The Unbuttered Slide to Broccoli Mandates
When Austin Frakt comes to a slippery slope, he levels it:
[T]he slippery slope has relevance only in instances for which it isn’t necessary. The government isn’t holding back from mandating broccoli consumption because there is no legislative precedent regulating an “inactivity.” It’s held back because there’s simply no incentive to mandate broccoli eating. If there were, Congress would have already considered it, or ought to. In that case, one need not appeal to a slippery slope, though one certainly could. That is, it’s superfluous.
If passage of broccoli and insurance mandates did relate, the relationship would not be a causal one.
It’s always good to work these things out, and it’s better to know why a particular form of argument is fallacious than just to know that it is fallacious. But I’d just like to make this plain: the slippery slope is an argument fallacy. You should avoid it.
I don’t think Austin’s takedown of the slippery slope is specifically directed at the legal arguments against the individual mandate, but he cites this Andrew Koppelman article, which definitely does attack the legal arguments on those grounds, and with gusto. (Koppelman also posted the slippery-slope portion of his paper at Balkinization.) Koppelman’s point, and Austin’s, boils down to this: Congress won’t mandate broccoli consumption because there’s no need to, and if there were a need, it wouldn’t be the result of the need for the individual mandate. The individual mandate does not in fact make a broccoli mandate more likely, so: no slippery slope.
But I don’t think this is the best way to understand the legal argument the mandate’s challengers are making by raising the hypothetical broccoli mandate. That argument isn’t really a slippery-slope argument at all, although it obviously resembles one (especially when deployed as political rhetoric). The giveaway is captured by Austin’s own observation that “the relationship would not be a causal one.” The heart of the slippery slope is an unsupported prediction that decision A will cause an increase in the likelihood of event B. But the challengers aren’t literally arguing that a broccoli mandate or any other purchase mandate will be made more likely if Congress is allowed to regulate “inactivity.” They are trying to illustrate through hypotheticals what they believe would be flaws in Commerce Clause doctrine were it interpreted to allow the mandate. In other words, they are testing the logical implications of doctrine through the use of analogy.
Argument by analogy is probably the most common form of legal reasoning, though it most often proceeds by analogy to established precedents than by analogy to hypothetical future acts of Congress. In his book, Legal Reasoning and Political Conflict, Cass Sunstein writes: ”American constitutional law is often constructed from analogies—not from text or history, not from moral theory, and not from existing social consensus. Constitutional law is a form of casuistry.” (By “casuistry,” Sunstein means case-by-case decision-making.) But where caselaw does not supply the analogies needed to explore the key issues in a case, they must be explored in hypotheticals. Hence, as Yglesias dubbed it, the dread broccoli mandate.
The real danger here is closer to the criticism Andrew Sabl has made—that the broccoli argument begs the question by assuming a broccoli mandate would be unconstitutional. Consider:
- If the individual mandate is constitutional, then a broccoli mandate is constitutional.
- A broccoli mandate is unconstitutional.
- Therefore, the individual mandate is unconstitutional.
In a sense, a lot of the commentary about slippery slopes amounts to an objection to the first premise here. That’s what all the “healthcare is different/unique” talk is about. If healthcare is different enough, the circumstances may be such as to justify an individual mandate for health insurance but not to justify a mandate to buy or consume broccoli. Then again, maybe circumstances could justify a broccoli mandate, too—if you’re creative enough, you can always construct a hypothetical scenario to fit the bill. In that case, you might grant Premise (1), but why should you grant Premise (2)? The mandate’s challengers want you to think a broccoli mandate would be absurd, because it would be absurd if it were passed today. But if a comet grazes the earth and causes mysterious mass plant extinctions, leaving only broccoli, and the WTO has adopted strict rules forbidding all agricultural subsidies…?
In fairness, the mandate’s challengers don’t really need to prove that a hypothetical mandate to buy broccoli or whatever would actually be unconstitutional. For their purposes it could suffice just to draw attention to the need for “logical limitation” on the scope of the commerce power. However, they should at least have to explain why factual limitations that exist won’t do. There may be a way to do that, but it would require a vegetable far more absurd than broccoli to convince me with this argument.
This Week in Posterior Analytics
We at Organon would like to recognize Jonathan Chait for excellence in the application of Aristotelian logic in public discourse for his post yesterday describing the fallacy of Affirming the Consequent. Chait sketches the form of the fallacy like this:
If A, then B.
B.
Therefore, A.The first two parts (if A, then B, and B) can be true. The fallacy comes in concluding that A is true.
He then breaks down an example from a recent post by Joe Klein at Time’s Swampland:
If [A] Gingrich is running for office, then [B] he will act dumb and angry.
[B] Gingrich is acting dumb and angry.
Therefore, [A] Gingrich is running for office.
The problem is treating material implication (If A, then B) as if it were material equivalence (B, if and only if A). As Chait explains:
Klein proceeds to elaborate that Gingrich will occasionally say something rational when not running for office. Even if we assume that this is true, this is a far weaker claim than saying that Gingrich will exclusively say rational things when not running for office. And that strong claim is necessary to infer that Gingrich is running for office from the fact that he said something dumb and angry. My view is that Gingrich says dumb, angry things constantly and without regard to electoral ambitions. [Ad hominem summation censored.]
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