The Broccoli Theory

Just a catching title? Actually, no, it is a catch phrase for a legal question being used to argue against the Affordable Care Act (ACA). The phrase was born out of mouth of Judge Robert Vinson in the United States District Court in the Northern District of Florida during oral arguments in December 2010. To understand how Broccoli became associated with Healthcare Reform, a little background is needed.

The ACA litigation centers around the interpretation of the Commerce Clause, which appears in the United States Constitution. The Commerce Clause allows Congress to regulate industries, products, and activities in or affecting interstate Commerce. The question with regards to the ACA is whether or not the requirement for 30 million uninsured Americans to obtain insurance coverage, in order to spread the risk and reduce costs in the private insurance market, is regulation affecting interstate commerce, and therefore, within the scope of the Commerce Clause. If it is, and Congress has not exceeded its boundaries, there is no issue for the Obama administration. If it is not, then the Law is unconstitutional, because Congress did not have power to enact it.

The Obama administration argues that the failure to purchase insurance is an economic decision with broad economic implications. Therefore, the decision not to buy an insurance product should count as an economic activity affecting interstate commerce. The problem with this argument is that it can be expanded to many different industries and products. For instance, because the US car industry is struggling, can Congress require Americans to only purchase new US made cars?

The more applicable questions to this particular subject matter are questions affecting health and general welfare. Could the US government require its citizens to buy gym memberships and vitamins? Which brings us back to Judge Vinson, his question to the Obama Administration was “if they (Congress) decide that everyone needs to eat broccoli, can Congress require everyone to buy broccoli?” Thanks to Judge Vinson’s witty response, the legal question of whether or not the Commerce Clause authorizes Congress to require individuals to buy products that Congress believes will further the general welfare, became know as the Broccoli Theory!

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