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)
Bron, so You Like the Wage Slave system?
Wal-Mart doesn’t offer many employees Health Insurance.
Gene H:
your contradictions are becoming more and more apparent. You use your “logic” to try and cover them up.
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.
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?
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.
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.
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.
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.
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
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.
brucespoint,
Bingo.
Here’s why health insurance is not like broccoli
Ezekiel Emanuel
Mar 29, 2012
http://blogs.reuters.com/great-debate/2012/03/29/heres-why-health-insurance-is-not-like-broccoli/
Excerpt;
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.
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.
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.
Bob,
Using talking points is better than appealing to songs and poetry in a justice’s opinion is the best argument you’ve got for rafflaw?
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.
Rafflaw: “The Supreme Court should be above talking points, shouldn’t they?”
Rafflaw,
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).
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.
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.
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.
Balkanization