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

  1. Justice Scalia gets confused in his old age. He confuses cornhuskers with cornholers and Obamacare with ScaliaCare. We need someone in the Congress to introduce a bill to end ScaliaCare as we know it. The taxpayers are paying for all of Scalia’s health care be it hearing aides, reading devices, oxycotton or whatever he is on. Start with the federal judges’ ScaliaCare and then rescind the Supreme Court justices’ annual two month vacation. Let them eat broccoli or ecoli. This bill has to be in the hopper before these schmucks issue their opinion in the Obamacare Act case in June. It gives them something to think about while they are on their two month vacation. Or is it a three month vacation?

  2. They voted yesterday but certainly not finally as shifting can occur. Now the opinions have to be written. The orals sounded like talk radio. Hopefully, the opinions won’t.

  3. The Limiting Principle


    Hey kids? Are you down in the dumps after Tuesday’s oral argument? Do you want a limiting principle that justifies the individual mandate but doesn’t give Congress unlimited power under the Commerce Clause? Fine. Here are three of them. Pick your favorite.

    1. The Moral Hazard/Adverse Selection Principle. Congress can regulate activities that substantially affect commerce. Under the necesary and proper clause, Congress can require people to engage in commerce when necessary to prevent problems of moral hazard or adverse selection created by its regulation of commerce. But if there is no problem of moral hazard or adverse selection, Congress cannot compel commerce. Courts can choose different standards of review to decide how much they want to defer to Congress’s conclusion. Even under the strictest standard of review the individual mandate passes muster.

    Explanation: The guaranteed issue and community rating rules prevent insurers from discriminating against uninsured people because of preexisting conditions. These rules create a moral hazard: people will wait until they get sick to buy insurance. (this might be better described as an adverse selection problem) Congress can require them to buy insurance early to prevent gaming the system. (Actually, it exacerbates an already existing problem in all health insurance, because insureds know more about their health condition than insurers).

    Why not broccoli? There is no moral hazard or adverse selection problem created when people refuse to buy broccoli. It’s true that buying and eating broccoli might make you healthier, but people don’t wait until they are sick to buy broccoli. That’s because broccoli is not going to do them much good at that point. In this sense, broccoli doesn’t work like health insurance.

    Why not cars? Under this principle, Congress can’t make everyone buy a car in order to help the auto industry. There is no moral hazard or adverse selection problem that Congress is responding to that is caused by people strategically waiting to buy cars. Note, by the way, that if fewer people buy cars, the price of cars might go down, not up, as Justice Scalia thought.

    Closest analogy: In United States v. Comstock, the Supreme Court held that Congress could create a civil commitment system for mentally ill prisoners following their criminal sentences when no state wanted to take them. Congress had created a situation in which after long prison terms connections to states were attenuated, and no state wanted to risk being stuck with the costs of civil commitment. As a result, Congress could create its own system.

    2. The Interstate Externalities Principle. Congress can regulate activities that substantially affect commerce. Under the necesary and proper clause, Congress can also require people to engage in commerce when necessary to prevent spillover effects on states, interstate externalities and solve interstate collective action problems. But Congress can’t require people to engage in commerce if there are no serious interstate externalities or spillover effects, or if Congress is not seriously attempting to solve a collective action problem. Once again, courts can adopt higher or lesser standards of review to prevent sham or pretextual attempts, but even under the strictest standard, the individual mandate is fine.

    Explanation: States that adopt guaranteed issue and community ratings rules will become magnets for sick people, driving up rates, and uninsureds may flock to states without individual mandates, further driving up rates in the states they leave. This discourages many states from adopting this combination of reforms. Put differently, states might adopt these rules only if other states did so as well. Only Massachusetts, because of peculiar features of its health care markets, was able to make its reforms work on its own.

    The incentive structures just described create a national problem that requires a national solution. Congress had plenty of evidence to this effect; therefore even under a strict standard of review, the mandate is constitutional.

    What about broccoli? A broccoli mandate doesn’t work like an insurance mandate, because of the way that insurance works. First, a mandate to buy broccoli is unlikely to cause people to leave Massachusetts in significant numbers. Second, and more importantly, a broccoli mandate won’t make Massachusetts a magnet for broccoli lovers or people who desperately need broccoli. They can buy broccoli in their home states. Broccoli doesn’t work like health insurance because grocers don’t refuse you the right to buy broccoli because of a preexisting condition. On the other hand, insurance is based on risk pools, and so it is a different kind of product.

    What this justification most resembles: Social security disability programs, which solve collective action problems between states. By creating a national system of disability insurance, no state becomes a magnet for the disabled and employers don’t leave for states without disability insurance.

    3. The “It’s a tax, stupid!” Principle. Congress can regulate economic activities that cumulatively affect interstate commerce. But if Congress wants to regulate inactivity, it must use the taxing power instead. Congress can use its taxing power to give people a choice between engaging in commerce or paying a tax. The rules for the taxing power are well settled since the New Deal. The tax (1) must promote the general welfare, (2) must raise revenue; and (3) and it must not be a criminal penalty in disguise. The individual mandate passes this test with flying colors. The tax was estimated to raise some 4 billion dollars in revenue. In earlier cases, involving taxes on guns and drugs, the Court found that 500 dollars was sufficient.

    Justice Ginsburg worried about the revenue question in the oral arguments on Monday. She argued that the individual mandate was designed to give incentives to buy insurance. If it works perfectly, she argued, nobody will pay, so it won’t raise revenue. That argument proves too much– it would also apply to taxes on contraband, drugs and guns, which the Court has previously upheld.

    But there’s an even more important response to Ginsburg’s concern. That’s not the way the individual mandate was actually designed. The penalty was not set to ensure total compliance. It was not set to be equivalent to the most expensive health care premium available, but only to the average amount of health care premiums calculated nationally. That means that Congress expected that some people would rather pay the penalty. Congress knew it wouldn’t get 100 percent compliance, and the bill was not intended to ensure 100 percent compliance. This is like a tax on pollution, which allows some people to continue to pollute if it is worth it to them to pay the tax.

    Paul Clement argued that the individual mandate is a direct tax, like a head tax, and therefore has to be directly apportioned by state population under Article I, section 9. This is incorrect. Head taxes are taxes that you can’t get out of by anything you do. They just tax you for living. But you can easily get out of the individual mandate. Just buy insurance. The mandate is like a tax on people who don’t invest in solar panels or antipollution devices. Such taxes give people a choice; they won’t get 100 percent compliance, so they raise revenue.

    In sum, without giving Congress unlimited powers under the Commerce Clause, the Court can uphold the mandate under the moral hazard/adverse selection theory, the interstate externalities theory, or the “It’s a tax, stupid!” theory. Tony Kennedy, John Roberts, are you listening?
    Jack Balkan on Balkanization

  4. TalkinDog 1, March 31, 2012 at 2:09 pm

    Justice Scalia gets confused in his old age. He confuses cornhuskers with cornholers and Obamacare with ScaliaCare.

    … oxycotton or whatever he is on …
    The speed freak Rush dictates what drugs all good repububbles like him are to use: crushed Xanax mixed with crushed Viagra.

    That is why Nancy Grace has a bulge in her belfry.

  5. For the record, Rush’s main rush involved doctor shopping for Hydrocodone, with a number of Oxycontin and Xanax thrown in for good measure. Not much else is known about his drug use, nor should it be, as the records are protected.

    He’s a world class hypocrite when it comes to his views on addiction and got a real easy ride on the prosecutorial side.

    Now back to the regularly scheduled rant on broccoli and why Tony Scalia has got a piss poor attitude and doesn’t feel appreciated.

  6. If the mandate were to be upheld the US Federal government would have gone from regulating interstate commerce to regulating commerce within states to regulating activity which may impact commerce to requiring someone to engage in commerce. This last step is too far in my opinion. I don’t think there is any limiting constitutional principle to that. There may be a limiting political principle to it but that’s not the court’s job to rule on that.

    But who knows how the Court will rule. It could come back 5-4 or even 6-3 in favor. I am not by any means a conservative but it is way too funny to see so many people on the liberal side getting agitated by the possibility of losing and using phrases like “judicial activism” or “unelected judges” and the like. When courts rule against state level immigration laws or in favor of gay marriage or against attempts to defund Planned Parenthood etc, liberals are only too happy to piously intone about the importance of separation of powers and how critical it is to ensure courts are not carried away by the passions of the day.

    Well we can’t have it both ways. Either we accept judicial review or we don’t.

    Making someone engage in commerce with a private company when they don’t want to do so is not covered by the Commerce Clause in my opinion. Congress should have just created a public option and taxed everyone. That would have been cheaper and had the added bonus of being (Clarence Thomas not withstanding) completely within the realm of constitutional powers.

  7. I, too, am puzzled by the ‘brilliance’ of Justice Scalia.

    Why is an arrogant, narcissistic party hack, who thinks he’s a comedian, ‘brilliant’?

    I shall always remember his best quip. He was asked to discuss his coronation of George W. Bush, and the subsequent destruction of this country:

    “Get over it.”

    No, Antonin, I don’t think we will.

  8. Scalia-care is no care. Scalia’s questioning seems to reveal more than legal curiosity about the bill. As was said above, he’s not even trying anymore.

    I read in the past few days (and saw the story on Maddow) that 74% of the people polled by in a Bloomberg poll believe the Court will decide the case based on politics. This quote seems to validate the opinion. I would think the nature or validity of the obligation is not central to the case so why bring it up?

    “GENERAL VERRILLI: No. It’s because you’re going — in the health care market, you’re going into the market without the ability to pay for what you get, getting the health care service anyway as a result of the social norms that allow — that — to which we’ve obligated ourselves so that people get health care.

    JUSTICE SCALIA: Well, don’t obligate yourself to that. Why — you know?”

  9. No one hates Lord Scalia more than I do. However I don’t allow my hatred of the man interfere with my analysis of his arguments.

    Simply because a person receives health care it does not necessarily follow that it is also part of commerce. A person may come into this world with the free help of a midwife and leave this world with the aid of a charitable hospice.

    The fact remains that the health care legislation commandeers the individual by forcing him to purchase a service as a condition precedent for merely residing lawfully in the United States.

    Let’s be clear, the activity here is not health care, it’s the participation in an insurance pool that profits corporations; rather than simply reimbursing the government.

    I grew up believing that liberals were the good guys; that so long as your intentions are good you can’t be wrong. How wrong I was. The road to hell is paved with good intentions. The dark side of liberal thinking comes into play when the liberal deludes himself into believing that so long as the intention is good, then the rules MUST bend to provide the means. This type of thinking left unchecked would leave us without an exclusionary rule or rules of criminal procedure since the liberal will always ‘know’ in a vigilante way who the guilty really are. Taken to the extreme, this type of thinking leads us down the path to communism and Stalinist like regimes.

    The law is not a search for truth, but a search for process. Contrary to liberal thinking here, we do not treat the constitution like a urinal puck simply because we feel we’re on the side of the angels.

    Congress has all the power it needs to achieve the same ends for health care reform by adjusting the tax rolls and medicare/medicaid rules toward a single payer system.

    The word is federalism people. Please make a note of it and adjust your thinking accordingly.

  10. Let’s all agree: single payer is the only way to go.

    And what Bob, Esq. said. Only the power of liberalism today seems to reside mostly in imagination. Though it still remains a powerful whipping boy and distraction, as in “the liberal media”.

    Maybe belief in any “isms” can lead to no good?

  11. Single payer is the preferable way to go but let’s face it is not happening. Name one republican that supports single payer.

  12. Women’s Advocacy Groups Lead Pro-ObamaCare Demonstrations At Supreme Court

    Posted Tuesday, March 27, 2012 in Reporting by Graham White
    Print Icon
    People rally outside the Supreme Court in favor of the Affordable Care Act

    SOURCE: Campus Progress / Graham White

    The second day of arguments on the Affordable Care Act was marked by demonstrations for women’s rights.

    The loudest voices at Tuesday morning’s demonstrations outside the Supreme Court came from those defending women’s rights.

    For the second day, hundreds of protestors convened at the Supreme Court building as the highest court in the nation continued to hear arguments on the constitutionality of the Affordable Care Act. But unlike earlier protests, the issue of women’s rights became the focal point of these demonstrations.

    Planned Parenthood, NARAL Pro-Choice America, the National Organization for Women, and the National Latina Institute for Reproductive Health each brought scores of supporters from throughout the country to demonstrate in the nation’s capital, supplying them with T-shirts and signs and leading them in chants.

    While marching, protestors carried signs that featured messages such as “We Love ObamaCare” and “Protect Women’s Health.” One toddler, who was joining his mother in the demonstration, touted a small sign that read, “Every Mommy Deserves Health Care.”

    In between chants, demonstrators indicated they were drawn to the rally to voice their support for the benefits women received as part of the health care reform law.

    “We’re here to protect health care for women,” Langan Denhard, a sophomore at the University of Maryland–College Park, told Campus Progress. “The Affordable Care Act guarantees access to mammograms, cancer screenings, and other vital health procedures.”

    Indeed, the law eliminates co-payments for the aforementioned preventive services and ensures that those and other basic health services are covered.

    “ObamaCare also protects women from insurance discrimination,” noted Veronica Aveis, the Manager of Political Affairs at Planned Parenthood–New York City. “If we don’t keep it, it will be a major setback for women everywhere.”

    Aveis, who traveled to the rally from her job in New York, is referring to the fact that before the Affordable Care Act was implemented, it was legal in most states to charge higher premiums to people because of their gender.

    But not all of the demonstrators are happy with the changes. Tea Party groups organized a simultaneous counter-protest outside the Supreme Court on Tuesday morning, though with far fewer supporters. Those who did show up were steadfast in their opposition to all of healthcare reform, even when pressed with the fact that the law makes it significantly easier for women to access crucial preventive health services.

    “Nobody had a problem accessing those services before,” said Sylvia Smith, a Tea Party coordinator from Littleton, New Hampshire. “We need to keep fighting this socialism.”

    Unfortunately, the comments from Smith and others protesting against the Affordable Care Act reflect a troubling disconnect from reality. Until the legislation was passed, many low-income women didn’t have access to preventative screenings for the top killers of women because they couldn’t afford it. But over the past two years, 20 million women have been able to receive preventive care with no co-pay through the law.

    Despite the Tea Party opposition, women’s rights advocates dominated the morning protests with overwhelming numbers. Many of those who demonstrated said they plan to return on Wednesday, when the Supreme Court concludes its hearings on the Affordable Care Act. The court is expected to deliver its ruling in late June.

  13. DonS,

    I submit that there are no actual liberals or conservatives in Washington. They’re all corporatists. As Gore Vidal noted (and I hate to have to agree with Gore Vidal), “There is only one political party in Washington; the Property Party. It has two wings; the Republican Party and the Democratic Party.” Much like Bob, you’d be hard pressed to find someone who hates Scalia more than either of us, but I have to agree with his reasoning about the individual mandate. That part of the “Obama-care” proposals has from the start stuck in my craw and for the very reasons that Bob lays out: it is mandating purchasing a for profit corporate provided product instead of using tax dollars to provide universal single payer insurance provision. The later is a good idea for a variety of financial and structural reasons (operational efficiencies, largest possible risk pool, etc.), the former is the equivalent of a corporate protection racket. The only difference in the fascism that both the GOP and DNC are delivering is which suits they serve and in many cases, both parties are serving the same corporate masters. Health care is considered a human right in most of the Western civilized world. But not here. Somebody has to make a buck off the insurance skimming first.

    Fuck ’em.

    A pox upon all of their houses.

  14. Well, Gene, it looks like the DNC not the RNC serves the women’s groups so that is the side I am on. Do you have a negative opinion of Planned Parenthood, Naral, Now, etc.? There are aligned these days with the democratic party and the GOP has declared war on women’s healthcare.

  15. Smom,

    You know quite well that I’m not a partisan and will remain so no matter if groups with agendas I agree with are or not choose to be partisan. I think both parties suck and for essentially the same reason: they cater to special interests, their own egos and their campaign war chests filled with corporate graft instead of looking out for the best interests of the public. You may have your reasons for being partisan, but they are no more valid than my reasons for being non-partisan. The only reason the DNC is not waging war on women is because unlike the RNC, they didn’t get into political bed with the fundamentalist “Christian” far right. Instead, they got into bed with the insurance industry. That’s a political reality you can take to the bank. After all, they did.

