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Broccoli, the Individual Mandate, and Food for Thought

James B. Stewart has an instructive story in the New York Times on the origins of the broccoli meme: where it started and how it ended up figuring in the Supreme Court arguments over the Affordable Care Act.

With an accompanying graphic titled “The Broccoli Trail,” the whole thing has an air of epidemiology about it. Still, it’s a great example of the power of  a small band of conservatives and libertarians harnessing non-mainstream media and crystallizing legal opposition to an extraordinarily complex law.

Writes Stewart:

Before reaching the Supreme Court, vegetables were cited by a federal judge in Florida with a libertarian streak; in an Internet video financed by libertarian and ultraconservative backers; at a Congressional hearing by a Republican senator; and an op-ed column by David B. Rivkin Jr., a libertarian lawyer whose family emigrated from the former Soviet Union when he was 10.

Even those who reject the broccoli argument appreciate its simplicity. Whatever the Supreme Court rules, Mr. Rivkin and his libertarian allies have turned the decision into a cliffhanger that few thought possible.

Apologies for the heresy, but of all the many reasons to oppose Obamacare, the mandate to purchase insurance was never very high on the list for me. Let me put it slightly differently: The motivation behind the mandate — preserving the profit margins of private insurance companies — is more troubling than the compulsion itself. As under Obamacare, Germany compels its citizens to contribute to “sickness funds,” but most of the insurance industry there is nonprofit.

In any event, slippery-slope arguments are far from dispositive. As George Will wrote in 1983, all government “takes place on a slippery slope. Anything can be imagined carried to unreasonable lengths. That is why the most important four words in politics are: up to a point…”

If nothing else, Stewart’s “Broccoli Trail” is one more piece of evidence (if any more was needed) that the Supreme Court does not exist in some kind of platonic strongbox that mere politics cannot penetrate. As a lawyer friend of Mother Jones’s Kevin Drum corresponded:

I think legal watchers deep down believed that the Court would not be so superficial as to unhinge established jurisprudence for an ideological cause. It’s a fun parlor game, but they figure that when sobriety prevails the court will bow to precedent where — as here — the issue is squarely within existing precedent. Well, no, and they are perfectly free to channel right wing bullshit points such as inactivity vs. activity. I think this really rattled [Jeffrey] Toobin to see justices behaving like congressmen from Alabama in their arguments.

As we now know, the justices routinely use Google to research their opinions.

Talk about slippery slopes.

about the author

Scott Galupo is a freelance writer living in Arlington, Va. In addition to contributing to The American Conservative, he writes for TheWeek.com and reviews live music for The Washington Post. He was formerly a staff writer for The Washington Times and worked on Capitol Hill. He lives with his wife and two children and writes about politics to support his guitar habit.

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