Today's New York Times has a front-page story by James B. Stewart called "How Broccoli Landed on the Supreme Court Menu," which discusses the unlikely route that the "broccoli mandate" has taken as a central argument again President Obama's health-care reform, now under review by the Supreme Court. (A decision is expected any day now.)
The vegetable trail leads backward through conservative media and pundits. 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….
[A 2010 exchange between Sen. Tom Coburn (R-Okla.) and Supreme Court nominee Elana Kagan] caught the attention of Austin Bragg, 33, a producer for Reason TV. He proposed a video to his editor, Nick Gillespie. Reason TV and its magazine and Internet outlets are subsidiaries of theReason Foundation, a libertarian research organization whose largest donors are the David H. Koch Charitable Foundation ($1,522,212) and the Sarah Scaife Foundation ($2,016,000), according to its most recent disclosures. Both finance conservative and libertarian causes….
The video, "Wheat, Weed and Obamacare: How the Commerce Clause Made Congress All-Powerful," was shown on YouTube and the Reason Web site in August 2010. "Legal titans John Eastman and Erwin Chemerinsky slug it out to determine whether or not Congress has been abusing the commerce clause," Reason's Web site proclaimed. Professor Eastman, a conservative, teaches at Chapman University in Orange, Calif., and clerked for Justice Clarence Thomas of the Supreme Court. He is also chairman of the National Organization for Marriage, which opposes gay marriage. Professor Chemerinsky, a liberal, is dean of the law school at the University of California, Irvine.
In the Reason video, Professor Chemerinsky got the worst of it. The clip shows Senator Coburn asking Ms. Kagan about eating vegetables and fruits, and cuts to Professor Chemerinsky. He appears to struggle with the question of limits to Congressional power, saying at one point, "Congress can force economic transactions," and at another, "power can be used in silly ways and the Constitution isn't our protector." Professor Eastman comes off better, as he questions whether Americans want "an unlimited, amorphous government that can make us do whatever it wants?"
For Mr. Gillespie, the video had the desired effect. "Based on that video, Chemerinsky is the best screen villain since Hannibal Lecter," Mr. Gillespie said. "But he got his chance to make his case."
And check out the latest is of Reason print magazine, which asks in a great cover package (click on to go to Table of Contents):