  16. After reading the couplet I hasten to defense.
    Broccoli is lovely when eaten lovingly and lightenly cooked
    Particularly with rib eye or garlic flavored beef. beef, beef. Guess it is good for saturated fats, that’s why they go well together. Mother Nature’s guidance.

  17. Smom,

    I didn’t say there was no difference. One party promises a form of theocratic corporatist fascism while the other promises a secular form of corporatist fascism, but both are delivering forms of fascism. The Founders would likely be for hanging almost the entire lot of those graft pigs currently on the Hill.

    You should also read very carefully what my issue with Obamacare is before proceeding. It’s the individual mandate. Nothing more, nothing less. The rest of it is largely acceptable, but forcing citizens to buy a for-profit product from a corporation (or small group of corporations as it is in this case) is simply wrong as both a matter of Federalism and an exercise of the Commerce Clause.

  18. Gene, I’m not partisan either.

    The health care agenda went way off the rails early on — and lost much attraction after Obama inexplicably (except if you’re a corporatist) abandoned any fight for the public option. Seems like it became mere inside politics from then on. Some good points in the legislation no doubt, but the mandate became the poison pill, rightly so.

    A rich, western democracy should be able to do much better. They all do, except the U.S. of course.

  19. Bob, Esq. and Gene,
    I understand your Federalism argument and I think Prof. Turley is in agreement with you, if I can remember his earlier articles on the Affordable Care Act. However, I cannot understand why commercial activity at an insurance company or a hospital or a doctor’s office is any less of a measure of commerce. Isn’t health care about 1/6 of our entire economy? The mandate merely brings everyone into the market in order to save money for all. If the mandate alone is deemed unconstitutional, I can live with the rest. However, the Supremes are setting their sights on Medicare and non-mandate issues. I also understand the language deficiency that Prof. Turley spoke about which would allow sections to be removed by the Court without requiring the entire bill to be overturned.
    How can a Supreme Court Justice have the balls to ask the SG if he thinks they have to read the entire bill before ruling on its constitutionality of it? If I was in front of a judge that would not read the entire brief or the entire ordinance before ruling, I would still be in contempt for arguing the validity of that approach. It is fundamentally unfair. I had one judge who was going to rule in a hearing without even letting me speak on behalf of my client after the other side had their opportunity and I almost ended up in contempt. I got to argue, but the writing was already on the wall. But I didn’t expect that judge to ever get to the highest judicial post in the land. Scalia also either was too unprepared or too stupid to realize his cornhusker issue never made it into the bill. Since I do not think Scalia is stupid, is he just following orders?

  20. I think the Affordable Care Act could have been much better. Unfortunately, the two major political parties seem to have difficulty working together to write laws that would benefit the 99%. I would have liked to have seen a public option included in the bill. That was not to be. Let’s look at what Senator Olympia Snowe had to do with the exclusion of that option:

    Olympia Snowe Waited By The Phone For Years For Obama’s Call

    Very grumpy Maine senator and recent quitter Olympia Snowe is not gone yet, sadly. First she must say that the reason why she is quitting politics is because President Obama made her feel rejected and ignored. In an interview with ABC, she scolds the President for being aloof, which he, duh, is, and which everyone else has long gotten over, and say that in her centuries-long reign in legislative land, Obama is the president who spoke with her the least. ABC News claims that “If there were ever a Republican for President Obama to work with, it was Maine Senator Olympia Snowe,” but uh, it turns out that Obama tried a zillion times to get the woman to listen to him, and her response was to act like some kind of perfect moderate Queen of America!

    Snowe was obsessed with centrism to the point that she would vote for something, only to turn around and vote against it a day later because it had been changed slightly, as if left, right and center could actually be measured down to 1/16 of an inch, and she just had to follow what the ruler said. Case in point, as the Huffington Post points out, is the healthcare bill. Obama apparently “wooed” Snowe for weeks over the bill. When she objected to the public option clause of the bill, “Democrats removed it.” She then “voted for the bill in the Finance Committee, only to turn against it when it reached the decisive vote on the Senate floor.” Why? Because things were “moving too fast.” Government decisions moving TOO FAST? This is a problem because…? Anyway, now, somehow this kind of behavior is now being translated into, “Obama never talked to me.”


    Olympia Snowe’s Strange Martyrdom

    The characteristic Snowe episode came during the health care fight. The Obama administration, desperate to win her vote, wooed her with endless meetings and pleas, affording her a once-in-a-generation chance to not only help pass health care reform but make it smarter, more efficient, and more compassionate. Instead, Snowe tormented the administration by dangling an elusive and ever-changing criteria before their noses. She at first centered her objections around the inclusion of a public option. Democrats removed it, and she voted for the bill in the Finance Committee, only to turn against it when it reached the decisive vote on the Senate floor. Snowe complained that the process was happening too fast, and that it was too partisan, which seemed to be her way of saying she wouldn’t vote for it unless other Republicans joined her.

    This may sound sensible, even admirable, if you subscribe to the notion that securing bipartisan support for major bills is inherently valuable. But it’s worth noting that moderates like Snowe and their fans worship bipartisanship for reasons that have nothing to do with good government. A Republican representing a blue state, or a Democrat representing a red state, faces an inherently precarious situation. Often she will find the demands of her party’s national base pitted against those of her home state electorate. Olympia Snowe’s worst nightmare is to have to choose between infuriating Republicans in Washington and moderate voters in Maine. Creating legislation that passes by wide margins is not done out of a desire to bring bills closer into alignment with any abstract standard of good government, but to ensure her vote sits comfortably in the middle of a wide swath of support from both sides. In a farewell op-ed in the Washington Post, Snowe complains that centrism offers no electoral rewards. For her, though, such careful positioning was a matter of political self-preservation.

  21. raff,

    “Since I do not think Scalia is stupid, is he just following orders?”

    He’s hunting buddies with Dick “The War Criminal” Cheney.

    What do you think the probability is that he (and his usual coterie of right wing corporatist brethren on the Court) are just following orders?

    There is far more at stake here than just the ACA.

    This case is about the already tattered integrity of the SCOTUS itself.

    They are either about to redeem themselves in the eyes of the public or remove any doubt that they are as manifestly politicized and bought off as Congress is at this point.

    All three branches of government are failing right now. Congress has been a failure since the repeal of the campaign contributions set forth in FECA. The Presidency has began moving to failure under Reagan and finished the move under Bush II. SCOTUS began failing under Rehnquist, nearly finished the job with Roberts and Citizens United and looks like they could administer the coup de grace on their credibility with the present case. And they are all failing for the same reason. Corporatism, corporate political spending and being staffed by a bunch of narcissists more concerned about their personal checkbook than their duty to the American people.

  22. Gene,
    I do think he is following orders. He is beholden to the corporations that the Roberts court is answering to. It was not a coincidence that he used Republican talking points in his comments in open court. I truly think that the Supreme Court has already lost its integrity. They shipped sailed in the Bush v. Gore decision and everything since is just icing on the cake. A corporation can be a person and have more rights than a real person, but health care can’t be mandated. The single payer is my ideal, but the only way this country will ever get there is incrementally. The way Canada got there.

  23. Gene,

    I am no apologist for the Democratic party. I think the Affordable Care Act could have been much better. That said, I think we have to look at the Republican party’s refusal to work with the Democrats and the Obama Administration to write a health care law that would actually have been of great benefit to many Americans and that would have helped to bring down the cost of health care in this country.

  24. Shady_Grady.
    I see you don’t bother rebutting the JB blog, but run your own drivel.
    As usual, you depend on not meeting any opposition from yourself.
    Courageous and cunny person. i say person like in corporate person.
    Inanimate but excreting shit.

  25. Folks, folks BobEsq et al.
    Of course we can have single payer system, and then comes a big BUT:

    The insurance companies lose out, a total loss of billions.
    So millions to congressional pockets is peanuts to protect their billions.

    As for SCOTUS, if the mandate is rejected then we return with single payer.
    And that is not on the agenda for reasons already explained.

    So after much posturing to justify their positions, and keeping the media happy show wise, they will guaranteed return a vote for retaining the mandate.

    And we will be at least a 4 term period without single payer. By that time, in this ever acccelerating USA, we may not have any hopes of anything than a meal and a roof over our shabby bodies.

    In the meantime the insurance folk will, as has been mentioned, concentrate on undermining European single payer systems.

    Some politicians in Sweden would be glad for the cash.

  26. Rafflaw: “How can a Supreme Court Justice have the balls to ask the SG if he thinks they have to read the entire bill before ruling on its constitutionality of it? …

    Scalia also either was too unprepared or too stupid to realize his cornhusker issue never made it into the bill. Since I do not think Scalia is stupid, is he just following orders?”

    This is not a new phenomenon, how often have we heard the excuse or truth from a politician that they did not read the bill before voting on it? How often does it become apparent in an interview that an elected official simply does not know what is in the law they are attempting to pass or what it will result in? There is no more clear indication that we are in an era that is ruled by ideology and not intellect. I think that they may well be ‘following orders’ but not necessarily at any particularized level, it’s just the ideologically driven nature of politics and the court.

    Personally, I think Scalia is dim at best but a bear for ideology. That he questions the need for reading the law before he decides it is just another indication of the complete transition away from reason in favor of ideology. I am becoming convinced that we are in the era of the American dark age.

    Actually, wouldn’t a failure to bother to read the bill before ruling on it constitute some kind of negligence? Maybe in a parallel universe but not here, not now.

  27. BobEsq
    “…..we do not treat the constitution like a urinal puck simply because we feel we’re on the side of the angels.”

    Where did you loan that. It’s too good to be yours. If so, grats.

  28. Antonin Scalia Wary Of Health Care Mandate

    If conservative Justice Antonin Scalia hadn’t already made up his mind on the individual mandate before Tuesday’s oral argument, he apparently wanted people in the court to think otherwise.

    Scalia aggressively questioned the Obama administration’s lawyer Donald Verrilli on the limits of federal power, and how they might be impacted if the health care law’s requirement to purchase insurance is upheld.

    That may not seem like much of a surprise. But Scalia’s opinion in a recent, key case — one that hinged on a similar question of the extent of Congress’ commerce clause power — convinced many health care reform supporters he might be in play.

    “If the government can do this,” Scalia asked, “what else can it not do?” He even raised the now-famous specter of a “broccoli mandate.”

    Verrilli argued that the mandate is appropriate because everyone is already part of the health insurance market. He argued that it’s there as part of a broader regulatory scheme to ensure that sick, uninsured people don’t pass the costs of their health care onto others.

    Scalia didn’t seem to buy it, asking, “Is that a principle basis for distinguishing this from other situations?” He pointed out that the government might then “define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli.”

    “In addition to being necessary, it must also be proper,” he said of the mandate, indicating that he does not believe it’s proper.

    Scalia was vocal in needling Verrilli about the constitutionality of the insurance requirement, but was largely silent when attorneys for the 26 Republican-led states challenging it were fielding questions.

    Some liberals have held out hope for winning Scalia’s vote to uphold the law, pointing to his decision in the 2005 Gonzalez v. Raich case for sweeping federal power. If Scalia’s line of questioning is any indication, they shouldn’t hold their breath — he appears to believe the two cases are apples and oranges.

    Is The Obama Admin Trying To Box In Scalia On The Health Care Mandate?

    On first blush, it seems like a no-brainer that Antonin Scalia will vote to overturn the health care reform law’s requirement that Americans buy insurance: the Reagan-appointed justice is a staunch conservative who’s beloved by Republicans; for what possible reason could he deliver such a devastating blow to his own side and boost President Obama?

    The answer: judicial precedent. His own. And the Obama administration has noticed.

    In its brief filed with the Supreme Court Friday, the Justice Department cited no fewer than 10 times the 2005 Gonzalez v. Raich case, in which Scalia (and Justice Anthony Kennedy) broke with the court’s conservative wing to hand down what scholars viewed as one of the broadest declarations of federal power under the Commerce Clause: a 6-3 ruling decreeing that Congress may ban a medical-marijuana patient from growing cannabis for personal use in California where it’s legal.

  29. Gene H.
    Are you feeling under the weather today. Your icon/avatar is there, but the voice seems anemic. A pox on both…..? Doesn’t sound like you.

    Even if they are as implied, the Obamacare gave us what the Republicans would have refused to do for a hundred years more.

    And with DNC we still can hope that elections will give enough progressives to put through a single payer sys.

  30. monopolies are bad except when they are government monopolies?

    I guess in the early days government did grant monopolies to run Post Rds.

    And the Dutch East India Company had a royal charter.

    Have a pool for people who arent covered or just enlarge medicare and allow insurance companies to compete across state lines and offer ala carte plans. And change the focus of insurance to catastrophic coverage, not for going to the doctor for the flu. If the insurance isnt paying, the doctor will probably charge $50 per visit. The savings in paper work filings alone would probably pay for itself.

    Back in Madison’s day the idea was for government to protect commerce not destroy it. To husband rather than restrain competition.

    The Constitution is almost dead, its death will be the passage of Obama Care. Good intentions usually pave the road to hell.

  31. Gene H
    yeah, that’s a position. welcome to it, but it’s refutable. It was the blue dem caucus who sold out, as far as I know. And the insurance companies have not been especially, and would not without Obamacare, women friendly with all their pre-existing conditions and chronic conditions, etc.

    So that choice is like that behind all partisanship. a person choosing from the standpoint of what serves them best. And for now, it is the dems who have their support.

    Will women cleanse our political system, well, if men will too. And if it is possible with minds like yours to help.

  32. id707,

    I’m fine. Thanks for asking. Also, a bit of research would reveal that condemning both major political parties in this country is not a new stance for me. I’ve never been a partisan. I’m pretty sure I’ve said words to the effect of “they both suck” on more than one occasion. Again though, my issue with the ACA is not in toto, but in specific with the individual mandate. I thought it was a bad and improper idea the first time I heard it, I think it’s a bad and improper idea now. It’s not about health care. It’s about propping up the for-profit health care insurance industry. A industry which is proven to not be a value add to health care but rather a systemic parasite that draws off dollars that could be spent on patient care for things like executive perks and bonuses, ridiculous executive salaries that are way out of proportion with the job these people actually do, and a profit model that is based on denial of coverage.

  33. Excuse me all for playing comedian to your straight men (unmeant from your side I know)

    “…bunch of narcissists more concerned about their personal checkbook than their duty to the American people.”

    “Duty, didn’t that go out with PT-boats.”, say they.

  34. As for Obama and his folding, said to be done (above) as an accomodation to Snowe, let us look at his total record.
    Anybody got a count on how many things he has conceded with OUT getting anything in return. I have lost count—-actually given up hoping.
    How many remember, if you saw it. the very junior press guy who asked O. why he did not use his approval to extending the Bush tax cut to get a deal on (Obamacare or XXX) in return. O stalled for a restatement, which was stupid, but that’s par for his on his feet thinking then. And then ignored the replay.
    Are you agreed he could have done better. But then we let him off the hook, just as the veteran WH reporters did then.

    As long as he plays fumble- Charlie for the Repugs, he’ll be not much good.

    As for GeneH, nihilism never got us out of the dark ages either. So what else do you propose?

  35. lottta, with your permission

    You call it ideology. I call it money.

    And ego too on some plane, but it comes down to the same thing. I mean how many diamonds can your wife wear without looking like a hooker who just came in to rest her feet?
    And how many meals can you eat without dying as many kings did in not so ancient times. It’s ego. Mine is bigger than yours.

  36. Gene H:

    you really are a joker.

    “In 1930 in order to help free India from British control, Mahatma Gandhi proposed a non-violent march protesting the British Salt Tax..”

    So what tax are we marching against? The one that will be implemented to pay for Obama Care?

