Will French Fries Become the New Broccoli for Health Reform Opponents?

The Supreme Court recently declined to hear a case claiming a federal ban on violent felons owning body armor violates the constitution, over the dissents of Justices Scalia and Thomas. Numerous commentators are now combing that dissent for hints on whether the justices will vote to uphold the landmark Affordable Care Act.

Predictions that the three conservatives who did not join this dissent will also reject the Affordable Care Act’s opponent’s claim that health reform exceeds congressional authority are probably premature. A decision not to hear a case is not a decision on the merits, and Roberts, Kennedy and Alito may have declined to join their fellow conservatives for all kinds of reasons unrelated to their views on congressional power. There is one passage in the Scalia/Thomas dissent, however which could have future implications:

The Ninth Circuit’s interpretation of Scarborough seems to permit Congress to regulate or ban possession of any item that has ever been offered for sale or crossed state lines. Congress arguably could outlaw “the theft of a Hershey kiss from a corner store in Youngstown, Ohio, by a neighborhood juvenile onthe basis that the candy once traveled . . . to the store from Hershey, Pennsylvania.” The Government actually conceded atoral argument in the Ninth Circuit that Congress could ban possession of french fries that have been offered for sale in interstate commerce.

Justice Thomas, who wrote this dissent, clearly thinks he has a zinger with this french fries line — but it’s not exactly clear why. Congress routinely prohibits possession of products that have been offered for sale in interstate commerce — cocaine and heroin are two examples. Significantly, Justice Scalia wrote a 2005 opinion insisting that a federal ban on the possession of all marijuana — not simply that which has traveled in interstate commerce — is constitutional. Constitutional lawyers — including myself — routinely site this opinion as evidence that Scalia would vote to uphold the Affordable Care Act.


So Scalia’s decision to join Thomas’ dissent is a bit odd, although not necessarily a sign that he is abandoning his previous views on Congress’ power to ban drugs or other things. Thomas’ body armor opinion merely argues that Congress cannot ban body armor under its power to regulate interstate commerce, while Scalia’s marijuana opinion claimed that Congress can use its commerce power and its somewhat broader Necessary and Proper power together to ban possession of an illegal substance.

Yet, while Congress’ power to ban heroin, marijuana or french fries is well established, it is likely that Thomas’ warning about a dystopian future where fried potatoes are banned will soon find its way into the parade of culinary horribles that conservatives warn of every time the Affordable Care Act gets brought up.

During Justice Kagan’s confirmation hearing, Sen. Tom Coburn (R-OK) falsely suggested that if Congress can require most Americans to carry insurance, it can also require everyone to eat their veggies. He is wrong. Because the Affordable Care Act prohibits insurance companies from denying coverage to people with preexisting conditions, it must also ensure that nearly everyone carries insurance. If patients can wait until they get sick to buy insurance, they will drain all the money out of an insurance plan that they have not previously paid into, leaving nothing left for the rest of the plan’s consumers, and eventually collapsing the entire individual health insurance market.

By contrast, there is no risk that the national market for vegetables will collapse if Congress does not require people to purchase broccoli, so a “vegetable mandate” simply does not fit within Congress’ constitutional power to ensure that its economic regulations are effective in the same way that a requirement to carry insurance does.

Nevertheless, conservatives have had no trouble repeating Coburn’s wild fears about big government literally forcing broccoli down people’s throats, and it is probably only a matter of time before they become equally enraptured with Thomas’ fried fried fear mongering.