Why Broccoli? Limiting Principles and Popular Constitutionalism EVIEW R in the Health Care Case Mark D. Rosen Christopher W. Schmidt ABSTRacT UCLA LAW UCLA LAW Crucial to the U.S. Supreme Court’s disposition of the constitutional challenge to the Affordable Care Act (ACA) was a hypothetical mandate to purchase broccoli, which the U.S. Congress never had considered and nobody thought would ever be enacted. For the five justices who concluded that the ACA exceeded Congress’s commerce power, a fatal flaw in the government’s case was its inability to explain adequately why upholding that mandate would not entail also upholding a federal requirement that all citizens purchase broccoli. The minority insisted the broccoli mandate was distinguishable. This Article argues that the fact that all the justices insisted on providing a limiting principle—which was the demand underlying the broccoli hypothetical—was perhaps the most notable, precedent-breaking aspect of its landmark decision. As the Article shows, the Court almost always uses narrow, localist reasoning that analyzes only the government’s actual action when confronted with novel constitutional questions. Indeed, the Court ordinarily explicitly declines to provide a limiting principle until it has heard several cases from which it can confidently deduce one. The Article provides the first comprehensive analysis of how, and why, the broccoli hypothetical ultimately proved so deeply consequential. Outside the courts, where the constitutionality of the mandate was robustly debated, the broccoli hypothetical served to highlight the potential liberty costs of the ACA. In the courts—where, strictly speaking, the doctrinal question involved not personal liberty but congressional power— broccoli ensured that liberty costs would be a significant element of the constitutional analysis, and it also generated a perceived need to identify a limiting principle. In short, broccoli was a critical bridging mechanism that brought together the popular constitutional movement mobilized against the ACA and the constitutional challenge taking place in the courts. We conclude with a normative assessment of this extrajudicial influence on the courts. We argue that while popular constitutional theory might justify the majority’s novel liberty-centered approach to congressional power, it cannot warrant the Court’s unusual break from localist legal reasoning. The Court’s premature engagement with limiting principles bypassed the benefits of its ordinary incremental, case-by-case analysis, and circumvented institutional synergies that can generate superior and more democratically legitimate outcomes when courts and legislatures work together, over time, to flesh out constitutional judgments. 61 UCLA L. REV. 66 (2013) auTHORS Mark D. Rosen is a Professor of Law at IIT Chicago-Kent College of Law. Christopher W. Schmidt is an Assistant Professor of Law at IIT Chicago-Kent College of Law and a Faculty Fellow at the American Bar Foundation. We received very helpful comments from Aziz Huq, Dean Harold Krent, Sheldon Nahmod, Louis Michael Seidman, Mark Tushnet, Ozan Varol, and participants in the Chicago Junior Faculty Workshop and the junior faculty workgroup at Chicago- Kent. We would also like to thank Bobby Double for his excellent research and editorial assistance. 67 Table OF CONTENTS Introduction...............................................................................................................69 I. The Broccoli Puzzle.........................................................................................73 A. Broccoli in NFIB .........................................................................................73 B. The Puzzling Prominence of Limiting Principles in NFIB.........................77 C. Localist Reasoning Elsewhere in NFIB ......................................................79 D. Two Recent Examples of Localist Reasoning in Novel Cases ....................81 1. Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC ........82 2. District of Columbia v. Heller ...............................................................84 E. Additional Cases ..........................................................................................85 F. Possible Counterexamples ...........................................................................90 1. When Facts Do Not Matter ..............................................................91 2. Fair Depiction or Overstatement?: Novelty Revisited .......................93 II. Broccoli as Popular Constitutionalism .....................................................98 A. Broccoli and the ACA Challenge ..............................................................100 B. Popular Constitutionalism and the Translation