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Broccoli and the US Elections—A Commentary by Andrew Burt ’14

The following commentary was posted on elpais.com on August 3, 2012

Broccoli and the US Elections
By Andrew Burt ’14

What determines the fate of the US presidential elections? Will it be the unemployment rate? The public’s reaction to Bain Capital, the financial firm headed by Mitt Romney which bought and sold other companies, sometimes firing thousands in the process? Or will it be Iran’s nuclear ambitions, and a possible armed clash that would send oil prices sky-high? These are just a few of the factors commentators mention when explaining what defines the next US elections. But one factor mentioned less frequently might end up accounting for the tight margin of victory that political pundits are expecting.

That factor? Broccoli.

Yes, broccoli. More precisely, it is the debate over whether or not the government can force Americans to buy broccoli, because it is good for them, that could mean the difference between Obama’s second term and Romney’s first.

It all started on December 16, 2010, when a Florida judge was considering the constitutionality of the Obama administration’s universal healthcare law — the crown jewel of Obama’s first term. If Congress could force every US citizen to purchase healthcare insurance, Judge Roger Vinson asked, referring to a key requirement of the law known as “the mandate,” what prevents Congress from requiring every US citizen to buy broccoli? Once the government takes responsibility for your health, can it force you to buy broccoli, just because it’s good for you?

Vinson would ultimately strike down the bill as unconstitutional, a decision that the Supreme Court reversed in June. But ever since Vinson’s ruling, broccoli has come to stand for something far more profound than just a legal argument advanced in a Florida courtroom. One of the Supreme Court’s most prominent conservative justices, Justice Antonin Scalia, heightened this symbolism when the case came before the high court. “Everybody has to buy food sooner or later, so you define the market as food,” he said. “Therefore, you can make people buy broccoli.”

If any of this sounds strange, that’s because it is. The US government already requires many things of its citizens, many of which are deeply invasive. But few of those requirements have gone so far as to force Americans to buy something just because it’s good for them — a fact that exacerbates Americans’ already-deep suspicion of authority, and one that makes this debate uniquely American.

Two things are really going on in the broccoli debate. The first one is technical and legal, and the second one is political — and profound.

The legal side of the broccoli debate is centered on a specific part of the US Constitution known as the commerce clause, which grants the federal government the power to regulate commerce between the states. The US government has, under this power, ventured into almost every aspect of Americans’ lives. In one of the most extreme instances, for example, Congress used this power to forbid a farmer from privately growing his own wheat on the theory that any extra wheat would impact the national supply.

What’s new about Obama’s healthcare bill, however, is that requiring all citizens to purchase healthcare doesn’t exactly regulate any action in particular. Rather, it regulates inaction. The mandate forces individual citizens to buy health insurance under the theory that those who fail to do so make healthcare costs more expensive for everyone else. As explained by Nobel Prize-winning economist Paul Krugman: “When people don’t buy health insurance until they get sick — which is what happens in the absence of a mandate — the resulting worsening of the risk pool makes insurance more expensive, and often unaffordable.”

The legal issue over the broccoli debate thus boils down to the distinction between regulating activity and compelling it, a distinction that the Supreme Court ultimately relied on in deciding what parts of the healthcare bill were constitutional. “The distinction between doing something and doing nothing would not have been lost on the Framers [of the Constitution],” Chief Justice John Roberts wrote in the Court’s June ruling. They “gave Congress the power to regulate commerce, not to compel it.” Despite this fact, Roberts ruled that technically the mandate amounts to a tax, and as such is constitutional under a separate part of the Constitution, which allows the government the ability to collect taxes.

But legal details like this don’t exactly make for good election platforms, or for national policy debates. Most voters simply don’t know and don’t care about such technicalities. So how could this issue define the coming US elections? Just what is going on here?

The answer is that underlying the broccoli debate is a far deeper issue, one that touches upon the question of how Americans confront a uniquely American problem: how to balance their suspicion of authority against a government that is increasingly responsible for their welfare.

Very little about this balancing act is new. Ever since the country’s founding, for example, Americans have found themselves balancing a deep suspicion of centralized authority against their need for a strong national government. The country’s founding fathers were so haunted by this tension that the first government they created was so weak it lacked the power to collect taxes. Even after their second attempt, which resulted in the modern US Constitution, America’s first political debates were focused on whether the country required a central bank — a requirement that, to put it mildly, most countries simply take for granted. Here is how Thomas Jefferson, the country’s third president and the author of the Declaration of Independence, expressed his views on centralized power: “When all government […] shall be drawn to Washington as the center of all power,” he wrote, “we will become as venal and oppressive as the government from which we separated.”

It is exactly this type of profound suspicion of centralized power that explains how a legal argument about broccoli has pushed the vegetable, and the issues it has come to symbolize, front and center on the national stage. Here, for example, is Romney describing Obama’s healthcare law: “This President is putting us on a path where our lives will be ruled by bureaucrats and boards, commissions and czars. He’s asking us to accept that Washington knows best — and can provide all.”

This type of rhetoric — which at its most blatant labels Obama a “socialist” and his vision for America an “authoritarian” state — has come to form the basis for the Republican Party’s opposition to Obama as well. It’s only when you take into account Americans’ deep suspicion of centralized authority that such language starts to make sense.

Which brings us back to broccoli, and the Supreme Court’s decision to uphold the constitutionality of Obama’s healthcare law — a decision in which, by no accident, the word broccoli occurred a dozen times. The Court ruled out the possibility of a “broccoli mandate” as a legal matter, but also limited its exposure to the deeper policy debate. “Members of this Court are vested with the authority to interpret the law,” wrote Roberts. “We possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them.”

In that sense, the Court’s ruling did not provide a final answer to the broccoli debate, but merely a preliminary one. As Yale Law School Professor Jack Balkin states: the legal issues have been decided, and yet “the specter of vegetables still haunts us.” The ultimate answer will come from the American people when they vote this fall.

Andrew Burt is writing a book about the history of US political extremism.