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)
Gene,
I’m just providing different opinions on the subject.
BTW, do you think a single-payer government run health insurance bill would ever get passed by Congress at this time? Do you think a majority of the people would be in favor of it?
Specious reasoning by Schwarz there, Elaine. It is committing the fallacy of the excluded middle. This isn’t a binary situation where either the free riders win and the insurance companies loose or the insurance companies win and people are still left without coverage when it cuts into profits. The government has the option of dealing with the free rider problem by making health care insurance universal, single payer and government run. There are no free riders when everyone is insured.
ObamaCare’s individual mandate: Good for freedom, bad for freeloaders
John E. Schwarz | The Christian Science Monitor | Mar 31, 2012
http://www.alaskadispatch.com/article/obamacares-individual-mandate-good-freedom-bad-freeloaders
The Supreme Court this past week heard arguments on the constitutionality of President Obama’s health-care law. At heart of the hearings was the law’s “individual mandate,” requiring every American to purchase health insurance. Its critics tell us that the mandate violates basic constitutional principles of individual freedom and limited government.
Opponents ask: If the federal government has the power to compel all Americans to purchase private health insurance, why couldn’t it require every American to purchase broccoli and other foods that it deems healthy to reduce health-care costs?
They claim that if the government has the authority under the interstate commerce clause to penalize even inaction – in this case, the decision not to buy insurance – there is effectively no limit on what government could require. As Judge Stanley Marcus of the 11th Circuit Federal Court of Appeals asked: “If they [the federal government] could compel this, what purchase could they not compel?”
This idea has great currency in opponents’ circles, but its rationale is utterly flawed.
Why? Because of “free-riders.” A free-rider is a person who benefits from something without paying for it, meaning that somebody else must shoulder the cost. A primary aim of the insurance mandate is to prevent free-riders who receive health-care services but do not pay for them because they lack adequate insurance coverage.
In the health-care market, the only recourse that free-riders leave providers is to withhold their services in what are typically emergency circumstances – the very instances in which we all agree services should not be denied. It is often impossible, in any case, to determine whether individuals who are in severe pain or delirious can pay or not. Current law, in fact, does not permit providers to deny medical services in these circumstances. And beyond these logistical and legal obstacles, most providers are also reluctant to deny care for humanitarian reasons.
Free-riding, in turn, shoves the free-riders’ costs onto others through higher prices. This problem is so substantial that in 2009, Newt Gingrich castigated individuals who didn’t purchase health insurance yet could afford it, calling them free-riders and saying that they ought to be required by law at least to post a bond.
An insurance mandate aimed at stopping free-riders is in complete harmony with a free market. Indeed, the mandate is essential for a free market to be able to operate properly, which is why the Heritage Foundation, a fierce advocate of the free market, was among the first to propose mandating the purchase of health insurance as a solution to both the free-rider problem and rising health-care costs.
Other markets – like the ones for broccoli or spinach, or the vast majority of markets for other products and services – don’t normally face free-ridership issues at the point of service. Nor does free-ridership result from “inactivity” in these other markets the way it does in the health-care market. These distinctions provide clear grounds for differentiating the mandated purchase of health insurance from the myriad other purchase options individuals have within other markets.
Thus critics need not worry that the health-care mandate represents a “potentially unbounded assertion of congressional authority” as articulated by the 11th Circuit Federal Court, which ruled the mandate unconstitutional in August 2011.
Should the Supreme Court rule the insurance mandate to be unconstitutional, the mandate’s opponents will hail its decision as a victory for both freedom and limited government. The opposite will be so.
The court, instead, will have ruled for the one-sided autonomy of free-riders and rejected the freedom of providers, taxpayers, and consumers, subjecting them all to what is essentially a form of stealing.
Providers will be legally required, not to mention under the influence of professional obligations going back to the Hippocratic Oath, to deliver services to the free-riders without knowing or often even being able to determine whether they will be compensated.
To have to work without compensation is a core characteristic of forced labor. The providers then will be forced to finagle third-party consumers and their insurers – innocent bystanders – to pay for the free-riders’ costs by charging them higher prices.
If this is a victory for freedom, it will be for a fraudulent anything-goes notion of freedom that is amoral.
And if this is a victory for limited government, it will be so only in the false sense of a government rendered so impotent as to be incapable of protecting its own citizens from free-riders.
