Does the government have the power to compel a person to buy broccoli? That question, perhaps surprisingly, came up last week during the Supreme Court’s unprecedented three-day hearing on the national healthcare mandate (commonly referred to by supporters and opponents alike as ObamaCare).
Conservative Justice Antonin Scalia used the broccoli question to illustrate he takes a dim view of the healthcare law, comparing it unfavorably to a law that would force individual Americans to purchase broccoli.
Everybody has to buy food sooner or later, so you [the federal government] define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli.
Notably, the government lawyer defending the healthcare mandate chose neither to claim nor defend a governmental power to compel broccoli purchases, responding to the justice that buying food was “quite different” than buying healthcare.
What exactly did humble broccoli do—inasmuch as a vegetable may do something—to take its place in a debate inside such vaunted chambers? Republicans in Congress laid the groundwork for the broccoli question during confirmation hearings for current liberal Supreme Court Justice Elena Kagan in summer 2010. GOP senators wondered whether then-Solicitor General Kagan would uphold a law passed by Congress that would force Americans to buy fruits and vegetables. Kagan called the law dumb, but refused to say she would overturn it.
A subsequent 2010 federal appeals court decision calling into question parts of the national healthcare mandate helped sharpen the discourse around the law from the more general “fruits and vegetables” to broccoli.
The Court’s analogous discussion last week of broccoli as it pertains to the healthcare mandate is both fascinating and an important moment for those who, like me and the nonprofit I lead, Keep Food Legal, champion the cause of food freedom. To Keep Food Legal, food freedom means the right of every person to grow, raise, produce, buy, sell, cook, eat, and drink the foods of their own choosing. A corollary of your right to eat what you want—and why the broccoli question becomes important—is that you also have the right not to eat a particular food. The right of a vegan not to eat steak, for example, is just as important as a non-vegan’s right to eat the same steak.
Where does the current Court stand on the broccoli question? Regardless of the Court’s decision in the healthcare mandate case, it’s unclear whether Justice Kagan would uphold a “dumb” law forcing Americans to buy fruits and vegetables. (Notably, Kagan recently authored a unanimous Court decision that found states do not have the power to decide what animals may be turned into food.) And it would be too far afield to read into Scalia’s remarks a belief that the federal government has no power (under the Commerce Clause, the federal constitutional authority at issue in Scalia’s comment above) to prohibit the purchase of broccoli. Still, one could make a good argument Scalia would support just such an argument in favor of food freedom. (One need simply insert the word “not” after the word “people” in the Scalia broccoli quote above). Why? It turns out that Scalia has in fact previously opined (in dicta from a 1992 case that on its face also did not pertain to food) about “protect[ing] the right to eat.”
So Justice Scalia appears to support an individual right to be free from government-mandated food purchases. And he also supports protecting a right to eat. Searching for a rule of thumb in Scalia’s remarks in the instant (or current) case and in his opinion 20 years ago, one might conclude that he finds in the Constitution a fundamental, unenumerated right of the individual to make his or her own food choices—to select (by action) or reject (by inaction) the purchase of a particular food. Such an unenumerated right would dovetail rather nicely with the Court’s First Amendment speech jurisprudence, which holds generally that individuals have a fundamental, enumerated right to speak (or not) absent a compelling government interest (such as the generally recognized prohibition on shouting “fire!” in a crowded movie theater that is in fact not ablaze).
While the current Supreme Court debate is informative, focusing just on the broccoli question and its analogous application to the national healthcare debate might cause one to miss the important history of cases that have had food at their very heart. Many of these cases also gave rise to some of the Court’s most celebrated and vilified decisions. From cases like Lochner v. New York (a case pitting a bakery owner and its workers against state regulators) and United States v. Carolene Products (a case concerning federal-government authority to ban a company’s milk substitute) to Wickard v. Filburn (which concerned the rights of a wheat farmer to grow food for his family above and beyond a federal quota) and The Slaughter-House Cases (a set of cases decided by the Court more than 100 years ago that centered on the animal-slaughter industry in and around New Orleans)—precedential cases centered on food continue to be at the fore of many of our most important cases and legal debates. (In fact, precedents established in Wickard, Lochner, and Carolene Products helped frame the Court’s debate over the national healthcare mandate.).
While Supreme Court cases rarely focus on food and freedom, it is both interesting and important to note that Scalia is not the only Supreme Court justice to opine in support of food freedom. Others—from “leading liberal“ Justice William O. Douglas to conservative Justice Stephen Field—came out even more forcefully than Justice Scalia in support of food freedom. As I noted in a 2010 law-review article (footnotes omitted):
The Supreme Court has never recognized an explicit right to eat certain foods. However, several Court justices have recognized a negative right to food. Justice William O. Douglas wrote, in dictum, that the Ninth Amendment guarantee of unenumerated fundamental rights includes “one’s taste for food . . . [which] is certainly fundamental in our constitutional scheme—a scheme designed to keep government off the backs of people.” Other Justices have come out against food bans. Justice Stephen Field argued that a right to make and procure food is an integral fundamental right of all Americans. Field called this right an essential element of liberty. Importantly, Field distinguished between food regulation and food bans, contrasting the former, which he called a reasonable exercise of state police power, with the latter, which he would proscribe as unconstitutional. More recently, Justice Antonin Scalia, also in dictum, said the Court need not recognize a right to starve oneself to death in order “to protect the right to eat.”
So what does all of this Court chatter about food freedom really mean? Though the Court’s decision in the healthcare case is likely months away— and Keep Food Legal takes absolutely no position on the constitutionality of the healthcare law (consistent with our narrow focus on issues of food freedom)—we are excited that issues of food freedom have resurfaced at the nation’s highest court. The broccoli question has given millions of Americans pause to consider the scope of their rights as pertains to food—and even pushed the federal government’s leading litigator to admit that it does not have the power to force us to eat certain foods.
In this way the broccoli question has also given a shot in the arm to the cause of food freedom. And so let’s all take a moment and give thanks to broccoli, that floreted cousin of cabbage. Eat your broccoli, America, but only if you want to.
Baylen J. Linnekin, a lawyer, is executive director of Keep Food Legal, a Washington, D.C. nonprofit that advocates in favor of culinary freedom.