The US Supreme Court’s 5-4 decision of June 28, 2012, upholding what is known for short as the Affordable Care Act and derisively as Obamacare, opened wide the floodgates of commentary.
With gun-jumping eagerness, news media including both CNN and Fox initially mis-reported the Court majority’s refusal to extend the Commerce Clause of the US Constitution to punish a personal decision not to purchase health insurance:
“Congress already enjoys vast power to regulate much of what we do. Accepting the Government’s theory would give Congress the same license to regulate what we do not do, fundamentally changing the relation between the citizen and the Federal Government.”
Confounding both handicappers and over-anxious pundits, the Court wrote on to legitimize such an amercement under the alternative rubric of a tax.
All conceivable perspectives have been scrutinized minutely – health care providers and insurers; patients including young, old and those with pre-conditions; and the Court itself and especially the surprising swing vote of Chief Justice John Roberts.
Except one: still unexamined in the flurry of analysis is the perspective of the broccoli.
It’s an important omission, because this humble member of the cruciferae figured prominently on both sides of the divided Justices’ opposing views, and with important groundings in American history, culture and jurisprudence.
The Chief Justice, widely heralded for the long-term impact of his display of agility and acumen, reasoned as to a refusal to buy health insurance that, “Under the Government’s (rejected) theory, Congress could address the diet problem by ordering everyone to buy vegetables.”
Rather than engage in an exercise of naming, labeling and stereotyping poor broccoli, Roberts thereby took the sensitive and non-discriminatory course, framing his position generically and elevating the level of discourse to political correctness.
Justice Ginsburg in dissent was not nearly so sensitive or circumspect, singling out and specifically pointing her forensic finger at the “crown of broccoli.”
Broccoli has long suffered a lack of respect. Justice Ginsburg’s chastisement of the Chief Justice for creating “the broccoli horrible” echoes the famous disregard of George Bush the elder: “I haven't liked it since I was a little kid and my mother made me eat it. I'm President of the United States and I'm not going to eat any more broccoli.”
By contrast, other non-human rights have figured with prominence in the national dialogue. PETA and the ASPCA are forceful advocates for the animals. The question, “Who speaks for the trees?” has inspired the environmental movements as well as the historic opinions of Justice Douglas on voting rights and legislative apportionment. Among the lobbyists of K Street, passion is for hire on behalf of constituencies as dubious as machine guns, tea parties and exotic financial derivatives.
Yet it must be asked, “Who speaks for broccoli?”
The Roberts opinion makes it the law of the land that broccoli consumption cannot be mandated as commerce. But combined with its ruling of the same week, salvaging the portion of Arizona’s otherwise excessive anti-immigration statute to permit law enforcement officers with cause to demand proof of legal residence, the Court’s two decisions together mean:
Nutrition police may not force a consumer to engage in commerce by adding broccoli to her supermarket basket. But the power to compel “papers, please” could now enable a sheriff’s shake-down -- “show us your florets” -- in the parking lot of the Food King.
Important issues of policy remain. Penalties for non-purchase of broccoli being barred, it should be comfort to Mitt Romney that his inaction in leaving the family dog confined in its car-top crate is probably not punishable as interstate commerce – however much the costs and expenses of the cross-border family vacation trip might seem so.
Children of libertarian orientation should also be encouraged. The Roberts opinion, forbidding criminal penalties for non-consumption of broccoli, inferentially forbids confinement as a sanction. So broccoli refusal at the dinner table presumably cannot be punished, at least at the federal level, by “go to your room,” or “you’re grounded for the weekend.”
Although a parental tax would seem to meet with judicial approval, if charged against a youngster’s weekly allowance for uneaten broccoli left on a plate, much future litigation remains over such impositions as suspension of Facebook privileges or limited access to the car keys.
Which suggests an enticement to the liberals -- the potential for a vast bureaucracy to take up the regulatory challenges relating to non-consumption of broccoli.
Governmental agency engagement with non-action is familiar, and nothing new. But bringing together passivity authorities now spread from agriculture and food and drugs to truth-in-labeling and consumer rights, the new “broccoli perspective” would confer official status and recognition on that historic but heretofore informal institution of Washington government – the Kitchen Cabinet.
Thanks for joining this dialog. Please share with friends and colleagues. Comments and suggestions are welcome, and subscription is easy and free, both at the Main page.
 Footnote. The opinion of the Court made do with only 14 of them. Justice Ginsburg’s longer dissent consumed 27; the unsigned four-Justice dissent packed its text even longer by using only 15. Known for his silence during oral argument, Justice Thomas in his separate two-page dissent needed none at all.