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Would a broccoli mandate be unconstitutional?

Meadmaker

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Meadmaker
Joined
Apr 27, 2004
Messages
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A meme running rampant in anti Obamacare circles is that if government is allowed to force you to purchase health insurance, they would be allowed to force you to purchase broccoli. In some versions of the discussion, they would be allowed to force you to eat broccoli.

So, what's your point?

It is stated as if it were just a given that such a law is obviously unconstitutional. I don't see why. Well, if the truth be told, I think I can see why it might be considered unconstitutional, but I would like to hear it from anyone who has put forward or agreed with such an "argument" for the unconstitutionality of the insurance mandate. I put the word "argument" in quotes, because I have never seen anything other than bare assertion. I haven't seen any real argument at all. It's just, "They can't make us buy health care because if they could do that then they could make us buy broccoli!"

It's not at all obvious to me that Congress cannot make you buy broccoli, and even if it were the case that they could not, I question whether anyone making such a claim can put forward a coherent argument to support that claim.

So, broccoli haters, come forward! Defend your natural right to be free from broccoli! Let's hear it, folks.

Bonus points to anyone who, while putting forward an argument against the broccoli mandate, can show why the health insurance mandate suffers from the same constitutional flaw.
 
A broccoli mandate is unconstitutional because the Constitution does not delegate the power to Congress to mandate the purchase of broccoli. Given that the Constitution explicitly states that the powers not delegated to the federal government by the Constitution are reserved to the states or to the people (tenth amendment), a broccoli mandate is not constitutional.
 
If Congress uses tax-money to buy broccoli, and distributes it to everyone in the country by mail it would be legal, right?

Of course people could still choose not to eat it, and buy spinach instead.
 
Grizzly Adams said:
A broccoli mandate is unconstitutional because the Constitution does not delegate the power to Congress to mandate the purchase of broccoli. Given that the Constitution explicitly states that the powers not delegated to the federal government by the Constitution are reserved to the states or to the people (tenth amendment), a broccoli mandate is not constitutional.
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Well, you'd fail the bar exam.

Congress would just need to show that the "broccoli mandate" was relevant to interstate commerce. Now, this may change when the SCOTUS rules on the health care mandate, but I can promise you that their opinion will not use your rationale.

The government can censor speech, take away your guns, discriminate based on race, and do a number of things that violate your constitutional rights. They simply have to meet various burdens (rational, least restrictive means, strict scrutiny...etc.).

It's quite easy to develop a test that would justify the mandate to purchase health care insurance but eliminate the broccoli mandate, just like we can separate denying women the right to vote from offering separate restrooms based on sex.

So, let's say mandates become subject to "strict scrutiny." The SCOTUS finds that demanding citizens purchase an item deals with fundamental rights. In order to mandate that we purchase something, the government has the burden of showing a compelling state need. The need to eliminate the explosion of health care costs and the injustice of being denied coverage for preexisting conditions are such compelling interests. Thus, that mandate is good. The broccoli mandate fails because (1) it's not compelling. SImply buying broccoli will not do much except make broccoli sellers rich and (2) there are much better means of obtaining the same or better results---ie, health insurance.
 
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egslim said:
If Congress uses tax-money to buy broccoli, and distributes it to everyone in the country by mail it would be legal, right?

Of course people could still choose not to eat it, and buy spinach instead.
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Incidentally, this really is a better model. Medicare for all through tax dollars would have been much simpler and obviously Constitutional.

Of course, then all Americans would be subject to horrible tyranny everyone over the age of 65 has lived with for half a century...
 
It seems like the only argument is that a "mandate to purchase" is beyond the powers of Congress.

For the life of me I don't see why. As TW noted, a specific mandate to purchase broccoli might be viewed somewhat differently than a specific mandate to purchase health insurance, but the idea that any "mandate to purchase" is inherently unconstitutional strikes me as somewhat bizarre.
 
I think a mandate to purchase broccoli based on the argument that increased brocoli eating would improve health and thus have a significant effect on interstate commerce (to whit-the healthcare industry) would fail a test of constitutionality because it would be difficult if not impossible to prove that such a mandate would have the expected effect.

However, a mandate to purchase broccoli to support the price of broccoli would be constitutional, but would nevertheless be bad law. A farm subsidy would achieve the desired result a lot more efficiently.

At any rate, it's easy enough to distinguish this hypothetical broccoli law from the individual mandate in the healthcare law.
 
Meadmaker said:
For the life of me I don't see why. As TW noted, a specific mandate to purchase broccoli might be viewed somewhat differently than a specific mandate to purchase health insurance, but the idea that any "mandate to purchase" is inherently unconstitutional strikes me as somewhat bizarre.
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I agree that it's silly to say any mandate to purchase is unconstitutional (since several already exist), but I also agree that the hypothetical broccoli mandate shouldn't be viewed the same as the individual mandate.

