My Southern Trip, Part 2: Broccoli at Georgia State

By Mike Dorf

My odyssey below the Mason-Dixon Line continues today, as I deliver the Henry J. Miller Distinguished Lecture at Georgia State College of Law.  Attentive (or obsessive) readers of this blog may recall that I previewed part of what I would have to say last fall, in a post linking to and describing my debate with the Cato Institute's Ilya Shapiro regarding the Affordable Care Act.

There I discussed the part of my paper that develops an alternative limiting principle that the Supreme Court could have fashioned if it had upheld the ACA under the Commerce Clause.  I said (and I say in the paper) that mandates could be limited in the same way that prohibitions are limited under the doctrine: by requiring that the predicate (for either a prohibition or a mandate) be "economic activity."  Thus, a federal mandate to buy broccoli would be valid, whereas a federal mandate to eat broccoli would not be--because purchasing commodities is economic activity, whereas consuming them is not (even though Justice Stevens mistakenly said in the Raich case that consumption of commodities counts as economic activity).

In connection with today's Lecture, here I'm linking to the full paper.  For those readers without the time to slog through it, let me just excerpt the paragraph in the Introduction that summarizes my argument regarding substantive due process.

I begin by rejecting the notion that there is any general prohibition or even presumption against affirmative government mandates.  Nonetheless, the doctrine that has developed around a set of substantive due process rights—those that may be understood as implementing the right to bodily integrity—does indeed reflect an intuition that affirmative mandates are more intrusive than negative prohibitions.  I explain why this intuition might be regarded as sensible.  I also explain how the same intuition connects the political hysteria around the ACA with the legal case that was marshaled against it.  Seeing the matter through the lens of bodily integrity connects the false but politically effective charge that the ACA would establish “death panels” with the ACA’s constitutional challengers’ effective use of the fear that upholding the mandate would permit the government to require people to eat broccoli: Both death panels and forced consumption of broccoli raise the specter of a government that directs people’s intimate decisions about the use of their bodies.  That is a legitimate concern, even if it was misplaced in the ACA case and even though it contradicts decades of attacks on modern substantive due process doctrine by conservative Justices.