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There is now general agreement that the U.S. Supreme Court will not try to duck the issue of whether ObamaCare is constitutional. Before oral hearings on Monday, there was speculation that the court might invoke the 1867 Anti-Injunction Act, arguing that no one could bring a suit against ObamaCare until the day arrived when someone was forced to pay the penalty for not purchasing health insurance. Justice Ruth Bader Ginsberg, however, shrewdly noted that if ObamaCare worked as planned, there would never be a penalty imposed, in which case how could the penalty be construed as a means of raising revenue? More to the point: Unless ObamaCare was deliberately designed not to work, it could hardly be viewed as an attempt to tax American citizens.
Some have taken Ginsberg’s remark to be the naïve utterance of a liberal convinced that ObamaCare will work without a hitch—and so why shouldn’t it be declared constitutional? But James Pethokoukis, writing in the AEI blog, offers a different take, noting that in her oral examination Ginsberg states that “all this talk about tax penalties is all beside the point because this suit is not challenging the penalty. This is a suit that is challenging the must-buy provision, and the argument is made that, if, indeed, ‘must-buy’ is constitutional, then these complainants will not resist the penalty.” No one, in other words, is refusing to pay the penalty or even saying that they will refuse to pay it. Indeed, they will pay it (or purchase insurance) if ObamaCare is ruled constitutional by the Court. “So what they’re seeking,” Ginsberg continues, “is a determination that that ‘must-buy’ requirement, stated separately from penalty, that ‘must-buy’ is unconstitutional, and, if that’s so, that’s the end of the case; if it’s not so, they are not resisting the penalty.”
Use of such a power under the ObamaCare legislation would be ‘a radical departure.’
This brings us to the broccoli. Pethokoukis, examining Ginsberg’s words, wonders whether they suggest that she will buy the “broccoli argument.” For anyone who has not been following ObamaCare as it winds its way through the American justice system, this reference to broccoli will no doubt be a little puzzling.
The broccoli argument was first presented by Judge Roger Vinson of the U.S. District Court for the Northern District of Florida, who, on January 31, 2011, ruled that ObamaCare was unconstitutional. Like Ginsberg, Vinson went right to the heart of the argument. Under the Commerce Clause of the U.S. Constitution, does Congress have the power to force people to buy a product of any kind? In his lengthy opinion, Vinson notes that Congress has never exercised such a power before, and that its use of such a power under the ObamaCare legislation would be “a radical departure.” Yet, as Vinson notes, “the fact that legislation is unprecedented does not by itself render it unconstitutional. To the contrary, all federal legislation carries with it a ‘presumption of constitutionality.’” Something more is needed to make a federal law unconstitutional, and Vinson finds it in the very arguments made by the defenders of ObamaCare.
In order to make the case that Congress has the constitutional power under the Commerce Clause to enact ObamaCare, its proponents make two arguments. First, they argue that not buying health insurance is an economic activity. Second, they argue that not buying health insurance is an economic decision. Because the Commerce Clause permits Congress to pass laws that deal with the economy, it should be constitutionally permissible for it to pass laws dealing with both economic activity and economic decisions, especially in the case of a matter affecting so many people in so many ways as healthcare.
There is obviously a difference between economic activity and an economic decision. For example, buying a new car or mountain bike is an example of economic activity. Electing not to buy a new car or mountain bike is an economic decision, but it clearly involves no economic activity: No money changes hands, no property is transferred, and everything is precisely the way it was before the decision was made not to buy these items.
ObamaCare might be an excellent piece of healthcare legislation for a nation that was not saddled with the U.S. Constitution and a Supreme Court.
For many people, it is a stretch to argue that not buying health insurance is an economic activity. It is plainly counter-intuitive. Activity requires us to do something. But proponents of ObamaCare have a come-back. Sometimes, doing nothing has a considerable impact on other people and society in general. To do nothing when a child is drowning, when you could save him by doing something, is to let the child drown. To refuse to move on when you are loitering is to do nothing, but you would still be breaking the law. Similarly, to refuse to buy health insurance is a way of doing nothing that has high social costs. As Vinson notes in his opinion, those who have no health coverage, but who are treated nonetheless by hospitals, cost society quite a large sum: $43 billion in 2008, for example. But the activity of seeking medical treatment you don’t pay for is obviously distinct from the passive inactivity of not buying health insurance in the first place. Congress, Vinson argues, “plainly has the power to regulate” those getting medical assistance without paying for it, but can it constitutionally regulate the passive inactivity of those who do not buy health coverage and instead pay for their medical care out of their own pockets, and so cost society nothing? “In every Supreme Court case decided thus far,” Vinson notes, “Congress was not seeking to regulate under its commerce power something that could even arguably be said to be ‘passive inactivity.’”
This is the slippery slope that disturbs Vinson. If Congress was given “the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting … that compelling the actual transaction is itself ‘commercial and economic in nature, and substantially affects interstate commerce’…, it is not hyperbolizing to suggest that Congress could do almost anything it wanted.”
Here we come to the broccoli argument, which Vinson had first brought up during oral argument. If Congress can find good reasons to make us buy health insurance, it can find good reasons to make us “buy and consume broccoli at regular intervals, not only because the required purchases will positively impact interstate commerce, but also because people who eat healthier tend to be healthier, and are thus more productive and put less of a strain on the health care system.”
