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. “Here is a point that no one has made yet, but we all should consider it. IF the mandate is somehow tossed out [and I do not believe it should be], query what happens to the mandate in RomneyCare?”


    When Scalia tossed up the tea party’s “Can the federal government force me to eat broccoli,” I thought, “Can it make me vaccinate my kids?” BTW, my kids are vaccinated by a physician in private practice and insurance did not cover all of the cost — so, yeah, I purchased a product/service in the private market to fulfill the government mandate.

    But wait — the federal government doesn’t mandate vaccinations (although federal money covers the biggest chunk of such vaccines); the states do — and the courts have repeated held the requirement to to be constitutional.

    Why? State governments exercise general powers — a state can do just about anything not limited by its own constitution or preempted by federal law. So RomneyCare is OK, and the principle is established that forcing a private person to make a purchase in a private market for the purpose of promoting the general welfare of the people is not per se unconstitutional.

    But the federal government exercises limited powers — the powers must be found either in the constitution or in the inherent status of the United States as a nation-state. If ObamaCare can be linked to such a power, the mandate to purchase insurance will stand because it is no different than being forcing me to vaccinate my kids.

  2. Here is a point that no one has made yet, but we all should consider it. IF the mandate is somehow tossed out [and I do not believe it should be], query what happens to the mandate in RomneyCare? Sure, I know that health care can be regulated by each state for its citizens as part of a state’s policing power, but no state can regulate a national solution to a national problem of accessing and affording health care and its financing arm-insurance. If folks cannot be forced to buy insurance on a federal level, then folks in the Commonwealth of Massachusetts cannot be forced to buy insurance either. To say otherwise is to assert a difference without a distinction. And for anyone to say the Supreme Court cannot override a state law, just look at what the Supreme Court did recently to an opinion out of the Montana Supreme Court (American Tradition Partnership vs. Bullock) that held corporations that contribute to campaigns violate that state law, and that act is constitutional under Montana law. An appeal was taken to the Supreme Court where it stayed the Montana decision based upon the Citizens United opinion, in effect overruling Montana state law. If the Court can trump a state campaign law that is in contradiction to a Supreme Court decision, then what justification can there be in saying if the Court finds unconstitutional the individual mandate in the health law, a similar provision in a state law remains valid? None that I can think of. And carrying this logic further, no state could ever pass a health law with a mandate to purchase insurance. What then—a single payer, medicare-type solution?; a Public Option? Didn’t those proposals “crash and burn” in Congress? What next?????

  3. Opps, the above snarky comment should read (at the end), “[…]tragically misplaced responsible, adult trust in team D, who needs a public option anyway?

    And to think those nasty Supreme Court justices would take all this away simply because it’s not officially a Republican monster in the oval office who is driving the legislation.

  4. Oh well. At least we have a Democrat for a president. It’s not as if we have a someone in the oval office who would assert presidential authority to terminate the lives of human beings, even citizens, with no judicial review. It’s not as if our president would sign a bill that eliminates the right of citizens to challenge secret indefinite detention by a potentially corrupt and/or authoritarian police and judicial system. It’s not as if we have a president that would allow or condone spying on it’s own citizens. It’s not as if we have the most anti transparent president in the history of the country. Eh?

    So what could possibly go wrong when it comes to legitimizing a mandate forcing citizens buy health care insurance from profit driven, monopolistic, proven ruthless sharks of private industry? We know full well it’s all for a good cause in the end, n’est pas? With this level of tragically misplaced responsible, adult trust in team D, who needs a public option anyway?

    And to think those nasty Supreme Court justices would take all this away simply because it’s not officially a Republican monster in the oval office who is driving the legislation.

  5. The mandate to buy health insurance from private enterprise will be upheld and will ultimately replace Medicare

    soon thereafter, the mandate to buy retirement insurance from private enterprise will piggy-back. it will be upheld and will replace social security

    Neither justices nor people on one side or the other of this fiasco have any interest whatsoever in constitutionality except by coincidence. Under virtually every argument pro or con is the “activism” of perceived interest or personal view point. It is farcical to suggest that liberals are upholding the constitutionality of mandating citizens into coercive relationships with private enterprise.

    No, underneath that gymnastic they are simply arguing for a practical highly relative outcome which they often express as, a little bit of something is better than a whole lot of nothing. And underneath that is the assumption that their team, “the Democrats”, must have decent motives in the main and at the end of the day.

    Some even imagine this to be a strategy, to use the fire of this eminently right wing legislation, the mandate, against the conservatives themselves; to Trojan Horse in a program that will magically transform over time into a viable decent and humane health care system. I say magically, because that is what it would apparently take to get Democrats to actually stand up for what’s right, for any “progressive” transformation of something as small as a jay walking ordinance, never mind a national health care system. And that also makes an increasingly dubious assumption that Democrats are so motivated at all; that they have any interest whatsoever in enlightenment humanity or compassion that equals or surpasses or even approaches their interest in doing what industry lobbyists ask of them in return for a higher statistical chance of re-election and personal enrichment.

