The Case of the Cruciferous Vegetable, the Cornhusker Kickback, Justice Scalia, Right-Wing Talking Points, and the Affordable Care Act

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,


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.


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)

188 thoughts on “The Case of the Cruciferous Vegetable, the Cornhusker Kickback, Justice Scalia, Right-Wing Talking Points, and the Affordable Care Act”

  1. Brooklin Bridge,

    I had read that the public option was removed in order to win Olympia Snowe’s vote. Thanks for the link to that HuffPo article.


    Olympia Snowe’s Strange Martyrdom

    The characteristic Snowe episode came during the health care fight. The Obama administration, desperate to win her vote, wooed her with endless meetings and pleas, affording her a once-in-a-generation chance to not only help pass health care reform but make it smarter, more efficient, and more compassionate. Instead, Snowe tormented the administration by dangling an elusive and ever-changing criteria before their noses. She at first centered her objections around the inclusion of a public option. Democrats removed it, and she voted for the bill in the Finance Committee, only to turn against it when it reached the decisive vote on the Senate floor. Snowe complained that the process was happening too fast, and that it was too partisan, which seemed to be her way of saying she wouldn’t vote for it unless other Republicans joined her.


    Joe Nocera’s Phony Defense of Bipartisanship
    March 4, 2012

    Nocera holds up Sen. Snowe (R-Maine) as a model of “moderate beliefs.” If you call it moderate to vote against the Affordable Care Act, after forcing the removal of the public option on the pretense that she would vote for the final bill, then Snowe is a moderate. If you call it moderate to take a stand against a jobs bill because it imposed a teeny tax on millionaires, then Snowe is a moderate. If you call it moderate to back “a balanced budget amendment, which “is likely to push the economy back into recession,” then Snowe is a moderate. If you think “it’s just too darn easy to get legislation through the U.S. Senate,” then Snowe – who partnered with Jeff Sessions (R-Ala.) to try to make the process even more convoluted – is a moderate. As far as I can tell, Snowe’s actual positions on economic and other issues put her in lock-step with many conservative Republicans.

  2. Yale Law School

    March 29, 2012

    How To Defend Obamacare; Solicitor General Donald Verrilli was grilled by the Supreme Court’s conservatives. Here is what he should have said.
    By Akhil Reed Amar ’84

    May It Please the Court,

    I have never written an open letter to Your Honors, but I now do so in response to several things that were said—and not said—in this week’s historic oral argument on the Affordable Care Act, aka “Obamacare.”

    In the spirit of the season, please permit me to proceed in the same style of Socratic Dialogue powerfully on display in the oral argument itself.

    Q: What are the limits of congressional power?

    A: The limits are those found in the Constitution itself, of course—its text, its history, and its structure as glossed by subsequent practice and precedent. The Constitution expressly gives Congress the power to “Regulate commerce . . . among the several states.” Here, we have a genuine regulation—both the micro-mandate/penalty/tax and the larger regulatory regime of which it is an integral part. We have commerce under any reading of the word. Insurance is a purely commercial or economic question about who pays whom. And we have an underlying problem that is truly “among the several states.” The problem of health care creates spillover costs that cross state lines, problems that result in some states in effect imposing costs on other states or bearing costs that properly belong to other states.

    Q: How so?

    A: At any given instant, literally millions of Americans are out of state. Most of my students come from other states. I myself am out of state three days a week. If any of us falls sick while out of state, we can seek ER care in the host state. And unless we have insurance, we will be imposing costs on other states. Obamacare addresses this obvious interstate problem in a direct way. The two leading cases in which the court has recently invalidated congressional laws as going beyond the scope of the commerce clause—U.S. v. Lopez in 1995 and U.S. v. Morrison in 2000, involving guns in schools and violence against women—did not involve similar interstate spillovers. Those cases were thus rightly decided on commerce clause grounds, as I myself have argued. And these cases prove that limits do really exist.

    Q: Isn’t the obligation to offer ER care itself created by federal law? So isn’t your argument pure bootstrap—one intrusive federal law generating another?

    A: With due respect, no. The obligation to care for the urgently sick—including the strangers in our midst—is ultimately rooted in morality and centuries of tradition. Many ERs would and should pitch in even without a federal requirement, and the interstate problem is ultimately created by travel itself—travel that the interstate commerce clause in fact was designed to promote. Which leads me to a second and independent argument supporting Obamacare, namely . . .

    Q: Before you get to that, wouldn’t your argument allow the feds to mandate burial insurance? Indigents sometimes die out of state, don’t they?

    A: Yes, but in what numbers, Your Honor? With due respect, it is easy to hypothesize from an armchair—but is there really, truly, an interstate problem of indigent interstate burials anywhere near the magnitude of the actual ER problem in America? States can individually handle burials, but any state that on its own tries to generously handle the health-care issue risks becoming a massive magnet for out-of-staters. Sick people can flock to states with generous medical benefits. And this really doesn’t happen with dying people leaving their home states just so that they can die on some other state’s nickel.