Vinson’s broccoli argument is used against the argument that Congress has the power to regulate economic activity, but it equally applies to the argument that Congress has the power to regulate economic decisions. Indeed, if there is a slippery slope to the “must-buy” requirement, the slope is much steeper if Congress can tell us not only what we must buy, but what we must decide to buy.
There is, however, a classic problem with slippery slope arguments—they are a bit slippery themselves. They all take the same logic. Yes, doing X may not be so bad. It may even be a good thing. But by doing X, you are inevitably opening the door to Y and Z, where both Y and Z are unanimously considered to be undesirable consequences. Therefore, don’t do X, even if there would be obvious benefits from doing it, lest you end up with Y and Z. Yet individuals and whole nations have managed to skirt successfully along slippery slopes without sliding to their doom. Furthermore, for a slippery slope argument to be persuasively effective, two things are needed. First, there must be a reasonable fear that X could really lead to Y and Z. Second, X and Y must be really awful.
Electing not to buy a new car or mountain bike is an economic decision, but it clearly involves no economic activity.
How does the broccoli argument stand up to this test? Does anyone really think that Congress is going to pass a law making people buy a pound or two of broccoli a day? My guess would be no, so the broccoli argument flunks the first part of the test. But what about the second? Many people do think broccoli is awful. I’m not one of them, but consider that a law that makes us buy broccoli doesn’t require us to eat it. We can always dump it down the garbage disposal or give it to our vegetarian friends. No nightmare scenario there.
Unfortunately, there is more at issue here than just broccoli. Let me suggest a slippery slope scenario that should cause all of us to feel uneasy.
Imagine that our current recession goes on, or even takes a turn for the worse. As John Maynard Keynes argued, in a time of economic anxiety and uncertainty, individuals will invariably act in a way that secures their own personal welfare, but which is disastrous to the overall economy: They will sit on their money and refuse to spend it. The bulk of Keynesian economics was to figure out how to get people back to spending their money on stuff, i.e., to increase the aggregate consumer demand. For example, Keynes told governments that they could cut taxes, lower interest rates, decrease the real value of wages through imperceptible inflation, provide stimulus packages, or build highways and even pyramids, all of which were ultimately designed to get people to go back out shopping for things. For decades, Keynesian economics seemed to work like a charm. But for some while, and especially since the crisis of 2008, it would appear that we have exhausted the Keynesian bag of tricks. We can’t make interest rates lower. We can’t inflate. We can’t stimulate by more deficit spending. We can’t afford grand building schemes. We have reached the point where American presidents have used the bully-pulpit to beg consumers to go out and start spending again.
But what if the president had a new super-Keynesian tool—a Congress that had been granted unlimited power to regulate economic activity and/or economic decisions? Under these circumstances, in the midst of a deepening and intractable depression, there would be a temptation to create a legislative solution that would be quite simple in principle. According to an index of their income, people would be mandated to purchase a certain amount of consumer goods. If they fell below this amount, they would then be compelled to pay the government a penalty. Those who abided by the mandate and did their fair share of consuming would help the economy get back on its feet. Those who had made the anti-social economic decision to save their money would have a reasonable portion of their savings taken away from them, to be spent on stimulus packages or building projects. Of course, the government would not need to tell us what to buy—only how much of it. Later, other economic emergencies might come along that required more governmental fine-tuning of our individual economic decisions. But there would be no need for a confrontation with the Supreme Court over whether Congress had the power to regulate these decisions, because, according to my scenario, we are imagining an America where ObamaCare had already established this principle once and for all, after being upheld by the Supreme Court.
Desperate times notoriously call for desperate measures, and this would be one of them. It is even possible that the overwhelming majority of American citizens would be urging the government to adopt such a policy as the only way out. The most worrisome thing about it is that it just might work.
There is a classic problem with slippery slope arguments—they are a bit slippery themselves.
This is a slippery slope that merits genuine concern, yet it is important to recognize that it would not be the fault of ObamaCare per se. To see this, let us fancifully suppose that the Supreme Court stunned the world by ruling that, yes, ObamaCare is unconstitutional, but we will let it become the law anyway. So what if it does exceed the powers granted to Congress under the Commerce Clause; it is better to have an unconstitutional law than to have an unconstitutional Constitution. We will let this one slide, but don’t try it again.
Needless to say, this is not about to happen. The Supreme Court does not have this option, which means that if it upholds ObamaCare, it will have to provide constitutional arguments for doing so. These arguments will almost certainly be those advocated by its proponents—namely, the power of Congress to regulate the economic activity and/or decisions of all American citizens. There really are no other arguments. Justice Ginsberg is right: it all comes down to the “must-buy” requirement, and whether it is constitutional.
ObamaCare might be an excellent piece of healthcare legislation for a nation that was not saddled with the U.S. Constitution and a Supreme Court. But the problem is that ObamaCare cannot be the law of the land unless it first overcomes the constitutional challenges its opponents have mounted against it. This means that if ObamaCare is judged constitutional, it will not simply be a new law, but a precedent for laws of the kind that should trouble all of us, based on a Supreme Court-authorized expansion of the power of Congress to regulate our economic decisions down to the tiniest detail. It is not simply that Congress might pass a law forcing people to buy broccoli, but that in an economic crisis, it would be tempted to jump start the national economy by forcing people go out and buy things, while penalizing those who don’t. Such a policy might well be the road to economic recovery, but it would also be a road that few of us wish to travel very far along.
Lee Harris is the author of , , and .
Image by Rob Green / Bergman Group
If ObamaCare is judged constitutional, it will not simply be a new law, but a precedent for laws of the kind that should trouble us all.
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