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,
Loccoli.
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.
SOURCES
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)
Gene H. Disagree with your assessment, but have to leave. So later.
Tell 37 million uninsured people that there is no difference.
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.
The women’s groups will be the troops for the democrats this time.
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.
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.
Women’s Advocacy Groups Lead Pro-ObamaCare Demonstrations At Supreme Court
Posted Tuesday, March 27, 2012 in Reporting by Graham White
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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.
Single payer is the preferable way to go but let’s face it is not happening. Name one republican that supports single payer.
Ooops! Forgot about “federalism”. Oh well, my brain is too tired to go there. Up with Madison!
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?
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.
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?”
*
http://fdlaction.firedoglake.com/2012/03/27/the-difficulty-of-the-adminstration-splitting-hairs-on-the-mandate/
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.
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.
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.
http://drjengunter.wordpress.com/2012/03/28/cancer-v-the-constitution/
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.
The Limiting Principle
JB
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
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.
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?