Commentary Magazine


Will Broccoli Preserve American Liberty?

If sometime this month the Supreme Court rules ObamaCare unconstitutional liberals will need a scapegoat to blame for what would be not just a defeat for the president’s signature legislative achievement but a historic turning point in the struggle against the aggregation of federal power. But according to the New York Times, the culprit won’t be congressional Republicans or the Tea Party. Instead, it will be the humble green vegetable that many Americans profess to hate: broccoli.

According to the Times’s James Stewart, the turning point in the battle to overturn the health care law was the moment a simple argument illustrating the way liberals have been using the Commerce Clause of the Constitution to expand federal power took hold of the public imagination. It is, as he writes, the “defining symbol” of the debate. As Justice Antonin Scalia pointed out from the bench during oral arguments on the issue earlier this year, if Congress can require every citizen to purchase health insurance simply because it was perceived to be in the national interest, then it could make people buy broccoli, too. Stewart traces the origins of the analogy that has been raised repeatedly by libertarians since President Clinton’s attempt to ram a national health insurance bill through Congress in the 1990s. But while liberals dismiss it as simplistic, it actually goes straight to the heart of the issue. Indeed, if ObamaCare is overturned and the Court begins a rollback of the way liberals have been abusing the Constitution for a century, it may be that broccoli will have played a key role in preserving American liberty.

As Stewart writes, libertarians pointed out during the Clinton-era debate that if the government could force people to do something or participate in commerce that they had not already engaged in (as opposed to regulating activity already commenced), then there was nothing it could not force them to do including eating certain foods or not eating them. This argument was greeted with “howls of derision” by the legal establishment, but it helped convince some jurists and politicians (including a conservative like Sen. Orrin Hatch who originally supported the idea of an individual mandate) that the drive to impose health care was about more than just insurance.

Liberals continue to argue that the talk of broccoli and a nanny state compelling us to eat our vegetables is a diversion from the important question of how to provide health care for all Americans. But the broccoli analogy has initiated exactly the sort of debate about the constitutional limits of government power that have been ignored or stifled for much of the past century.

The point is not about whether health insurance is a good idea or the value of any other potential government service or program. It is whether there is anything, no matter how great its intrinsic worth, that the Congress cannot impose on the nation under the loose authority granted to it by the Commerce Clause? Though Justice Elena Kagan conceded during her confirmation hearing that legislation that would require Americans to eat fruits and vegetables would be a “dumb law,” alluding to the egregious nature of the requirement still begs the question of whether the liberal interpretation of the Constitution would still allow it or any other similarly absurd proposal to stand as constitutional.

For too long liberals intent on telling Americans what they should do or even think have assumed that the law would always be interpreted as giving them leeway to expand federal power wherever it served their interests. They are flummoxed if not infuriated by the way this elementary point about broccoli has brought their latest enterprise to a standstill. They rightly fear that if the courts begin to look at such cases from the frame of reference of preserving individual liberty, the intellectual house of cards that has buttressed their arguments for generations will soon collapse.

If the court strikes down ObamaCare, perhaps Tea Partiers should start displaying a new broccoli flag alongside the historic Gadsden “Don’t Tread on Me” banner they like to sport. Like it or not, more than anything else, broccoli has helped remind Americans that liberty is precious and must be defended against the government.