    Q: What about a federal mandate to buy broccoli?

    A: Thank you for that softball, Your Honor. There is no real, substantial, honest-to-goodness interstate spillover/externality problem with broccoli that I see at the moment. [Pause] Even if nothing I have said yet persuades Your Honors, my second commerce clause claim is that millions of Americans suffer from preexisting medical conditions. If they get a better job offer out of state, they should take it so that they can contribute more to their families and to the general economy. But they will not be able to do so if the out-of-state employer discriminates against preexisting conditions. This discrimination creates a huge lock-in of labor. It prohibits interstate mobility—the free interstate flow of services. The core purpose of the interstate commerce clause is to allow Congress to remove interstate barriers—legal, physical, economic—such as this.

    Q: That explains the ban on preexisting condition discrimination, but how does that explain the mandate?

    A: The two are of course intertwined, as Your Honors recognized on Day 3 of oral argument, regarding the law’s “severability.” The ban on discrimination will only work if almost all are obliged to insure before they become expensively sick.

    Q: But nothing you’ve said so far addresses the unprecedented issues raised by a federal mandate that a person buy a private product.

    A: Several answers, Your Honor. First, this law is hardly unprecedented. The Militia Act of 1792 had a similar mandate, obliging Founding-era Americans to privately procure muskets, ammo, pouches, and so on. George Washington signed onto that law. And no one at the time said that mandates such as this were somehow intrinsically improper regulatory tools.

    Q: Even if so, that law was passed under a different clause of the Constitution?

    A: It’s hard to see why that matters. If a mandate is a permissible regulation of a well-regulated militia, it is an equally permissible regulation of interstate commerce. In the most important case ever decided on the scope of congressional power, the iconic 1819 case of McCulloch v. Maryland, Chief Justice John Marshall said that because a corporation-creating law was a valid under one clause of the Constitution (the territories clause), a corporation-creating law should be equally valid under other clauses. What is true of corporation-creating laws is also true of mandate laws.

    Q: If 200 years ago, national security enabled government to mandate muskets, might national security today enable government to mandate vaccines?

    A: The next terrorist attack might very well be biological, Your Honor. And our best national defense is herd immunity, which does mean that we need a large percentage of Americans to have vaccines. They will be more likely to have such vaccines if they have insurance. And states cannot individually handle these issues well because viruses do not stop at state lines. They spill over. They create interstate externalities. McCulloch itself, I might add, was decided on national security grounds. In the wake of the war of 1812, Marshall explained how a national bank was useful in fighting wars and supporting armies.

    Q: You said that no one in 1792 thought mandates were somehow especially troubling. Why not?

    A: Because they understood simple logic—and we must do the same today. If government can tax me, and use the money to buy a musket/insurance policy with my name on it, and then give me the musket/insurance policy, then government can for the very same reason oblige me to procure the musket/insurance policy myself. I am being taxed/mandated by persons that I helped elect and that I can vote against. That is the main guarantee against abuse, as Chief Justice Marshall stressed in McCulloch and is obvious from the Constitution’s basic structure. And speaking of taxes, another easy way to handle this case is simply to uphold the mandate/penalty as a genuine revenue measure, enforced by the IRS and predicted by the Congressional Budget Office to improve the federal government’s fiscal situation by several billion—with a B—dollars a year.

    Q: But isn’t liberty especially at risk with these kinds of federal mandates?

    A: Respectfully, no. Not at all. I emphatically deny Your Honor’s key proposition. It flunks a logic test, and a history test, and a structure test, and—well, just about every other legal test I can think of. If government can take my money and pay it to Detroit, there is no liberty difference than if government tells me directly to buy from Detroit. And if one thinks that money is speech such that a compelled payment is a First Amendment problem, then the 1792 Act was unconstitutional; and all state mandates of health insurance (Romneycare) and automobile insurance are unconstitutional. And a vast range of other state and federal laws would also be unconstitutional. Nothing in the Constitution or history or structure—or precedents, for that matter—provides suitable support for the “mandates are different” intuition, which cannot survive analytic scrutiny. Such an opinion will not write—or if it does, it will not last.

    Q: Meaning what?

    A: Meaning, with the greatest of respect for an institution and individuals whom I hold dear, I have to teach the stuff that Your Honors write year in and year out to my students. And if a judicial opinion simply fails tests of text, history, structure, and logic—and if it comes down by a 5-4 vote; and if the vote seems to track the party-alignment of appointing presidents; and if the four dissenters are emphatic that the majority’s arguments simply don’t wash; and if the vast majority of us who study constitutional law professionally, including most conservative scholars, agree that these arguments simply don’t wash; and if I already have to do a lot of work to explain Bush v. Gore, in context—well, what will I tell my students when they say to me, cynically, that “it’s all politics”? What will I say, when they ask me (as I have already been asked by one former student): “Just how many presidential elections are five conservative justices allowed to undo?”

