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)
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?
Bob,
The Supreme Court should be above talking points, shouldn’t they?
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.
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.
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. .
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?”
Amen.
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?
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….
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.
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.
Idealistst707.. I wish there were a way I could type more slowly so that you might understand but unfortunately there is not.
Pity.
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.
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.
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?
” 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?
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.
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?
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.
id707,
Are you familiar with the Salt March?
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?