  37. And one last point to all.

    When will we realize that corporations buy votes, they cannot vote.
    And 350 millon with 10 bucks to donate could maybe buy a clean President.
    Find him, support his candidacy, and vote for his platform. And all the congressmen who sign HIS pledge.

    Then we can guarantee the loss for the oath breakers.

    It’s better than a revolt.

  38. ” I hope ideology doesn’t rule the day.”

    Oh yea we wouldnt want that.

    How can you be so sure that this bill will lower healthcare costs if you dont understand the mechanics of pricing or what effects the governments previous actions have already had on them?

    And a more trivial follow up: Considering that we have already had a case of a government agent confiscating a 4 year old’s lunch on the grounds that it was not “nutritious” enough, why is it such a ridiculous notion that the government will begin to regulate everyone’s dietary consumption if you allow it to regulate everyone’s healthcare?

    Did everyone miss what they did to tobacco? How long until we see pictures of leftover liposuction goo ontop of big mac boxes?

    Regardless of any relevance to the actual legal merits of obamacare why are you deluding yourself into thinking that those in power do not want to control that part of your life?

  39. Oh and if he couldnt even make good on the promise to make the crafting of the bill transparent, what hope do you really have of him following up on the rest of the bullshit he sold you?

  40. Bron,

    Apparently you can’t differentiate between the general tactic of non-violent resistance and a specific deployment of the tactic offered as example.

    Thanks for again illustrating that thinking isn’t your strong suit.

  41. Idealistst707.. I wish there were a way I could type more slowly so that you might understand but unfortunately there is not.


    Moral hazard is not a recognized constitutional limiting principle. The federal government, no matter how much you may cry about it, is supposed to have enumerated limited powers. Powers not explicitly granted to the federal government are to be retained by the states or people.

    Just because something seems like a good idea doesn’t mean it’s constitutional, no matter how many times supporters stamp their feet and whine.

    Saying that “not” doing something is economic activity which has an impact on interstate commerce and therefore you may be required to do something is asinine. And with any luck, in June the Supreme Court will rule just that. It’s not just about health care but about the future limitations on federal power. But based on your previous writings, I doubt you will be able to understand that.

  42. ekeyra,

    “How can you be so sure that this bill will lower healthcare costs if you dont understand the mechanics of pricing or what effects the governments previous actions have already had on them?”

    I think you’ve inferred things from my post that I never stated or implied. This post isn’t about the Affordable Care Act lowering healthcare costs. If you had read all of my comments, you would have known that I think we could have gotten a much better ACA. I would like to see the justices of the Supreme Court rule on the constitutionality of the law based upon their best legal judgment and not their ideology. I get concerned that won’t happen when I hear an associate justice who appears to be using right-wing talking points in his arguments.

  43. GeneH

    We have a guy who wrote a very interesting book on guruism and his own search in India.
    He got kudos and then followed it up with a more scholarly work on Gandhi.
    From Gujarat to his death.

    But it was such a bore, I hopped off in the middle of the Salt March.
    Please tell me more of your vision of the American Salt March.

    And when and if you want to amuse yourself with rulers, humanity. progress, dictators who are aware who are the taxable and the concessions which must be made to them, and edicts which have stood in monuments since 300 BC (even in Kandahar), then read this book. (You may have already)

    India: A History by John Keay, Grove Press, (c) 2000

    One idea emerges: Technology is not the measure of man or society.
    Neither is power or riches.

    Trite but true.

  44. Rafflaw: “I cannot understand why commercial activity at an insurance company or a hospital or a doctor’s office is any less of a measure of commerce. Isn’t health care about 1/6 of our entire economy? The mandate merely brings everyone into the market in order to save money for all.”

    That’s just the problem; bringing people into commerce and thence regulating them nunc pro tunc.

    It’s an exercise of power beyond right which no one has a right to. John Locke called that something….

  45. Elaine,

    Who cares where he got his talking points from? You are saying his objections of government telling us what we can and cannot eat are absurd, yet there have already been cases of this abuse of power. So what makes it so absurd to bring it up?

  46. ekeyra: “…why is it such a ridiculous notion that the government will begin to regulate everyone’s dietary consumption if you allow it to regulate everyone’s healthcare?

    Did everyone miss what they did to tobacco? How long until we see pictures of leftover liposuction goo ontop of big mac boxes?

    Regardless of any relevance to the actual legal merits of obamacare why are you deluding yourself into thinking that those in power do not want to control that part of your life?”


  47. Shady_Grady,
    As before, you are like a corporate person still excreting shit which you have ingested, completely undigested. You sound like Scalia with his sound bites he loaned to show his party loyalty. Where do you get your crap.?

    You as before don’t respond to others points but excrete shit stored someplace in your computer disc. Are kin with a computer program. You sound like it. One file for insults, one for ideological crap, nothing is in the least living, it’s all reactively steered. Goddag Yxskaft. Translate that and chew it. .

  48. Elaine,

    The broccoli argument brings the murky problem of abusing the commerce clause as a gateway to unlimited power into specific relief.

    Whether it began as a partisan talking point or not bears no relevance to the validity of the argument itself.

    All you’ve done is poison the well here; detracting attention away from the issue of ignoring the concepts of specifically enumerated powers & federalism, i.e. the foundation of our republic, and distracting everyone with the background noise of talking points.

  49. Unhooking Health Care & Employment, would lead to the Biggest Boom in Small Business & Self Employment seen since the days of Expansion. With that expense out of the way, good ideas & willingness to Work would have a Chance.
    No longer having to be a Wage Slave to a Corporation so Your Family would have their Health covered might be a Freeing Benefit Too.
    Single Payer = Sense & Freedom & security.

  50. ekeyra,

    “Who cares where he got his talking points from? You are saying his objections of government telling us what we can and cannot eat are absurd, yet there have already been cases of this abuse of power. So what makes it so absurd to bring it up?”

    I care.I didn’t say it was absurd. I said it concerned me. I believe that justices of the Supreme Court should give thoughtful consideration to the arguments they make in such important hearings. I don’t think they should be taking talking points from party spokespersons/strategists and media personalities. Let them speak for themselves and not echo the thoughts, beliefs, or arguments of others.

    Can you provide examples of that abuse of power of which you speak?

  51. Can Texas make me eat broccoli?

    Joey Fishkin

    One of the fascinating things about the constitutional battle of the coming week is how much argument and agitation is going on outside the Court—and how disconnected much of it is with anything going on inside the Court. And yet there are many subtle connections between the popular and judicial conversations. I wonder, for instance, whether part of the reason courts evaluating the ACA have talked so much about the commerce power, and so little about the power to tax (which to my mind is at least as strong an argument for the ACA’s constitutionality), has to do with the fact that the public, political battle about the ACA has been joined in terms of commerce, not taxation.

    Outside the courts, one huge argument is if the government can make you buy insurance, can it make you eat broccoli? This argument seems to have a lot of rhetorical bite. But the most straightforward response is the question in the title of this post. Can your state government make you eat broccoli? If the answer is no, as it surely is, then there must be some reason, other than limits on federal power, why that is so. The most likely reason is that states force-feeding us vegetables would violate fundamental liberty interests protected by the Fourteenth Amendment.

    In other words, the “broccoli argument” does its rhetorical work by turning a question of Congressional power into a question of individual liberty. And that, in microcosm, is what the entire public debate about the health care law is about, and why that public debate differs so much from the debate at the Court. Few people other than Mitt Romney really believe that it is perfectly fine for states to pass an individual mandate, yet unconstitutional for Congress to do so. That position—pure federalism, drained of all libertarian talk of personal freedom—simply does not have the political heft it needs in order to be a winning argument. And so opponents of the ACA marry federalism to individual liberty in a way that leaves them in the odd position of suggesting that if Congress has the power under the Commerce Clause to pass the individual mandate, then it could make you eat broccoli… in which case, Texas could pass a statute and force me to eat broccoli right now.

    One of the things I will be watching for this week is the degree to which any Justices who are skeptical of the ACA find ways to make their arguments resonate with the arguments against the law out in the public sphere—which means getting beyond commerce and enumerated powers and speaking in terms of individual liberty.


  52. BobEsq,
    Talking of distractions. Are you ignoring Scalias previous stand on Congress’ right to overrule California on medical use of marijuana.

    You bring up ancient arguments of federalism and the 10th amendment as though thay have not been long abandoned by Congress since the abandonment of requiring all principles to be enumerated only as amendments.
    And then came the New Deal. And then came……but you know if far better than I. You just ignore the situation and call for federalism until when the next bill impinging on the rights of others suits your tastes. Be honest. Fess up.

  53. Bob,

    I don’t think I’m the one poisoning the well.

    Not all lawyers agree with your position on the healthcare mandate and the commerce clause. In addition, I think the broccoli analogy was not a very good one. If Justice Scalia is as brilliant as some say, one would think that he could have come up with a better and more thoughtful comparison…and not have used some right-wing talking point.

  54. Rafflaw: “The Supreme Court should be above talking points, shouldn’t they?”


    I’d rather have a Supreme Court use a talking point as part of a RELEVANT ARGUMENT, to wit broccoli illustrating the limitless power problem, as opposed to someone like Rehnquist appealing to song and poem in his opinion as to why it’s wrong to burn the American flag (See Rehnquist dissent in Texas v. Johnson).

  55. Elaine, I don’t think Scalia is one of the smartest lawyers on that court. I would place him at the lower end of the middle. Thank you for bringing up the topic.

  56. Elaine,

    “Can you provide examples of that abuse of power of which you speak?”

    Off the top of my head, the war on drugs seems a readily available example of government overreach into the private decisions of individuals regarding what they can or cannot do with their own bodies.

  57. Elaine,

    You are poisoning the well. Your argument is Scalia is wrong because he used a talking point used by conservative pundits.

    In lieu of addressing the argument, you would have your audience dismiss it in toto because the speaker is somehow tainted by the talking point. However, the analogy holds. As I stated before, the ACA commandeers the individual by forcing him to purchase a service as a condition precedent for merely residing lawfully in the United States. The broccoli comment clarifies the point that there is no limit to the power that could be exercised by so blatantly ignoring the principles of separation of powers & federalism.

    “If Justice Scalia is as brilliant as some say, one would think that he could have come up with a better and more thoughtful comparison…and not have used some right-wing talking point.”

    Again, I hate Scalia but I don’t allow my hatred of him interfere with my analysis of his arguments. The mere fact that he borrowed from a particular talking point bears no relevance to the validity of the argument he made. Scalia doesn’t need to be more brilliant; you need to be more wise — i.e. focused on the argument itself.

  58. Here’s why health insurance is not like broccoli
    Ezekiel Emanuel
    Mar 29, 2012

    The fate of universal healthcare coverage that the United States has been trying to achieve for over 100 years may boil down to broccoli.

    The broccoli argument is simple and was frequently referred to in the recent Supreme Court arguments: If the government can require people to buy health insurance, why couldn’t it require people to buy broccoli, which also enhances people’s health? This question, at the heart of the conservative objection to the individual mandate to buy health insurance, illustrates the so-called limiting principle the Supreme Court must rule on: Under the Commerce Clause, does Congress have the constitutional power to compel people to act, in ways they might object to, when their inaction can harm others?

    The High Court never got clear on why health insurance is not like broccoli and can thus be constitutionally regulated. There are two important differences that inform the principle for limiting congressional power to compel people to purchase goods and services.

    First, as George H.W. Bush made quite clear, you need never eat broccoli. But unless you are a hermit in Alaska, you will use healthcare at some point in your life. Today, it is estimated that the uninsured use more than $116 billion in healthcare services each year. When they will need healthcare is unpredictable. If they are lucky – only at the end of their life. If they are unlucky, an accident, unplanned pregnancy or cancer diagnosis may compel an earlier need for a physician, hospital services, or both. What happens if they don’t have health insurance? Thankfully, doctors and hospitals don’t turn them away when they most need care. They give them the tests and treatments they need – at least to get over the emergency or acute episode. Thus, while it is feasible that you may never be engaged in the broccoli market, at some point, everyone – including the uninsured – will be engaged in the healthcare market.

    Why couldn’t we let people voluntarily decide whether they want health insurance or not, instead of compelling them to buy the insurance with the mandate?

    Unlike broccoli, when some people don’t participate in the health insurance market – 50 million people in 2009 – there are direct consequences for the insured who are participating. The costs of caring for the uninsured are shoved onto the rest of us through higher insurance premiums or taxes that hospitals, insurers and doctors must charge to recoup the costs of uncompensated care.

    Voluntary health insurance exchanges piloted in several states without mandates all failed because healthy people opted out. Those who are relatively healthy figure the cost of insurance is too high, that they are subsidizing insurance premiums for sicker people and they probably (it is a risk) won’t need the insurance because they are healthy. When some healthy people stop buying coverage, the premium goes up for the remaining slightly sicker people. Then, as premiums go up, more and more healthy people drop out, creating an inevitable downward spiral. This is cost-shifting from the uninsured to the insured, and it is true not just in theory, but in practice. We have tried many such exchanges, and they have all failed. Only the Massachusetts exchange has worked because of its mandate requiring healthy, as well as sicker, people to buy insurance.

    The broccoli situation is entirely different. At the supermarket, you cannot get the person behind you to pay for your broccoli. If you don’t pay for broccoli, you don’t get it. Unless you steal the broccoli, you are not influencing the market by not buying it. And unlike healthcare, there is no cost-shifting in the broccoli market. If you don’t buy any broccoli, the price of broccoli for me is the same. Indeed you might lower my price, because demand for the product is lower.

    Non-participation in the healthcare market has additional, more far-reaching effects. The market for health insurance is both complex and very fragile. If people only bought health insurance when they were sick, there would be no market. There would be no reason for insurance – you would just pay the doctor and hospital bills on an as-needed basis. The only way we can have a health insurance market, where we pay a set amount but get covered when we need services – is to have a diverse risk pool that includes healthy people, as well as sick people. It is important to notice that in this case, opting out of the market for insurance – inaction – has a profound effect on the market. It is not neutral. It leads to collapse of the market.

    Thus, Congress decided to create a broad risk pool by requiring people who did not get their insurance through their employer – or through Medicare or Medicaid – to buy coverage through the exchange. Large employers understand the efficiency of this and basically create these broad risk pools by combining all their employees and insuring them together. That is why they get insurance at lower rates, typically, than small businesses or single individuals.

    Again, broccoli is very different. The voluntary broccoli market works just fine today. If people voluntarily do not participate in the broccoli market, it will not collapse. Congress does not need to require people to buy it for the broccoli market to function. More important, unlike healthcare, no one needs broccoli. We all can live just fine without it, as if it never existed. There is a need for a health insurance market – we would all be worse off without it.

  59. Gene H:

    “Apparently you can’t differentiate between the general tactic of non-violent resistance and a specific deployment of the tactic offered as example.”

    I get the idea, I just wasnt sure you did based on your general lack of ability to think in principles.

  60. Will a Tea Party Supreme Court guarantee Obama a second term?
    The court’s conservative wing appears ready to engage in some despicable judicial activism on ObamaCare. Politically, at least, the justices are doing Obama a favor
    posted on March 30, 2012, at 9:45 A

    Recall the scorn toward health reform dripping from the lips of Injustice Antonin Scalia. Or think of the tight-lipped Clarence Thomas, who could send a mannequin to sit in his place at the court’s oral arguments for all the difference his brooding presence makes. Along with the more plausibly judicious Samuel Alito, he too had more than likely made his decision. And so on the nation’s highest court, satire replaced stare decisis in a slightly altered version of the Red Queen’s jurisprudence in Alice in Wonderland: First the verdict, then the trial.

    Some observers, and administration officials, hold out hope that Chief Justice John Roberts and Justice Anthony Kennedy will decide to save health reform from the revanchist claims of right-wing constitutionalism. I’m pessimistic because I lived through Bush v. Gore, when the court acted like a political ward committee, stopping the vote count in Florida to hand the presidency to George W. Bush by the margin of a single judicial vote.

    A politically infected court could produce a politically unexpected result, strengthening Obama and weakening Romney and the Republicans.

