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)
Dredd. Increasing numbers of women know there is a difference. Are they wrong?
Swarthmore,
Excellent link to the Koppleman article.
Gene H. 1, March 31, 2012 at 4:05 pm
DonS,
I submit that there are no actual liberals or conservatives in Washington. They’re all corporatists. … Fuck ‘em … A pox upon all of their houses.
========================================
I love clarity.
The political scene is a ruse, of course, as you say.
The dividing ideologies which the script writers are promoting allow choice, but those choices are which poison do you choose.
“The moral outrage that the law has provoked is weird. It’s a tyrannical intrusion on your liberty if government makes you pay for health insurance before you get sick and demand treatment! But if millions of people die from preventable diseases, or are bankrupted by medical expenses, no problemo. Libertarians focus obsessively on threats to liberty from the state, but there are lots of other things that threaten your ability to live as you like. Getting cancer and not being able to afford chemotherapy, for instance. (No, you can’t get that at the emergency room.)” Prof. Koppelman
AY,
I don’t think so. I disagree with Bob that I am poisoning the well.
Bob wrote;
“In lieu of addressing the argument, you would have your audience dismiss it in toto because the speaker is somehow tainted by the talking point. However, the analogy holds. As I stated before, the ACA commandeers the individual by forcing him to purchase a service as a condition precedent for merely residing lawfully in the United States. The broccoli comment clarifies the point that there is no limit to the power that could be exercised by so blatantly ignoring the principles of separation of powers & federalism.”
What argument is Bob referring to? The argument about the mandate’s constitutionality? That wasn’t the point of my post. I was attempting to shed light on Scalia’s use of right-wing talking points. I’m not allowed to do that? Another thing: I happen to disagree with Bob regarding the broccoli analogy.
http://www.salon.com/2012/03/27/craziness_prevails_in_obamacare_hearings/ by Andrew Koppelman,John Paul Stevens Professor of Law at Northwestern University
http://www.salon.com/2012/03/31/the_conservative_grip_on_power/ A ruthless GOP power grab centered around the Supreme Court has cemented conservative control in Washington.
JT gang,
All the arguments are great, on both sides, supposing of course, that the government which any argument presupposes actually exists.
However, what if the per-supposed government is a mere illusion?
Those of you who realize that the U.S.eh? is a plutocracy throbbing along with a plutonomy, really do get the current structural reality.
Voting, money management, war, health and wealth, and everything else must be analyzed within that one and only reality.
Otherwise, everyone is right and everyone is wrong, but none of that matters in terms of a fix.
What do the 99% in a plutocracy do to engage the 1% ??
What do you want the 1% to do?
What do they want to do?
What do they want you to do?
The rubber meets the road at the point where they have you where they want you … until they don’t anymore.
The bridge across that history goes where it goes … to nowhere or to somewhere.
Otherwise … like Bon Iver beautifully sings, we are merely “lapping lakes like leary loons.”
Elaine,
That was exactly what Bob was trying to say….. I think….. Just because Scalia is a pundit for the right and is using the grotto speak…. We can still focus on his lack of judicial ethic as a starting point…..
Swarthmore mom,
I’d say it became truly politicized when Roberts became Chief Justice in 2005.
Elaine, This court became politicized in 2000 and continued on through Citizens United. It is really not that surprising. One would hope for something better in the opinions than we got with Scalia’s Limbaugh imitation but I am not holding my breath. Don’t get intimidated by lawyers that neither practice constitutional or even healthcare law or in some cases they do not practice at all. They only are rendering their opinions.
Bron, Hows the weather on that island you raised yourself on?
Watching the water rise?
When society is what makes you sick, does not society hold some responsibility for its effects?
Unfortunately, Canadians are prone to short-sighted Greed too, but They are waking up, as are citizens of my good ol USA.
Bob,
I would expect a Supreme Court to use its own words and actually read the bill that they are discussing. No matter how long the bill is. It is also interesting that the individual mandate was not a constitutional problem until a Democratic President employed it.
Bron,
I’ll accept critiques of logic from you the day you demonstrate you can properly and consistently apply the tool. However, since you just demonstrated that cannot even distinguish an example from a comparison, I think that I’ll be over here not holding my breath. That and you’ve demonstrated that you have no problem with an insurance executive having power over somebody’s health care because they’re making a profit whereas a government single payer system would not face that constraint. A constraint, by the way, that operates against the best interests of the patient because paying for care cuts into said executive’s profit margin.
Yep.
That’s some brain you’ve got there, Bron.
It’s sure not Hans Delbrück’s though.
AY,
I think some people have misconstrued my post. I didn’t write about my support of the ACA–but about Justice Scalia’s use of right-wing talking points in his arguments. The Affordable Care Act could have been so much better…could have helped to bring down insurance costs. Unfortunately, Washington has become so politicized and the relationship between Republicans and Democrats so acrimonious that little that is good for the people/99% gets accomplished there.
brucepoint:
“Bron, so You Like the Wage Slave system?
Wal-Mart doesn’t offer many employees Health Insurance.”
I dropped out long ago, most corporations suck. And they suck the life out of you. But socialism also sucks the life out of people. Not many places it really works, usually small countries in northern Europe.
What we need to do is take the government out of the economy and free up the imagination and ingenuity of the American people so that we can take care of ourselves.
When labor is scarce it writes its own ticket. Labor is usually scarce when there is a good economy. Prosperity ends wage slavery, wealth eliminates poverty.
Bob,
You’re on target…..