*****
John E. Schwarz is distinguished senior fellow at Demos, a public policy organization in New York, and professor emeritus of government and public policy at the University of Arizona. He is currently writing “Common Credo: How Both the Left and the Right Have Led America Astray,” to be published next March by W.W. Norton.
Great work ElaineM. A round of applause.
So much to appreciate, both links and comments-
The econ 101 on JAMA Forum, and the many put downs both fact wise and otherwise for these conservatives on the Court.
Good luck folks. The biggest sorrow was when the public option disappeared, and the mandate to suckle the insurance leaches lifelong came in its place. Swm says iACA has done some good, and she’s right.
But was it the right move? Can’t go that road and find out.
“I hope ideology doesn’t rule the day.” – HA! From the court that gave us Citizens United? DOUBLE HA!
GOP Attorney General Suing Over Obamacare Supports Single-Payer: ‘I Trust The Government More’
By Scott Keyes on Mar 30, 2012
http://thinkprogress.org/health/2012/03/30/454261/buddy-caldwell-private-insurance/
WASHINGTON, DC — According to one Republican attorney general in the lawsuit against the health care individual mandate, the problem with Obamacare is that it’s not a government takeover of health care.
ThinkProgress spoke with Louisiana Attorney General Buddy Caldwell outside the Supreme Court on Wednesday. Caldwell opposes Obamacare and the individual mandate, but for a different reason than most of his fellow litigants: it props up the private health insurance industry. “Insurance companies are the absolute worst people to handle this kind of business,” he declared. “I trust the government more than insurance companies.” Caldwell went on to endorse the idea of a single-payer health care system, saying it’d “be a whole lot better” than Obamacare:
KEYES: You don’t think the subsidies for low-income people are going to be helpful?
CALDWELL: No, no. The worst thing you can do is give it to an insurance company. I want to make my point. All insurance companies are controlled in their particular state. If you have a hurricane come up the east coast, the first one that’s going to leave you when they gotta pay too many claims is an insurance company. Insurance companies are the absolute worst people to handle this kind of business. I trust the government more than insurance companies. If the government wants to put forth a policy where they will pay for everything and you won’t have to go through an insurance policy, that’d be a whole lot better.
Industry Whistleblower Wendell Potter: However Court Rules on Healthcare, Solution is Single Payer
Democracy Now
3/28/12
http://www.democracynow.org/2012/3/28/industry_whistleblower_wendell_potter_however_court
Summary;
As the Supreme Court examines whether Americans can be penalized if they lack medical coverage, we’re joined by health industry whistleblower, Wendell Potter. A former spokesperson for CIGNA and Humana Insurance, Potter is the author of “Deadly Spin: An Insurance Company Insider Speaks Out on How Corporate PR is Killing Health Care and Deceiving Americans.” “I, myself, am somewhat agnostic and detached from the outcome of what the justices decide,” Potter says. “We eventually have to get the for-profit insurance companies out of providing coverage, and need to move toward a system or systems like in the other developed countries, that don’t permit for-profit companies to run their healthcare systems.”
Excerpt:
AMY GOODMAN: Today, the Supreme Court hears its final arguments on the constitutionality of the healthcare overhaul law. They will focus on whether the law can survive if the justices decide to strike the individual mandate. The case is expected to have huge implications for the nation in the 2012 elections and is being followed closely by all sides of the healthcare debate.
To talk more about the debate and what’s happening in the Supreme Court, we’re joined by Wendell Potter, former spokesperson for CIGNA and Humana Insurance, now turned whistleblower. He was outside the Supreme Court Tuesday. He’s the author of Deadly Spin: An Insurance Company Insider Speaks Out on How Corporate PR is Killing Health Care and Deceiving Americans.
Wendell Potter, welcome back to Democracy Now! Can you talk about the questions raised by the judges and how you think the Affordable Care Act is faring in the Supreme Court?
WENDELL POTTER: I think the questions that were raised by the conservative judges were to be expected. I think that most of their questions were along the lines of expansion of government and where are the limits of government. So that doesn’t surprise me a bit. And I don’t think we should read into their questions what the court will actually decide. One of the things that was said in one of those sound bites was, one of the justices said—I think it was Scalia—this may be necessary, but is it proper? I think there will be a realization that the individual mandate actually is necessary. If this—if we expect to try to expand healthcare coverage and to bring down cost, you’ve got to have an individual mandate. I think that’s what they will ultimately decide to do.
NERMEEN SHAIKH: Can you explain why the individual mandate is as controversial as it is?
