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)
Oro,
I agree that we need a single payer system, but we will not see one without an incremental approach. The ACA is imperfect. However, it is a good start.
I kinda hope the ACA is struck down. This country needs healthcare reform, not health insurance reform. True healthcare reform will get rid of health insurance. The ACA is a barrier to true healthcare reform.
CEJ,
I doubt Scalia even read Dellinger’s brief. It would spoil his predetermined result that he got from his bosses.
Scalia’s attempt to draw a credible comparison falls quite short. Certainly, eating broccoli is a healthier choice than a bag of chips, but the ACA is not concerned with whether one eats healthfully. It deals with who pays for medical services whether one eats healthfully or not, has a traffic accident or develops a cancer. Apparently, in Scalia’s world it’s Constitutional for me to continue paying the bill for an uninsured’s poor eating habits AND for the medical care for those who do eat healthfully, but who have some other condition, illness or accident but who has no insurance coverage. On my list of things I truly despise, Scalia ranks right near the top—–quite close to broccoli.
If we do not adopt single payer we will be so far up the creek that we will require single prayer.
Elaine,
“I’m for the legalization of marijuana–and prostitution. I think it might cut down on crime…and to fewer people being incarcerated.”
Im for going much farther and legalizing any chemical you wish to put into your own body. As for crime and incarcerating rates, thats not a might. An overwhelming majority of the people who are incarcerated are nonviolent drug offenders.
Not only that but you instantly remove the primary aspect that defines the illicit drug trade right now, violence. I could write you a paper on why legalization either drastically reduces or outright eliminates the problem of drugs
“How do you feel about the anti-woman legislation–ultrasound bills, etc.–being proposed and voted upon in state legislatures?”
I see them in the same light i see the extreme labeling of cigarette packs. Its a behavior they want to control but lack the support to ban it outright, so we end up with these ridiculous half measures, where we pretend we arent trying to control you but we’ll see what we get away with to influence your decision.
“How about DOMA?”
HAHA i forgot they named it that. I think straight people have done plenty to tarnish the “sanctity” of marriage. Britney spears was married for what, a day? Kim kardashians marriage lasted all of 3 months? Being afraid that gay marriage will affect your relationship, says more about your relationship than it does about gay people.
“What do you think about single-payer health insurance?”
I think its a terrible idea, especially as I said, if you put the government in charge of healthcare all objections to legalizing drugs becomes moot, but at this point id rather be discussing the merits and failure of that instead of this legal rube goldberg machine we’ve set in motion.
CEJ,
Thanks for the links to the articles.
Elaine,
I share your distaste for Scalia’s broccoli analogy and for Scalia in general.
If Scalia is too lazy to read the bill before he votes on it maybe he should just join Thomas and remain mum. Here are some links which are apropos and short enough that even he could handle them.
Thanks again for all the work you do here.
First an article by Einer Elhauge, J.D. from the New England Journal of Medicine titled “The Irrelevance of the Broccoli Argument against the Insurance Mandate.”
http://www.nejm.org/doi/full/10.1056/NEJMp1113618
Second an article by Walter Dellinger (who served as head of the Justice Department’s Office of Legal Counsel and acting solicitor general from 1993-1997; and filed a brief on behalf of the Senate and House Democratic leadership defending the ACA) “Five myths about the health-care law.”
http://www.washingtonpost.com/opinions/5-myths-about-the-health-care-law/2012/03/19/gIQAHJ6JWS_print.html
The Roberts Court Defines Itself
http://www.nytimes.com/2012/04/01/opinion/sunday/the-roberts-court-defines-itself.html
Excerpt:
For anyone who still thought legal conservatives are dedicated to judicial restraint, the oral arguments before the Supreme Court on the health care case should put that idea to rest. There has been no court less restrained in signaling its willingness to replace law made by Congress with law made by justices.
This should not be surprising. Republican administrations, spurred by conservative interest groups since the 1980s, handpicked each of the conservative justices to reshape or strike down law that fails to reflect conservative political ideology.
When Antonin Scalia and Anthony Kennedy were selected by the Reagan administration, the goal was to choose judges who would be eager to undo liberal precedents. By the time John Roberts Jr. and Samuel Alito Jr. were selected in the second Bush administration, judicial “restraint” was no longer an aim among conservatives. They were chosen because their professional records showed that they would advance a political ideology that limits government and promotes market freedoms, with less regard to the general welfare.
