The Case of the Cruciferous Vegetable, the Cornhusker Kickback, Justice Scalia, Right-Wing Talking Points, and the Affordable Care Act

Submitted by Elaine Magliaro, Guest Blogger

Roy Blount, Jr.—author, humorist, poet, reporter, performer, and frequent guest on Wait, Wait…Don’t Tell Me!—once wrote the following:

The local groceries are all out of broccoli,


It’s a terse rhyming couplet that probably expresses the way many people feel about the green cruciferous vegetable. I don’t know how Antonin Scalia feels about eating broccoli—but I do know that the nutritious vegetable has been getting a lot of press lately due to remarks that the Justice made about it and the health care mandate during the recent Supreme Court hearings on the Affordable Care Act:

“Could you define the market — everybody has to buy food sooner or later, so you define the market as food,” Scalia said, discussing a hypothetical. “Therefore, everybody is in the market; therefore, you can make people buy broccoli.”

He added, “Does that expand your ability to, to issue mandates to the people?”

Some journalists and bloggers believe that Justice Scalia didn’t come up with that bad broccoli analogy on his own. They think he may be echoing GOP and conservative media talking points on the ACA.

In The Baltimore Sun, Dan Rodricks wrote:

His fans keeping telling us of the brilliance of Justice Scalia — so brilliant, no one can touch him. But the broccoli hypothetical didn’t strike me as particularly brilliant. It sounded more Limbaughian than anything else, some conservative talking point on Obamacare circulated by the Republican Party.

“There’s no doubt that lack of exercise causes illness, and that causes health care costs to go up,” Justice Scalia said, as the audition continued. “So the federal government says everybody has to join an exercise club.”

This wasn’t genuine judicial probing. This was cheap, sound-bite rhetoric that betrayed a predisposed hostility toward the law.

From David Lyle of Media Matters:

Rush Limbaugh and Fox News have promoted the right-wing talking point that any reading of the Constitution that supports the Affordable Care Act’s individual mandate to purchase health insurance would also permit Congress to require all Americans to purchase broccoli. In doing so, they frighten their audience with the specter of limitless federal government power. This slippery slope argument turns out, however, to be too slippery by half, and it gets both the Constitution and the facts of the health care marketplace wrong. 

Limbaugh’s “broccoli mandate” talking point is refuted by economists who argue that the individual mandate is an appropriate response to the serious problem of consumers with preexisting conditions being unable to purchase insurance in the health care market. Furthermore, legal experts argue that the Constitution gives Congress the power to adopt the mandate, and this power does not extend to absurd hypotheticals such as a requirement to purchase broccoli.

Limbaugh on his imagined broccoli mandate:  “Mr. New Castrati, if they can force us to buy health insurance, they can force us to buy broccoli…. Once you people get it in your heads that you can force us to buy health insurance, what’s to stop you from making us buy a stupid electric car?” [Premiere Radio Networks, The Rush Limbaugh Show, 2/1/11, emphasis added]

In addition to injecting right-wing talking points into the discussions on the ACA, it  appears that Scalia may not be as knowledgeable about the act as he might like some people to think. The associate justice brought up the “11th-hour deal” that the Democrats made with Senator Ben Nelson of Nebraska in order to secure his vote:

“It’s clear that Congress would not have passed it without that. You are telling us that the whole statute would fall because the Cornhusker kickback is bad.”

Actually, what we know is that the “Cornhusker kickback” — a rightwing term of art — is not in the Affordable Care Act at all. Scalia was repeating something he heard on his radio or on his TV. It was eliminated before the bill passed. So Scalia was constructing his “hypothetical” around something that is no more part of the ACA than the public option is. He’s just not trying very hard anymore. Neither, apparently, are many of his defenders. (Charles P. Pierce, Esquire)

In his article for TPMDC titled Scalia Echoes GOP Buzzwords Against ‘Obamacare’, Sahil Kapur provides a number of right-wing talking points—including broccoli, the Cornhusker kickback, execrcise, and the Tenth Amandment—that Scalia brought up during the hearings:

“I mean, the 10th Amendment says the powers not given to the Federal Government are reserved, not just to the States, but to the States and the people,” Scalia said Tuesday, arguing that the court has held certain laws “reasonably adapted” but not “proper” because they “violated the sovereignty of the States, which was implicit in the constitutional structure.”

The 10th Amendment argument is a common line of attack by Republicans, including Mitt Romney, invoked to argue that ‘Obamacare’ tramples states rights. And though the states challenging the law claim the Medicaid expansion violates the 10th Amendment, Scalia cited it in reference to the individual mandate.