WENDELL POTTER: Because this whole issue became very political. As you know, the idea of an individual mandate actually is a conservative idea. It can be traced back to a proposal that came out of the Heritage Foundation in the 1990s in response to the Clinton healthcare reform plan. So you would think that the Republicans would embrace this. In fact, I think the President felt that he could get bipartisan support in Congress if he did go along with it. He was lobbied very heavily by the insurance industry, as was Congress. But there are a lot of people who don’t like Barack Obama. And the people I saw outside of the court yesterday were people who I think would not vote for Barack Obama under any circumstances. They see this as a political issue, as a way to try to turn people away from the President, not just the reform act.
AMY GOODMAN: In fact, that’s a very interesting point. Polls have been done that show that the vast majority of Americans, something like three-quarters, think this is a political decision that is being made by the Supreme Court. You know, let’s go back to Citizens United and, before that, Gore v. Bush. But let me ask you about Justice Antonin Scalia asking the Obama administration’s lawyer, Donald Verrilli, to defend the controversial individual mandate provision of the Affordable Care Act. He drew an analogy between forcing people to buy health insurance and forcing them to buy broccoli.
JUSTICE ANTONIN SCALIA: Everybody has to buy food, sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli.
AMY GOODMAN: I am convinced that soon everyone is going to be calling it “Barackoli.” But Wendell Potter, talk about this comparison.
WENDELL POTTER: Yeah, I think that was anticipated, too. There have been discussions by punsters—excuse me, by analysts in the past who have said that, “What’s next? A requirement to buy broccoli?” It was an inevitable question, I think, because, again, it’s a question about the limits of government. And when you’re being asked a question by an advocate of small government or a strict interpretation of the Constitution, then I think that you would see a question like that. Clearly, I don’t think anyone would expect that the federal government would go so far as to require us to eat broccoli. That doesn’t necessarily have anything to do with interstate commerce or the commerce of the country, so—
But the other thing is, I don’t think that, from the transcripts that I heard and the recordings that I heard—the transcripts I read, that the government’s attorney was quite well prepared to defend the act. I think that we saw something that, in my view, was a continuation of the administration’s inability to really communicate about the Affordable Care Act.
NERMEEN SHAIKH: Well, one of the criticism that’s been leveled against it has to do with its cost. You’ve talked elsewhere about how—well, first of all, the U.S. has one of the most expensive healthcare systems in the world, and certainly more than most advanced, or if not all advanced, economies. Can you say a little about how you suggest healthcare costs in the U.S. can be cut and how the Affordable Care Act either fails or succeeds in fulfilling some of the things that you’ve pointed to, some of the measures that could be taken?
WENDELL POTTER: The Affordable Care Act would bring down the deficit. It would curtail government spending. One of the things that is necessary to control healthcare spending is to bring more people into coverage, and the Affordable Care Act would do that by expanding Medicaid and to provide subsidies to many millions of others who are not eligible for a public plan. When you get more people in coverage, they behave differently. They don’t go to seek care all the time at the emergency room, and it would alleviate the cost shifting that is the hallmark of the American healthcare system.
But it’s not—the Affordable Care Act, in my view, is a start; it is not what we ultimately need. It doesn’t bring everyone into coverage, even with the individual mandate. There are people who could be exempted from that requirement, many millions of people who could be. In fact, it’s only estimated that about 30 million of the 50 million uninsured who would be brought into coverage, if the Affordable Care Act does go forward. We eventually have to get the for-profit insurance companies out of providing coverage, and we need to move toward a system or systems like in the other developed countries, that don’t permit for-profit companies to run their healthcare systems. And there are states that are looking at single payer. Vermont, in particular, has already passed a bill that would establish a single-payer system in Vermont. And I think there will be a growing recognition that that is probably the ultimate way to control cost and to bring everybody into coverage.
You see Elaine we are on the same page…..
Dems fume over Justice Scalia’s comments during healthcare case
By Alexander Bolton – 03/30/12
http://thehill.com/blogs/healthwatch/legal-challenges/219171-dems-fume-over-justice-scalias-healthcare-comments
Excerpt:
Scalia’s use of the term “Cornhusker Kickback,” coined by GOP political operatives during the healthcare reform debate, also raised concerns — especially since Scalia appeared unaware the provision was scrapped before Obama signed the law.
“Scalia said [Wednesday] that it was totally unrealistic to read the whole law. Sen. Nelson didn’t think it was too much for the justices to know what they’re talking about when questioning the law’s content,” said Nelson spokesman Jake Thompson.