    Q: Are there any middle positions that might generate a broader consensus on the Court?

    A: One possibility, perhaps, might build on various comments by Chief Justice Roberts and Justices Sotomayor, Kagan, Breyer, and others, at oral argument. The “mandate” should not be understood as free-floating requirement but simply as connected to the tax-penalty. In turn, the penalty can be upheld as a genuine revenue measure designed to bend down the cost curve. If the relevant statutory section needs in effect to be “reworded” to achieve this result, a judicial re-writing/re-reading of this section would be in keeping with various earlier cases, including the 2005 sentencing guidelines case of U.S. v. Booker and the 2009 Voting Rights Act case of NAMUNDO v. Holder. Both cases, in turn, can be seen as rooted in principles of judicial restraint and charitable interpretation famously put forth by Justice Brandeis in his concurrence in the 1936 Ashwander v. TVA opinion. With all due respect, several other possible approaches are also sketched out in an essay I wrote last summer for the Yale Law Journal online.

    And I’m sure that there are many other possible consensus positions that may emerge as Your Honors begin to deliberate among yourselves. Perhaps it would be too much to expect the kind of unanimity this court achieved in McCulloch, Marbury v. Madison, and Brown v. Board of Education—to name some of the most iconic cases. But an opinion that in some way genuinely crossed party lines would, with all due respect, be just what America now needs, and needs desperately, from the highest court in our land.

    Respectfully submitted,

    Akhil Reed Ahmar Yale Law School

  3. SwM,
    Joey Fishkin has obviously studied both in the Jerusalem and Babylon Talmud schools. How happy I am at his solution.
    And think of all the rage it will inspire in the Republicans.

  4. Elaine,

    Please don’t mistake my statements for optimism. I don’t think you know the worst case scenarios I’m thinking of when I say single payer will eventually become a matter of national security. No. I’m many things, but optimistic isn’t one of them.

  5. Swarthmore mom,

    Paul Ryan Budget Sparks First Ads Blasting Medicare Cuts

    WASHINGTON — Democrats are not waiting long to use Rep. Paul Ryan’s federal budget proposal for next year as a campaign billy club.

    Last week, the House passed the Wisconsin Republican’s $3.5 trillion budget plan, complete with measures to switch Medicare to a private system, slash more than $700 billion from Medicaid, and cut programs such as food stamps.

    On Monday, the Democratic-aligned Americans United for Change and the American Federation of State, County and Municipal Employees are firing off a round of ads aimed at Ryan and three other Republicans in tough races, focusing especially on the electorally potent topic of Medicare.

    Ryan, the House Budget Committee chairman, and his colleagues took a beating over his plan last year, and the ads predict it will happen again.

    “Last year, Congressman Ryan voted to end Medicare,” the ad says, arguing that the push to switch Medicare to a significantly less generous private system will essentially end the program that seniors now rely on.

  6. Swarthmore mom,

    As I wrote in an earlier comment–I have mixed feelings about the ACA. There are some good things in it. They are the reasons why I don’t think I’d like to see the the baby thrown out with the bath water. I doubt we’d have a chance of getting a better bill with the Congress we have at the present time.

  7. Yep, Boehner said last week that the Ryan plan is the GOP agenda.

  8. Gene,

    I’m not as optimistic as you about single payer being “salable” to the majority of Americans–not with all these well-funded groups “poisoning the well” on the subject and getting people freaked out about “socialistic” programs. Heck, we’ve got a Republican party that is trying to privatize programs like Social Security and Medicare.

  9. Elaine,

    Possible with the current set of pols and the state of campaign finance and lobbying? Probably not. Is it salable to the American public? Certainly. The business case for it is very strong unless you work for a health insurance company. The human rights case for it is very strong if most people knew how much of the Western world already operates on a single payer system. I think the real question around single payer is will it eventually become necessary or not and when. The current systemic inefficiencies sucking money out of patient treatment will eventually force the necessity of creating a single payer system as a matter of national security eventually even if the economics of it don’t force the issue before then, thus leaving the remaining question of when. FWIW, I agree about the public option. It was a step in the right direction, but it was contrary to the financial interests of the health insurance companies – the people Congress really represents as long as graft is essentially legal in the form of campaign donations and lobbying by corporations.

  10. Elaine, I know but I feel this is better than nothing for the 37 million uninsured. The ER’s don’t provide chemotherapy. Obama now leads Romney 2-1 with women under 50 while Romney swamps Obama with the over 50 male. Women are more likely to lack health insurance as they are employed in occupations that don’t provide it so again they are more in favor of Obamacare.

