Health Care, Broccoli, Big Sodas and the Liberty Question

Question 1

I. New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Department of Health and Mental Hygiene

Answer 1

(Soda/Banned big cup case)assuming no deprivation of constitutional right, state law cannot be over-turned

Question 2

1. Focus on idea of personal liberty, not economic liberty – argument regarding family, body, healthcare decisions being intimate and autonomy related

Answer 2

a) Paternalistic view: “You shouldn’t be able to buy a huge cup of soda because it’s bad for you.”
b) Counter-argument: Unlike head injury due to no helmet in motorcycle wreck, there is no direct causation with soda and obesity.Other factors (ie exercise)
i) Response: Externalist argument. Obesity puts strains on the public who have to care for sick people–> See Ginsburg argument in NFIB v. Sebelius

Question 3

2. Can the gov’t make us buy broccoli?

Answer 3

a) Yes. Under substantive due process, in the area of social & economic regulation, all the gov’t needs in order to regulate is a rational basis unless we are in one of the areas of high scrutiny from Carolene Products. If not in higher scrutiny, the least restrictive alternative is not required.
i) Arguing Congress can’t do this because it is a restriction on individual liberty would be a loser
b) Yes. Taxing & Spending Clause – gov’t can tax us for not buying broccoli.

Question 4

3. Does the argued impermissibility of a broccoli requirement require the revitalization of Lochner, & thus the limiting of Carolene Products, Williamson, Ferguson, etc?

Answer 4

Yes
a) Current due process doctrine is rational basis. Unlikely the broccoli argument gets us into the area of higher scrutiny. Court would need to be able to identify fundamental liberties.

Question 5

4. Is the actual SCOTUS decision in NFIB v. Sebelius relevant to the current soundness or plausibility of the broccoli argument?

Answer 5

Yes.

a) Added inactivity/activity distinction to Commerce Clause doctrine
b) The broccoli/liberty argument was embedded in the commerce clause argument which the majority accepted in part when discussing the commerce clause.
i) When congressional power would limit individual liberty by forcing people to engage in affirmative acts (think inactivity/activity distinction), as opposed to prohibitions, then power under the commerce clause is narrower than it would normally be.

Question 6

5. Would it be plausible to challenge the Affordable Care Act’s individual mandate on liberty/due process grounds?

Answer 6

Yes. Probably not a winner though.
a) Since the court upheld the law under the Taxing Clause but not under the Commerce Clause, there could be a challenge of law on due process & liberty grounds (jurisdictionally allowed since it wasn’t decided in the case).

Question 7

6. Would it be plausible in 2014 to challenge the Massachusetts health care law on liberty/due process grounds?

Answer 7

Yes.

a) In theory this may be something Congress can’t do because its powers are limited by Art. 1, § 8, but states can because their police powers are broad.
b) Since the commerce clause argument doesn’t apply to states, striking down the commerce basis for the healthcare law says nothing about the MA gov’ts ability to have a similar law

Question 8

7. The Commerce Clause argument and the Liberty Argument are two different arguments!

Answer 8

a) If Congress can’t do this because it is an infringement of personal liberty, then Massachusetts can’t do it either!
b) If Congress can’t do this because it doesn’t have the power under Art. 1 § 8, that says nothing about what Massachusetts can do.