“It seems fitting that Justice Scalia’s attempt at humor instead displayed his ignorance of the law. Sen. Nelson hopes the justice will concentrate on the actual instead of the perceived or interpreted views as he weighs the laws against the Constitution,” Thompson added.
A spokeswoman for the Supreme Court did not respond to a request for comment Thursday afternoon
Does Antonin Scalia Know What’s in the Affordable Care Law?
By David Weigel
March 28, 2012
http://www.slate.com/blogs/weigel/2012/03/28/does_antonin_scalia_know_what_s_in_the_affordable_care_law_.html
There was in a strange moment in today’s severability argument at SCOTUS. Justice Antonin Scalia referred to a deal that Sen. Ben Nelson once made, to make a hypothetical point about what could take down the law.
“If we struck down nothing in this legislation but the — what’s it called, the Cornhusker kickback, okay, we find that to violate the constitutional proscription of venality, okay?” asked Scalia, talking to Paul Clement. “When we strike that down, it’s clear that Congress would not have passed it without that. It was the means of getting the last necessary vote in the Senate. And you are telling us that the whole statute would fall because the Cornhusker kickback is bad. That can’t be right.”
The deal that Scalia was referring to — legendary in conservative anti-Obamacare circles — was not a classic “kickback.” Nelson negotiated for indefinite, unending Medicaid funding for his state. That ended up as part of the bill that initially passed the U.S. Senate on a 60-40 vote.
Here’s the rub: It’s not actually part of the law. Democrats removed the Nebraska deal in the final tortured negotiations that passed the PPACA in the House. When it got to the Senate again, Democrats only needed 51 votes to pass it; Nelson, who’d gotten the bad press from the deal AND nothing to show for it, glumly voted no.
Here’s another rub. In early coverage of Scalia’s zinger, the fate of the “kickback” is totally left out. It might be because no one in the room pointed out the mistake. Or it might be that Scalia, and lots of other people, have internalized the conservative case against the law.
Incremental change does not flow logically from a pure give-a-way to private corporations. Nor does It follow simply because we think Obama is a nice man and is being badly treated by the right and the left alike.
It is not supported by any precedent or known facts that if insurance giants have a captive audience, they will service people with prior conditions. What is supported by precedent and known facts is that Insurance giants, like other corporate behemoths, have powerful lobbies that can get around every rule ever made. That is why insurance companies have an exemption from monopolistic practices. That is why drug companies do not have to negotiate prices with our government. That is why they can charge what ever scandalous prices they want with the blessing of congress. There is your precedent. That is what you can look forward to.
It is a proven fact that when big corporations do break the rules — repeatedly — they suffer no consequences from this administration. It is a known fact that when corporations suffer no consequences from illegal behavior they continue that illegal behavior. Robo signing is dead! Long live robo-signing!
It does not flow smoothly from common sense or from what we see around us that simply because modest programs created over 70 years ago that were government run and managed simply because those DID expand over time, that the same thing will happen from a program that is entirely independent of government constraint or management.
And if you don’t believe your lying eyes, or common sense, or every bailout of giant corporations for the last 3 plus years, I’ve got plenty of great deals for your hard earned cash…
Elaine,
What is particularly poignant to me is I recall Bush1 saying that he doesn’t like broccoli and he won’t eat broccoli….. This is recall him saying as well as he did not know the price of a gallon of milk….. I think this may have cost him his reelection ….. Talking Points for sure….. It is sad the justice has to use this term….. But we at least know where he stand
On the Lighter Side: The fate of ‘Obamacare’ boils down to broccoli
By Steve Wiegand
4/1/12
http://www.sacbee.com/2012/04/01/4380271/the-fate-of-obamacare-boils-down.html
Now that the U.S. Supreme Court has concluded its three days of listening to the merits and demerits of “Obamacare,” and will spend the next eight weeks or so deliberating the fate of the American health care system, we ordinary folk are left to ponder the key question raised by the hearings:
Are we going to have to eat broccoli?
At least I think that was the key question. I listened to some of the proceedings, and I recall waking up to hear President Barack Obama’s lawyer, Solicitor General Donald Verrilli, explain that the reason the prez wants to require everyone to buy health insurance is because if only people who need health insurance buy it, there won’t be enough money to pay for health insurance for people who don’t need it.
Or something like that.
This caused several justices to somewhat rhetorically inquire as to whether the federal government could by the same logic force everyone to buy cellphones or funeral insurance.
