Hold The Broccoli: What Limbaugh And Fox Get Wrong About The Constitution And The Affordable Care Act

Rush Limbaugh and Fox News have promoted the right-wing talking point that any reading of the Constitution that supports the Affordable Care Act's individual mandate to purchase health insurance would also permit Congress to require all Americans to purchase broccoli. In doing so, they frighten their audience with the specter of limitless federal government power. This slippery slope argument turns out, however, to be too slippery by half, and it gets both the Constitution and the facts of the health care marketplace wrong.

Limbaugh's “broccoli mandate” talking point is refuted by economists who argue that the individual mandate is an appropriate response to the serious problem of consumers with preexisting conditions being unable to purchase insurance in the health care market. Furthermore, legal experts argue that the Constitution gives Congress the power to adopt the mandate, and this power does not extend to absurd hypotheticals such as a requirement to purchase broccoli.

Limbaugh on his imagined broccoli mandate: "Mr. New Castrati, if they can force us to buy health insurance, they can force us to buy broccoli.... Once you people get it in your heads that you can force us to buy health insurance, what's to stop you from making us buy a stupid electric car?" [Premiere Radio Networks, The Rush Limbaugh Show, 2/1/11, emphasis added]

Fox News' Bill Hemmer has made much the same argument [emphasis added]:

HEMMER: OK. Now if that is the case, then ultimately you go to the high court and we all wait to hear when that happens. Some have predicted 2012. But before we even get that far down the line, for the sake of our discussion, what you're challenging, it's easy to understand the mandate, as you know. You require Americans go out and buy something, you use the comparison to broccoli. [Fox News, 1/31/11, via Nexis]

As did Fox News personality Andrew Napolitano [emphasis added]:

NAPOLITANO: The United States Court of Appeals of the Sixth Circuit in Cincinnati, Ohio, yesterday upheld the individual mandate in President Obama's health care law.


All right, Ellis, I suppose you are happy --


That the federal court of appeals finally upheld the individual mandate. Some how, somewhere, I don't see where they found in the Constitution the authority for the Congress to force you to buy something, not a hat in the sun, not broccoli at dinner -


-- but health insurance. [Fox Business Network, Freedom Watch, 7/1/2011, via Nexis]

As legal and health policy experts have explained, contrary to the right-wing's “broccoli mandate” talking point, the Affordable Care Act appropriately addresses failures in the health insurance market using the broad powers the Constitution gives Congress to regulate the national economy, and does not lead to the absurd results opponents have imagined.

As health care expert and Massachusetts Institute of Technology economics professor Jonathan Gruber has explained, the Affordable Care Act in general and the mandate in particular address one of the biggest failures in the current health care market, the problem of providing insurance for people with preexisting conditions, that is, who are already sick:

You can't understand the need for, and the accomplishments of, health care reform without appreciating the fundamental failure in health insurance markets today. Unless you are offered insurance by your employer, or by the government, there is effectively no meaningful insurance in America. Individuals subject to the harsh “non-group” market face exclusions from pre-existing illness or can be dropped as soon as they become ill. And the key to solving this problem is the individual mandate, which can end insurance market discrimination by promoting broad insurance participation.

At the heart of this reform is what I like to think of as a “three legged stool” designed to solve this problem and, as a byproduct, cover most of our nation's uninsured. The first leg is insurance market reform which will end the ability of insurance companies to discriminate against the sick; no longer will we be one bad gene or one bad traffic accident away from bankruptcy. The second is the individual mandate, which requires insurance coverage so long as that coverage is affordable (costs less than 8% of income). This mandate is critical; without it, insurers will react to insurance market reform by raising prices because they are afraid only the sick will buy insurance. But you can't mandate insurance coverage unless it is affordable, which it is not for low income Americans. That's why we need the third leg of the stool: extensive subsidies that will make health insurance affordable for those living below median income.

But does the Constitution give Congress have the power to address this problem? As Northwestern University School of Law Professor Andrew Koppelman argues, two provisions in the Constitution's text, the Commerce Clause and the Necessary and Proposer Clause, empower Congress to address the problems in the health insurance market via the individual mandate:

[T]he argument for the mandate's constitutionality is very simple. Congress has the power, under the Commerce Clause, to regulate insurance, and so to mandate that insurers cover people with preexisting medical conditions.... Under the Necessary and Proper Clause, it may choose any convenient means to carry out this end. The mandate is clearly helpful, and may even be absolutely necessary, to Congress's purpose. Therefore it is constitutional. Full stop.

But what of the slippery slope down which the broccoli mandate talking point claims America is doomed to slide if the Supreme Court finds the individual mandate to be constitutional?

Former US Solicitor General Walter Dellinger has explained in testimony before Congress that broccoli mandate-type arguments are erroneous in two ways. First, they get wrong how the relevant provisions of the Constitution apply to the facts of the health care market.

The minimum coverage provision [the individual mandate] of the Affordable Care Act tests no limits and approaches no slippery slope. Notwithstanding the improbable hypotheticals put forth by those bringing these lawsuits, Congress never has and never would require Americans to exercise or eat certain foods. Were Congress ever to consider laws of that kind infringing on personal autonomy, the judiciary would have ample tools under the liberty clause of the Fifth Amendment to identify and enforce constitutional limits..... What the Affordable Care Act regulates is not personal autonomy, but commercial transactions.

Suggestions that sustaining the minimum coverage provision would mean that Congress could mandate the purchase of cars or comparable items are also disingenuous. The provision requiring minimum health insurance cannot be viewed in isolation. It is an integral part of regulating a health care market in which virtually everyone participates. No one can be certain he or she will never receive medical treatment. Health care can involve very expensive medical treatments that are often provided without regard to one's ability to pay and whose cost for treating the uninsured is often transferred to other Americans. These qualities are found in no other markets.

Dellinger further argued that slippery slope arguments are inherently unsuited for the sort of issues in question in the Affordable Care Act Case.

Slippery slope arguments are themselves often slippery. Where the issue is simply whether something falls within the scope of a subject matter over which Congress is given jurisdiction to legislate, the parade of horribles marches all too easily. If it is within the scope of regulating commerce to set a minimum wage, one might argue, then Congress could set the minimum wage at $5000 an hour. Would that force us to conclude that Congress therefore cannot set any minimum wage at all? Were Congress to legislate the extreme hypotheticals envisioned by those bringing these challenges, there will be ample constitutional doctrines available for the judiciary to use for the imposition of limits.