Charles Fried, who served as President Reagan’s Solicitor General, was critical not only of Scalia but also of the other conservative justices who appear to oppose the ACA. He thinks their opposition to it is about “politics, politics, politics.”

From Media Matters:

Fried has been “scaldingly critical” of Scalia and other conservative justices for their willingness to “traffic in some of the most well-worn Tea Party tropes about Obamacare” according to the Washington Post’s Greg Sargent. Sargent quotes Fried: 

“I was appalled to see that at least a couple of them were repeating the most tendentious of the Tea Party type arguments …. I even heard about broccoli. The whole broccoli argument is beneath contempt. To hear it come from the bench was depressing.”

Charles P. Pierce thinks that Justice Scalia is bored, has already begun his retirement, and really isn’t putting in much of an effort any longer:

It’s been clear for some time now that he’s short-timing his job on the Supreme Court. The job bores him. All these inferior intellects coming before him. All those inferior intellects on the bench with him, now with some other Catholics who aren’t even as Catholic as he is, Scalia being the last living delegate who attended the Council of Trent. Inferior Catholics with inferior minds. What can a fellow do? He hung in there as long as he could, but he’s now bringing Not Giving A Fuck to an almost operatic level

It is plain now that Scalia simply doesn’t like the Affordable Care Act on its face. It has nothing to do with “originalism,” or the Commerce Clause, or anything else. He doesn’t think that the people who would benefit from the law deserve to have a law that benefits them. On Tuesday, he pursued the absurd “broccoli” analogy to the point where he sounded like a micro-rated evening-drive talk-show host from a dust-clotted station in southern Oklahoma. And today, apparently, he ran through every twist and turn in the act’s baroque political history in an attempt to discredit the law politically, rather than as a challenge to its constitutionality. (What in hell does the “Cornhusker Kickback” — yet another term of art that the Justice borrowed from the AM radio dial — have to do with the severability argument? Is Scalia seriously making the case that a banal political compromise within the negotiations from which bill eventually is produced can affect its ultimate constitutionality? Good luck ever getting anything passed if that’s the standard.) He’s really just a heckler at this point. If he can’t do any better than that, he’s right. Being on the court is a waste of his time.

Former Reagan Official Debunks “Broccoli” Mandate Charge

We’ll now have to wait until June to find out how the Supreme Court rules on the constitutionality of the Affordable care Act. I hope ideology doesn’t rule the day.


Obamacare at the Supreme Court: What’s broccoli got to do with it?: The Supreme Court strives for legitimacy even as justices betray their prejudices on health care law (The Baltimore Sun)

The Fox News Justice: Scalia Channels Right-Wing Talking Points In Health Care Arguments (Media Matters)

Scalia Echoes GOP Buzzwords Against ‘Obamacare’ (TPMDC)

Supreme Court Justices use Right Wing talking points to Challenge Obama Health Care Law (Add More Juice)

Broccoli and Bad Faith (New York Times)

Roy Blount, Jr. (The Atlantic)

Justice Scalia briefing papers: Right-wing blogs (Daily Kos)

Tony Scalia’s Retirement Has Started Early (Esquire)

Are our Supreme Court justices putting us on? (Examiner)

Supreme Court Justices Struggle With Health Policy And Key ‘Obamacare’ Facts (TPMDC)

Scalia wonders about a broccoli mandate (Politico)

On the Cornhusker Kickback and My Man Tony Scales(Esquire)

Hold The Broccoli: What Limbaugh And Fox Get Wrong About The Constitution And The Affordable Care Act (Media Matters)

Reagan’s solicitor general: ‘Health care is interstate commerce. Is this a regulation of it? Yes. End of story.’ (Washington Post)

Conservative Judicial Activists Run Amok (New York Magazine)

The Individual Mandate: Not a Slippery Slope (The American Prospect)

188 thoughts on “The Case of the Cruciferous Vegetable, the Cornhusker Kickback, Justice Scalia, Right-Wing Talking Points, and the Affordable Care Act”

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  3. What? Scalia sold out when massive profits for his friends were concerned? I am utterly not surprised.

  4. TPMDC
    Scalia Reverses Himself: Now Disagrees With Key Precedent Supporting Constitutionality Of Health Care Reform
    Sahil Kapur June 18, 2012

    To observers of the ‘Obamacare’ oral arguments, it would come as no surprise that Justice Antonin Scalia is a likely vote to strike it down. But there has remained one major wrinkle in his prior jurisprudence that continues to give hope to a handful of the health care law’s proponents that he’ll vote to uphold it.

    Now, within days of the historic ruling, Scalia is releasing a new book in which he finds fault with a Roosevelt-era Supreme Court decision that forms a critical part of the legal undergirding for the health care reform law. For Scalia, that’s a dramatic turnaround, because he has previously embraced the premise of that decision in an opinion he authored in 2005 that supporters of the Affordable Care Act have frequently cited.