    Now comes the historic decision on health reform — which could reach far beyond the case to fray the whole fabric of progress in modern America. To overturn the individual mandate, to throw out all or most of the rest of the law, would be an act of naked judicial activism, which conservatives profess to despise. In truth, though, they practice it vigorously, in barely concealed disguise, when it advances their own ends. Depending on the “reasoning” rationalized by five horsemen of the judicial right, they could jeopardize other basic protections — for example, the prohibition against segregation at distinctly local enterprises like lunch counters, a prohibition that depends on a generous and long-prevailing view of federal regulation of interstate commerce. R. Schrum The Week

  61. Apparently you didn’t get the idea, Bron, or you wouldn’t have asked such an asinine question. Then again, maybe you would have. You certainly did. Asinine is as asinine does.

  62. Bob,

    “You are poisoning the well. Your argument is Scalia is wrong because he used a talking point used by conservative pundits.”

    My point in writing this post was to express my opinion: Scalia was wrong TO use conservative talking points. I also think the broccoli analogy is definitely a poor one. I had expected better from him.

    FYI: I have mixed feelings about the Affordable Care Act. I think there are some very good things in it. Unfortunately, I don’t think the ACA is what it could and should have been because of politicking–on both sides of the Congressional aisle. I had hoped that there would have been a public option included in the ACA. I don’t think this country is ready for single-payer.

  63. brucespoint:

    “Unhooking Health Care & Employment, would lead to the Biggest Boom in Small Business & Self Employment seen since the days of Expansion.”

    yes it would because people would need to after their small business employer downsized.

    I think Canada is trying to move toward more privatization in their program. They do have an awful lot of small mom and pop shops.

  64. Gene, To get back to your earlier comments about the war on women and the democrats. If one goes to a democratic convention, one could see that the make-up of the delegates would preclude even considering a party platform that would include an anti abortion, anti-contraception. anti-equal rights platform. The rooms are full of feminists both men and women, people of color, gay rights activists and labor organizers. And that’s even it Texas. Now, on the other side the white christians pour out of the bible churches to attend the republican conventions.

  65. ekeyra,

    “Off the top of my head, the war on drugs seems a readily available example of government overreach into the private decisions of individuals regarding what they can or cannot do with their own bodies.”

    I’m for the legalization of marijuana–and prostitution. I think it might cut down on crime…and to fewer people being incarcerated.

    How do you feel about the anti-woman legislation–ultrasound bills, etc.–being proposed and voted upon in state legislatures? How about DOMA? What do you think about single-payer health insurance?

  66. Gene H:

    I asked the question because the march was a revolt against the British tax on salt. The comparison seemed to be a poor choice for someone who is a proponent of higher taxes and government suppression of the citizenry through force.

  67. Gene H:

    your contradictions are becoming more and more apparent. You use your “logic” to try and cover them up.

  68. JAMA Forum: The Supreme Court Flunks Economics—and That’s Bad News for Patients and Physicians
    By David Cutler, PhD

    This week, we were treated to the spectacle of the US Supreme Court debating economics. They called it a discussion about the Affordable Care Act (ACA), but it was more economic than legal. They spent an enormous amount of time on markets for health insurance and food (broccoli, to be specific); they spent little time analyzing precedent. Between the 9 justices and the 7 lawyers, there were 16 people who took part in the debate. As best as I can tell, not one of them had any training in economics.

    As a professor of economics, I can say without hesitation that the Supreme Court failed its oral exam. For the sake of patients and physicians, I hope they do better on the final.

    The first mistake the Supreme Court made was to try to make a distinction between taxes and mandates. Consider 2 ways of achieving universal health insurance coverage: telling people they must buy insurance or instituting a $10 million annual tax on people who choose not to be covered. Does anyone doubt that the substantive effect of these 2 policies would be the same? Yet most of the justices were at pains to distinguish between them. All agreed that the second of these is constitutional; a number of the lawyers suggested that the first was not.

    But they got it wrong: Economics 101 teaches us that anything one can do with a mandate can be done with a tax as well. Indeed, the argument the lawyers were making is equivalent to saying that single-payer health care is perfectly fine (because it is financed by a tax) but universal private coverage is not (because it’s a mandate to buy private insurance). If that is the only way to guarantee universal insurance coverage, the ranks of the single-payer community will swell.

    This fuzzy distinction led to serious problems. The government is “hands-off” about requiring people to buy broccoli, it was asserted, so what right does the government have to compel people to buy health insurance? In fact, the government is hands-off about neither health insurance nor broccoli. We subsidize agriculture, as we subsidize medical research. We regulate supermarkets, as we regulate hospitals—and so on. Government involvement in different industries is demarcated in shades of gray, not black and white.

    Once it was decided that health care had to be special to merit a mandate, the court then spent an enormous amount of time figuring out if it is indeed special. Here, they obviously missed the relevant lecture in Economics 101. Every economics textbook will tell you why government intervention in health care is particularly warranted: The decision of some people not to buy coverage ripples throughout the economy; these ripple effects (technically, they are called externalities) need to be addressed, and the ACA does that. Insurers dump people or charge them more when they become sick? Tell them they can’t do that. People rely on the largesse of strangers when they get sick? Have them pay in advance so that doesn’t happen. Use subsidies so that everyone can afford coverage, and if you really want to be sure that people are covered, mandate that they buy insurance.

    This is not an area of great economic disagreement. Every economics textbook agrees with this set of solutions, as was pointed out in several briefs to the Court (including one I participated in).

    Without knowing these facts, you cannot pass introductory economics—but apparently you can be a US Supreme Court justice. Thus, Justice Scalia asserted that the problem was of Congress’s making because it wanted to mess around with rates for the healthy and the sick (wrong: Congress was responding to a sick market, not creating a sick market). Justice Alito couldn’t see the difference between health insurance and burial insurance (lack of burial insurance doesn’t impose costs on others the way lack of health insurance does, and insurance markets for burial insurance work just fine). And Justice Roberts asserted that deciding not to purchase health insurance but relying on strangers instead is somehow less of a decision than deciding to purchase health insurance in the first place (got it?).

    Follow this logic, and the destination is clear: we are not a society, but a collection of individuals. Don’t tell insurers to pool the healthy and sick; that is too dicey. Don’t worry about uncompensated care; it’s our constitutionally given right to pass on our costs to others.

    The unspoken law in the Supreme Court hearing was the Emergency Medical Treatment and Labor Act (EMTALA). That act, which passed with little debate and was signed by President Reagan, mandates that hospitals that accept Medicare stabilize patients who come to their emergency rooms with emergency conditions, even if the patient cannot pay for the care he or she needs. EMTALA was built on previous state laws and centuries of experience with physicians acting as moral actors, not just market participants out to make a buck.

    The dissonance between this law and the spirit of the Supreme Court hearing is jarring. If we don’t think it’s a social obligation to create a health care system, what is the rationale for making providers bear the burden of the uninsured after they get sick?

    Actually, the mandate discussion did strike a chord—it reminded me of the recent legislative debates about abortion and contraception. A few weeks ago, the governor of Virginia announced his medical view about whether a transvaginal ultrasound was an appropriate procedure to require of a woman considering an abortion. Around the same time, the Senate voted on whether employers should be able to selectively decide that women do not have the right to contraception on equal terms with other medical services. Now, we have the Supreme Court discussing the finer points of economics. This much we have learned: politicians are terrible physicians and awful economists.

    People with powerful positions in government sometimes wonder why they are held in such low esteem. Perhaps it would be better if they left the doctoring to doctors and economics to economists. Having untrained people messing in areas where knowledge is essential is not a formula for doing good.

  69. Only a person with ambitions of power over others would be for Obama Care. Trash the Constitution, do away with limitations on government, terrorize the population with health mandates.

    Watch out fat people, the government is going to pry that cheeseburger from our hands and the fries too. Milkshakes? Forget about it.

    At some point we are going to be forced to eat Tofu, drink green tea, take supplements and avoid dangerous activities. We will be like the society portrayed in Demolition Man.

    Security is for the suckers. A caged animal has security.

  70. brucepoint:

    “Bron, so You Like the Wage Slave system?
    Wal-Mart doesn’t offer many employees Health Insurance.”

    I dropped out long ago, most corporations suck. And they suck the life out of you. But socialism also sucks the life out of people. Not many places it really works, usually small countries in northern Europe.

    What we need to do is take the government out of the economy and free up the imagination and ingenuity of the American people so that we can take care of ourselves.

    When labor is scarce it writes its own ticket. Labor is usually scarce when there is a good economy. Prosperity ends wage slavery, wealth eliminates poverty.

  71. AY,

    I think some people have misconstrued my post. I didn’t write about my support of the ACA–but about Justice Scalia’s use of right-wing talking points in his arguments. The Affordable Care Act could have been so much better…could have helped to bring down insurance costs. Unfortunately, Washington has become so politicized and the relationship between Republicans and Democrats so acrimonious that little that is good for the people/99% gets accomplished there.

  72. Bron,

    I’ll accept critiques of logic from you the day you demonstrate you can properly and consistently apply the tool. However, since you just demonstrated that cannot even distinguish an example from a comparison, I think that I’ll be over here not holding my breath. That and you’ve demonstrated that you have no problem with an insurance executive having power over somebody’s health care because they’re making a profit whereas a government single payer system would not face that constraint. A constraint, by the way, that operates against the best interests of the patient because paying for care cuts into said executive’s profit margin.


    That’s some brain you’ve got there, Bron.

    It’s sure not Hans Delbrück’s though.

  73. Bob,
    I would expect a Supreme Court to use its own words and actually read the bill that they are discussing. No matter how long the bill is. It is also interesting that the individual mandate was not a constitutional problem until a Democratic President employed it.

  74. Bron, Hows the weather on that island you raised yourself on?
    Watching the water rise?
    When society is what makes you sick, does not society hold some responsibility for its effects?
    Unfortunately, Canadians are prone to short-sighted Greed too, but They are waking up, as are citizens of my good ol USA.

  75. Elaine, This court became politicized in 2000 and continued on through Citizens United. It is really not that surprising. One would hope for something better in the opinions than we got with Scalia’s Limbaugh imitation but I am not holding my breath. Don’t get intimidated by lawyers that neither practice constitutional or even healthcare law or in some cases they do not practice at all. They only are rendering their opinions.

  76. Elaine,

    That was exactly what Bob was trying to say….. I think….. Just because Scalia is a pundit for the right and is using the grotto speak…. We can still focus on his lack of judicial ethic as a starting point…..

  77. JT gang,

    All the arguments are great, on both sides, supposing of course, that the government which any argument presupposes actually exists.

    However, what if the per-supposed government is a mere illusion?

    Those of you who realize that the is a plutocracy throbbing along with a plutonomy, really do get the current structural reality.

    Voting, money management, war, health and wealth, and everything else must be analyzed within that one and only reality.

    Otherwise, everyone is right and everyone is wrong, but none of that matters in terms of a fix.

    What do the 99% in a plutocracy do to engage the 1% ??

    What do you want the 1% to do?

    What do they want to do?

    What do they want you to do?

    The rubber meets the road at the point where they have you where they want you … until they don’t anymore.

    The bridge across that history goes where it goes … to nowhere or to somewhere.

    Otherwise … like Bon Iver beautifully sings, we are merely “lapping lakes like leary loons.”

  78. AY,

    I don’t think so. I disagree with Bob that I am poisoning the well.

    Bob wrote;
    “In lieu of addressing the argument, you would have your audience dismiss it in toto because the speaker is somehow tainted by the talking point. However, the analogy holds. As I stated before, the ACA commandeers the individual by forcing him to purchase a service as a condition precedent for merely residing lawfully in the United States. The broccoli comment clarifies the point that there is no limit to the power that could be exercised by so blatantly ignoring the principles of separation of powers & federalism.”

    What argument is Bob referring to? The argument about the mandate’s constitutionality? That wasn’t the point of my post. I was attempting to shed light on Scalia’s use of right-wing talking points. I’m not allowed to do that? Another thing: I happen to disagree with Bob regarding the broccoli analogy.

  79. “The moral outrage that the law has provoked is weird. It’s a tyrannical intrusion on your liberty if government makes you pay for health insurance before you get sick and demand treatment! But if millions of people die from preventable diseases, or are bankrupted by medical expenses, no problemo. Libertarians focus obsessively on threats to liberty from the state, but there are lots of other things that threaten your ability to live as you like. Getting cancer and not being able to afford chemotherapy, for instance. (No, you can’t get that at the emergency room.)” Prof. Koppelman

  80. Gene H. 1, March 31, 2012 at 4:05 pm


    I submit that there are no actual liberals or conservatives in Washington. They’re all corporatists. … Fuck ‘em … A pox upon all of their houses.
    I love clarity.

    The political scene is a ruse, of course, as you say.

    The dividing ideologies which the script writers are promoting allow choice, but those choices are which poison do you choose.

  81. If the government cannot provide medical care for me then why can it provide medical care for its employees, like Scalia? I would live a Congressman to introduce a bill to eliminate Scalia’s health care along with all federal employees health care paid for with my dimes. This would then put us all on a level playing field. When Scalia has to pay for his own oxycotton then he might think about the rest of us.

  82. Elaine,

    Absolutely you are entitled and encouraged to do so…I think the last three paragraphs of bobs post are the crux…..

    You putting it out there about the talking points being used pander to the circus circus is as valid as well….

    You know we guys can be rash at times…..

  83. Swarthmore mom 1, March 31, 2012 at 9:14 pm

    Dredd. Increasing numbers of women know there is a difference. Are they wrong?

    You are in reference to: wrong and right.

    OK, so women know good things, and I defer to women on those things.

    Hell, it would not bother me to defer to them on everything.

    No reason not to.

    Anyway, the “difference” between or among political parties in the is not something I would pursue. I am not a comic.


    Because what is the same among or between them humorously settles it all.

  84. idealist707
    1, March 31, 2012 at 5:24 pm
    “…..we do not treat the constitution like a urinal puck simply because we feel we’re on the side of the angels.”

    Where did you loan that. It’s too good to be yours. If so, grats.


    That’s pure Bob.

  85. Scalia is a mediocre hack and a perfect example of the Emperor who thinks he’s richly clad in stunning robes but is, in all actuality, naked.

    Had he addressed the matter in the manner Bob, Esq used in his post on March 31, 2012 at 3:39 pm then we could have some confidence that a real understanding was going to be applied by Scalia to this important issue. Instead he chose to cheapen the whole process with his purely political broccoli talking point. The goof ball couldn’t even come up with an original quip. (Probably he was hoping to get recognized by Colbert at the next White House Correspondents’ Dinner)

    Bob’s analysis is 100% correct and we need to keep throwing that at our elected officials in Congress:

    “Congress has all the power it needs to achieve the same ends for health care reform by adjusting the tax rolls and medicare/medicaid rules toward a single payer system.

    The word is federalism people. Please make a note of it and adjust your thinking accordingly.”

  86. Being on vacation I’m not able to comment much.
    Elaine’s work on this post was excellent in its depth. Bob and Gene’s arguments are persuasive.
    Single payer is the Constitutional way to go. The fear of putting huge insurance companies out of business is too great for those who have bought into the current counter-factual concept of capitalism. Mandating people to utilize private insurance, without offering a governmental alternative does seem like it is going beyond the limits of legality. Those lobbying dollars just make cowards of all politicians.

  87. Bob,

    Elaine is not a lawyer. Her message was quite clear. She is not the one who cheapened the argument … Scalia did. She simply told us about it.

    You took the opportunity to explain exactly what the issue is and why, Constitutionally, it is so important. You did it with a clarity and brevity that we non-lawyers could easily grasp and it is important that we do so.

  88. Blouise,

    No, I’m not a lawyer. I wasn’t arguing for or against the individual mandate in the ACA–just bringing up a concern I have about one of our Supreme Court justices. I didn’t think I was poisoning the well. Some people may think it unimportant where the justices get ideas and talking points for their arguments. I’m not one of those people.

  89. The Roberts Court Defines Itself

    For anyone who still thought legal conservatives are dedicated to judicial restraint, the oral arguments before the Supreme Court on the health care case should put that idea to rest. There has been no court less restrained in signaling its willingness to replace law made by Congress with law made by justices.

