Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.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
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
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 yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
More than anything else, it was the “broccoli argument” that succeeded in shifting the constitutional case against the Affordable Care Act from off-the-wall to mainstream. It’s a very straightforward version of the slippery slope: if the government can make us get health insurance, it could make us do anything; it could make us buy broccoli; it could even make us eat broccoli. Putting aside the merits of the argument, it is worth examining why the broccoli argument is a rhetorical tour de force that so powerfully captures the ideology and anxieties of opponents of Obamacare. In the first few months after passage of the Act, anti-Obamacare forces tried out various examples of the terrible things the government might do if it could mandate health insurance coverage. The government could make us buy yo-yos or drive American cars, they warned, or it could make us join a gym. None of these examples, however, carried any emotional punch. In January 2011, they hit upon a much more effective example of the nightmare that would follow if the mandate is upheld when Judge Roger Vinson declared that if Congress can require everyone to buy health insurance, it “could require that people buy and consume broccoli at regular intervals.” It quickly gained the status of a knockout argument against Obamacare. So what is it about forced broccoli that gives the argument its power?
At first blush, the idea that the government could mandate vegetable consumption seems comical, hardly the stuff of totalitarian tyranny that the Tea Party and its allies declare is already upon us. When one imagines an all-powerful dictatorship, very different and far more terrifying images readily come to mind—concentration camps, reeducation camps, gulags, mass executions—not mandated consumption of vegetables.
The anxiety evoked by being made to eat broccoli does not come from fear of government at all, but from everyday family life. It calls to mind an overbearing mother who thinks she knows what’s best for us and can tell us what to do. As cognitive linguist George Lakoff has pointed out, conservatives often use the family as a metaphor for government. The broccoli argument expresses one kind of conservative nightmare, tinged with gender anxieties, in which Mommy is in power. Fear of the “nanny state” evokes the same sort of gendered anxiety.
Mothers and nannies tell children what to do because children cannot be trusted to care for themselves. To let Mommy tell us to eat broccoli means we are nothing but babies. It infantilizes us. It disempowers and even emasculates us. It runs counter to the conservative vision of America built upon self-reliance and individualism, John Wayne riding alone with nothing but his wits and his six-shooter. And goddammit, no one who tells John Wayne to eat his broccoli is going to get away with it.
The broccoli argument packs an emotional punch because it plays on conservative anxieties about the family and the welfare state. It warns that what lies at the bottom of the slippery slope if Obamacare is upheld is Big Mother, the liberal she-government that is a perversion of proper parenting and good government. She is overbearing toward the mature children who could decide things for themselves, forcing them to eat broccoli and get health insurance. At the same time, she is overindulgent toward the children who most need toughness. She “coddles” the poor with undeserved benefits when they should be taught self-reliance. She lets illegal aliens stay as long as they want when they should be sent home. She literally lets criminals get away with murder. If Father were in charge, he’d know to lay off the kids who can take care of themselves and instead punish and prod the more wayward children. Striking down Obamacare is a step toward restoring order by a strict father, who, after all, knows best.