Patient Protection and Affordable Care Act is unconstitutional. The organization I run, Constitutional Accountability Center, will be dissecting this monstrously wrong opinion in detail over the days and weeks ahead.

For now, I wanted to address a key point made by Judge Vinson, Judge Henry Hudson (who ruled against the ACA in a separate case in December) and some Republican state Attorneys General, who talk about a slippery slope from the Affordable Care Act to a federal law that somehow requires people to eat broccoli or other vegetables.

I have a question for this "broccoli" argument: "Where's the beef?" While we should all heed our mother's advice to eat our vegetables, the important task at hand is to look at the text and history of the U.S. Constitution, and then compare these sources to the facts confronting Congress in passing the health care reform law.

As we saw in yesterday's decision, legal challenges to the Affordable Care Act distill primarily into an attack on its individual responsibility provision (also called the "individual mandate"), which requires Americans to maintain a minimum level of health insurance coverage or pay a tax penalty.

If Congress can enact the individual responsibility provision, Judge Vinson wrote, "Congress could require that people buy and consume broccoli at regular intervals...." And last month, Ohio Attorney General Mike DeWine told FOX News, "if [Congress has] the power in the Commerce Clause to do that, they could decide it is in the national interest for our health for everybody to exercise 45 minutes a day or eat spinach every day."

The problem with this frivolous "broccoli" contention is that it has nothing to do with the Constitution. Those who use it say that the decision to obtain health insurance is a "non-economic" personal choice (like the one to choose steak over broccoli) and therefore, they say, the federal government lacks the authority to require individuals to obtain health care coverage.

Except the decision not to buy health insurance is a profoundly economic one that has significant financial consequences for everyone else. When the uninsured fall ill or get into an accident, they go to the emergency room, where they run up medical bills they often cannot afford to pay without insurance. But someone pays: hospitals, local governments, and the American people -- who not only foot those bills as taxpayers but also end up paying higher premiums of their own because the uninsured have opted out of the national risk pool. Congress found that these uninsured costs totaled about $43 billion in 2008.

Such a cost figure makes clear that the individual responsibility provision falls squarely within Congress's authority under the Constitution's Commerce Clause under Article 1, Section 8 (pdf), including actions -- such as the decision not to buy health insurance -- that substantially affect interstate commerce.

Furthermore, Article 1, Section 8 of the Constitution also grants Congress the power to pass laws that are "necessary and proper for carrying into Execution" other powers granted to it. The individual responsibility provision is a quintessential example of such a law. 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. 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 individual responsibility provision, in other words, addresses a $43 billion annual national problem and is an essential component of the entire Affordable Care Act. Neither of these things can be said about our moms' advice to eat broccoli.

So as we debate the constitutionality of health care reform going forward, by all means, let's remember what mom said about eating our vegetables. But let's also remember that this sage advice has nothing to do with the constitutionality of the Affordable Care Act.


Additional resources on why health care reform is constitutional:

CAC's "friend of the court" brief - representing 78 state legislators from 27 states - explaining why the law is constitutional.