    This should not be surprising. Republican administrations, spurred by conservative interest groups since the 1980s, handpicked each of the conservative justices to reshape or strike down law that fails to reflect conservative political ideology.

    When Antonin Scalia and Anthony Kennedy were selected by the Reagan administration, the goal was to choose judges who would be eager to undo liberal precedents. By the time John Roberts Jr. and Samuel Alito Jr. were selected in the second Bush administration, judicial “restraint” was no longer an aim among conservatives. They were chosen because their professional records showed that they would advance a political ideology that limits government and promotes market freedoms, with less regard to the general welfare.

    There is an enormous distinction to be made between the approaches of the Roberts court and the Warren court, which conservatives have long railed against for being an activist court. For one thing, Republican-appointed justices who led that court, Chief Justice Earl Warren and Justice William Brennan Jr., were not selected to effect constitutional change as part of their own political agenda.

    During an era of major social tumult, when the public’s attitudes about racial equality, fairness in the workings of democracy and the dignity of the individual proved incompatible with old precedents, those centrists led the court to take new positions in carrying out democratic principles. Yet they were extremely mindful of the need to maintain the court’s legitimacy, and sought unanimity in major rulings. Cooper v. Aaron, the 1958 landmark case that said states are bound by Supreme Court rulings, was unanimous. So was Katzenbach v. McClung, the 1964 case upholding the constitutionality of parts of the Civil Rights Act under the commerce clause.

  90. Elaine,

    I share your distaste for Scalia’s broccoli analogy and for Scalia in general.

    If Scalia is too lazy to read the bill before he votes on it maybe he should just join Thomas and remain mum. Here are some links which are apropos and short enough that even he could handle them.

    Thanks again for all the work you do here.

    First an article by Einer Elhauge, J.D. from the New England Journal of Medicine titled “The Irrelevance of the Broccoli Argument against the Insurance Mandate.”

    Second an article by Walter Dellinger (who served as head of the Justice Department’s Office of Legal Counsel and acting solicitor general from 1993-1997; and filed a brief on behalf of the Senate and House Democratic leadership defending the ACA) “Five myths about the health-care law.”

  91. Elaine,

    “I’m for the legalization of marijuana–and prostitution. I think it might cut down on crime…and to fewer people being incarcerated.”

    Im for going much farther and legalizing any chemical you wish to put into your own body. As for crime and incarcerating rates, thats not a might. An overwhelming majority of the people who are incarcerated are nonviolent drug offenders.

    Not only that but you instantly remove the primary aspect that defines the illicit drug trade right now, violence. I could write you a paper on why legalization either drastically reduces or outright eliminates the problem of drugs

    “How do you feel about the anti-woman legislation–ultrasound bills, etc.–being proposed and voted upon in state legislatures?”

    I see them in the same light i see the extreme labeling of cigarette packs. Its a behavior they want to control but lack the support to ban it outright, so we end up with these ridiculous half measures, where we pretend we arent trying to control you but we’ll see what we get away with to influence your decision.

    “How about DOMA?”

    HAHA i forgot they named it that. I think straight people have done plenty to tarnish the “sanctity” of marriage. Britney spears was married for what, a day? Kim kardashians marriage lasted all of 3 months? Being afraid that gay marriage will affect your relationship, says more about your relationship than it does about gay people.

    “What do you think about single-payer health insurance?”

    I think its a terrible idea, especially as I said, if you put the government in charge of healthcare all objections to legalizing drugs becomes moot, but at this point id rather be discussing the merits and failure of that instead of this legal rube goldberg machine we’ve set in motion.

  92. Scalia’s attempt to draw a credible comparison falls quite short. Certainly, eating broccoli is a healthier choice than a bag of chips, but the ACA is not concerned with whether one eats healthfully. It deals with who pays for medical services whether one eats healthfully or not, has a traffic accident or develops a cancer. Apparently, in Scalia’s world it’s Constitutional for me to continue paying the bill for an uninsured’s poor eating habits AND for the medical care for those who do eat healthfully, but who have some other condition, illness or accident but who has no insurance coverage. On my list of things I truly despise, Scalia ranks right near the top—–quite close to broccoli.

  93. I kinda hope the ACA is struck down. This country needs healthcare reform, not health insurance reform. True healthcare reform will get rid of health insurance. The ACA is a barrier to true healthcare reform.

  94. Oro,
    I agree that we need a single payer system, but we will not see one without an incremental approach. The ACA is imperfect. However, it is a good start.

  95. rafflaw, Single payer is clearly not going to happen. Not even one republican is for it. Meanwhile we have 37 million uninsured people that have to go to the ER for healthcare. If one of them gets cancer, the ER does not provide chemo and they are left to die.

  96. The Roberts Court Defines Itself
    Published: March 31, 2012

    For anyone who still thought legal conservatives are dedicated to judicial restraint, the oral arguments before the Supreme Court on the health care case should put that idea to rest. There has been no court less restrained in signaling its willingness to replace law made by Congress with law made by justices.

    This should not be surprising. Republican administrations, spurred by conservative interest groups since the 1980s, handpicked each of the conservative justices to reshape or strike down law that fails to reflect conservative political ideology.

    When Antonin Scalia and Anthony Kennedy were selected by the Reagan administration, the goal was to choose judges who would be eager to undo liberal precedents. By the time John Roberts Jr. and Samuel Alito Jr. were selected in the second Bush administration, judicial “restraint” was no longer an aim among conservatives. They were chosen because their professional records showed that they would advance a political ideology that limits government and promotes market freedoms, with less regard to the general welfare.

    There is an enormous distinction to be made between the approaches of the Roberts court and the Warren court, which conservatives have long railed against for being an activist court. For one thing, Republican-appointed justices who led that court, Chief Justice Earl Warren and Justice William Brennan Jr., were not selected to effect constitutional change as part of their own political agenda.

    During an era of major social tumult, when the public’s attitudes about racial equality, fairness in the workings of democracy and the dignity of the individual proved incompatible with old precedents, those centrists led the court to take new positions in carrying out democratic principles. Yet they were extremely mindful of the need to maintain the court’s legitimacy, and sought unanimity in major rulings. Cooper v. Aaron, the 1958 landmark case that said states are bound by Supreme Court rulings, was unanimous. So was Katzenbach v. McClung, the 1964 case upholding the constitutionality of parts of the Civil Rights Act under the commerce clause.

    The four moderates on the court have a leftish bent, but they see their role as stewards of the law, balancing the responsibility to enforce the Constitution through judicial review against the duty to show deference to the will of the political branches. In that respect, they and the conservatives seem to be following entirely different rules.

    That difference is playing out in the health care case. Established precedents support broad authority for Congress to regulate national commerce, and the health care market is unquestionably national in scope. Yet to Justice Kennedy the mandate requiring most Americans to obtain health insurance represents “a step beyond what our cases have allowed, the affirmative duty to act, to go into commerce.” To Justice Stephen Breyer, it’s clear that “if there are substantial effects on interstate commerce, Congress can act.”

    Likewise, Justice Scalia’s willingness to delve into health care politics seems utterly alien to his moderate colleagues. On the question of what would happen if the mandate were struck down, Justice Scalia launched into a senatorial vote count: “You can’t repeal the rest of the act because you’re not going to get 60 votes in the Senate to repeal the rest.” Justice Breyer, by contrast, said firmly: “I would stay out of politics. That’s for Congress; not us.”

    If the conservatives decide that they can sidestep the Constitution to negate Congress’s choices on crucial national policies, the court’s legitimacy — and the millions of Americans who don’t have insurance — will pay a very heavy price. Chief Justice Roberts has the opportunity to avoid this disastrous outcome by forging even a narrow ruling to uphold the mandate and the rest of the law. A split court striking down the act will be declaring itself virtually unfettered by the law. And if that happens along party lines, with five Republican-appointed justices supporting the challenge led by 26 Republican governors, the court will mark itself as driven by politics.
    NYT editorial

  97. The opponents’ Commerce Clause argument doesn’t pass the smell test. Health-care accounts for about 17 percent of the national economy, and virtually everyone needs it at some point. Regulating commerce “among the several States” is among the “enumerated powers” that the Constitution gives Congress. I can’t say it better than legal scholar Charles Fried, solicitor general under President Ronald Reagan, did last week: “Health care is interstate commerce. Is this a regulation of it? Yes. End of story.”

    “Congress isn’t forcing people into that market to regulate them,” Fried told the Washington Post, rejecting as “a canard” that key framing by Obamacare opponents. “I was astonished to hear it coming out of the mouths of the people on that bench.”

    When he took over the case for Obamacare’s opponents, Paul D. Clement, another former solicitor general, wisely ditched the hair-splitting distinction the law’s foes first tried to make between regulating activity and inactivity. But the new framing – that Congress is wrongly using the individual mandate “to create commerce” – is only slightly less artificial.

    The truth is, we’re all “in the health care market,” simply because life is fragile and unpredictable. Young and healthy as you are, you can arrive at a hospital unconscious after getting hit by a bus. Which brings us to …

    No, it’s not like broccoli, or cellphones, or burial insurance. My not buying a cellphone generally doesn’t raise the cost for everybody else. Burials can be pricey, but keeping people alive is what can cost millions. The price of a commodity like broccoli will likely rise if more people buy it, not fall, and people can live without it. Above all, none of those markets is subject to massive cost-shifting.

    Death panels. Remember this, the most famous canard of the long debate over Obamacare – the claim that a new, 15-member Medicare board charged with finding ways to save money without harming coverage or care would somehow send the old and disabled to their deaths?

    Well, here’s the real irony: If a majority of the Supreme Court throws out Obamacare, the high court itself may deserve that title.

    For all its faults, Obamacare was Congress’ best attempt to provide quality medical insurance to tens of millions of uninsured Americans – a man-made malady that, according to a 2009 Harvard study, raises death risks by 40 percent and kills nearly 45,000 people a year.

    Go back to square one, and more people are pretty much guaranteed to die. Is that really what the Supreme Court wants to do?

    Jeff Gelles Philadelphia Inquirer

  98. if Bush were pushing the individual mandate, everyone on this page would be in agreement; it sucks. Government forcing it’s citizens to pay but not forcing private enterprise to deliver, period. And Scalia would find it marvelous.

    That liberals are carrying water for this extreme right wing crap sandwich is stunning. To think that the ACA has anything at all to do with health care after all the assaults Obama and his merry band of Dems have put out on the social safety net, after each and every campaign promise Obama made has been broken — and in many cases broken without any pressure from the right wing fruit cake circus — is just shy of clinical myopia.

    And make no mistake, we are not discussing whether this mandate is constitutional or not any more than the justices are. We are instead arguing whether or not we like it, whether or not we like Obama and whether or not we think Obama is playing 11 dimensional chess and he really didn’t make sure that no negotiations on drug prices would take place and he really did break the monopoly exemption on insurance companies and he really didn’t allow the totally new restrictive language on providing abortion services to be snuck into the ACA.

    The thugs justices of the Supreme Joke Court may be lacking in objectivity and Scalia even in intelligence, but they know damn well which side of the bread has butter on it. And they will prove that it in June by letting the mandate stand just as the Republicans will prove it in November by letting Obama continue to give them every thing they have ever wished for.

    Next chapter: The mandate that we buy social security and Medicare from private insurance companies all of whose employees live in China, and the official recognition that government should not get involved with regulating what business does, only with enforcing payment by its citizens Is it constitutional? And if Obama’s selling it, you can bet that many of the whiz-bangs on this page will be buying it.

  99. I must have missed that part of the Constitution that called for a separation of state and market.

    Not that anything about health insurance resembles a market — nobody knows what anything actually costs, so you don’t have a working price system, you don’t have a working signalling system between consumers and producers, and what you’re left with is something more akin to an extortion racket…

  100. On the Lighter Side: The fate of ‘Obamacare’ boils down to broccoli
    By Steve Wiegand

    Now that the U.S. Supreme Court has concluded its three days of listening to the merits and demerits of “Obamacare,” and will spend the next eight weeks or so deliberating the fate of the American health care system, we ordinary folk are left to ponder the key question raised by the hearings:

    Are we going to have to eat broccoli?

    At least I think that was the key question. I listened to some of the proceedings, and I recall waking up to hear President Barack Obama’s lawyer, Solicitor General Donald Verrilli, explain that the reason the prez wants to require everyone to buy health insurance is because if only people who need health insurance buy it, there won’t be enough money to pay for health insurance for people who don’t need it.

    Or something like that.

    This caused several justices to somewhat rhetorically inquire as to whether the federal government could by the same logic force everyone to buy cellphones or funeral insurance.

    Justice Antonin Scalia – who presumably already has health insurance – suggested that the next thing we know, the feds will require us all to eat broccoli: “Everybody has to buy food sooner or later … therefore, you can make people buy broccoli.”

    Of course Justice Scalia is not the first person to raise this doctrine, known in legal circles as “caveat emptor brassica oleracea,” or “let the buyer beware of buying broccoli, particularly if you have children or a finicky spouse, or try serving it without a cheese sauce of some kind.”

    Last September, a federal appellate judge in Washington, D.C., named Laurence Silberman asked during a hearing on the Obama plan whether the feds could force people to buy broccoli. Evidently a broccoli aficionado, Silberman voted to uphold the law. In December, another federal judge named Roger Vinson in Florida asked the same broccoli question, and then ruled the law was unconstitutional.

    It seems to me that a better analogy would be whether the government could force younger workers to pay into a system that financially supports people who don’t work anymore. I don’t know; maybe call it “Social Security.” But the judiciary has settled on a member of the cabbage family for its legal imagery, so there you have it.

    Given the leafy parameters the court has chosen, here’s my best guess on how each justice will vote:

    • Chief Justice John Roberts: Roberts was born in Buffalo, N.Y., where they mostly eat chicken wings. Roberts will vote to overturn the health care mandate.

    • Associate Justice Antonin Scalia: Scalia is a strict constitutional constructionist. In the Federalist Papers, James Madison wrote that “government should never require the purchase of any comestibles, even when said purchase is for the common good, unless it’s those little snack cakes my wife Dolley makes.” Scalia is a definite thumbs-down on Obamacare.

    • Associate Justice Clarence Thomas: Thomas’ wife is a lobbyist for the Heritage Foundation. One of the foundation’s most important tenets is that vegetables are for hippies. He’s voting to throw it out.

    • Associate Justice Samuel Alito Jr.: Alito is an Italian American, and according to Wikipedia, the word “broccoli” is of Italian origin. This will not enter into his decision, and he will vote against Obama’s plan.

    • Associate Justice Ruth Bader Ginsburg: Ginsburg just looks like the kind of person who actually enjoys broccoli. She’s a vote to uphold the law.

    • Associate Justice Elena Kagan: Kagan was just named to the court by Obama two years ago, not that she would be swayed by that any more than Justice Thomas would be influenced by his wife’s employer. But she’s still a cinch to give the prez’s plan a thumbs-up.

    • Associate Justice Sonia Sotomayor: See Kagan.

    • Associate Justice Stephen Breyer: I’m pretty sure Breyer’s family is in the ice cream business, and they don’t make a broccoli flavor. But it’s probably one of those families where the parents make you eat all your vegetables or no dessert, so he’s going to vote to uphold.

    • Associate Justice Anthony Kennedy: Kennedy is often viewed as a swing vote on court decisions. This might be because no one knows what he is talking about. To wit: “The young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That’s my concern in the case,” he said Tuesday.

    Let’s list him as a “maybe.” That makes it 5-4, either way.

    And I don’t care what the government says, I’m still not eating broccoli.

  101. Elaine,

    What is particularly poignant to me is I recall Bush1 saying that he doesn’t like broccoli and he won’t eat broccoli….. This is recall him saying as well as he did not know the price of a gallon of milk….. I think this may have cost him his reelection ….. Talking Points for sure….. It is sad the justice has to use this term….. But we at least know where he stand

  102. Incremental change does not flow logically from a pure give-a-way to private corporations. Nor does It follow simply because we think Obama is a nice man and is being badly treated by the right and the left alike.

