The Return of the Broccoli Horrible
Earlier this month, President Biden announced that OSHA was developing a new rule to require all employees (at companies with at least 100 workers) to either get the COVID-19 vaccine or undergo weekly testing. The White House explained that this vaccine mandate will require employers “to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work.” This is expected to affect 80 million workers.
The libertarian legal intelligentsia immediately gravitated to one thing after the Biden vaccine mandate was announced: broccoli.
“[T]he “broccoli” horrible involved buying broccoli, not forcing people to eat broccoli. We were told the latter mandate would implicate the Due Process Clause. I would wager that forcing someone to eat a vegetable is less intrusive than forcing someone to receive a vaccine,” wrote law professor Josh Blackman. Fellow law professor Randy Barnett seconded the broccoli/vaccine comparison on Twitter.
Blackman and Barnett were both on the vanguard of the legal challenge to Obamacare’s mandate to purchase health insurance back in 2010. In that case, anti-Obamacare attorneys marshaled the “broccoli horrible” analogy to attack the individual mandate: If the Constitution permits the government to compel everyone to purchase health insurance, they argued, then the government could force everyone to purchase healthy foods like broccoli too.
The origins of the broccoli horrible are newly interesting, because a central figure in propagating that line of attack was none other than John Eastman — the now-notorious right-wing law professor who spoke with Rudy Giuliani at the January 6 insurrection rally, and authored a “legal” memo encouraging Vice President Mike Pence to aid and abet Donald Trump’s coup attempt. In August 2010, the libertarian news site Reason released a video debate between Eastman and professor Erwin Chemerinsky called “Wheat, Weed, and Obamacare: How the Commerce Clause Made Congress All-Powerful.” During that debate, Eastman argued that “the government could force you to eat three meals a day” or “not eat McDonalds hamburgers” if the courts uphold the healthcare mandate.
Eastman’s healthy-eating analogy was then picked up by federal district court judge Roger Vinson (a Reagan appointee). In one of the early ACA decisions, in January 2011, Vinson held that the individual mandate was unconstitutional. He rejected the Obama administration’s defense of the mandate, writing that under its logic, “Congress could require that people buy and consume broccoli at regular intervals.” It was clear that Judge Vinson picked up this argument from Eastman: he both asked the government about the Eastman video at oral argument, and directly cited to the video in his opinion.
After Judge Vinson’s reference, the broccoli analogy blew up on the right. The next month, Eastman was on Fox News arguing, “If the government can order you to buy health insurance it can order you to buy broccoli.” When the Obamacare case reached the Supreme Court, Justice Antonin Scalia asked the Solicitor General whether the government could force people to buy broccoli. And ultimately, “broccoli” made no fewer than twelve appearances across the opinions issued by a divided Supreme Court (which narrowly upheld the mandate as a constitutional tax).
The revival of the broccoli comparison today makes clear that the right sees Biden’s vaccine mandate as its opportunity to resist big-government tyranny, in the same way that President Obama’s healthcare mandate fueled Tea Party libertarianism in 2010. That’s also clear from the hyper-dramatic responses from Republican governors and politicians across the country, like South Dakota Governor Kristi Noem, telling Biden: “see you in court.”
As became clear in the Obamacare litigation, cable-news constitutional claims and the swirl of uniform Republican uproar can generate its own legal momentum — especially in a federal judiciary which now features an even sharper conservative tilt.
However, the broccoli comparison just doesn’t hold water to attack the vaccine mandate. Blackman and Barnett compare the vaccine mandate to “forcing people to eat broccoli.” But no one is being forced to receive a vaccine. Instead, the “vaccine mandate” actually mandates weekly COVID testing for employees, with an exception for those who have been vaccinated.
That’s quite different. So the correct broccoli analogy would be this: Imagine there’s a rampant communicable disease that people can get and spread if they don’t eat broccoli. The government then says, “Everyone must get tested weekly for this disease, unless they eat their broccoli.” Blackman and Barnett’s “broccoli mandate” is really a broccoli exception.
A literal broccoli mandate would be: Eat your broccoli or go to jail! Or eat your broccoli or pay a 95% income tax! Or government agents force-feeding you broccoli (which is a thing that happened in the 1890s to administer smallpox vaccines).
The OSHA vaccine mandate doesn’t come anywhere close to that. Instead, it preserves individual choice by allowing employees to either get tested or get vaxed.
In that sense, it looks a lot like the Obamacare health insurance mandate. That mandate functioned as essentially a tax reduction for everyone who purchased health insurance. Or conversely, it allowed people to choose between purchasing insurance or paying a tax.
The “mandates” in both contexts are deliberately overstated as a matter of policy. Even though vaccination isn’t required for compliance, Biden’s preference is clearly for people to get vaccinated instead of submitting to weekly testing. The same was true for Obama: he wanted people to get insured, not to pay a tax. The rhetorical framing made each government policy sound more coercive than it was in substance.
That in turn triggers a literal federal case (and probably many more) out of the libertarian right, always eager to fend off real or imagined liberal tyranny. Whether or not the broccoli analogy holds up, claims and ideological gut instincts about liberty and the proper scope of government will color how federal judges evaluate Biden’s vaccine mandate. We probably have not heard the last of the broccoli horrible.