    In Scalia’s new book, a 500-page disquisition on statutory construction being published this week, he says the landmark 1942 ruling Wickard v. Filburn — which has served as the lynchpin of the federal government’s broad authority to regulate interstate economic activities under the Constitution’s Commerce Clause — was improperly decided.

    According to an advance review in the New York Times, Scalia writes that Wickard “expanded the Commerce Clause beyond all reason” by deciding that “a farmer’s cultivation of wheat for his own consumption affected interstate commerce and thus could be regulated under the Commerce Clause.”

    Scalia himself cited Wickard in his 2005 opinion in Gonzales v. Raich, concurring with a 6-3 majority that said Congress may, under the Commerce Clause, prohibit a licensed medical marijuana patient from growing pot in his or her backyard even if it’s legal in the state. A central foundation for that sweeping federal power, the winning side argued, flowed from Wickard.

    At the time, Scalia emphatically agreed, writing in his concurring opinion that “where Congress has authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.” The Reagan-appointed justice’s decision upset libertarians who saw Raich as a squandered opportunity to limit the 70-year trend of reading the Commerce Clause expansively and giving the federal government broad authority when it comes to national economic regulation.

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  6. Five Hypocrites and One Bad Plan
    By Robert Scheer

    The Supreme Court is so full of it. The entire institution, as well as its sanctimonious judges themselves, reeks of a time-honored hypocrisy steeped in the arrogance that justice is served by unaccountable elitism.

    My problem is not with the Republicans who dominate the court questioning the obviously flawed individual mandate for the purchasing of private-sector health insurance but rather with their zeal to limit federal power only when it threatens to help the most vulnerable. The laughter noted in the court transcription that greeted the prospect of millions of the uninsured suddenly being deprived of already extended protection under the now threatened law was unconscionable. The Republican justices seem determined to strike down not only the mandate but also the entire package of accompanying health care rights because of the likelihood that, without an individual mandate, tax revenue will be needed to extend insurance coverage to those who cannot afford it.

    The conservative justices, in their eagerness to reject all of this much needed reform, offer the deeply cynical justification that a new Congress will easily come up with a better plan — despite decades of congressional failure to address what is arguably the nation’s most pressing issue. In their passion to embarrass this president, the self-proclaimed constitutional purists on the court went so far as to equate a mandate to obtain health care coverage with an unconstitutional deprivation of freedom; to make the connection they cited the spirit of a document that once condoned slavery.

    These purists have no trouble finding in that same sacred text a license for the federal government to order the young to wage undeclared wars abroad, to gut due process and First Amendment protections, and embrace torture, rendition and assassination, even of U.S. citizens.

    Now they hide behind the commerce clause of the Constitution to argue that the federal government cannot regulate health care coverage because that violates the sacrosanct principle of states’ rights. If the right-wingers on the high court consistently had a narrow interpretation of federal power over the economy, there would be logic to the position expressed by the Republican justices during the last three days of questioning. Of course, the court’s apparent majority on this has shown no such consistency and has intervened aggressively, as did the justices’ ideological predecessors, to deny the states the power to protect consumers, workers and homeowners against the greed of large corporations.

    We would not be in the midst of the most severe economic meltdown since the Great Depression had the courts not interpreted the commerce clause as protecting powerful national corporations from accountability to state governments. Just look at the difficulty that a coalition of state attorneys general has faced in attempting to hold the largest banks responsible for their avarice in the housing disaster.

    The modern Supreme Court has allowed the federal government to pre-empt the states’ power to protect homeowners, whose mortgage agreements were traditionally a matter of local regulation and registration. The court has no problem accepting Congress’ grant of a legal exemption in the Commodity Futures Modernization Act of 2000 that allows the bundling of home mortgages into unregulated derivatives.

    The court has vitiated the power of the states to control interest rates, even though quite a few had explicit provisions in their constitutions banning usury. The result is that loan-sharking by banks that can claim to be engaged in interstate commerce is constitutionally protected, which is why there are no limits on mortgage, credit card or personal loan interest rates.

    The sad truth is that President Obama and the Democrats brought this potential judicial disaster upon themselves. In light of what has been said this week in the Supreme Court, it seems inevitable that the linchpin of the 2010 reform — mandated coverage — will be thrown out, probably along with the crucial accompanying reforms. Forget coverage for the young and those with pre-existing medical conditions. The Democrats will protect themselves from this reversal by arguing that all they did was copy the program that this year’s prospective Republican presidential candidate implemented when he was the governor of Massachusetts. Mitt Romney’s plan included the dreaded mandate that he and the Republican justices condemn.