    It is not supported by any precedent or known facts that if insurance giants have a captive audience, they will service people with prior conditions. What is supported by precedent and known facts is that Insurance giants, like other corporate behemoths, have powerful lobbies that can get around every rule ever made. That is why insurance companies have an exemption from monopolistic practices. That is why drug companies do not have to negotiate prices with our government. That is why they can charge what ever scandalous prices they want with the blessing of congress. There is your precedent. That is what you can look forward to.

    It is a proven fact that when big corporations do break the rules — repeatedly — they suffer no consequences from this administration. It is a known fact that when corporations suffer no consequences from illegal behavior they continue that illegal behavior. Robo signing is dead! Long live robo-signing!

    It does not flow smoothly from common sense or from what we see around us that simply because modest programs created over 70 years ago that were government run and managed simply because those DID expand over time, that the same thing will happen from a program that is entirely independent of government constraint or management.

    And if you don’t believe your lying eyes, or common sense, or every bailout of giant corporations for the last 3 plus years, I’ve got plenty of great deals for your hard earned cash…

  103. Does Antonin Scalia Know What’s in the Affordable Care Law?
    By David Weigel
    March 28, 2012

    There was in a strange moment in today’s severability argument at SCOTUS. Justice Antonin Scalia referred to a deal that Sen. Ben Nelson once made, to make a hypothetical point about what could take down the law.

    “If we struck down nothing in this legislation but the — what’s it called, the Cornhusker kickback, okay, we find that to violate the constitutional proscription of venality, okay?” asked Scalia, talking to Paul Clement. “When we strike that down, it’s clear that Congress would not have passed it without that. It was the means of getting the last necessary vote in the Senate. And you are telling us that the whole statute would fall because the Cornhusker kickback is bad. That can’t be right.”

    The deal that Scalia was referring to — legendary in conservative anti-Obamacare circles — was not a classic “kickback.” Nelson negotiated for indefinite, unending Medicaid funding for his state. That ended up as part of the bill that initially passed the U.S. Senate on a 60-40 vote.

    Here’s the rub: It’s not actually part of the law. Democrats removed the Nebraska deal in the final tortured negotiations that passed the PPACA in the House. When it got to the Senate again, Democrats only needed 51 votes to pass it; Nelson, who’d gotten the bad press from the deal AND nothing to show for it, glumly voted no.

    Here’s another rub. In early coverage of Scalia’s zinger, the fate of the “kickback” is totally left out. It might be because no one in the room pointed out the mistake. Or it might be that Scalia, and lots of other people, have internalized the conservative case against the law.

  104. Dems fume over Justice Scalia’s comments during healthcare case
    By Alexander Bolton – 03/30/12

    Scalia’s use of the term “Cornhusker Kickback,” coined by GOP political operatives during the healthcare reform debate, also raised concerns — especially since Scalia appeared unaware the provision was scrapped before Obama signed the law.

    “Scalia said [Wednesday] that it was totally unrealistic to read the whole law. Sen. Nelson didn’t think it was too much for the justices to know what they’re talking about when questioning the law’s content,” said Nelson spokesman Jake Thompson.

    “It seems fitting that Justice Scalia’s attempt at humor instead displayed his ignorance of the law. Sen. Nelson hopes the justice will concentrate on the actual instead of the perceived or interpreted views as he weighs the laws against the Constitution,” Thompson added.

    A spokeswoman for the Supreme Court did not respond to a request for comment Thursday afternoon

  105. Industry Whistleblower Wendell Potter: However Court Rules on Healthcare, Solution is Single Payer
    Democracy Now

    As the Supreme Court examines whether Americans can be penalized if they lack medical coverage, we’re joined by health industry whistleblower, Wendell Potter. A former spokesperson for CIGNA and Humana Insurance, Potter is the author of “Deadly Spin: An Insurance Company Insider Speaks Out on How Corporate PR is Killing Health Care and Deceiving Americans.” “I, myself, am somewhat agnostic and detached from the outcome of what the justices decide,” Potter says. “We eventually have to get the for-profit insurance companies out of providing coverage, and need to move toward a system or systems like in the other developed countries, that don’t permit for-profit companies to run their healthcare systems.”

    AMY GOODMAN: Today, the Supreme Court hears its final arguments on the constitutionality of the healthcare overhaul law. They will focus on whether the law can survive if the justices decide to strike the individual mandate. The case is expected to have huge implications for the nation in the 2012 elections and is being followed closely by all sides of the healthcare debate.

    To talk more about the debate and what’s happening in the Supreme Court, we’re joined by Wendell Potter, former spokesperson for CIGNA and Humana Insurance, now turned whistleblower. He was outside the Supreme Court Tuesday. He’s the author of Deadly Spin: An Insurance Company Insider Speaks Out on How Corporate PR is Killing Health Care and Deceiving Americans.

    Wendell Potter, welcome back to Democracy Now! Can you talk about the questions raised by the judges and how you think the Affordable Care Act is faring in the Supreme Court?

    WENDELL POTTER: I think the questions that were raised by the conservative judges were to be expected. I think that most of their questions were along the lines of expansion of government and where are the limits of government. So that doesn’t surprise me a bit. And I don’t think we should read into their questions what the court will actually decide. One of the things that was said in one of those sound bites was, one of the justices said—I think it was Scalia—this may be necessary, but is it proper? I think there will be a realization that the individual mandate actually is necessary. If this—if we expect to try to expand healthcare coverage and to bring down cost, you’ve got to have an individual mandate. I think that’s what they will ultimately decide to do.

    NERMEEN SHAIKH: Can you explain why the individual mandate is as controversial as it is?

    WENDELL POTTER: Because this whole issue became very political. As you know, the idea of an individual mandate actually is a conservative idea. It can be traced back to a proposal that came out of the Heritage Foundation in the 1990s in response to the Clinton healthcare reform plan. So you would think that the Republicans would embrace this. In fact, I think the President felt that he could get bipartisan support in Congress if he did go along with it. He was lobbied very heavily by the insurance industry, as was Congress. But there are a lot of people who don’t like Barack Obama. And the people I saw outside of the court yesterday were people who I think would not vote for Barack Obama under any circumstances. They see this as a political issue, as a way to try to turn people away from the President, not just the reform act.

    AMY GOODMAN: In fact, that’s a very interesting point. Polls have been done that show that the vast majority of Americans, something like three-quarters, think this is a political decision that is being made by the Supreme Court. You know, let’s go back to Citizens United and, before that, Gore v. Bush. But let me ask you about Justice Antonin Scalia asking the Obama administration’s lawyer, Donald Verrilli, to defend the controversial individual mandate provision of the Affordable Care Act. He drew an analogy between forcing people to buy health insurance and forcing them to buy broccoli.

    JUSTICE ANTONIN SCALIA: Everybody has to buy food, sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli.

    AMY GOODMAN: I am convinced that soon everyone is going to be calling it “Barackoli.” But Wendell Potter, talk about this comparison.

    WENDELL POTTER: Yeah, I think that was anticipated, too. There have been discussions by punsters—excuse me, by analysts in the past who have said that, “What’s next? A requirement to buy broccoli?” It was an inevitable question, I think, because, again, it’s a question about the limits of government. And when you’re being asked a question by an advocate of small government or a strict interpretation of the Constitution, then I think that you would see a question like that. Clearly, I don’t think anyone would expect that the federal government would go so far as to require us to eat broccoli. That doesn’t necessarily have anything to do with interstate commerce or the commerce of the country, so—

    But the other thing is, I don’t think that, from the transcripts that I heard and the recordings that I heard—the transcripts I read, that the government’s attorney was quite well prepared to defend the act. I think that we saw something that, in my view, was a continuation of the administration’s inability to really communicate about the Affordable Care Act.
    NERMEEN SHAIKH: Well, one of the criticism that’s been leveled against it has to do with its cost. You’ve talked elsewhere about how—well, first of all, the U.S. has one of the most expensive healthcare systems in the world, and certainly more than most advanced, or if not all advanced, economies. Can you say a little about how you suggest healthcare costs in the U.S. can be cut and how the Affordable Care Act either fails or succeeds in fulfilling some of the things that you’ve pointed to, some of the measures that could be taken?

    WENDELL POTTER: The Affordable Care Act would bring down the deficit. It would curtail government spending. One of the things that is necessary to control healthcare spending is to bring more people into coverage, and the Affordable Care Act would do that by expanding Medicaid and to provide subsidies to many millions of others who are not eligible for a public plan. When you get more people in coverage, they behave differently. They don’t go to seek care all the time at the emergency room, and it would alleviate the cost shifting that is the hallmark of the American healthcare system.

    But it’s not—the Affordable Care Act, in my view, is a start; it is not what we ultimately need. It doesn’t bring everyone into coverage, even with the individual mandate. There are people who could be exempted from that requirement, many millions of people who could be. In fact, it’s only estimated that about 30 million of the 50 million uninsured who would be brought into coverage, if the Affordable Care Act does go forward. We eventually have to get the for-profit insurance companies out of providing coverage, and we need to move toward a system or systems like in the other developed countries, that don’t permit for-profit companies to run their healthcare systems. And there are states that are looking at single payer. Vermont, in particular, has already passed a bill that would establish a single-payer system in Vermont. And I think there will be a growing recognition that that is probably the ultimate way to control cost and to bring everybody into coverage.

  106. GOP Attorney General Suing Over Obamacare Supports Single-Payer: ‘I Trust The Government More’
    By Scott Keyes on Mar 30, 2012

    WASHINGTON, DC — According to one Republican attorney general in the lawsuit against the health care individual mandate, the problem with Obamacare is that it’s not a government takeover of health care.

    ThinkProgress spoke with Louisiana Attorney General Buddy Caldwell outside the Supreme Court on Wednesday. Caldwell opposes Obamacare and the individual mandate, but for a different reason than most of his fellow litigants: it props up the private health insurance industry. “Insurance companies are the absolute worst people to handle this kind of business,” he declared. “I trust the government more than insurance companies.” Caldwell went on to endorse the idea of a single-payer health care system, saying it’d “be a whole lot better” than Obamacare:

    KEYES: You don’t think the subsidies for low-income people are going to be helpful?

    CALDWELL: No, no. The worst thing you can do is give it to an insurance company. I want to make my point. All insurance companies are controlled in their particular state. If you have a hurricane come up the east coast, the first one that’s going to leave you when they gotta pay too many claims is an insurance company. Insurance companies are the absolute worst people to handle this kind of business. I trust the government more than insurance companies. If the government wants to put forth a policy where they will pay for everything and you won’t have to go through an insurance policy, that’d be a whole lot better.

  107. “I hope ideology doesn’t rule the day.” – HA! From the court that gave us Citizens United? DOUBLE HA!

  108. Great work ElaineM. A round of applause.

    So much to appreciate, both links and comments-
    The econ 101 on JAMA Forum, and the many put downs both fact wise and otherwise for these conservatives on the Court.

    Good luck folks. The biggest sorrow was when the public option disappeared, and the mandate to suckle the insurance leaches lifelong came in its place. Swm says iACA has done some good, and she’s right.
    But was it the right move? Can’t go that road and find out.

  109. ObamaCare’s individual mandate: Good for freedom, bad for freeloaders
    John E. Schwarz | The Christian Science Monitor | Mar 31, 2012

    The Supreme Court this past week heard arguments on the constitutionality of President Obama’s health-care law. At heart of the hearings was the law’s “individual mandate,” requiring every American to purchase health insurance. Its critics tell us that the mandate violates basic constitutional principles of individual freedom and limited government.

    Opponents ask: If the federal government has the power to compel all Americans to purchase private health insurance, why couldn’t it require every American to purchase broccoli and other foods that it deems healthy to reduce health-care costs?

    They claim that if the government has the authority under the interstate commerce clause to penalize even inaction – in this case, the decision not to buy insurance – there is effectively no limit on what government could require. As Judge Stanley Marcus of the 11th Circuit Federal Court of Appeals asked: “If they [the federal government] could compel this, what purchase could they not compel?”

    This idea has great currency in opponents’ circles, but its rationale is utterly flawed.

    Why? Because of “free-riders.” A free-rider is a person who benefits from something without paying for it, meaning that somebody else must shoulder the cost. A primary aim of the insurance mandate is to prevent free-riders who receive health-care services but do not pay for them because they lack adequate insurance coverage.

    In the health-care market, the only recourse that free-riders leave providers is to withhold their services in what are typically emergency circumstances – the very instances in which we all agree services should not be denied. It is often impossible, in any case, to determine whether individuals who are in severe pain or delirious can pay or not. Current law, in fact, does not permit providers to deny medical services in these circumstances. And beyond these logistical and legal obstacles, most providers are also reluctant to deny care for humanitarian reasons.

    Free-riding, in turn, shoves the free-riders’ costs onto others through higher prices. This problem is so substantial that in 2009, Newt Gingrich castigated individuals who didn’t purchase health insurance yet could afford it, calling them free-riders and saying that they ought to be required by law at least to post a bond.

    An insurance mandate aimed at stopping free-riders is in complete harmony with a free market. Indeed, the mandate is essential for a free market to be able to operate properly, which is why the Heritage Foundation, a fierce advocate of the free market, was among the first to propose mandating the purchase of health insurance as a solution to both the free-rider problem and rising health-care costs.

    Other markets – like the ones for broccoli or spinach, or the vast majority of markets for other products and services – don’t normally face free-ridership issues at the point of service. Nor does free-ridership result from “inactivity” in these other markets the way it does in the health-care market. These distinctions provide clear grounds for differentiating the mandated purchase of health insurance from the myriad other purchase options individuals have within other markets.

    Thus critics need not worry that the health-care mandate represents a “potentially unbounded assertion of congressional authority” as articulated by the 11th Circuit Federal Court, which ruled the mandate unconstitutional in August 2011.

    Should the Supreme Court rule the insurance mandate to be unconstitutional, the mandate’s opponents will hail its decision as a victory for both freedom and limited government. The opposite will be so.

    The court, instead, will have ruled for the one-sided autonomy of free-riders and rejected the freedom of providers, taxpayers, and consumers, subjecting them all to what is essentially a form of stealing.

    Providers will be legally required, not to mention under the influence of professional obligations going back to the Hippocratic Oath, to deliver services to the free-riders without knowing or often even being able to determine whether they will be compensated.

    To have to work without compensation is a core characteristic of forced labor. The providers then will be forced to finagle third-party consumers and their insurers – innocent bystanders – to pay for the free-riders’ costs by charging them higher prices.

    If this is a victory for freedom, it will be for a fraudulent anything-goes notion of freedom that is amoral.

    And if this is a victory for limited government, it will be so only in the false sense of a government rendered so impotent as to be incapable of protecting its own citizens from free-riders.

    John E. Schwarz is distinguished senior fellow at Demos, a public policy organization in New York, and professor emeritus of government and public policy at the University of Arizona. He is currently writing “Common Credo: How Both the Left and the Right Have Led America Astray,” to be published next March by W.W. Norton.

  110. Specious reasoning by Schwarz there, Elaine. It is committing the fallacy of the excluded middle. This isn’t a binary situation where either the free riders win and the insurance companies loose or the insurance companies win and people are still left without coverage when it cuts into profits. The government has the option of dealing with the free rider problem by making health care insurance universal, single payer and government run. There are no free riders when everyone is insured.

  111. Gene,

    I’m just providing different opinions on the subject.

    BTW, do you think a single-payer government run health insurance bill would ever get passed by Congress at this time? Do you think a majority of the people would be in favor of it?

  112. Elaine, There is not one republican that supports single payer that i know of. Maybe others know of some since they seem to think there would be no problem passing it. Their goal is to de-fund plan parenthood not pass single payer.

  113. Sunday, April 01, 2012

    Sever everything but the exhortation

    Joey Fishkin

    At oral argument, we heard about two ways of understanding the individual mandate. One is that it gives people a choice. You must do one of two things, the law says: (a) obtain health insurance, or (b) pay a penalty on your taxes. On this view, the mandate is no different from an ordinary tax law provision such as a deduction or credit. Your tax bill will be lower by some amount (specifically, in this case, an amount between $695 and $2085, depending on income) if you choose to take an action the government would like to encourage (specifically, in this case, obtaining insurance).

