Can Congress make you buy broccoli? Should it matter?

This is a TIE-U post associated with Nick Bagley’s Health Reform and Its Legal Controversies (Michigan Law 866, Fall 2015). For related posts, see the course intro.

Throughout the litigation over the constitutionality of the individual mandate, the hardest question for the government was the one that Justice Kennedy eventually posed at oral argument. “[T]he question is whether or not,” on the government’s theory, “there are any limits on the Commerce Clause. Can you identify for us some limits?”

This question, sometimes reframed into the dreaded broccoli horrible, reflects an abiding conviction in our constitutional culture that Congress has only limited and enumerated powers. As the Solicitor General knew full well, the answer to Kennedy’s question had to be, “Yes, even on our theory, there are limits beyond which Congress cannot go.” Any other answer and he’d lose.

But it’s hard—not impossible, but hard—to articulate defensible limits. (Everyone agrees, by the way, that the bill of rights and other constitutional provisions limit Congress’s powers. But Kennedy wasn’t asking about those external limits. He was asking about the internal limits of Congress’s powers—the point at which the enumerated powers run out.)

At argument, for example, the Solicitor General said that the government’s rationale “would not justify forced purchases of commodities [read: broccoli] for the purpose of stimulating demand.” The government can’t create commerce, he said; it can just regulate “existing commerce, economic activity that is already going on, people’s participation in the health care market.”

Immediately, the justices leaped on that distinction. Why is the relevant market the health-care market? Why isn’t it the health-insurance market? And doesn’t the ACA create commerce in the insurance market—just what you say it can’t do? At any rate, aren’t people always participating in the food market, too? Wouldn’t forcing people to buy broccoli regulate their participation in that market?

It’s not that these questions don’t have answers. They do. And it’s not like the activity-inactivity distinction that the Court adopted is easy to defend, either. In important respects, however, the government’s case bottomed out on the notion that the market for health care is unique. And five justices didn’t buy it.

But what if the Solicitor General could have avoided that whole mess? What if his response to Justice Kennedy’s question was “I don’t know if there are any limits, but who cares?”  ¯\_(ツ)_/¯

My colleague Richard Primus has published a provocative article that tries to make that shruggie acceptable. It’s true, he says, that Congress’s powers are enumerated. But it doesn’t follow that they’re limited. Maybe Congress’s powers are limited, maybe they aren’t. It all depends:

Yes, specific lists are probably specific for a reason, at least most of the time, and “Congress can do these eighteen things” might seem like a funny way of authorizing Congress to legislate however it thinks best, subject to the limits of the political process and the affirmative prohibitions specified elsewhere in the Constitution. But as a conceptual rule, the claim that enumerated authorizations are always more limiting in practice than general authorizations is too sweeping. Consider this example: is “you can have chocolate, vanilla, or strawberry ice cream for dessert” more limiting in practice than the general authorization “you can have ice cream for dessert”? The answer on any given day might be yes or it might be no. It depends on the contents of the freezer.

To put it slightly differently, the right question is whether a particular statute falls within Congress’s enumerated powers. If it does, it shouldn’t trouble us if we struggle to articulate what Congress can’t do. “[N]o constitutional principle,” he writes, “bars the conclusion that Congress’s enumerated powers in practice authorize as much as a police power would.”

Primus is completely alive to the fact that he’s targeting one of the shibboleths of constitutional law. Part of the pleasure of the piece is watching the meticulousness with which he picks that shibboleth apart. Radical as the piece is, I come away persuaded (your mileage may vary). Whether Congress can make you buy broccoli just doesn’t bear on the constitutionality of the mandate.


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