Can States Make You Eat Broccoli?

The Attorney General of Missouri has filed an amicus brief (PDF) in the case before the Eleventh Circuit, State of Florida, et al. v. Department of Health andHuman Services, et al.. While it repeats the litany of arguments seen previously (and ignores the import of the Necessary and Proper Clause I discussed in this post), it places a great deal of emphasis on the supposed invasion of federal power on state police power:

Can the United States Congress employ an enhanced Commerce Clause authority to mandate expectant mothers undergo amniocentesis testing in order to identify and treat individuals, yet unborn, whose extraordinary medical expenses may someday be cost-shifted onto the society-at-large? To each of these questions, the state of Missouri answers “No.” Such federal authority would require a generalized police power or a separately enumerated power, but is not cognizable under the Commerce Clause.

I agree that the Constitution does not permit the Congress to enact such a law, but for reasons different than those articulated by the Attorney General of Missouri. Indeed, I believe the Attorney General's argument begs the question - does he believe a State could enact such a law? I believe neither a State nor the federal government could do so. The reason is that the constitutional right to privacy and liberty preclude such governmental action, absent a compelling state interest, whether the attempt is by a state government or a federal government. The question I have for the Missouri Attorney General is this - does he believe the State of Missouri has the power to effect such a law? More on the flip.

The "mandate you eat broccoli" argument made by the Missouri Attorney General has been offered more in passing than as a central point for the most part by those who advocate for the unconstitutionality of the the individual mandate provision of the Affordable Care Act (ACA). However, the Missouri Attorney General has made it a centerpiece:

[I]n Jacobson v. Massachusetts, 197 U.S. 11, 12 (1905), the Supreme Court endorsed the states’ use of police power to compel action to protect public health. The Court considered a Massachusetts law permitting a city to “require and enforce the vaccination and revaccination of all the inhabitants.” Id. at 12. The law penalized individuals $5 for refusing or neglecting to comply with the requirement. Id. Speaking for the Court, Justice Harlan invoked “[t]he authority of the state to enact this statute [under] the police power,–a power which the state did not surrender when becoming a member of the Union under the Constitution.” Id. at 24-25. The Court also “distinctly recognized the authority of a state to enact quarantine laws and ‘health laws of every description.’ ” Id. (quoting Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824)).

>Jacobson, decided in 1905, would likely withstand constitutional scrutiny today, but the standard applied to determining its constitutionality would very likely be quite different. In Jacobson, the Court stated that:

Whatever may be thought of the expediency of this statute, it cannot be affirmed to be, beyond question, in palpable conflict with the Constitution. Nor, in view of the methods employed to stamp out the disease of smallpox, can anyone confidently assert that the means prescribed by the state to that end has no real or substantial relation to the protection of the public health and the public safety.

(Emphasis supplied.) The Jacobson Court applied what has come to be known as the "rational relation" test for determining the constitutionality of a government act. Since that time, in a series of decisions, the Supreme Court has heightened the level of scrutiny applied to government acts when privacy and liberty rights are implicated. From Meyer v. Nerbaska to Griswold v. Connecticut, the evolution of the standard to be met by governments in enacting laws that impinge on privacy and liberty rights has been transformed. In Planned Parenthood v. Casey, the Court stated that:

Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Carey v. Population Services International, 431 U. S., at 685. Our cases recognize "the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Eisenstadt v. Baird, supra, at 453 (emphasis in original). Our precedents "have respected the private realm of family life which the state cannot enter." Prince v. Massachusetts, 321 U.S. 158, 166 (1944). These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.

[. . .] Roe [. . .] may be seen not only as an exemplar of Griswold liberty but as a rule (whether or not mistaken) of personal autonomy and bodily integrity, with doctrinal affinity to cases recognizing limits on governmental power to mandate medical treatment or to bar its rejection. If so, our cases since Roe accord with Roe's view that a State's interest in the protection of life falls short of justifyingany plenary override of individual liberty claims. Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261,278 (1990); Cf., e.g., Riggins v. Nevada, 504 U.S. ____, ____ (1992) (slip. op., at 7); Washington v. Harper, 494 U.S. 210 (1990); see also, e.g., Rochin v. California, 342 U.S. 165 (1952); Jacobson v. Massachusetts, 197 U.S. 11, 24-30 (1905).

