August 10, 2011

Would the due process clause really protect our right not to eat broccoli?

By Would the due process clause really protect our right not to eat broccoli?

Author: Timothy Sandefur

Try as they might, defenders of the Individual Mandate, like Democrat professor Erwin Chemerinsky and liberal professor Laurence Tribe, have never been able to answer the argument that if the federal government can force us to buy insurance, they can force us to buy cars or vegetables. In fact, in a famous interview on Reason.tv, he admitted that under his theory, the federal government could force people to buy cars or vegetables. Now, in a contribution to the SCOTUSBlog symposium on Obamacare, Dean Chemerinsky tries to come up with some limit, but isn’t really able to. In his view, the difference between forcing us to buy insurance and forcing us to buy cars or broccoli is that we can’t really choose whether or not to participate in the market for health care, while the other things are optional:

Opponents of the health care law say that if it is upheld then the government can force people to buy an American car or to eat broccoli.   But a person can opt to not drive or not to eat vegetables; no one realistically can opt out of health care.

This is not a serious argument.

A person can opt out of the market for medical care, just as he or she can opt out of driving. Neither seem “realistic” in today’s world, but in both cases, they’re theoretically optional, so this purported distinction is nowhere near as clear as Chemerinsky suggests. But more importantly, Chemerinsky is sneakily changing the ground to avoid the logical implications of his theory, by referring to “driving” or “eating vegetables.” By narrowing his focus in this way, he can disguise the real issue and avoid the uncomfortable implications of his extreme constitutional views.

The Obama Administration’s argument for the Individual Mandate is not that people can’t avoid purchasing the particular commodity of health insurance. Rather, the Administration argues that people can’t opt out of the market for health care in general. In their view, the federal government can define a nationwide market in the broadest possible terms, then legislate to control that market—including controlling any activity whatsoever that Congress considers “essential” to the effectiveness of its legislation. So in the future, when the government decides to force Americans to buy cars, it would do so not by regulating “driving” itself, but by defining the targeted national market as transportation, and then passing the Comprehensive National Transportation Act, which includes as one component the requirement that all Americans buy cars or pay a penalty. Under the position Dean Chemerinsky advocates here, there would be nothing unconstitutional about that. And the same goes for food: by defining the market broadly as “the national nutrition market,” Congress would lay claim to the power to force Americans to do whatever it considered necessary to the success of that law.

Obamacare’s defenders have also offered as a limiting principle that while Congress could force us to buy cars or broccoli, it could not force us to drive those cars or eat that broccoli, because the Due Process Clause would forbid it. But as Prof. Elizabeth Foley notes in her SCOTUSBlog contribution, this is also not convincing.

A law mandating that we eat our veggies could well be constitutional under such an expansive view of federal power. After all, if it would make us all healthier, why not force us to do the right thing, as with buying health insurance? Consider the rationale articulated by Professor Tribe in the New York Times, “Those [trial court] judges [ruling Obamacare unconstitutional] made the confused assertion that what is at stake here is a matter of personal liberty—the right not to purchase what one wishes not to purchase—rather than the reach of national legislative power in a world where no man is an island.”

Tribe’s reasoning is coldly realistic. He is pointing out that there is no constitutional right to decide what to buy. To him, the salient question is the “reach of legislative power in a world where no man is an island.” If buying or not buying X affects commerce—and why wouldn’t it?—Congress should be able to regulate your decision whether to buy (or not buy) it. The same logic applies to your decision to eat, consume, or otherwise use X. All these decisions—buying/not buying, eating/not eating, using/not using—will affect commerce in a substantial way. Indeed, because “no man is an island,” every decision we make—including whether to eat our veggies—is within the reach of the Commerce Clause.

It’s true that the Due Process Clause has been interpreted as preventing the government from forcing people to undergo medical procedures—for instance in Ronchin v. California, it held that the state could not force a suspect to undergo stomach-pumping to retrieve evidence. But that case is easily distinguishable—the Court found that the police conduct was basically like torture. And the Court has upheld the constitutionality of strip searches, forced blood tests, the military draft, and other extreme intrusions on individual autonomy.

This is because the Due Process Clause only forbids actions that are unauthorized or arbitrary—things government has no authority to do in the first place, or things that are totally unrelated to the goal the government claims to be seeking. Neither of these categories would apply, though, to a Broccoli Mandate. Certainly the first would not, since under the precedent set by an Obama Administration victory in the Individual Mandate case, Congress would have the authority to compel commercial activity. The question would then come down to the means-ends scrutiny of the second category, and that means the question comes down to the degree of deference the Court extends to the government. Does Congress get to judge for itself what sort of intrusions on a person’s individual health decisions are necessary for its economic regulations to succeed?

The leading case on that issue is Gozales v. Raich, in which four justices held that lenient rational-basis scrutiny applied. Congress can criminalize a medical treatment necessary to relieve a person’s excruciating pain, because it’s up to Congress to decide what sorts of individual actions have to be controlled in order for its commercial regulations to succeed. Four justices dissented, and Justice Scalia cast the swing vote, writing a decision that did not address what degree of scrutiny applies.

I’m not saying that Congress is likely to force us to eat broccoli any time soon—although government seems to be increasingly willing to dictate our food choices already. But I do not think that advocates of the Individual Mandate can find in the Due Process Clause any principled refuge from the extreme implications of their position. If the Individual Mandate is a constitutional exercise of the Commerce Clause power, then the constitutionality of forced broccoli eating would come down to a means-ends analysis under murky Due Process Clause precedents which do not clearly establish a right to bodily integrity, but instead allow government broad leeway to enforce compliance with its view of public welfare.

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