    What liberals forget or what they are simply unwilling to “observe” is that their own party is working just as diligently for the profit of private enterprise — which is the antithesis of enlightenment humanity or compassion — as are the conservatives.

  6. Gene H.:

    I know we disagree on the federalism issue, but in Scalia’s case, federalism is ignored anyway if it might produce a different election result (Bush v. Gore) or enable states to protect consumers against unconscionable contracts (AT&T v. Concepcion). If his opinion in this case begins with an ode to federalism, we won’t have to read the rest.

  7. Great post, Mike, but I still disagree with you about the Commerce Clause versus the federalism issue. Like you said though, that’s an old conversation. I do agree though that Scalia’s analogy is terrible. :mrgreen:

  8. Although I do not profess to be a constitutional scholar, I have argued on several threads that I believe the individual mandate is constitutional under the Commerce Clause. I don’t have anything to add to what I’ve said before, but I do wish to comment on the so-called broccoli analogy. My objection is not only that it demeans the seriousness of the issue (because it is silly), but that it is a bad analogy.

    Justice Scalia’s argument would have some weight if the mandate compelled that I must either buy a Blue Cross/Blue Shield policy or pay a tax. But that is not what the law says. It says that I must purchase health insurance or pay a tax. Broccoli is one of many vegetables, just as Blue Cross/Blue Shield is one of many insurance companies. Properly framed, therefore, Justice Scalia’s question should have been, can the government force me to buy vegetables?

    Which brings me to the second reason his analogy is bad. Fruit and vegetable farmers do not receive federal subsidies. However, growers of many other cash crops do. For example, between 1995 and 2010, taxpayers paid over $32,000,000,000.00 to wheat farmers. If we ate more wheat, those subsidies would be reduced. So, to further refine the point, Justice Scalia’s question should have been, can the government force me to buy wheat products? Perhaps not directly, but it does so by supporting wheat prices. Either I eat more wheat or I pay more in taxes to fund subsidies.

    There is no doubt whatsoever that health care is interstate commerce. The individual mandate says that I may either purchase health insurance to spread the cost of health care or pay a tax for the same purpose. It is a bad compromise on a single payer system, but the compromise was made to get the law past the same people who are now challenging it in court. There’s more than enough irony to go around in this case.

  9. Akhil Reed Amar, from Wikipedia (cited elsewhere)

    Hope he makes it to SCOTUS, they need it.

    “A Legal Affairs poll placed Amar among the top 20 contemporary US legal thinkers.[2]”

    “Amar is a summa cum laude graduate of Yale College (B.A., 1980) and the Yale Law School (J.D. 1984) and was an editor of the Yale Law Journal. Amar clerked for now-U.S. Supreme Court Justice Stephen Breyer when he was a judge on the First Circuit Court of Appeals.

    Amar is the author of numerous publications and books, most recently the acclaimed America’s Constitution: A Biography. The Supreme Court has cited his work in over 20 cases, including the landmark 1998 decision in Clinton v. City of New York, which ruled the presidential line-item veto unconstitutional.[1] In their book For the People: What the Constitution Really Says About Your Rights, Amar and Alan Hirsch introduce a variation on the four boxes of liberty theme often quoted by conservatives opposed to gun control. Discussing the American Constitution, they assert that the ideal of citizenship generates four “boxes” of rights. The first three are the ballot box, jury box and cartridge box. To these, with some reservations, they add the lunch box: the idea of a social safety net that supports basic physical and educational needs.[3][4]

    He was a consultant to the television show The West Wing, on which the character Josh Lyman refers to him in an episode in Season Five. His course on constitutional law is one of the most popular undergraduate offerings at Yale College. Amar’s younger brother, Vikram Amar, teaches at the UC Davis School of Law.”

    What does this mean?

    “The Supreme Court has cited his work in over 20 cases, including the landmark 1998 decision in Clinton v. City of New York, which ruled the presidential line-item veto unconstitutional.[1] “

  10. Elaine H very enlightening to me about emergency care. Seem they put a bandaid on it and forgot to pay. Great solution. thanks. says he who don’t know nothin’.

    Thanks, will stop harping about you know what. It is all part of learning for someone who never was with people. Learning to interpret silence or no reply requires training. thanks..
    Ahmar, very impressive. Maybe he has a night course for ex-pat americans.

  11. idealist, I don’t know if Prof. Ahmar has a blog. He was on the Chris Hayes show Saturday morning and I was quite impressed.