Accordingly, a government must demonstrate more than "rational relation" between its action and an identified policy goal, the Jacobson standard. It must demonstrate that the proposed impingement on the liberty and privacy interest does not impose an undue burden unsatisfied by an important interest of the government. This principle is exemplified in Cruzan v. Missouri, in which Chief Justice Rehnquist, writing for the Court, stated :

The Fourteenth Amendment provides that no State shall "deprive any person of life, liberty, or property, without due process of law." The principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions. In Jacobson v. Massachusetts, 197 U.S. 11, 2430 (1905), for instance, the Court balanced an individual's liberty interest in declining an unwanted smallpox vaccine against the State's interest in preventing disease. Decisions prior to the incorporation of the Fourth Amendment into the Fourteenth Amendment analyzed searches and seizures involving the body under the Due Process Clause and were thought to implicate substantial liberty interests. See, e.g., Breit haupt v. Abrams, 352 U.S. 432, 439 (1957) ("As against the right of an individual that his person be held inviolable ... must be set the interests of society...").

[. . .] But determining that a person has a "liberty interest" under the Due Process Clause does not end the inquiry; "whether respondent's constitutional rights have been violated must be determined by balancing his liberty interests against the relevant state interests." Youngberg v. Romeo, 457 U.S. 307, 321 (1982). See also Mills v. Rogers, 457 U.S. 291, 299 (1982).

(Emphasis supplied.) While the Cruzan Court went on to hold that Missouri's actions were reasonable and did not unduly burden the privacy and liberty interests of the petitioners, it reaffirmed the rule that a government must do more than merely demonstrate a rational relation between its policy goal and its actions.

If the federal government, or the State of Missouri, attempted to regulate the medical treatment or the dietary habits of persons in the Nation or in the State of Missouri, either will need to demonstrate that the proposed action does not unduly burden the privacy and liberty rights of such persons.

A law to require the eating of broccoli would not likely pass muster in my opinion. Nor would a law requiring amniocentesis for pregnant women. The State police power does not insulate State action from this inquiry. And of course, neither does the federal Commerce Clause power.

Ironically, it is the conservative's much detested constitutional privacy and liberty right that protects them from such government "tyranny."

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    Thank you for this knowledge (5.00 / 0) (#2)
    by Militarytracy on Mon Apr 11, 2011 at 11:38:41 AM EST
    What is healthful to one person is not to another.  For instance, I have a weak thyroid.  I do lots to pump it up but it always wants to run on the puny side without some help.  If you have such a thyroid your doctor has already told you to avoid broccoli.  It will slow your thyroid down more.

    If you are pregnant and your thyroid is low, it can affect the I.Q. of your child.  So if you make some pregnant women eat broccoli you will be making them have stupid children :)

    And lastly, something that most anyone who has been pregnant knows, amniocentisis carries a 1 in 300 risk of miscarriage.  That is why your doctor lets you have a glass of wine afterwards.  So the state can cause 1 out of every 300 pregnancies to be miscarried in order to avoid costs that it may later incur?

    The idea of forced amnios (5.00 / 2) (#4)
    by nycstray on Mon Apr 11, 2011 at 11:50:39 AM EST
    is just down right creepy . . .

    if the state forces you to do this (5.00 / 1) (#5)
    by CST on Mon Apr 11, 2011 at 12:03:38 PM EST
    and you miscarry in utah, would that be an "at fault" miscarriage?

    With so many people trying to determine what happens to your womb, how will we know who to blame when someone has to go to jail for pre-meditated fetus-murder?


    Good question (none / 0) (#6)
    by Militarytracy on Mon Apr 11, 2011 at 12:13:55 PM EST
    If you opt to have one in Utah (none / 0) (#7)
    by Militarytracy on Mon Apr 11, 2011 at 12:16:07 PM EST
    and you have a miscarriage, is it a premeditated murder since you knew the risks and still made a plan to do it :)?

    Very interesting and a (none / 0) (#1)
    by oculus on Mon Apr 11, 2011 at 11:20:07 AM EST
    breath of fresh air as to budget deals et al.  Informative piece on NPR recently about local police and health dept.forcibly entering tenaments w/o warrents, then forcibly administering small pox caccinations against the wishes of the parents. Early 1900s during the deadly epidemic.

    Does emergency (none / 0) (#3)
    by Militarytracy on Mon Apr 11, 2011 at 11:40:50 AM EST
    When you are dealing with something that infectious change the ground rules though.  If I don't eat broccoli that affect me and mine.  If I refuse small pox vaccination during an epidemic that can affect many many other people and harm many many other people.

    A dream (none / 0) (#8)
    by TeresaInSnow2 on Mon Apr 11, 2011 at 12:19:54 PM EST
    If the insurance mandate penalty was that you had to either pay a $1000 fine or eat brocolli 5 days a week every year, I'd take the brocolli in a heartbeat and be very very happy.  I heart brocolli.  I HATE insurance crooks.

    And yes, I'm deliberately missing the point.  But the mandate to buy insurance from crooked insurance companies is FAR, FAR worse for our country's citizens, and is a far, far more slippery slope than any mandate to eat brocolli

    ....of course, "the womb issue" is a different story.