The authority for the minimum essential coverage mandate arises from the Commerce Clause to regulate economic activity that has a significant effect on interstate commerce coupled with the idea that everyone participates in the economic activity in question (the healthcare industry). Minimum essential coverage is meant to be a basic standard that applies to care that every has a risk of requiring.

While it's true everyone must eat, it is false that everyone will eat broccoli.

This is very different from the observation that everyone has a risk of requiring expensive healthcare they couldn't afford if they didn't have at least minimum essential coverage.

Contrary to the rhetoric we keep hearing, the healthcare law isn't a "government takeover of healthcare".
 
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TraneWreck said:
Incidentally, this really is a better model. Medicare for all through tax dollars would have been much simpler and obviously Constitutional.
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I agree, but it doesn't follow that the individual mandate for minimum essential coverage is therefore unconstitutional.
 
Meadmaker said:
It seems like the only argument is that a "mandate to purchase" is beyond the powers of Congress.

For the life of me I don't see why. As TW noted, a specific mandate to purchase broccoli might be viewed somewhat differently than a specific mandate to purchase health insurance, but the idea that any "mandate to purchase" is inherently unconstitutional strikes me as somewhat bizarre.
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Congressional power has to stem from somewhere. In this case (and in most cases) Congress gets its power from the commerce clause. Republicans argue that a mandate exceeds that authority. Obviously, the authority to regulate commerce must have a limit or Congress would have infinite power. Where that line is drawn is largely left to personal taste.

To answer your question...it isn't obvious. It is obvious to people who want smaller government.
 
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Grizzly Adams said:
A broccoli mandate is unconstitutional because the Constitution does not delegate the power to Congress to mandate the purchase of broccoli. Given that the Constitution explicitly states that the powers not delegated to the federal government by the Constitution are reserved to the states or to the people (tenth amendment), a broccoli mandate is not constitutional.
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I suggest you do some research on case law.
 
Grizzly Adams said:
A broccoli mandate is unconstitutional because the Constitution does not delegate the power to Congress to mandate the purchase of broccoli. Given that the Constitution explicitly states that the powers not delegated to the federal government by the Constitution are reserved to the states or to the people (tenth amendment), a broccoli mandate is not constitutional.
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Truly a powerful argument.
 
JoeTheJuggler said:
I think the baby was laughing with his tongue in his cheek (full of creamed broccoli, no doubt).. . . um so to speak.
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I kinda thought so but better safe than sorry. Even if Laughing Baby is kidding, others take that POV quite seriously.
 
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KingMerv00 said:
I kinda thought so but better safe than sorry. Even if Laughing Baby is kidding, others take that POV quite seriously.
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True. To your point: I always wonder why people think they're being strict constructionists if they're cool with pretending Article III Section 2 doesn't exist.
 
Meadmaker said:
A meme running rampant in anti Obamacare circles is that if government is allowed to force you to purchase health insurance, they would be allowed to force you to purchase broccoli. In some versions of the discussion, they would be allowed to force you to eat broccoli.

So, what's your point?

It is stated as if it were just a given that such a law is obviously unconstitutional. I don't see why. Well, if the truth be told, I think I can see why it might be considered unconstitutional, but I would like to hear it from anyone who has put forward or agreed with such an "argument" for the unconstitutionality of the insurance mandate. I put the word "argument" in quotes, because I have never seen anything other than bare assertion. I haven't seen any real argument at all. It's just, "They can't make us buy health care because if they could do that then they could make us buy broccoli!"

It's not at all obvious to me that Congress cannot make you buy broccoli, and even if it were the case that they could not, I question whether anyone making such a claim can put forward a coherent argument to support that claim.

So, broccoli haters, come forward! Defend your natural right to be free from broccoli! Let's hear it, folks.

Bonus points to anyone who, while putting forward an argument against the broccoli mandate, can show why the health insurance mandate suffers from the same constitutional flaw.
Click to expand...

Why not my Aunt Thelma forced me to eat creamed corn and i had to clean the plate?
 
Assume for hypothetical purposes that they could be enforced...

Which would result in lower Health Care costs for Americans?

1) Requiring the purchase of health insurance

2) Requiring the eating of a well-balanced diet in keeping with RDA guidelines, mandating that all able-bodied people participate in weekly exercise, and limiting sedentary activities including Television and the Internet

Are both within the enumerated powers given to Congress in the Constitution?
 
deepatrax said:
Assume for hypothetical purposes that they could be enforced...

Which would result in lower Health Care costs for Americans?

1) Requiring the purchase of health insurance

2) Requiring the eating of a well-balanced diet in keeping with RDA guidelines, mandating that all able-bodied people participate in weekly exercise, and limiting sedentary activities including Television and the Internet
Click to expand...

Both.

Are both within the enumerated powers given to Congress in the Constitution?
Click to expand...

No.
 
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