Broccoli Insurance

Could Congress pass a law requiring everyone to purchase Broccoli Insurance?  Such insurance would cover 80% of the cost of broccoli, leaving the consumer with only a 20% co-pay, and thus bring down the cost.  The reasoning would be that eating broccoli makes you healthy, which would have an impart on health care, which Congress has power to regulate.

But you might say, I hate broccoli and Congress can't make me eat it.  But au contraire, you are engaged in the broccoli market by not eating broccoli.  You are self-insured for broccoli by voluntarily choosing not to purchase broccoli insurance.  Thus you are an active participant and the Commerce Clause gives Congress the power to regulate it.

The Chief Justice presents the argument, which he ultimately rejects, as follows:
"Many Americans do not eat a balanced diet. That group makes up a larger percentage of the total population than those without health insurance.  The failure of that group to have a healthy diet increases health care costs, to a greater extent than the failure of the uninsured to purchase insurance. See reports detailing the “undeniable link between rising rates of obesity and rising medical spending,” and estimating that “the annual medical burden of obesity has risen to almost 10 percent of all medical spending and could amount to $147 billion per year in 2008”). Those increased costs are borne in part by other Americans who must pay more, just as the uninsured shift costs to the insured. See a report noting “overwhelming evidence that individuals with unhealthy habits pay only a fraction of the costs associated
with their behaviors; most of the expense is borne by the rest of society in the form of higher insurance premiums,government expenditures for health care, and disability benefits”). Congress addressed the insurance problem by ordering everyone to buy insurance. Under the Government’s theory, Congress could address the diet problem by ordering everyone to buy vegetables.  'Improved nutrition, appropriate eating behaviors, and increased physical activity have tremendous potential to . . . reduce health care costs'".



The dissent thinks the Chief Justice is being ridiculous, and says that just because you are required to purchase health insurance doesn't mean that the government could require people to purchase broccoli:
"THE CHIEF JUSTICE cites a Government mandate to purchase green vegetables. One could call this concern “the broccoli horrible.” Congress, THE CHIEF JUSTICE posits, might adopt such a mandate, reasoning that an individual’s failure to eat a healthy diet, like the failure to purchase health insurance, imposes costs on others. Consider the chain of inferences the Court would have to accept to conclude that a vegetable-purchase mandate was likely to have a substantial effect on the health-care costs borne by lithe Americans. The Court would have to believe that individuals forced to buy vegetables would then eat them (instead of throwing or giving them away),would prepare the vegetables in a healthy way (steamed or raw, not deep-fried), would cut back on unhealthy foods, and would not allow other factors (such as lack of exercise or little sleep) to trump the improved diet. Such “pil[ingof] inference upon inference” is just what the Court refused to do in Lopez and Morrison." 





The "broccoli inference", thus differentiates health care from broccoli:
"The failure to purchase vegetables in THE CHIEF JUSTICE’s hypothetical, then, is not what leads to higher health-care costs for others; rather, it is the failure of individuals to maintain a healthy diet, and the resulting obesity, that creates the cost-shifting problem.  Requiring individuals to purchase vegetables is thus several steps removed from solving the problem. The failure to obtain health insurance, by contrast, is the immediate cause of the cost-shifting Congress sought to address through the ACA.  Requiring individuals to obtain insurance attacks the source of the problem directly, in a single step."


But then the dissent claims that while the government could not require people to purchase broccoli, could Constitutionally require that you only eat broccoli.  But don't worry, even though it had the power, it wouldn't do that.
"The commerce power, hypothetically, would enable Congress to prohibit the purchase and home production of all meat, fish, and dairy goods, effectively compelling Americans to eat only vegetables.  Yet no one would offer the “hypothetical and unreal possibilit[y],”  of a vegetarian state as a credible reason to deny Congress the authority ever to ban the possession and sale of goods. THE CHIEF JUSTICE accepts just such specious logic when he cites the broccoli horrible as a reason to deny Congress the power to pass the individual mandate.