    Those challenging the ACA see it very differently. They say that they are not challenging these tax provisions, but rather, the mandate itself. That is, the problem is not tax penalties or credits that raise or lower one’s bill, but rather, the fact that the statute requires individuals to buy insurance. Indeed these opponents often say that the mandate “forces” people to engage in transactions to buy insurance. What do the words “requires” or “forces” mean, exactly? If you choose to pay the penalty, the law is entirely satisfied; the government asks nothing more of you.

    Those challenging the ACA argue that there is something more. They say the government is demanding, or mandating, that you choose (a), not (b). On this view, to put it in the more familiar terms of a speed limit statute, the law does not say, “it’s fine to drive 90 miles per hour, but you will have to pay a special toll of $100 if you do.” Rather, the law says, don’t do it! Don’t drive 90 miles per hour. And if you do, the penalty will be $100 (and suppose the law also says, there will be no possibility of arrest, points on your license, escalating penalties in the case of multiple violations, or any other negative consequences). In the cold light of cost-benefit analysis, the special toll and the speeding ticket look exactly the same. But they are not the same, because law has a normative dimension.

    This implies some surprisingly deep claims about the normativity of law and the limits of the rational-actor model of how people interact with the law. But I’m not here to talk about that. I’m here to ask how this relates to severability. Why not go farther than Farr (the court-appointed lawyer arguing for greater severability), and hold that even if the mandate must be struck, it is severable from the tax provisions that enforce it? That is, why not strike, and sever, the mandatory exhortation: strike any suggestion that you “must have” insurance, any suggestion that the government in any way “mandates” that you do (a) rather than (b). Leave all functional tax code provisions as they are. Those who do not have insurance will pay $695-$2085. Choose (a) or (b), either is fine.

    Conveniently, as it turns out, the only language in the statute saying that individuals “shall” maintain insurance coverage is located in its own (very short) section, Section 5000A(a). The tax penalty can be found in Sections 5000A(b) and following. It would be very straightforward for either Justice Scalia or his law clerks to strike 5000A(a) and leave everything else intact.

    For those who think the word “penalty” retains a kind of mandatory sting, as though it’s not really ok to choose to pay a “penalty,” I would suggest that you are perhaps a bit hung up on labels, but if you must, simply strike the first four letters PENA throughout the statute, leaving in place LTY, an abbreviation for “little tax yearly.” That way there will be no more “penalty”; those who choose to go without insurance will have to pay a “little tax yearly” in the amount of $695-$2085.

    Some of us believe this change would produce… more or less what the statute already says now. But those challenging the ACA strongly disagree. They believe the ACA is very different—that it is an intrusive government command that does not give anyone a choice but instead “forces” everyone to buy insurance. Ok then. Let’s agree to disagree. But if the Court agrees with the challengers that the mandate must go, then let’s sever the controversial and disputed bit—the “mandate itself,” separate from the tax penalty—and give all sides what they say they want. Challengers get an end to the oppressive, individual-liberty-crushing mandate they abhor, the one that threatens to change fundamentally the relationship between the people and their government. In its place will be nothing but a little tax. Meanwhile, defenders of the ACA will get all the functional provisions of the law upheld, so that most of the uninsured will have a path to obtaining health insurance and we can begin to slow cost growth and achieve the rest of the law’s substantive aims. This solution has the great virtue that, unlike every other possible solution to the severability problem (including striking the entire ACA), it causes no unforeseen consequences, raises no specter of effects the law’s sponsors did not anticipate, and requires no further action from Congress. That last is especially helpful if we think of the “real” Congress, as Justice Kennedy mused at oral argument.

    What’s not to like? Unless, that is, all this talk by the challengers of how they are challenging only the “mandate,” not the tax provisions enforcing it, is just talk, and really it is the entire ACA they are after, by any means they can get their hands on.

    Posted 4:33 AM by Joey Fishkin [link]


  114. Swarthmore,

    I don’t think single-payer health care legislation has a chance. I wish the Democrats hadn’t removed the public option from the ACA. I believe it would have been a step in the right direction.

  115. Elaine, I know but I feel this is better than nothing for the 37 million uninsured. The ER’s don’t provide chemotherapy. Obama now leads Romney 2-1 with women under 50 while Romney swamps Obama with the over 50 male. Women are more likely to lack health insurance as they are employed in occupations that don’t provide it so again they are more in favor of Obamacare.

  116. Elaine,

    Possible with the current set of pols and the state of campaign finance and lobbying? Probably not. Is it salable to the American public? Certainly. The business case for it is very strong unless you work for a health insurance company. The human rights case for it is very strong if most people knew how much of the Western world already operates on a single payer system. I think the real question around single payer is will it eventually become necessary or not and when. The current systemic inefficiencies sucking money out of patient treatment will eventually force the necessity of creating a single payer system as a matter of national security eventually even if the economics of it don’t force the issue before then, thus leaving the remaining question of when. FWIW, I agree about the public option. It was a step in the right direction, but it was contrary to the financial interests of the health insurance companies – the people Congress really represents as long as graft is essentially legal in the form of campaign donations and lobbying by corporations.

  117. Gene,

    I’m not as optimistic as you about single payer being “salable” to the majority of Americans–not with all these well-funded groups “poisoning the well” on the subject and getting people freaked out about “socialistic” programs. Heck, we’ve got a Republican party that is trying to privatize programs like Social Security and Medicare.

  118. Swarthmore mom,

    As I wrote in an earlier comment–I have mixed feelings about the ACA. There are some good things in it. They are the reasons why I don’t think I’d like to see the the baby thrown out with the bath water. I doubt we’d have a chance of getting a better bill with the Congress we have at the present time.

  119. Swarthmore mom,

    Paul Ryan Budget Sparks First Ads Blasting Medicare Cuts

    WASHINGTON — Democrats are not waiting long to use Rep. Paul Ryan’s federal budget proposal for next year as a campaign billy club.

    Last week, the House passed the Wisconsin Republican’s $3.5 trillion budget plan, complete with measures to switch Medicare to a private system, slash more than $700 billion from Medicaid, and cut programs such as food stamps.

    On Monday, the Democratic-aligned Americans United for Change and the American Federation of State, County and Municipal Employees are firing off a round of ads aimed at Ryan and three other Republicans in tough races, focusing especially on the electorally potent topic of Medicare.

    Ryan, the House Budget Committee chairman, and his colleagues took a beating over his plan last year, and the ads predict it will happen again.

    “Last year, Congressman Ryan voted to end Medicare,” the ad says, arguing that the push to switch Medicare to a significantly less generous private system will essentially end the program that seniors now rely on.

  120. Elaine,

    Please don’t mistake my statements for optimism. I don’t think you know the worst case scenarios I’m thinking of when I say single payer will eventually become a matter of national security. No. I’m many things, but optimistic isn’t one of them.

  121. SwM,
    Joey Fishkin has obviously studied both in the Jerusalem and Babylon Talmud schools. How happy I am at his solution.
    And think of all the rage it will inspire in the Republicans.

  122. Yale Law School

    March 29, 2012

    How To Defend Obamacare; Solicitor General Donald Verrilli was grilled by the Supreme Court’s conservatives. Here is what he should have said.
    By Akhil Reed Amar ’84

    May It Please the Court,

    I have never written an open letter to Your Honors, but I now do so in response to several things that were said—and not said—in this week’s historic oral argument on the Affordable Care Act, aka “Obamacare.”

    In the spirit of the season, please permit me to proceed in the same style of Socratic Dialogue powerfully on display in the oral argument itself.

    Q: What are the limits of congressional power?

    A: The limits are those found in the Constitution itself, of course—its text, its history, and its structure as glossed by subsequent practice and precedent. The Constitution expressly gives Congress the power to “Regulate commerce . . . among the several states.” Here, we have a genuine regulation—both the micro-mandate/penalty/tax and the larger regulatory regime of which it is an integral part. We have commerce under any reading of the word. Insurance is a purely commercial or economic question about who pays whom. And we have an underlying problem that is truly “among the several states.” The problem of health care creates spillover costs that cross state lines, problems that result in some states in effect imposing costs on other states or bearing costs that properly belong to other states.

    Q: How so?

    A: At any given instant, literally millions of Americans are out of state. Most of my students come from other states. I myself am out of state three days a week. If any of us falls sick while out of state, we can seek ER care in the host state. And unless we have insurance, we will be imposing costs on other states. Obamacare addresses this obvious interstate problem in a direct way. The two leading cases in which the court has recently invalidated congressional laws as going beyond the scope of the commerce clause—U.S. v. Lopez in 1995 and U.S. v. Morrison in 2000, involving guns in schools and violence against women—did not involve similar interstate spillovers. Those cases were thus rightly decided on commerce clause grounds, as I myself have argued. And these cases prove that limits do really exist.

    Q: Isn’t the obligation to offer ER care itself created by federal law? So isn’t your argument pure bootstrap—one intrusive federal law generating another?

    A: With due respect, no. The obligation to care for the urgently sick—including the strangers in our midst—is ultimately rooted in morality and centuries of tradition. Many ERs would and should pitch in even without a federal requirement, and the interstate problem is ultimately created by travel itself—travel that the interstate commerce clause in fact was designed to promote. Which leads me to a second and independent argument supporting Obamacare, namely . . .

    Q: Before you get to that, wouldn’t your argument allow the feds to mandate burial insurance? Indigents sometimes die out of state, don’t they?

    A: Yes, but in what numbers, Your Honor? With due respect, it is easy to hypothesize from an armchair—but is there really, truly, an interstate problem of indigent interstate burials anywhere near the magnitude of the actual ER problem in America? States can individually handle burials, but any state that on its own tries to generously handle the health-care issue risks becoming a massive magnet for out-of-staters. Sick people can flock to states with generous medical benefits. And this really doesn’t happen with dying people leaving their home states just so that they can die on some other state’s nickel.

    Q: What about a federal mandate to buy broccoli?

    A: Thank you for that softball, Your Honor. There is no real, substantial, honest-to-goodness interstate spillover/externality problem with broccoli that I see at the moment. [Pause] Even if nothing I have said yet persuades Your Honors, my second commerce clause claim is that millions of Americans suffer from preexisting medical conditions. If they get a better job offer out of state, they should take it so that they can contribute more to their families and to the general economy. But they will not be able to do so if the out-of-state employer discriminates against preexisting conditions. This discrimination creates a huge lock-in of labor. It prohibits interstate mobility—the free interstate flow of services. The core purpose of the interstate commerce clause is to allow Congress to remove interstate barriers—legal, physical, economic—such as this.

    Q: That explains the ban on preexisting condition discrimination, but how does that explain the mandate?

    A: The two are of course intertwined, as Your Honors recognized on Day 3 of oral argument, regarding the law’s “severability.” The ban on discrimination will only work if almost all are obliged to insure before they become expensively sick.

    Q: But nothing you’ve said so far addresses the unprecedented issues raised by a federal mandate that a person buy a private product.

    A: Several answers, Your Honor. First, this law is hardly unprecedented. The Militia Act of 1792 had a similar mandate, obliging Founding-era Americans to privately procure muskets, ammo, pouches, and so on. George Washington signed onto that law. And no one at the time said that mandates such as this were somehow intrinsically improper regulatory tools.

    Q: Even if so, that law was passed under a different clause of the Constitution?

    A: It’s hard to see why that matters. If a mandate is a permissible regulation of a well-regulated militia, it is an equally permissible regulation of interstate commerce. In the most important case ever decided on the scope of congressional power, the iconic 1819 case of McCulloch v. Maryland, Chief Justice John Marshall said that because a corporation-creating law was a valid under one clause of the Constitution (the territories clause), a corporation-creating law should be equally valid under other clauses. What is true of corporation-creating laws is also true of mandate laws.

    Q: If 200 years ago, national security enabled government to mandate muskets, might national security today enable government to mandate vaccines?

    A: The next terrorist attack might very well be biological, Your Honor. And our best national defense is herd immunity, which does mean that we need a large percentage of Americans to have vaccines. They will be more likely to have such vaccines if they have insurance. And states cannot individually handle these issues well because viruses do not stop at state lines. They spill over. They create interstate externalities. McCulloch itself, I might add, was decided on national security grounds. In the wake of the war of 1812, Marshall explained how a national bank was useful in fighting wars and supporting armies.

    Q: You said that no one in 1792 thought mandates were somehow especially troubling. Why not?

    A: Because they understood simple logic—and we must do the same today. If government can tax me, and use the money to buy a musket/insurance policy with my name on it, and then give me the musket/insurance policy, then government can for the very same reason oblige me to procure the musket/insurance policy myself. I am being taxed/mandated by persons that I helped elect and that I can vote against. That is the main guarantee against abuse, as Chief Justice Marshall stressed in McCulloch and is obvious from the Constitution’s basic structure. And speaking of taxes, another easy way to handle this case is simply to uphold the mandate/penalty as a genuine revenue measure, enforced by the IRS and predicted by the Congressional Budget Office to improve the federal government’s fiscal situation by several billion—with a B—dollars a year.

    Q: But isn’t liberty especially at risk with these kinds of federal mandates?

    A: Respectfully, no. Not at all. I emphatically deny Your Honor’s key proposition. It flunks a logic test, and a history test, and a structure test, and—well, just about every other legal test I can think of. If government can take my money and pay it to Detroit, there is no liberty difference than if government tells me directly to buy from Detroit. And if one thinks that money is speech such that a compelled payment is a First Amendment problem, then the 1792 Act was unconstitutional; and all state mandates of health insurance (Romneycare) and automobile insurance are unconstitutional. And a vast range of other state and federal laws would also be unconstitutional. Nothing in the Constitution or history or structure—or precedents, for that matter—provides suitable support for the “mandates are different” intuition, which cannot survive analytic scrutiny. Such an opinion will not write—or if it does, it will not last.

    Q: Meaning what?

    A: Meaning, with the greatest of respect for an institution and individuals whom I hold dear, I have to teach the stuff that Your Honors write year in and year out to my students. And if a judicial opinion simply fails tests of text, history, structure, and logic—and if it comes down by a 5-4 vote; and if the vote seems to track the party-alignment of appointing presidents; and if the four dissenters are emphatic that the majority’s arguments simply don’t wash; and if the vast majority of us who study constitutional law professionally, including most conservative scholars, agree that these arguments simply don’t wash; and if I already have to do a lot of work to explain Bush v. Gore, in context—well, what will I tell my students when they say to me, cynically, that “it’s all politics”? What will I say, when they ask me (as I have already been asked by one former student): “Just how many presidential elections are five conservative justices allowed to undo?”

    Q: Are there any middle positions that might generate a broader consensus on the Court?

    A: One possibility, perhaps, might build on various comments by Chief Justice Roberts and Justices Sotomayor, Kagan, Breyer, and others, at oral argument. The “mandate” should not be understood as free-floating requirement but simply as connected to the tax-penalty. In turn, the penalty can be upheld as a genuine revenue measure designed to bend down the cost curve. If the relevant statutory section needs in effect to be “reworded” to achieve this result, a judicial re-writing/re-reading of this section would be in keeping with various earlier cases, including the 2005 sentencing guidelines case of U.S. v. Booker and the 2009 Voting Rights Act case of NAMUNDO v. Holder. Both cases, in turn, can be seen as rooted in principles of judicial restraint and charitable interpretation famously put forth by Justice Brandeis in his concurrence in the 1936 Ashwander v. TVA opinion. With all due respect, several other possible approaches are also sketched out in an essay I wrote last summer for the Yale Law Journal online.

    And I’m sure that there are many other possible consensus positions that may emerge as Your Honors begin to deliberate among yourselves. Perhaps it would be too much to expect the kind of unanimity this court achieved in McCulloch, Marbury v. Madison, and Brown v. Board of Education—to name some of the most iconic cases. But an opinion that in some way genuinely crossed party lines would, with all due respect, be just what America now needs, and needs desperately, from the highest court in our land.

    Respectfully submitted,

    Akhil Reed Ahmar Yale Law School

  123. Brooklin Bridge,

    I had read that the public option was removed in order to win Olympia Snowe’s vote. Thanks for the link to that HuffPo article.


