Understanding the ACA Arguments

[Mae Kuykendall]

Sen./Doctor Tom Coburn asked Elena Kagan in June 2010:  "If I wanted to sponsor a bill, and it said, “Americans, you have to eat three vegetables and three fruits — every day.” And I got it through Congress and it’s now the law of the land. Gotta do it. Does that violate the commerce clause?"  Three vegetables may well be inclusive of both broccoli and spinach.  Further, the story below says Kagan slipped in her answer, first saying it was a dumb law, and then giving a convoluted legal answer.  The LA Times says conservatives had a field day and a video of the exchange went on the Drudge Report.  The Times explains that fruit and vegetables are a metaphor.  I think English professors will have to study how legal discourse settled on broccoli. There are hints, perhaps a foreshadowing, in the deep resentment expressed by President Bush.  
 
http://articles.latimes.com/2010/jul/01/nation/la-na-kagan-hearings-20100701
 
mk

>>> Martin Jay Sweet <m-sweet at northwestern.edu> 3/29/2012 11:02 PM >>>
Unless Limbaugh is an Article III judge, I'm pretty sure the broccoli reference came from the Florida Federal District Court case (Vinson). Spinach was used by some of the AGs. 

Martin J. Sweet 
Northwestern University

On Mar 29, 2012, at 9:55 PM, "Mae Kuykendall" <mae.kuykendall at law.msu.edu> wrote:



I don't have time to do research on the history of broccoli in legal discourse, either, but I had never heard about it in legal or political theory before.  Its most prominent previous mention was that George H.W.Bush doesn't like it.  He said:  "I do not like broccoli. And I haven't liked it since I was a little kid and my mother made me eat it. And I'm President of the United States and I'm not going to eat any more broccoli." 
 
I concede that President Bush 41 does not have legal training.  Nonetheless, he may deserve credit for the broccoli trope in legal discourse at the highest level.
mk

>>> Richard Dougherty <doughr at udallas.edu> 3/29/2012 10:41 PM >>>
Actually, I think that it worked the other way around; the Tea Party picked up the legal debate (or at least political debate) that had already focused on it. Don't have time to look it up, though... (So, I'm not off the hook, but I'll do it later).
Richard Dougherty

On Thu, Mar 29, 2012 at 9:01 PM, Mae Kuykendall <mae.kuykendall at law.msu.edu> wrote:


Quoting Charles Fried: "I was appalled to see that at least a couple of them were repeating the most tendentious of the Tea Party type arguments,” Fried said. “I even heard about broccoli. The whole broccoli argument is beneath contempt. To hear it come from the bench was depressing.”
Apparently Scalia, a judge often admired for a sharp intellect, virtually quoted arguments concocted and purveyed by Rush Limbaugh.
I share a sense of depression with my former contracts professor. mk


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