Balkinization  

Sunday, March 25, 2012

Can Texas make me eat broccoli?

Joey Fishkin

One of the fascinating things about the constitutional battle of the coming week is how much argument and agitation is going on outside the Court—and how disconnected much of it is with anything going on inside the Court.  And yet there are many subtle connections between the popular and judicial conversations.  I wonder, for instance, whether part of the reason courts evaluating the ACA have talked so much about the commerce power, and so little about the power to tax (which to my mind is at least as strong an argument for the ACA’s constitutionality), has to do with the fact that the public, political battle about the ACA has been joined in terms of commerce, not taxation.

Outside the courts, one huge argument is if the government can make you buy insurance, can it make you eat broccoli?  This argument seems to have a lot of rhetorical bite.  But the most straightforward response is the question in the title of this post.  Can your state government make you eat broccoli?  If the answer is no, as it surely is, then there must be some reason, other than limits on federal power, why that is so.  The most likely reason is that states force-feeding us vegetables would violate fundamental liberty interests protected by the Fourteenth Amendment.

In other words, the “broccoli argument” does its rhetorical work by turning a question of Congressional power into a question of individual liberty.  And that, in microcosm, is what the entire public debate about the health care law is about, and why that public debate differs so much from the debate at the Court.  Few people other than Mitt Romney really believe that it is perfectly fine for states to pass an individual mandate, yet unconstitutional for Congress to do so.  That position—pure federalism, drained of all libertarian talk of personal freedom—simply does not have the political heft it needs in order to be a winning argument.  And so opponents of the ACA marry federalism to individual liberty in a way that leaves them in the odd position of suggesting that if Congress has the power under the Commerce Clause to pass the individual mandate, then it could make you eat broccoli… in which case, Texas could pass a statute and force me to eat broccoli right now. 

One of the things I will be watching for this week is the degree to which any Justices who are skeptical of the ACA find ways to make their arguments resonate with the arguments against the law out in the public sphere—which means getting beyond commerce and enumerated powers and speaking in terms of individual liberty.

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