an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
One of the most rhetorically effective arguments that has been made against President Obama’s health insurance mandate is that it places us on a slippery slope to totalitarian government. If the federal government can make us buy insurance, what can’t it do? Thus the principle, endorsed by the Supreme Court only a few years ago, that the commerce clause gives Congress plenary authority over the economy is now seen as dangerous. "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," Judge Roger Vinson of the Florida District said in December. "If [the federal government] decided everybody needs to eat broccoli because broccoli makes us healthy, they could mandate that everybody has to eat broccoli each week?"
It is for this reason that opponents feel it is necessary to invent new limits on Congressional power – limits that just happen to invalidate the mandate. The Eastern Virginia judge who declared the mandate unconstitutional, Henry Hudson, declared that in order to be subject to regulation by Congress, an individual had to engage in “some type of self-initiated action.” He cited no authority for this proposition, and there is none. He invented it in order to invalidate the mandate. He was also worried about overreaching federal power. The Broccoli Objection generates the Self-Initiated Action Principle.
The Broccoli Objection, as I will call it, rests on a simple mistake: treating a slippery slope argument as a logical one, when in fact it is an empirical one.
This basic point was made long ago in Frederick Schauer’s classic article, Slippery Slopes, 99 Harv. L. Rev. 361 (1985). Schauer showed that any slippery slope argument depends on a prediction that the instant case will in fact increase the likelihood of the danger case. If there is in fact no danger, then the fact that there logically could be has no weight. For instance, the federal taxing power theoretically empowers the government to tax incomes at 100%, thereby wrecking the economy. But there’s no slippery slope, because there is no incentive to do this, so it won’t happen.
Similarly with the Broccoli Objection. The fear rests on one real problem: there are lots of private producers, including many in agriculture, who want to use the coercive power of the federal government to transfer funds from your pockets into theirs. But the last thing they want to do is impose duties on individuals, because then the individuals will know that they’ve been burdened. There are too many other ways to get special favors in a less visible way.
So Congress is never going to force you to eat your broccoli. On the other hand, you’re probably already consuming more high-fructose corn syrup than is good for you. Subsidies for the production of corn have produced huge surpluses of the syrup, which in turn becomes a very cheap ingredient of mass-produced food, and turns up in a remarkable amount of what you eat. So consumers have to face obesity, diabetes, and dental caries – but no mandate! You and I are paying for this travesty, but in such a low-visibility way that many of us never realize that Dracula has been paying regular visits. The Broccoli Objection distracts attention from the real problem. And the judiciary hasn’t got the tools to deal with that problem.
If the Supreme Court is going to invent new limits on the legislature, it should do so in a way that has a real chance of preventing actual abuses. Otherwise it is hamstringing the legislature for no good reason. A case like U.S. v. Lopez (1995), which struck down a ban on handguns near schools, does address a real problem: Congress’s tendency to pointlessly federalize ordinary offenses in order to show that it is “tough on crime.” But the Broccoli Objection rests on pure illusion. The danger it aims to address does not exist. Posted
by Andrew Koppelman [link]