Elaine,
Excellent topic…. I read about this the other day and it’s quite disturbing…..
Only a person with ambitions of power over others would be for Obama Care. Trash the Constitution, do away with limitations on government, terrorize the population with health mandates.
Watch out fat people, the government is going to pry that cheeseburger from our hands and the fries too. Milkshakes? Forget about it.
At some point we are going to be forced to eat Tofu, drink green tea, take supplements and avoid dangerous activities. We will be like the society portrayed in Demolition Man.
Security is for the suckers. A caged animal has security.
JAMA Forum: The Supreme Court Flunks Economics—and That’s Bad News for Patients and Physicians
By David Cutler, PhD
http://newsatjama.jama.com/2012/03/29/jama-forum-the-supreme-court-flunks-economics-and-thats-bad-news-for-patients-and-physicians/
This week, we were treated to the spectacle of the US Supreme Court debating economics. They called it a discussion about the Affordable Care Act (ACA), but it was more economic than legal. They spent an enormous amount of time on markets for health insurance and food (broccoli, to be specific); they spent little time analyzing precedent. Between the 9 justices and the 7 lawyers, there were 16 people who took part in the debate. As best as I can tell, not one of them had any training in economics.
As a professor of economics, I can say without hesitation that the Supreme Court failed its oral exam. For the sake of patients and physicians, I hope they do better on the final.
The first mistake the Supreme Court made was to try to make a distinction between taxes and mandates. Consider 2 ways of achieving universal health insurance coverage: telling people they must buy insurance or instituting a $10 million annual tax on people who choose not to be covered. Does anyone doubt that the substantive effect of these 2 policies would be the same? Yet most of the justices were at pains to distinguish between them. All agreed that the second of these is constitutional; a number of the lawyers suggested that the first was not.
But they got it wrong: Economics 101 teaches us that anything one can do with a mandate can be done with a tax as well. Indeed, the argument the lawyers were making is equivalent to saying that single-payer health care is perfectly fine (because it is financed by a tax) but universal private coverage is not (because it’s a mandate to buy private insurance). If that is the only way to guarantee universal insurance coverage, the ranks of the single-payer community will swell.
This fuzzy distinction led to serious problems. The government is “hands-off” about requiring people to buy broccoli, it was asserted, so what right does the government have to compel people to buy health insurance? In fact, the government is hands-off about neither health insurance nor broccoli. We subsidize agriculture, as we subsidize medical research. We regulate supermarkets, as we regulate hospitals—and so on. Government involvement in different industries is demarcated in shades of gray, not black and white.
Once it was decided that health care had to be special to merit a mandate, the court then spent an enormous amount of time figuring out if it is indeed special. Here, they obviously missed the relevant lecture in Economics 101. Every economics textbook will tell you why government intervention in health care is particularly warranted: The decision of some people not to buy coverage ripples throughout the economy; these ripple effects (technically, they are called externalities) need to be addressed, and the ACA does that. Insurers dump people or charge them more when they become sick? Tell them they can’t do that. People rely on the largesse of strangers when they get sick? Have them pay in advance so that doesn’t happen. Use subsidies so that everyone can afford coverage, and if you really want to be sure that people are covered, mandate that they buy insurance.
This is not an area of great economic disagreement. Every economics textbook agrees with this set of solutions, as was pointed out in several briefs to the Court (including one I participated in).
Without knowing these facts, you cannot pass introductory economics—but apparently you can be a US Supreme Court justice. Thus, Justice Scalia asserted that the problem was of Congress’s making because it wanted to mess around with rates for the healthy and the sick (wrong: Congress was responding to a sick market, not creating a sick market). Justice Alito couldn’t see the difference between health insurance and burial insurance (lack of burial insurance doesn’t impose costs on others the way lack of health insurance does, and insurance markets for burial insurance work just fine). And Justice Roberts asserted that deciding not to purchase health insurance but relying on strangers instead is somehow less of a decision than deciding to purchase health insurance in the first place (got it?).
Follow this logic, and the destination is clear: we are not a society, but a collection of individuals. Don’t tell insurers to pool the healthy and sick; that is too dicey. Don’t worry about uncompensated care; it’s our constitutionally given right to pass on our costs to others.
The unspoken law in the Supreme Court hearing was the Emergency Medical Treatment and Labor Act (EMTALA). That act, which passed with little debate and was signed by President Reagan, mandates that hospitals that accept Medicare stabilize patients who come to their emergency rooms with emergency conditions, even if the patient cannot pay for the care he or she needs. EMTALA was built on previous state laws and centuries of experience with physicians acting as moral actors, not just market participants out to make a buck.
The dissonance between this law and the spirit of the Supreme Court hearing is jarring. If we don’t think it’s a social obligation to create a health care system, what is the rationale for making providers bear the burden of the uninsured after they get sick?
Actually, the mandate discussion did strike a chord—it reminded me of the recent legislative debates about abortion and contraception. A few weeks ago, the governor of Virginia announced his medical view about whether a transvaginal ultrasound was an appropriate procedure to require of a woman considering an abortion. Around the same time, the Senate voted on whether employers should be able to selectively decide that women do not have the right to contraception on equal terms with other medical services. Now, we have the Supreme Court discussing the finer points of economics. This much we have learned: politicians are terrible physicians and awful economists.
People with powerful positions in government sometimes wonder why they are held in such low esteem. Perhaps it would be better if they left the doctoring to doctors and economics to economists. Having untrained people messing in areas where knowledge is essential is not a formula for doing good.