    I don't know... (none / 0) (#9)
    by kdog on Mon Apr 11, 2011 at 01:54:05 PM EST
    but a state will certainly try eventually...New York & California are the morning line favorites to pass a broccoli mandate, with criminal penalties for non-compliance of course.  

    Give me broccoli or give me death? (none / 0) (#10)
    by republicratitarian on Mon Apr 11, 2011 at 02:14:19 PM EST
    We can count on... (none / 0) (#12)
    by kdog on Mon Apr 11, 2011 at 02:26:33 PM EST
    GHW Bush to vehemently oppose...and Palin!

    All kidding aside, I'll never be able to unknot the legalese of it, but common sense tells me our individual sovereignty has to at least start/end with our epidermis.


    It seems that, in my opinion of course, (none / 0) (#13)
    by republicratitarian on Mon Apr 11, 2011 at 02:34:06 PM EST
    that the government can use the phrase "compelling state interest" to justify just about anything it wants. At the state or federal level, it just depends on who is running the show at any given moment.

    Can't argue with that... (none / 0) (#14)
    by kdog on Mon Apr 11, 2011 at 02:42:12 PM EST
    and the individuals only recourse is to take the state to court, after the fact.  Or fight for their bodily sovereignty and get locked up or shot.

    you confuse policy for constitutional (none / 0) (#17)
    by Molly Bloom on Mon Apr 11, 2011 at 05:11:31 PM EST
    A state or the federal government may enact a law which is unsound policy, but not unconstitutional. The feds may enact  a law to require you to buy broccoli. It may be stupid policy, but depending on how its crafted, it probably could pass muster under the courts commerce clause jurisprudence (with some skilled advocacy).  

    The avenue to correct unwise policy is the voting booth, not the courts. The courts are ill equipped to determine what is sound or unsound policy. Legislatures have investigative arms. They are better equipped to make these decisions. And it is their job.

    Its not the court's function to substitute their judgment for the legislatures.Courts at best have a few law courts and admins. They have no investigative ability. In theory at least, legislators answer directly to the voters. Federal Court judges are appointed for life. They answer to no-one, except by impeachment.

    If the legislators pass a stupid law, its not for the courts to say no, unless its clearly unconstitutional. That's the voters job.

    We have had this debate in our country before and there are sound reasons why we came to this conclusion.


    I loathe... (none / 0) (#21)
    by kdog on Tue Apr 12, 2011 at 08:22:32 AM EST
    the commerce clause.  Boy can the man stretch that one to legitimize some dirty!  

    Where else can it be determined if a stupid law is constitutional but the courts?  We sure as hell shouldn't take the legislatize wizard behind a stupid law's word for it, the constitution is open to interpretation, and legislators have no special knowledge, in fact they can be less knowledgeable than Joe Blow, or actively looking to pull a fast one around individual rights.

    If the courts ain't the place, the people have to wait 2-4-6 years to throw the bums out and fix it?  Thats a long time to suffer.  But there is always civil disobedience in the meantime.


    Would they check urine, (none / 0) (#11)
    by ruffian on Mon Apr 11, 2011 at 02:25:47 PM EST
    or between the teeth for compliance?

    I think it would be easier (none / 0) (#16)
    by Zorba on Mon Apr 11, 2011 at 03:04:37 PM EST
    to check the urine if they required us to eat asparagus every day.  They could tell by the odor alone (at least for many people- I understand that not everyone carries the gene for "asparagus-smelling urine").    ;-)

    That sounds like (5.00 / 1) (#20)
    by jbindc on Tue Apr 12, 2011 at 07:44:05 AM EST
    a great name for a band:

    "Asparagus-Smelling Urine" now playing at the House of Blues.


    Bringing you all their classics, like, (none / 0) (#22)
    by jeffinalabama on Tue Apr 12, 2011 at 08:36:32 AM EST
    "Who Cut The Cheese?"

    "Mudbone's Ammonia P!ss"

    "Golden showers bring may flowers"

    "Porta John Delta Throne Blues"

    and many many more!


    Well, I didn't know that. (none / 0) (#18)
    by jeffinalabama on Mon Apr 11, 2011 at 06:22:02 PM EST
    Obviously I have the gene, though.

    LOL! (none / 0) (#19)
    by Zorba on Mon Apr 11, 2011 at 07:20:38 PM EST
    So do I.  But not everyone does.  ;-)

    simple solution (none / 0) (#15)
    by diogenes on Mon Apr 11, 2011 at 03:03:44 PM EST
    Koster said that he was fine with the law as it was EXCEPT for the individual mandate.
    IF Obamacare is such a good bargain, then undoubtedly the vast majority of people would sign up for it voluntarily, anyway.  Or isn't the "individual mandate" just code words for "stealth tax increase".
    After all, there's no "individual mandate" for the poor to sign up for Medicaid today even though it is free.  Shouldn't there be, if this were really all about "health insurance for all"?