On the Broccoli Objection

Those who believe the health insurance mandate is unconstitutional have relied frequently on slippery-slope arguments. Many have been convinced by what Andrew Koppelman calls the Broccoli Objection—the idea that, if Congress can penalize individuals for failing to purchase health insurance, it must have the power to penalize them for failing to eat their broccoli. (Talk about a Nanny State!) There would then be nothing Congress could not regulate—whether activity or inactivity, economic or non-economic.
As Koppelman points out, slippery-slope arguments are empirical, not logical. That is, just because A could logically lead to B, and B is objectionable, doesn’t mean that A is objectionable unless there is some reasonable probability of A’s leading to B. Koppelman argues that there’s really no chance Congress will mandate the purchase and consumption of broccoli—though federal subsidies to meat and corn and sugar producers probably do make you somewhat less likely to eat broccoli, and that’s no good.
Here I want to point out a simple asymmetry in this constitutional debate over the mandate: While slippery-slope arguments have been prominent on the anti-mandate side, they have been uncommon on the pro-mandate side. And yet, if the Supreme Court actually strikes down the individual mandate, its logic—particularly if it relies on the popular activity/inactivity distinction—will actively threaten federal laws that most people do not want to see threatened. There will be a reasonable probability of challenges to many popular statutes—and once the Supreme Court has endorsed the constitutional doctrine offered by the anti-mandate advocates, it will be hard-pressed to reject those challenges. The slippery slope, in other words, lies on both the right and left sides of the mountain.
Professor Mark Hall, in his forthcoming University of Pennsylvania Law Review article, notes that the logic of an anti-mandate ruling could threaten agencies like the FDA (regulates the failure to put nutrition labels on food items) and the EPA (regulates the failure to purchase pollution-reducing equipment). It would retroactively nullify the 1792 bill requiring able-bodied men to purchase a firearm. It would render unconstitutional the common Republican proposal to compel people to purchase stocks—that is, their proposal to privatize Social Security. It would even threaten (logically, though of course not empirically) the Civil Rights Act, which forbids the owners of private businesses from failing to serve potential customers on the basis of their race.
That last case is particularly helpful because it illustrates just how nebulous this boundary between activity and inactivity really is. Should the behavior of a racist store-owner who wants to bar blacks be construed as activity or inactivity? On the one hand, he might have to take positive actions—perhaps he hires a private security guard to stop unwanted people at the door. On the other hand, we could construe his action as a failure to sell. Some people come into his store, and he won’t sell to them. Congress says, he must sell to them. Is that not a regulation of inactivity?
An anti-mandate ruling would be dangerous precisely because the mandate itself is so minor. As Ezra Klein says, it could be construed as a tax credit: If you show the IRS that you purchased health insurance, then you get a tax credit, and if you don’t, you don’t. The idea that Congress can’t give out tax credits on the basis of certain activities (and thus fail to give tax credits for inactivity) would threaten an untold swath of federal laws.
But is any of this likely? Are such slippery-slope arguments simply logical, not empirical? I hope so. But the thing about the Supreme Court is that it is somewhat bound by logic—more so, at least, than the political branches.
So the slippery-slope argument cuts both ways. I don’t find the Broccoli Objection compelling on its own merits, but when one considers that an equally if not more convincing slippery-slope argument could be made on the other side, its persuasiveness really takes a dive.