Notes From Babel

The Individual Mandate and the Broccoli Objection

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I’ve only been half paying attention, but it seems there’s been a lot talk deriding slippery slope arguments generally, and the “broccoli” argument with respect to the Individual Mandate specifically.  Andrew Koppelman argues that, to present a true slippery slope, there has to be an actual likelihood of “slipping”:

The Broccoli Objection, as I will call it, rests on a simple mistake: treating a slippery slope argument as a logical one, when in fact it is an empirical one.

This basic point was made long ago in Frederick Schauer’s classic article, Slippery Slopes, 99 Harv. L. Rev. 361 (1985). Schauer showed that any slippery slope argument depends on a prediction that the instant case will in fact increase the likelihood of the danger case. If there is in fact no danger, then the fact that there logically could be has no weight. For instance, the federal taxing power theoretically empowers the government to tax incomes at 100%, thereby wrecking the economy. But there’s no slippery slope, because there is no incentive to do this, so it won’t happen.

Similarly with the Broccoli Objection. The fear rests on one real problem: there are lots of private producers, including many in agriculture, who want to use the coercive power of the federal government to transfer funds from your pockets into theirs. But the last thing they want to do is impose duties on individuals, because then the individuals will know that they’ve been burdened. There are too many other ways to get special favors in a less visible way.

So Congress is never going to force you to eat your broccoli.

In other words, Koppelman argues the “Broccoli Objection,” as he calls it, is just not slippery enough to be a slippery slope.  I’m not convinced.  First, Koppelman is not coming toe-to-toe with the nature of the objection.  The “slippery” element of a slippery slope argument is not a function of likelihood, but rather of the availability of non-arbitrary distinctions.  If there is no principled distinction between allowing the government to do something we like and doing something we don’t like, we ought to be skeptical.  Slippery slope argument are thus helpful as extrapolation exercises because they help us see what might be coming around the bend if we keep pushing ahead on political rather than legal principles.

But Koppelman isn’t troubled by this because, as he explains, it’s just not likely we’d ever reach the bottom of the slope.  Again, I’m not convinced.  The federal government might not try to force broccoli on us now, but it’s not conceptually inapposite to a centralized healthcare regime.  Precisely the contrary, in fact.  Thus, the Individual Mandate is not like the income tax amendment since, as Koppelman admits, a 100% income tax would “wreck[] the economy.”  It’s not merely practically unlikely, then—it’s practically impossible.  A broccoli mandate, on the other hand, is currently merely politically improbable.  Given the administrative demands and practical goals of the new healthcare regime, however, it would be downright prudent if all Americans gorged on broccoli.  Moreover, American’s reluctance toward government involvement in healthcare seems to be slowly waning.  Thus, it’s hard to take Koppelman seriously that the political likelihood of something like a “broccoli mandate” couldn’t tack sharply northward in the not very distant future.

Incidentally, it’s also not true that, as Koppelman suggests, the federal government could take all your money just by calling it a tax.  At some point, the government’s going to come up against the takings clause.  And this is the case for nearly every government power—every grant of Congressional power runs up against some other power held by the executive or the judiciary.  But that’s not so with the modifications we’re proposing on the Commerce Clause.  Folks like Koppelman suggest that Congress doesn’t need any checks because the real sinister things it might do are unlikely to happen right away.

As for the practical aspect of a broccoli mandate,  Koppelman seems to suggest that however you describe the Broccoli Objection, it’s not persuasive because it’s just not realistic the government would ever do something as detestable as force people to eat broccoli.  Here we see that Koppelman’s actually after a much bigger prize than winning the Individual Mandate argument, because once we’ve bought into Koppelman’s premise when talking about governmental action, we’ve substituted pragmatic limits for constitutional limits.  He even says as much at the end of his post:  “If the Supreme Court is going to invent new limits on the legislature, it should do so in a way that has a real chance of preventing actual abuses. Otherwise it is hamstringing the legislature for no good reason.”  This is unsettling for those of us still convinced there are certain things the government can’t do not just because we can throw the bums out, but because we already wrote them down.  One starts to think God was on to something when he put his “thou shalt nots” on stone tablets.


Written by Tim Kowal

January 28, 2011 at 12:02 am

2 Responses

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  1. […] I’ve written before, Obamacare advocates seem far too comfortable with dismissing legal limits and relying solely on […]

  2. […] responded to Koppelman’s argument previously, but since he’s still peddling the argument, I suppose I […]

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