    How ironic that Barack Obama’s health care agenda would be in a far stronger legal position had the president stuck by his earlier support of a public option. Clearly, our federal government has the judicially affirmed power under our Constitution to use public revenues to provide a needed public service, be it education, national security, retirement insurance or health care. Obama’s health care reform should have simply extended Medicare and Medicaid coverage to all who wanted and needed it — no individual mandate — while allowing others to opt out for private insurance coverage. That’s an obvious constitutional solution that even those die-hard Republican justices would have a difficult time overturning.

  7. Why the Affordable Care Act Does Not Put Your Freedom At Risk
    Aziz Huq
    April 4, 2012

    Three days of oral argument over the Affordable Care Act at the Supreme Court made one thing clear: The Court doesn’t feel bound by existing doctrine and practices. If it did, as judges and scholars of many ideological hues have explained, the individual mandate’s constitutionality would hardly be a question. Instead, the Court may be ready to embark on a dramatic reconstruction of federal-state relations in favor of narrow reading of Congress’s power to regulate “inter-state commerce,” and, in particular, the use of that power to regulate that matters that are not “commerce” in the most banal and obvious sense.

    Concerns about the health-care law are often framed in terms of liberty from government regulation. At Tuesday’s oral argument, for example, Justice Kennedy expressed a concern that the mandate “changes the relationship of the Federal Government to the individual in a very fundamental way.” Presumably, then, striking down the mandate would preserve an individual’s insulation from federal control.

    Even if you accept Justice Kennedy’s concern—and we’ll get in a moment to why you might not want to do so—this argument doesn’t convince. In this case, the Court has been asked to contract the federal regulatory power to provide for a kind of social security; that is, against risks such as illness, poverty, and joblessness. But the very Justices who seem most eager to limit the government’s power in this domain have shown no inclination to check its national security powers—powers that pose more immediate risks of intrusions on individual liberty. The peculiar result of a decision invalidating the law would be a government barred from saving its citizens from catastrophic health crises, and yet perfectly able to track, surveil, and perhaps even detain them within only thin judicial review. Federal officials seeking to exercise regulatory power in the future would have a perverse incentive to garb their programs in the mantle of national security.

    Such a lopsided constitutional constraint would not produce more freedom. It would instead result in a different distribution of freedom the day after the Court’s decision. It would foster a federal government empowered to provide a kind of security most valued by the well-off (who, after all, can’t get afford their own armies—yet), yet unable to provide meaningful security for the most disadvantaged from the threats of illness, poverty, and exploitation.

    But it’s not clear that we should accept Justice Kennedy’s claim about the law’s effect on its face. That is, even if the short-term effect of invalidation would be to make federal social programs more difficult to enact, it may be that Congress’s power to regulate individual decisions in the same fashion as the individual mandate, without calling it that, may not be significantly diminished in the long term. Invalidating the mandate therefore would be less important for the durable limits it imposes on federal power, and more important for dealing a political blow inflicted on President Obama. If that is so, it is hard to see how invalidation can be defended as anything more than a partisan strike.

    Everyone now seems to agree that Congress’s power under the Commerce Clause of Article I of the Constitution to enact the mandate is the main issue raised by the case. It also appears that that the Court will not consider justifying the mandate on the basis of any other constitutional provision. Yet no one disputes that Congress could have imposed precisely the same mandate using its separate constitutional power to raise taxes, simply by clearly invoking that authority in the law’s text. Notice that the mortgage-interest tax deduction operates in precisely this way to much the same effect—changing private incentives through a tax penalty—and does so often with a larger fiscal impact than the mandate. Moreover, it is hard to see why Congress could not use its taxing and spending powers to enact and fund a single-payer system. The result might, from a libertarian perspective, be an even more intrusive federal intrusion into individual lives.

    Of course, if the mandate gets struck down, there is almost no chance that Congress will reenact it under these theories. But this has nothing to do with the Constitution, which endows Congress with the power to reenact the mandate using other powers. It has everything to do with the current political landscape. A decision invalidating the mandate thus may not recalibrate federalism—but it would promote the agenda of one political faction while harming another’s agenda.

    Compounding the partisan effect of the decision, Justices Kennedy and Scalia have suggested that if the Court finds the mandate unconstitutional, it should invalidate the whole Act. They claim that’s more “democratic” than picking and choosing through the law’s many provisions. Their argument that papers over the fact that Congress’s partisan make-up is simply not going to respond to invalidation by enacting any new legislation. Under these political circumstances, wholesale invalidation would distort, not enable, the expression of democratic preferences in a distinctly partisan way.

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