The Supreme Court, the mandate and … broccoli
March 28, 2012 5 Comments
By all indications, the second day of oral arguments on the constitutionality of ObamaCare did not go well. This surprised many legal experts, who assumed that Supreme Court justices would follow well-established precedent and approve the individual mandate. Of course, they still may.
What stood out to me, though, in reading the coverage of the arguments was Justice Scalia’s insipid line of questioning, which didn’t rise above the level of commentary you’d expect to find on the Sean Hannity or Rush Limbaugh shows. How bad was it? Scalia actually parroted one of the most intellectually dishonest talking points against the mandate: broccoli.
Scalia: “Could you define the market – 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.”
That might work on talk radio when you’re blabbing to a bunch of sympathetic listeners. But Americans deserve better from justices sitting on their highest court.
Donald Verrilli, the Obama administration lawyer who everyone agrees was far from at the top of his game, managed to counter Scalia, but in a halting and convoluted way: “No, that’s quite different. That’s quite different. The food market, while it shares that trait that everybody’s in it, it is not a market in which your participation is often unpredictable and often involuntary. It is not a market in which you often don’t know before you go in what you need, and it is not a market in which, if you go in and — and seek to obtain a product or service, you will get it even if you can’t pay for it,” Verrilli said.
Health care spending makes up one-sixth of the U.S. economy. There is absolutely no doubt that Congress has the Commerce Clause authority to regulate the health care market. No individual can choose not to be part of that market. You can hope you won’t need health care services. You can pray you won’t need them. You can work out regularly and eat right and be young and healthy. But that bus you accidentally walk in front of … or the cancer that catches up to you … or any other number of unforeseeable circumstances can force you into the market at any time whatsoever.
Billions of dollars are currently spent by hospitals, states and the federal government to pay for the care of people who wished they could have stayed out of the health care market.
It is thus a perfectly necessary and proper part of the response to the systemic problems in our health care system to require everyone to prepare for their eventual need to enter that market by either purchasing insurance, and by providing subsidies for those who can’t afford it.
If you think that in anyway is comparable to forcing Americans to buy broccoli, you should not be wearing the robes of a Supreme Court justice.