Not since George H.W. Bush banned it from the menu of Air Force One1 did broccoli receive as much attention as during the legal and political debate over the Patient Protection and Affordable Care Act ("ACA").2 Opponents of the ACA have forcefully and repeatedly argued that if Congress has the power to require Americans to purchase health insurance as a means of reducing health care costs, then it likewise has the power to require Americans to eat broccoli. Broccoli is mentioned twelve times across the four Supreme Court opinions issued in the ACA decision3 -that's eleven more appearances than it had made in all previous Supreme Court decisions combined.4 As Judge Roger Vinson wrote in his district court opinion invalidating the ACA's minimum coverage provision, accepting the government's position meant that Congress "could require that people buy and consume broccoli at regular intervals, not only because the required purchases will positively impact interstate commerce, but also because people who eat healthier tend to be healthier, and are thus more productive and put less of a strain on the health care system."5
What the New Deal Settled,
U. Pa. J. Const. L.
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