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)
Excuse me all for playing comedian to your straight men (unmeant from your side I know)
However:
GeneH,
“…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.
id707,
Then refute away.
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.
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.
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.
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.
Antonin Scalia Wary Of Health Care Mandate
http://tpmdc.talkingpointsmemo.com/2012/03/antonin-scalia-tips-his-hand-against-health-care-mandate-1.php
Excerpt:
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?
http://tpmdc.talkingpointsmemo.com/2012/01/in-health-care-brief-obama-doj-needles-scalia-on-precedent.php?ref=fpb
Excerpt:
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.
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.
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.
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.
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.
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.
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.
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.
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
http://wonkette.com/468356/olympia-snowe-waited-by-the-phone-for-years-for-obama-s-call
Excerpt:
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
By JONATHAN CHAIT
http://nymag.com/daily/intel/2012/03/olympia-snowes-strange-martyrdom.html
Excerpt:
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.
Great article Elaine!
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?
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.
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.
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.