-Submitted by David Drumm (Nal), Guest Blogger

During the Supreme Court oral arguments regarding the health care law’s individual mandate, J. Scalia considered the result of allowing the Federal Government to force people to buy health insurance by asking if the government “can make people buy broccoli.”

This is a classic example of the Slippery Slope argument. This type of argument tends to be, but is not inherently, fallacious. Its strength is determined by the number and inevitability of the steps from the top of the slope to the bottom. Scalia did not enumerate the steps, or their causal relationship, between the health insurance mandate and the forced purchase of broccoli.

Eugene Volokh writes about the actuality of slippery slopes:

I would have liked to illustrate the discussion with case studies of how the legal system has slipped down various slippery slopes, but unfortunately it’s generally very hard to tell whether legal change A in fact caused legal change B (even if it’s plausible that it did), … such case studies might therefore have become more controversial than persuasive.

Joey Fishkin is concerned that under the doctrine of Federalism, “Texas could pass a statute and force me to eat broccoli right now.” I’m sure that Robert Bork would point out that broccoli appears nowhere in the Constitution so there is no protected right to not eat broccoli. Michael Ramsey thinks “Texas could … constitutionally (try to) force [Fishkin] to eat [broccoli].”

Paul Krugman points out that “health insurance is nothing like broccoli.” Is Krugman suggesting that Scalia’s argument is an example of the hyperbolized rhetoric of a policy advocate?

H/T: ACS Blog, John Holbo (Crooked Timber), Dana Milbank (WaPo), CBS DC, Eugene Volokh.