    Olympia Snowe’s Strange Martyrdom

    The characteristic Snowe episode came during the health care fight. The Obama administration, desperate to win her vote, wooed her with endless meetings and pleas, affording her a once-in-a-generation chance to not only help pass health care reform but make it smarter, more efficient, and more compassionate. Instead, Snowe tormented the administration by dangling an elusive and ever-changing criteria before their noses. She at first centered her objections around the inclusion of a public option. Democrats removed it, and she voted for the bill in the Finance Committee, only to turn against it when it reached the decisive vote on the Senate floor. Snowe complained that the process was happening too fast, and that it was too partisan, which seemed to be her way of saying she wouldn’t vote for it unless other Republicans joined her.


    Joe Nocera’s Phony Defense of Bipartisanship
    March 4, 2012

    Nocera holds up Sen. Snowe (R-Maine) as a model of “moderate beliefs.” If you call it moderate to vote against the Affordable Care Act, after forcing the removal of the public option on the pretense that she would vote for the final bill, then Snowe is a moderate. If you call it moderate to take a stand against a jobs bill because it imposed a teeny tax on millionaires, then Snowe is a moderate. If you call it moderate to back “a balanced budget amendment, which “is likely to push the economy back into recession,” then Snowe is a moderate. If you think “it’s just too darn easy to get legislation through the U.S. Senate,” then Snowe – who partnered with Jeff Sessions (R-Ala.) to try to make the process even more convoluted – is a moderate. As far as I can tell, Snowe’s actual positions on economic and other issues put her in lock-step with many conservative Republicans.

  124. Scalia’s Ex-Clerk: 65% Chance SCOTUS Overturns ‘Obamacare’ Mandate

    Brian Fitzpatrick, a professor at Vanderbilt University Law School and former clerk to Justice Antonin Scalia, weighed in after the Supreme Court health care arguments.

    He wrote in an email to TPM:

    Scalia is a very likely vote against the mandate, and I’d say there is a 65% chance the five conservatives strike it down.

  125. “A Supreme Court activist enough to strike down Obamacare would probably be activist to strike down single-payer, too. Whatever arguments the conservative justices have concocted to nullify an individual mandate, they can discover different ones to nullify a much more intrusive big-government system. This doesn’t mean we should give up on ever passing such a law. But it does require a different strategic calculation. Instead of the presidency, a House majority and 60 senators, you probably need the House, the presidency, 50 senators and five Supreme Court justices. In the long run, there will be more times when Democrats have five members of the Supreme Court than 60 senators. The Supreme Court will function as a kind of second Senate, an additional political veto point. (Again, all this is assuming the kind of Republican activism that would be entailed be striking down the whole law.)

    The even worse news is that getting 50 senators to vote for single-payer will be really, really hard. You’d be asking them to vote to completely destroy a major industry. That is something very few senators, even liberal ones, are willing to do.

    It’s not impossible, though. What would have to happen would be for Democratic activists to organize such that supporting single-payer became an essential element of the party platform, like regressive tax cuts are for Republicans — something that, whatever else you may disagree about, a candidate must sign on to in order to be nominated. That process would a massive organizational and financial commitment and take a generation to succeed. That’s not hopeless, and it would be the best option in the face of legal disaster. But the best option, by far, is not to get struck down in the first place.” excerpt Jonathan Chait New York magazine

  126. SwM
    “The obligation to care for the urgently sick—including the strangers in our midst—is ultimately rooted in morality and centuries of tradition”

    In the then greatest empire in the world all humans were guaranteed health care, and even wild animals as a gesture to Jains who revered all life forms.
    This was in India ca 250 BCE.

    This professor writes so SCOTUS can understand, and even I can get most of it. Hope he blogs.
    Here he may have lost his case with the snark about Bush vs Gore.

  127. “In 1986, Congress enacted the Emergency Medical Treatment & Labor Act (EMTALA) to ensure public access to emergency services regardless of ability to pay. Section 1867 of the Social Security Act imposes specific obligations on Medicare-participating hospitals that offer emergency services to provide a medical screening examination (MSE) when a request is made for examination or treatment for an emergency medical condition (EMC), including active labor, regardless of an individual’s ability to pay. Hospitals are then required to provide stabilizing treatment for patients with EMCs. If a hospital is unable to stabilize a patient within its capability, or if the patient requests, an appropriate transfer should be implemented.”


    From the American College of Emergency Physicians


    Main Points
    •The Emergency Medical Treatment and Labor Act (EMTALA) is a federal law that requires anyone coming to an emergency department to be stabilized and treated, regardless of their insurance status or ability to pay, but since its enactment in 1986 has remained an unfunded mandate.
    •The burden of uncompensated care is growing, closing many emergency departments, decreasing resources for everyone and threatening the ability of emergency departments to care for all patients.
    •Emergency physicians provide the most charity care of all physicians (AMA 2003).
    •ACEP advocates for recognition of uncompensated care as a legitimate practice expense for emergency physicians and for federal guidance in how fulfill the requirements of the EMTALA mandate in light of its significant burden on the nation’s emergency care system.
    •Everyone is only one step away from a medical emergency.

    Who pays for EMTALA-related medical care?
    •Ultimately we all do, although EMTALA places the greatest responsibility on hospitals and emergency physicians to provide this health care safety net and shoulder the financial burden of providing EMTALA related medical care.
    •According to a May 2003 American Medical Association study, emergency physicians on average provide $138,300 of EMTALA-related charity care each year, and one-third of emergency physicians provide more than 30 hours of EMTALA-related care each week. Physicians in other specialties provide, on average, about six hours a week of care mandated by EMTALA, and on average incurred about $25,000 of EMTALA-related bad debt in 2001.
    •Some health insurance plans deny claims for legitimate emergency departments visits, based on a patient’s final diagnosis, rather than the presenting symptoms (e.g., when chest pain turns out not to be a heart attack). Some also attempt to require preauthorization before a patient can seek emergency medical care, resulting in denied payment. These managed care practices endanger the health of patients and threaten to undermine the emergency care system by failing to financially support America’s health care safety net.
    •ACEP advocates for a national prudent layperson emergency care standard that provides coverage based on a patient’s presenting symptoms, rather than the final diagnosis. In addition, health insurers should cover EMTALA-related services up to the point an emergency medical condition can be ruled out or resolved.

  128. idealist, I don’t know if Prof. Ahmar has a blog. He was on the Chris Hayes show Saturday morning and I was quite impressed.

  129. Elaine H very enlightening to me about emergency care. Seem they put a bandaid on it and forgot to pay. Great solution. thanks. says he who don’t know nothin’.

    Thanks, will stop harping about you know what. It is all part of learning for someone who never was with people. Learning to interpret silence or no reply requires training. thanks..
    Ahmar, very impressive. Maybe he has a night course for ex-pat americans.

  130. Akhil Reed Amar, from Wikipedia (cited elsewhere)

    Hope he makes it to SCOTUS, they need it.

    “A Legal Affairs poll placed Amar among the top 20 contemporary US legal thinkers.[2]”

    “Amar is a summa cum laude graduate of Yale College (B.A., 1980) and the Yale Law School (J.D. 1984) and was an editor of the Yale Law Journal. Amar clerked for now-U.S. Supreme Court Justice Stephen Breyer when he was a judge on the First Circuit Court of Appeals.

    Amar is the author of numerous publications and books, most recently the acclaimed America’s Constitution: A Biography. The Supreme Court has cited his work in over 20 cases, including the landmark 1998 decision in Clinton v. City of New York, which ruled the presidential line-item veto unconstitutional.[1] In their book For the People: What the Constitution Really Says About Your Rights, Amar and Alan Hirsch introduce a variation on the four boxes of liberty theme often quoted by conservatives opposed to gun control. Discussing the American Constitution, they assert that the ideal of citizenship generates four “boxes” of rights. The first three are the ballot box, jury box and cartridge box. To these, with some reservations, they add the lunch box: the idea of a social safety net that supports basic physical and educational needs.[3][4]

    He was a consultant to the television show The West Wing, on which the character Josh Lyman refers to him in an episode in Season Five. His course on constitutional law is one of the most popular undergraduate offerings at Yale College. Amar’s younger brother, Vikram Amar, teaches at the UC Davis School of Law.”

    What does this mean?

    “The Supreme Court has cited his work in over 20 cases, including the landmark 1998 decision in Clinton v. City of New York, which ruled the presidential line-item veto unconstitutional.[1] “

  131. Although I do not profess to be a constitutional scholar, I have argued on several threads that I believe the individual mandate is constitutional under the Commerce Clause. I don’t have anything to add to what I’ve said before, but I do wish to comment on the so-called broccoli analogy. My objection is not only that it demeans the seriousness of the issue (because it is silly), but that it is a bad analogy.

    Justice Scalia’s argument would have some weight if the mandate compelled that I must either buy a Blue Cross/Blue Shield policy or pay a tax. But that is not what the law says. It says that I must purchase health insurance or pay a tax. Broccoli is one of many vegetables, just as Blue Cross/Blue Shield is one of many insurance companies. Properly framed, therefore, Justice Scalia’s question should have been, can the government force me to buy vegetables?

    Which brings me to the second reason his analogy is bad. Fruit and vegetable farmers do not receive federal subsidies. However, growers of many other cash crops do. For example, between 1995 and 2010, taxpayers paid over $32,000,000,000.00 to wheat farmers. If we ate more wheat, those subsidies would be reduced. So, to further refine the point, Justice Scalia’s question should have been, can the government force me to buy wheat products? Perhaps not directly, but it does so by supporting wheat prices. Either I eat more wheat or I pay more in taxes to fund subsidies.

    There is no doubt whatsoever that health care is interstate commerce. The individual mandate says that I may either purchase health insurance to spread the cost of health care or pay a tax for the same purpose. It is a bad compromise on a single payer system, but the compromise was made to get the law past the same people who are now challenging it in court. There’s more than enough irony to go around in this case.

  132. Great post, Mike, but I still disagree with you about the Commerce Clause versus the federalism issue. Like you said though, that’s an old conversation. I do agree though that Scalia’s analogy is terrible. :mrgreen:

  133. Gene H.:

    I know we disagree on the federalism issue, but in Scalia’s case, federalism is ignored anyway if it might produce a different election result (Bush v. Gore) or enable states to protect consumers against unconscionable contracts (AT&T v. Concepcion). If his opinion in this case begins with an ode to federalism, we won’t have to read the rest.

  134. The mandate to buy health insurance from private enterprise will be upheld and will ultimately replace Medicare

    soon thereafter, the mandate to buy retirement insurance from private enterprise will piggy-back. it will be upheld and will replace social security

    Neither justices nor people on one side or the other of this fiasco have any interest whatsoever in constitutionality except by coincidence. Under virtually every argument pro or con is the “activism” of perceived interest or personal view point. It is farcical to suggest that liberals are upholding the constitutionality of mandating citizens into coercive relationships with private enterprise.

    No, underneath that gymnastic they are simply arguing for a practical highly relative outcome which they often express as, a little bit of something is better than a whole lot of nothing. And underneath that is the assumption that their team, “the Democrats”, must have decent motives in the main and at the end of the day.

    Some even imagine this to be a strategy, to use the fire of this eminently right wing legislation, the mandate, against the conservatives themselves; to Trojan Horse in a program that will magically transform over time into a viable decent and humane health care system. I say magically, because that is what it would apparently take to get Democrats to actually stand up for what’s right, for any “progressive” transformation of something as small as a jay walking ordinance, never mind a national health care system. And that also makes an increasingly dubious assumption that Democrats are so motivated at all; that they have any interest whatsoever in enlightenment humanity or compassion that equals or surpasses or even approaches their interest in doing what industry lobbyists ask of them in return for a higher statistical chance of re-election and personal enrichment.

    What liberals forget or what they are simply unwilling to “observe” is that their own party is working just as diligently for the profit of private enterprise — which is the antithesis of enlightenment humanity or compassion — as are the conservatives.

  135. Oh well. At least we have a Democrat for a president. It’s not as if we have a someone in the oval office who would assert presidential authority to terminate the lives of human beings, even citizens, with no judicial review. It’s not as if our president would sign a bill that eliminates the right of citizens to challenge secret indefinite detention by a potentially corrupt and/or authoritarian police and judicial system. It’s not as if we have a president that would allow or condone spying on it’s own citizens. It’s not as if we have the most anti transparent president in the history of the country. Eh?

    So what could possibly go wrong when it comes to legitimizing a mandate forcing citizens buy health care insurance from profit driven, monopolistic, proven ruthless sharks of private industry? We know full well it’s all for a good cause in the end, n’est pas? With this level of tragically misplaced responsible, adult trust in team D, who needs a public option anyway?

    And to think those nasty Supreme Court justices would take all this away simply because it’s not officially a Republican monster in the oval office who is driving the legislation.

  136. Opps, the above snarky comment should read (at the end), “[…]tragically misplaced responsible, adult trust in team D, who needs a public option anyway?

    And to think those nasty Supreme Court justices would take all this away simply because it’s not officially a Republican monster in the oval office who is driving the legislation.

  137. Here is a point that no one has made yet, but we all should consider it. IF the mandate is somehow tossed out [and I do not believe it should be], query what happens to the mandate in RomneyCare? Sure, I know that health care can be regulated by each state for its citizens as part of a state’s policing power, but no state can regulate a national solution to a national problem of accessing and affording health care and its financing arm-insurance. If folks cannot be forced to buy insurance on a federal level, then folks in the Commonwealth of Massachusetts cannot be forced to buy insurance either. To say otherwise is to assert a difference without a distinction. And for anyone to say the Supreme Court cannot override a state law, just look at what the Supreme Court did recently to an opinion out of the Montana Supreme Court (American Tradition Partnership vs. Bullock) that held corporations that contribute to campaigns violate that state law, and that act is constitutional under Montana law. An appeal was taken to the Supreme Court where it stayed the Montana decision based upon the Citizens United opinion, in effect overruling Montana state law. If the Court can trump a state campaign law that is in contradiction to a Supreme Court decision, then what justification can there be in saying if the Court finds unconstitutional the individual mandate in the health law, a similar provision in a state law remains valid? None that I can think of. And carrying this logic further, no state could ever pass a health law with a mandate to purchase insurance. What then—a single payer, medicare-type solution?; a Public Option? Didn’t those proposals “crash and burn” in Congress? What next?????

  138. “Here is a point that no one has made yet, but we all should consider it. IF the mandate is somehow tossed out [and I do not believe it should be], query what happens to the mandate in RomneyCare?”


    When Scalia tossed up the tea party’s “Can the federal government force me to eat broccoli,” I thought, “Can it make me vaccinate my kids?” BTW, my kids are vaccinated by a physician in private practice and insurance did not cover all of the cost — so, yeah, I purchased a product/service in the private market to fulfill the government mandate.

    But wait — the federal government doesn’t mandate vaccinations (although federal money covers the biggest chunk of such vaccines); the states do — and the courts have repeated held the requirement to to be constitutional.

    Why? State governments exercise general powers — a state can do just about anything not limited by its own constitution or preempted by federal law. So RomneyCare is OK, and the principle is established that forcing a private person to make a purchase in a private market for the purpose of promoting the general welfare of the people is not per se unconstitutional.

    But the federal government exercises limited powers — the powers must be found either in the constitution or in the inherent status of the United States as a nation-state. If ObamaCare can be linked to such a power, the mandate to purchase insurance will stand because it is no different than being forcing me to vaccinate my kids.

  139. 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.

  140. 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.

  141. Magento…

    […]The Case of the Cruciferous Vegetable, the Cornhusker Kickback, Justice Scalia, Right-Wing Talking Points, and the Affordable Care Act « JONATHAN TURLEY[…]…

  142. 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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  144. […] As Media Matters has previously explained, right-wing talking points demonizing birth control made their way into the amicus briefs presented to the court before the case was even argued, and Justice Scalia in particular has been known to repeat verbatim right-wing myths, such as the dubious idea that if the Supreme Court upheld the ACA the federal government could ultimately require consumers to purchase broccoli. […]

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