There is an enormous distinction to be made between the approaches of the Roberts court and the Warren court, which conservatives have long railed against for being an activist court. For one thing, Republican-appointed justices who led that court, Chief Justice Earl Warren and Justice William Brennan Jr., were not selected to effect constitutional change as part of their own political agenda.
During an era of major social tumult, when the public’s attitudes about racial equality, fairness in the workings of democracy and the dignity of the individual proved incompatible with old precedents, those centrists led the court to take new positions in carrying out democratic principles. Yet they were extremely mindful of the need to maintain the court’s legitimacy, and sought unanimity in major rulings. Cooper v. Aaron, the 1958 landmark case that said states are bound by Supreme Court rulings, was unanimous. So was Katzenbach v. McClung, the 1964 case upholding the constitutionality of parts of the Civil Rights Act under the commerce clause.
Blouise,
No, I’m not a lawyer. I wasn’t arguing for or against the individual mandate in the ACA–just bringing up a concern I have about one of our Supreme Court justices. I didn’t think I was poisoning the well. Some people may think it unimportant where the justices get ideas and talking points for their arguments. I’m not one of those people.
Bob,
Elaine is not a lawyer. Her message was quite clear. She is not the one who cheapened the argument … Scalia did. She simply told us about it.
You took the opportunity to explain exactly what the issue is and why, Constitutionally, it is so important. You did it with a clarity and brevity that we non-lawyers could easily grasp and it is important that we do so.
Being on vacation I’m not able to comment much.
Elaine’s work on this post was excellent in its depth. Bob and Gene’s arguments are persuasive.
Single payer is the Constitutional way to go. The fear of putting huge insurance companies out of business is too great for those who have bought into the current counter-factual concept of capitalism. Mandating people to utilize private insurance, without offering a governmental alternative does seem like it is going beyond the limits of legality. Those lobbying dollars just make cowards of all politicians.
Scalia is a mediocre hack and a perfect example of the Emperor who thinks he’s richly clad in stunning robes but is, in all actuality, naked.
Had he addressed the matter in the manner Bob, Esq used in his post on March 31, 2012 at 3:39 pm then we could have some confidence that a real understanding was going to be applied by Scalia to this important issue. Instead he chose to cheapen the whole process with his purely political broccoli talking point. The goof ball couldn’t even come up with an original quip. (Probably he was hoping to get recognized by Colbert at the next White House Correspondents’ Dinner)
Bob’s analysis is 100% correct and we need to keep throwing that at our elected officials in Congress:
“Congress has all the power it needs to achieve the same ends for health care reform by adjusting the tax rolls and medicare/medicaid rules toward a single payer system.
The word is federalism people. Please make a note of it and adjust your thinking accordingly.”
idealist707
1, March 31, 2012 at 5:24 pm
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.
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That’s pure Bob.
Swarthmore mom 1, March 31, 2012 at 9:14 pm
Dredd. Increasing numbers of women know there is a difference. Are they wrong?
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No.
You are in reference to: wrong and right.
OK, so women know good things, and I defer to women on those things.
Hell, it would not bother me to defer to them on everything.
No reason not to.
Anyway, the “difference” between or among political parties in the U.S.eh? is not something I would pursue. I am not a comic.
Why?
Because what is the same among or between them humorously settles it all.
Elaine,
Absolutely you are entitled and encouraged to do so…I think the last three paragraphs of bobs post are the crux…..
You putting it out there about the talking points being used pander to the circus circus is as valid as well….
You know we guys can be rash at times…..
I would like a Congressman to introduce such a bill. erratta. grrrrrr
If the government cannot provide medical care for me then why can it provide medical care for its employees, like Scalia? I would live a Congressman to introduce a bill to eliminate Scalia’s health care along with all federal employees health care paid for with my dimes. This would then put us all on a level playing field. When Scalia has to pay for his own oxycotton then he might think about the rest of us.
Ekeyra
Elaine asked you some interesting questions. May we hear your replies?
http://www.dailykos.com/story/2012/03/29/1078985/-Scalia-briefing-papers-Right-wing-blogs-