Pizza Is the New Broccoli

By Steve Klepper (Twitter: @MDAppeal)

In the 2012 NFIB v. Sebelius challenge to Obamacare, the now-famous broccoli analogy appeared 12 times in the majority, concurring, and dissenting opinions.

Today, we were treated to a (coincidental) same-day Circuit split, with the D.C. Circuit and the Fourth Circuit reaching opposite holdings regarding the legality of subsidies under the federal healthcare exchanges. In the process, Maryland’s own Fourth Circuit Judge Andre Davis has given us a new Obamacare food analogy du jour:

If I ask for pizza from Pizza Hut for lunch but clarify that I would be fine with a pizza from Domino’s, and I then specify that I want ham and pepperoni on my pizza from Pizza Hut, my friend who returns from Domino’s with a ham and pepperoni pizza has still complied with a literal construction of my lunch order.

Slip op. at 42 (Davis, J., concurring). I see three take-aways – or carry-outs, as the case may be.

Lesson #1: We knew here at the blog that statutory construction isn’t easy, but now it’s delicious!

Lesson #2: Don’t be surprised if the pizza analogy makes its way into a petition for en banc rehearing before the D.C. Circuit or on certiorari-stage (or merits-stage) briefing before the U.S. Supreme Court.

Lesson #3: Judge Davis may be a great writer, but his taste in pizza is questionable. There are two Joe Squared locations within two miles of the Baltimore federal courthouse, for goodness sake!

You can even get broccoli on your pizza, if you’re into that sort of thing. And if you’re not into food puns – sorry for this post.