Justice Antonin Scalia – who presumably already has health insurance – suggested that the next thing we know, the feds will require us all to eat broccoli: “Everybody has to buy food sooner or later … therefore, you can make people buy broccoli.”
Of course Justice Scalia is not the first person to raise this doctrine, known in legal circles as “caveat emptor brassica oleracea,” or “let the buyer beware of buying broccoli, particularly if you have children or a finicky spouse, or try serving it without a cheese sauce of some kind.”
Last September, a federal appellate judge in Washington, D.C., named Laurence Silberman asked during a hearing on the Obama plan whether the feds could force people to buy broccoli. Evidently a broccoli aficionado, Silberman voted to uphold the law. In December, another federal judge named Roger Vinson in Florida asked the same broccoli question, and then ruled the law was unconstitutional.
It seems to me that a better analogy would be whether the government could force younger workers to pay into a system that financially supports people who don’t work anymore. I don’t know; maybe call it “Social Security.” But the judiciary has settled on a member of the cabbage family for its legal imagery, so there you have it.
Given the leafy parameters the court has chosen, here’s my best guess on how each justice will vote:
• Chief Justice John Roberts: Roberts was born in Buffalo, N.Y., where they mostly eat chicken wings. Roberts will vote to overturn the health care mandate.
• Associate Justice Antonin Scalia: Scalia is a strict constitutional constructionist. In the Federalist Papers, James Madison wrote that “government should never require the purchase of any comestibles, even when said purchase is for the common good, unless it’s those little snack cakes my wife Dolley makes.” Scalia is a definite thumbs-down on Obamacare.
• Associate Justice Clarence Thomas: Thomas’ wife is a lobbyist for the Heritage Foundation. One of the foundation’s most important tenets is that vegetables are for hippies. He’s voting to throw it out.
• Associate Justice Samuel Alito Jr.: Alito is an Italian American, and according to Wikipedia, the word “broccoli” is of Italian origin. This will not enter into his decision, and he will vote against Obama’s plan.
• Associate Justice Ruth Bader Ginsburg: Ginsburg just looks like the kind of person who actually enjoys broccoli. She’s a vote to uphold the law.
• Associate Justice Elena Kagan: Kagan was just named to the court by Obama two years ago, not that she would be swayed by that any more than Justice Thomas would be influenced by his wife’s employer. But she’s still a cinch to give the prez’s plan a thumbs-up.
• Associate Justice Sonia Sotomayor: See Kagan.
• Associate Justice Stephen Breyer: I’m pretty sure Breyer’s family is in the ice cream business, and they don’t make a broccoli flavor. But it’s probably one of those families where the parents make you eat all your vegetables or no dessert, so he’s going to vote to uphold.
• Associate Justice Anthony Kennedy: Kennedy is often viewed as a swing vote on court decisions. This might be because no one knows what he is talking about. To wit: “The young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That’s my concern in the case,” he said Tuesday.
Let’s list him as a “maybe.” That makes it 5-4, either way.
And I don’t care what the government says, I’m still not eating broccoli.
I must have missed that part of the Constitution that called for a separation of state and market.
Not that anything about health insurance resembles a market — nobody knows what anything actually costs, so you don’t have a working price system, you don’t have a working signalling system between consumers and producers, and what you’re left with is something more akin to an extortion racket…
if Bush were pushing the individual mandate, everyone on this page would be in agreement; it sucks. Government forcing it’s citizens to pay but not forcing private enterprise to deliver, period. And Scalia would find it marvelous.
That liberals are carrying water for this extreme right wing crap sandwich is stunning. To think that the ACA has anything at all to do with health care after all the assaults Obama and his merry band of Dems have put out on the social safety net, after each and every campaign promise Obama made has been broken — and in many cases broken without any pressure from the right wing fruit cake circus — is just shy of clinical myopia.
And make no mistake, we are not discussing whether this mandate is constitutional or not any more than the justices are. We are instead arguing whether or not we like it, whether or not we like Obama and whether or not we think Obama is playing 11 dimensional chess and he really didn’t make sure that no negotiations on drug prices would take place and he really did break the monopoly exemption on insurance companies and he really didn’t allow the totally new restrictive language on providing abortion services to be snuck into the ACA.