Problem ..........................113 C. Why the Popular Demand for Limiting Principles? .................................115 III. Popular Constitutionalism and NFIB: Two Normative Assessments ......................................................................................................120 A. Substantive Considerations .......................................................................121 1. Liberty and Federalism in NFIB ......................................................121 2. Popular Constitutionalism and Liberty-Centered Federalism .........128 a. Theory ......................................................................................128 b. Empirics ..................................................................................129 B. Procedural Considerations .........................................................................132 1. Judicial Competency .........................................................................132 2. Appropriate Respect for Congress ...................................................136 a. Harmonizing Competing Commitments ...............................137 b. Facts’ Centrality to Normatively Correct Outcomes ...............139 c. Revisiting the Exceptions ........................................................141 3. Institutional Synergies ......................................................................143 Conclusion ................................................................................................................144 68 Why Broccoli? 69 INTRODUCTION Broccoli made its appearance early in the debate over the Patient Protection and Affordable Care Act (ACA).1 At first it seemed a joke, one of those spasms of political hyperbole that seem to emerge in any heated public debate. At issue was the constitutional authority by which the U.S. Congress could require people to purchase health insurance—the individual mandate provision of the ACA. If the Constitution were read to allow the federal government to require individuals to purchase health insurance, critics asked, was there anything to prevent the government from requiring people to do all sorts of things against their will? Could the government demand that people purchase broccoli? No one in Congress had ever seriously considered such a broccoli mandate, of course. The issue at hand was health care and insurance, not green vegetables. Broccoli was a pure hypothetical of the slippery-slope, reductio ad absurdum variety. Yet the broccoli hypothetical proved to be a surprisingly persistent presence in the constitutional challenge to health care. Conservative lawyers pressed the broccoli analogy (along with other hypothetical mandates) in their numerous legal challenges to the ACA,2 and broccoli found its way into the text of several lower court opinions.3 When the U.S. Supreme Court justices pressed the broccoli hypothetical on Solicitor General Verrilli during oral arguments, the only surprise was that he did not have a crisp response to the question everyone fully expected would be asked.4 The Supreme Court’s ruling in National Federation of Independent Business v. Sebelius (NFIB)5 sealed broccoli’s immortality in constitutional jurisprudence. The three main written opinions included twelve references to broccoli and five 1. Pub. L. No. 111-148, 124 Stat. 119 (2010). 2. See, e.g., JEFFREY TOOBIN, THE OATH: THE OBAMA WHITE HOUSE AND THE SUPREME COURT 269 (2012) (describing the discussion of broccoli hypothetical at oral arguments in Thomas More Law Center v. Obama, 651 F.3d 529 (6th Cir. 2011)); see also, e.g., Florida ex rel. Bondi v. U.S. Dep’t of Health & Human Servs., 780 F. Supp. 2d 1256, 1289 (N.D. Fla. 2011) (referencing the discussion of broccoli at oral argument). 3. See, e.g., Liberty Univ., Inc. v. Geithner, 671 F.3d 391, 422, 438, 440, 447–48 (4th Cir. 2011) (Davis, J., dissenting); Goudy-Bachman v. U.S. Dep’t of Health & Human Servs., 811 F. Supp. 2d 1086, 1102 (M.D. Pa. 2011); Florida ex rel. Bondi v. U.S. Dep’t of Health & Human Servs., 780 F. Supp. 2d 1307, 1311 (N.D. Fla. 2011); Florida ex rel. Bondi, 780 F. Supp. 2d at 1289. 4. See Noah Feldman, Broccoli-Bungling Defense Hurts Health Care, BLOOMBERG (Mar. 27, 2012, 3:28 PM), http://www.bloomberg.com/news/2012-03-27/broccoli-bungling-defense-puts-health- care-at-risk-noah-feldman.html. 5. 132 S. Ct. 2566 (2012). 70 61 UCLA L. REV. 66 (2013) separate discussions of the broccoli mandate’s legal implications.6 Five justices cited the government’s inability to provide a satisfying answer to the broccoli hypothetical as a justification for creating a novel limitation on Congress’s Commerce Clause powers and for concluding that the ACA’s mandate exceeded that limit. Even the dissenters to the Commerce Clause holding felt