  11. Swarthmore,

    I don’t think single-payer health care legislation has a chance. I wish the Democrats hadn’t removed the public option from the ACA. I believe it would have been a step in the right direction.

  12. Sunday, April 01, 2012

    Sever everything but the exhortation

    Joey Fishkin

    At oral argument, we heard about two ways of understanding the individual mandate. One is that it gives people a choice. You must do one of two things, the law says: (a) obtain health insurance, or (b) pay a penalty on your taxes. On this view, the mandate is no different from an ordinary tax law provision such as a deduction or credit. Your tax bill will be lower by some amount (specifically, in this case, an amount between $695 and $2085, depending on income) if you choose to take an action the government would like to encourage (specifically, in this case, obtaining insurance).

    Those challenging the ACA see it very differently. They say that they are not challenging these tax provisions, but rather, the mandate itself. That is, the problem is not tax penalties or credits that raise or lower one’s bill, but rather, the fact that the statute requires individuals to buy insurance. Indeed these opponents often say that the mandate “forces” people to engage in transactions to buy insurance. What do the words “requires” or “forces” mean, exactly? If you choose to pay the penalty, the law is entirely satisfied; the government asks nothing more of you.

    Those challenging the ACA argue that there is something more. They say the government is demanding, or mandating, that you choose (a), not (b). On this view, to put it in the more familiar terms of a speed limit statute, the law does not say, “it’s fine to drive 90 miles per hour, but you will have to pay a special toll of $100 if you do.” Rather, the law says, don’t do it! Don’t drive 90 miles per hour. And if you do, the penalty will be $100 (and suppose the law also says, there will be no possibility of arrest, points on your license, escalating penalties in the case of multiple violations, or any other negative consequences). In the cold light of cost-benefit analysis, the special toll and the speeding ticket look exactly the same. But they are not the same, because law has a normative dimension.

    This implies some surprisingly deep claims about the normativity of law and the limits of the rational-actor model of how people interact with the law. But I’m not here to talk about that. I’m here to ask how this relates to severability. Why not go farther than Farr (the court-appointed lawyer arguing for greater severability), and hold that even if the mandate must be struck, it is severable from the tax provisions that enforce it? That is, why not strike, and sever, the mandatory exhortation: strike any suggestion that you “must have” insurance, any suggestion that the government in any way “mandates” that you do (a) rather than (b). Leave all functional tax code provisions as they are. Those who do not have insurance will pay $695-$2085. Choose (a) or (b), either is fine.

    Conveniently, as it turns out, the only language in the statute saying that individuals “shall” maintain insurance coverage is located in its own (very short) section, Section 5000A(a). The tax penalty can be found in Sections 5000A(b) and following. It would be very straightforward for either Justice Scalia or his law clerks to strike 5000A(a) and leave everything else intact.

    For those who think the word “penalty” retains a kind of mandatory sting, as though it’s not really ok to choose to pay a “penalty,” I would suggest that you are perhaps a bit hung up on labels, but if you must, simply strike the first four letters PENA throughout the statute, leaving in place LTY, an abbreviation for “little tax yearly.” That way there will be no more “penalty”; those who choose to go without insurance will have to pay a “little tax yearly” in the amount of $695-$2085.

    Some of us believe this change would produce… more or less what the statute already says now. But those challenging the ACA strongly disagree. They believe the ACA is very different—that it is an intrusive government command that does not give anyone a choice but instead “forces” everyone to buy insurance. Ok then. Let’s agree to disagree. But if the Court agrees with the challengers that the mandate must go, then let’s sever the controversial and disputed bit—the “mandate itself,” separate from the tax penalty—and give all sides what they say they want. Challengers get an end to the oppressive, individual-liberty-crushing mandate they abhor, the one that threatens to change fundamentally the relationship between the people and their government. In its place will be nothing but a little tax. Meanwhile, defenders of the ACA will get all the functional provisions of the law upheld, so that most of the uninsured will have a path to obtaining health insurance and we can begin to slow cost growth and achieve the rest of the law’s substantive aims. This solution has the great virtue that, unlike every other possible solution to the severability problem (including striking the entire ACA), it causes no unforeseen consequences, raises no specter of effects the law’s sponsors did not anticipate, and requires no further action from Congress. That last is especially helpful if we think of the “real” Congress, as Justice Kennedy mused at oral argument.

    What’s not to like? Unless, that is, all this talk by the challengers of how they are challenging only the “mandate,” not the tax provisions enforcing it, is just talk, and really it is the entire ACA they are after, by any means they can get their hands on.

    Posted 4:33 AM by Joey Fishkin [link]


  13. Elaine, There is not one republican that supports single payer that i know of. Maybe others know of some since they seem to think there would be no problem passing it. Their goal is to de-fund plan parenthood not pass single payer.

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