The
thugsjustices of the SupremeJokeCourt may be lacking in objectivity and Scalia even in intelligence, but they know damn well which side of the bread has butter on it. And they will prove that it in June by letting the mandate stand just as the Republicans will prove it in November by letting Obama continue to give them every thing they have ever wished for.Next chapter: The mandate that we buy social security and Medicare from private insurance companies all of whose employees live in China, and the official recognition that government should not get involved with regulating what business does, only with enforcing payment by its citizens Is it constitutional? And if Obama’s selling it, you can bet that many of the whiz-bangs on this page will be buying it.
The opponents’ Commerce Clause argument doesn’t pass the smell test. Health-care accounts for about 17 percent of the national economy, and virtually everyone needs it at some point. Regulating commerce “among the several States” is among the “enumerated powers” that the Constitution gives Congress. I can’t say it better than legal scholar Charles Fried, solicitor general under President Ronald Reagan, did last week: “Health care is interstate commerce. Is this a regulation of it? Yes. End of story.”
“Congress isn’t forcing people into that market to regulate them,” Fried told the Washington Post, rejecting as “a canard” that key framing by Obamacare opponents. “I was astonished to hear it coming out of the mouths of the people on that bench.”
When he took over the case for Obamacare’s opponents, Paul D. Clement, another former solicitor general, wisely ditched the hair-splitting distinction the law’s foes first tried to make between regulating activity and inactivity. But the new framing – that Congress is wrongly using the individual mandate “to create commerce” – is only slightly less artificial.
The truth is, we’re all “in the health care market,” simply because life is fragile and unpredictable. Young and healthy as you are, you can arrive at a hospital unconscious after getting hit by a bus. Which brings us to …
No, it’s not like broccoli, or cellphones, or burial insurance. My not buying a cellphone generally doesn’t raise the cost for everybody else. Burials can be pricey, but keeping people alive is what can cost millions. The price of a commodity like broccoli will likely rise if more people buy it, not fall, and people can live without it. Above all, none of those markets is subject to massive cost-shifting.
Death panels. Remember this, the most famous canard of the long debate over Obamacare – the claim that a new, 15-member Medicare board charged with finding ways to save money without harming coverage or care would somehow send the old and disabled to their deaths?
Well, here’s the real irony: If a majority of the Supreme Court throws out Obamacare, the high court itself may deserve that title.
For all its faults, Obamacare was Congress’ best attempt to provide quality medical insurance to tens of millions of uninsured Americans – a man-made malady that, according to a 2009 Harvard study, raises death risks by 40 percent and kills nearly 45,000 people a year.
Go back to square one, and more people are pretty much guaranteed to die. Is that really what the Supreme Court wants to do?
Jeff Gelles Philadelphia Inquirer
The Roberts Court Defines Itself
Published: March 31, 2012
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.
The four moderates on the court have a leftish bent, but they see their role as stewards of the law, balancing the responsibility to enforce the Constitution through judicial review against the duty to show deference to the will of the political branches. In that respect, they and the conservatives seem to be following entirely different rules.
That difference is playing out in the health care case. Established precedents support broad authority for Congress to regulate national commerce, and the health care market is unquestionably national in scope. Yet to Justice Kennedy the mandate requiring most Americans to obtain health insurance represents “a step beyond what our cases have allowed, the affirmative duty to act, to go into commerce.” To Justice Stephen Breyer, it’s clear that “if there are substantial effects on interstate commerce, Congress can act.”
Likewise, Justice Scalia’s willingness to delve into health care politics seems utterly alien to his moderate colleagues. On the question of what would happen if the mandate were struck down, Justice Scalia launched into a senatorial vote count: “You can’t repeal the rest of the act because you’re not going to get 60 votes in the Senate to repeal the rest.” Justice Breyer, by contrast, said firmly: “I would stay out of politics. That’s for Congress; not us.”
If the conservatives decide that they can sidestep the Constitution to negate Congress’s choices on crucial national policies, the court’s legitimacy — and the millions of Americans who don’t have insurance — will pay a very heavy price. Chief Justice Roberts has the opportunity to avoid this disastrous outcome by forging even a narrow ruling to uphold the mandate and the rest of the law. A split court striking down the act will be declaring itself virtually unfettered by the law. And if that happens along party lines, with five Republican-appointed justices supporting the challenge led by 26 Republican governors, the court will mark itself as driven by politics.
NYT editorial
rafflaw, Single payer is clearly not going to happen. Not even one republican is for it. Meanwhile we have 37 million uninsured people that have to go to the ER for healthcare. If one of them gets cancer, the ER does not provide chemo and they are left to die.