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Obamacare: It’s Still About Broccoli


Editor's note: As the Supreme Court prepares to issue its ruling in the Obamacare case, bill supporters such as former U.S. Senator Tom Daschle continue to argue that the individual mandate has nothing to do with broccoli.  Actually, the mandate has everything to do with broccoli, as U.S. Senator and doctor Tom Coburn’s memorable exchange with then-Supreme Court nominee Elena Kagan during her confirmation hearing showed. Dr. Coburn describes the exchange in his new book, The Debt Bomb: A Bold Plan to Stop Washington from Bankrupting America, which is excerpted below. 


Among the enumerated powers none has been expanded further beyond our founders’ design than the Commerce Clause. Congress’s expansion of the Commerce Clause, and the Supreme Court’s refusal to rein in Congress, have been particularly instrumental in building the debt bomb.

Again, Article I, section 8, of the Constitution gives Congress the specific, and limited, enumerated power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.

For most of our history, this enumerated power meant what it says: Congress has the power to regulate the flow of goods across state and international lines. Legitimate applications of this power included the building of railroads and the interstate highway system.

By 1941, however, politicians and judges decided our founders had it all wrong and decided to throw away 150 years of law. As American troops prepared to land on Guadalcanal and North Africa in our epic struggle for freedom, anti-constitutional forces at home decided individual freedom was overrated. The target of their campaign that changed the world was a troublesome Ohio farmer named Roscoe Filburn, whose great offense was growing too much wheat.

During the Great Depression the government had imposed limits on wheat production to drive up prices. Filburn was growing more than he was allowed per acre, and even though he used the excess for himself instead of selling it, he was ordered to cease and desist, pay a fine, and destroy the contraband wheat. Filburn stood his ground and took on the forces of domestic fascism, taking his case all the way to the United States Supreme Court.

In a fateful decision, however, the Court ruled that Filburn was a threat to domestic tranquility. The Court decided that because Filburn used his excess wheat to feed his chickens, he was reducing the amount he would spend on the government-regulated market. Because that market crossed state lines, the Court reasoned, Filburn’s contraband wheat affected interstate commerce and could therefore be regulated. This decision set the stage for Obamacare and its individual mandate that says free people must buy health insurance.

Nearly seventy years later, in 2010, the plight of Roscoe Filburn and the divisive debate about Obamacare were fresh on my mind when it came my turn to question Elena Kagan, who had been nominated to replace Justice John Paul Stevens.

When my turn came to question Kagan, I decided to cut to the chase.

I started by asking, “If I wanted to sponsor a bill and it said, ‘Americans, you have to eat three vegetables and three fruits every day,’ and I got it through Congress, and that’s now the law of the land, got to do it, does that violate the Commerce Clause?”

Kagan responded in good humor. “Sounds like a dumb law,” she said.

“Yeah,” I responded, “but I got one that’s real similar to it that I think is equally dumb. I’m not going to mention which it is.” I was referring, of course, to Obamacare.

Kagan continued, “But I think that the question of whether it’s a dumb law is different from the question of whether it’s constitutional, and I think that courts would be wrong to strike down laws that they think are senseless just because they’re senseless.”

"I guess the question I’m asking you is, do we have the power to tell people what they have to eat every day?" I asked. "What is the extent of the Commerce Clause? We have this wide embrace of the Commerce Clause, which these guys who wrote this [holding up a bound copy of Federalist Papers] never, ever fathomed that we would be so stupid to take our liberties away by expanding the Commerce Clause this way . . ."

I go back to my original question to you: is it within the Constitution for me to write a bill, having been duly elected by the people of Oklahoma, to say—and get it signed by the president— that you have to eat three fruits and three vegetables every day?

Kagan referred back to an answer she had given Senator Cornyn. She explained the Commerce Clause has been interpreted broadly to apply to regulation of any channel of commerce and anything that would substantially affect interstate commerce.

