The 5th Avenue to Serfdom

Nobody thought about taking away your Big Gulp until the government began to pay for everyone's health care

By HOLMAN W. JENKINS, JR

Mike Bloomberg's move to regulate the size of sodas sold in his city illustrates why it's a good thing he is a mayor of New York and not the czar of all the Russias. American big cities tend to be one-party states to begin with, but at least their totalitarian impulses end up being merely cute because they're so easy to evade.

Under the Bloomberg plan, any cup or bottle of sugary drink larger than 16 ounces at a public venue would be verboten, beginning early next year. You'll still be able to buy as much Coke as you want in a supermarket. Go home and pour yourself a bucketful. As Mr. Bloomberg himself was the first to note, you'll also still be free to buy two medium drinks in place of today's Big Gulp at ballgames, theaters, delis and other venues where the ban would be in effect.

"New York City is not about wringing your hands; it's about doing something,'' added Mr. Bloomberg, peculiarly.

Half of the city's residents allegedly are obese or overweight—a stat seemingly belied by the ladies who lunch and the impression on the subway that New York remains one of the few places in America where people have not ballooned to supersize. But by the state's own estimate, it spends $8 billion annually treating obesity-related ailments under Medicaid, which is how 40% of city residents now get their health care.

Here is the ultimate justification for the Bloomberg soft-drink ban, not to mention his smoking ban, his transfat ban, and his unsuccessful efforts to enact a soda tax and prohibit buying high-calorie drinks with food stamps: The taxpayer is picking up the bill.

Call it the growing chattelization of the beneficiary class under government health-care programs. Bloombergism is a secular trend. Los Angeles has sought to ban new fast-food shops in neighborhoods disproportionately populated by Medicaid recipients, Utah to increase Medicaid copays for smokers, Arizona to impose a special tax on Medicaid recipients who smoke or are overweight. New York itself, with private money, some of it from Mr. Bloomberg's own pocket, has also tried the carrot approach, dangling direct payments to encourage beneficiary families to adopt healthier habits.

So perhaps the famous "broccoli" hypothetical during the Supreme Court ObamaCare debate was not so fanciful after all. It flows naturally from the state's fiscal responsibility for your health that it will try to regulate your behavior, even mandating vegetable consumption.

As we never tire of pointing out, the unlikely roots are found in the 1998 tobacco settlement. Those cases weren't filed on behalf of smokers, whom courts ruled repeatedly accepted the risks of smoking. Under an even more ancient principle, known as subrogation, courts long held that if a customer doesn't have a case against a product that injured him, his insurer doesn't have a case either.

In 1994, Florida legislators bulldozed these principles so the state Medicaid agency could sue cigarette makers for the cost of treating sick smokers. When the state is the insurer and can change the rules to suit itself, after all, why brook any limitation on its ability to pass the buck? Law is a convenience for our rulers only when it gets them off the political hook of having to mediate purely private disputes between their cranky subjects. The one thing the state has no interest in using the law to restrain is itself.

Yes, we're still a long way from tyranny in America. The right to smoke in a bar; the right to snarf a transfat-soaked french fry; the right to lug a 32 oz. tub of Grape Nehi into the movie theater—these are not precious rights. But it's also true that nobody thought of taking them away until the government itself became responsible for our runaway health-care spending.

To many liberals, ObamaCare was overdue. Other advanced societies long ago recognized an obligation to provide universal health-care guarantees. The U.S. needed to catch up.

Yet it's a mistake not to root political actions, even those based on "universal" principles, in their time. Two generations ago, the impetus was to extend health care to those who didn't have it. The entire industrial world is at the opposite end of an arc of government growth and sustainability today. The new impetus inevitably will be to deny health care to those whom it is not cost-effective to treat. That's a side of Bloombergism the body politic may one day find harder to swallow.