  12. “In 1986, Congress enacted the Emergency Medical Treatment & Labor Act (EMTALA) to ensure public access to emergency services regardless of ability to pay. Section 1867 of the Social Security Act imposes specific obligations on Medicare-participating hospitals that offer emergency services to provide a medical screening examination (MSE) when a request is made for examination or treatment for an emergency medical condition (EMC), including active labor, regardless of an individual’s ability to pay. Hospitals are then required to provide stabilizing treatment for patients with EMCs. If a hospital is unable to stabilize a patient within its capability, or if the patient requests, an appropriate transfer should be implemented.”


    From the American College of Emergency Physicians


    Main Points
    •The Emergency Medical Treatment and Labor Act (EMTALA) is a federal law that requires anyone coming to an emergency department to be stabilized and treated, regardless of their insurance status or ability to pay, but since its enactment in 1986 has remained an unfunded mandate.
    •The burden of uncompensated care is growing, closing many emergency departments, decreasing resources for everyone and threatening the ability of emergency departments to care for all patients.
    •Emergency physicians provide the most charity care of all physicians (AMA 2003).
    •ACEP advocates for recognition of uncompensated care as a legitimate practice expense for emergency physicians and for federal guidance in how fulfill the requirements of the EMTALA mandate in light of its significant burden on the nation’s emergency care system.
    •Everyone is only one step away from a medical emergency.

    Who pays for EMTALA-related medical care?
    •Ultimately we all do, although EMTALA places the greatest responsibility on hospitals and emergency physicians to provide this health care safety net and shoulder the financial burden of providing EMTALA related medical care.
    •According to a May 2003 American Medical Association study, emergency physicians on average provide $138,300 of EMTALA-related charity care each year, and one-third of emergency physicians provide more than 30 hours of EMTALA-related care each week. Physicians in other specialties provide, on average, about six hours a week of care mandated by EMTALA, and on average incurred about $25,000 of EMTALA-related bad debt in 2001.
    •Some health insurance plans deny claims for legitimate emergency departments visits, based on a patient’s final diagnosis, rather than the presenting symptoms (e.g., when chest pain turns out not to be a heart attack). Some also attempt to require preauthorization before a patient can seek emergency medical care, resulting in denied payment. These managed care practices endanger the health of patients and threaten to undermine the emergency care system by failing to financially support America’s health care safety net.
    •ACEP advocates for a national prudent layperson emergency care standard that provides coverage based on a patient’s presenting symptoms, rather than the final diagnosis. In addition, health insurers should cover EMTALA-related services up to the point an emergency medical condition can be ruled out or resolved.

  13. SwM
    “The obligation to care for the urgently sick—including the strangers in our midst—is ultimately rooted in morality and centuries of tradition”

    In the then greatest empire in the world all humans were guaranteed health care, and even wild animals as a gesture to Jains who revered all life forms.
    This was in India ca 250 BCE.

    This professor writes so SCOTUS can understand, and even I can get most of it. Hope he blogs.
    Here he may have lost his case with the snark about Bush vs Gore.

  14. “A Supreme Court activist enough to strike down Obamacare would probably be activist to strike down single-payer, too. Whatever arguments the conservative justices have concocted to nullify an individual mandate, they can discover different ones to nullify a much more intrusive big-government system. This doesn’t mean we should give up on ever passing such a law. But it does require a different strategic calculation. Instead of the presidency, a House majority and 60 senators, you probably need the House, the presidency, 50 senators and five Supreme Court justices. In the long run, there will be more times when Democrats have five members of the Supreme Court than 60 senators. The Supreme Court will function as a kind of second Senate, an additional political veto point. (Again, all this is assuming the kind of Republican activism that would be entailed be striking down the whole law.)

    The even worse news is that getting 50 senators to vote for single-payer will be really, really hard. You’d be asking them to vote to completely destroy a major industry. That is something very few senators, even liberal ones, are willing to do.

    It’s not impossible, though. What would have to happen would be for Democratic activists to organize such that supporting single-payer became an essential element of the party platform, like regressive tax cuts are for Republicans — something that, whatever else you may disagree about, a candidate must sign on to in order to be nominated. That process would a massive organizational and financial commitment and take a generation to succeed. That’s not hopeless, and it would be the best option in the face of legal disaster. But the best option, by far, is not to get struck down in the first place.” excerpt Jonathan Chait New York magazine

  15. Scalia’s Ex-Clerk: 65% Chance SCOTUS Overturns ‘Obamacare’ Mandate

    Brian Fitzpatrick, a professor at Vanderbilt University Law School and former clerk to Justice Antonin Scalia, weighed in after the Supreme Court health care arguments.

    He wrote in an email to TPM:

    Scalia is a very likely vote against the mandate, and I’d say there is a 65% chance the five conservatives strike it down.

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