She then attempted to answer my real question this way: “But I do want to sort of say again . . . we can come up with sort of, you know, just ridiculous sounding laws, and the . . . principal protector against bad laws is the political branches themselves. And . . . I would go back, I think, to Oliver Wendell Holmes on this. He was this judge who lived . . . in the early 20th century—hated a lot of the legislation that was being enacted during those . . . years but insisted that, if the . . . people wanted it, it was their right to go hang themselves. Now, that’s not always the case, but— but there is substantial deference due to political branches.” Our discussion continued:

COBURN: I’m running out of time. I want to give you another condition: what if I said that if eating three fruits and three vegetables would cut health care costs 20 percent, now—now, we’re into commerce. And since the government pays 65 percent of all the health care costs, why—why isn’t that constitutional?

KAGAN: Well, Senator Coburn, I . . . feel as though . . . the principles that I’ve given you are the principles that the court should apply with—

COBURN: Well, I have a little problem with that because if—if we’re going to hang ourselves, and as our founders, three of the critical authors of our Constitution thought the judiciary had—had a reason to smack us down, and as Oliver Wendell Holmes, if we want to be doing stupid stuff, we can do stupid stuff, I disagree. I think—you know, and that’s not activism. That’s looking at the Constitution and saying, well, we’re going to ignore it even if it does expand the Commerce Clause, because the Commerce Clause is what has gotten us into a place where we have a $1.6 trillion deficit, that our kids’ future has been mortgaged, we may never recover from.

That’s not an understatement at all. In 25 years, they’re going to—each of our kids are [sic] going to owe $1,130,000 before they pay—pay interest on that before they do anything for themselves or their kids. So the fact is, is that we have this expansive clause, and we have to have some limit on it. And if the—if the courts aren’t going to limit it within the original intent, instead of continuing to rely on precedent of this vast expansion of it, the only hope is, is that we have to throw out most of the Congress . . .

And what we find ourselves today on the Commerce Clause is that with—through a period of precedent-setting decisions, we have allowed the federal government to become something that it was never entitled to become, and—and with that, a diminishment of the liberties of the people of this country, both financially and in terms of their own liberty.

KAGAN: Well, Senator Coburn . . . a few points. The first . . . I think that there are limits on the Commerce Clause . . . which are primarily about non-economic activity and Congress not being able to regulate non-economic activity.

The second point I would make is—is I do think that very early in our history—and—and especially I would—I would look to Gibbons v. Ogden, where Chief Justice Marshall did, in the first case about these issues, essentially read that clause broadly and—and provide real deference to legislatures and provide real deference to Congress about the scope of that clause, not that the clause doesn’t have any limits, but that deference should be provided to Congress with respect to matters affecting interstate commerce.

And I guess the third point is . . . that $1.6 trillion deficit may be an enormous problem. It may be an enormous problem. But I don’t think it’s a problem for courts to solve; I think it’s a problem for the political process to solve.

COBURN: You missed my whole point. We’re here because the courts didn’t do their job in limiting our ability to go outside of original intent on what the Commerce Clause was supposed to be. Sure, you can’t solve the problem now, but you helped create it as a court because you allowed something other than what our original founders thought was a legitimate role for the federal government.


At the time I asked this question, many in the media dismissed it as not terribly serious. My point, though, was not to pretend to be a lawyer. My goal was to bring the real-world experience I did have to bear on one of the most important questions of our time. And it was ironic that some pundits were offended by the question more than the answer that Congress did, in fact, have the power to tell us to eat our fruits and vegetables.

The exchange highlighted for the country the reason we are in such a deep hole. Congress had deliberately expanded the scope of its power, and not even the Supreme Court felt it had the authority to rein in Congress. No one was watching the store. There was no longer any balance of power between the branches of government. The Supreme Court was designed to check Congress when it got out of bounds. The Supreme Court, however, did not want this role. It would simply make new laws if it didn’t like the ones Congress passed …

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