The Supreme Court, the mandate and … broccoli

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.

5 Responses to The Supreme Court, the mandate and … broccoli

  1. James Gilligan says:

    Dan, isn’t your argument a little specious? Who is saying that the federal government doesn’t have the right to regulate commerce in the health care sector? I thought the argument was that since contracts are historically voluntary, i.e., that all parties to contracts enter into them through their own free will and since the individual mandate requires our participation in contracts, the precedent is that this changes the individual citizen’s relationship to the federal government in a way that has never been done before. Who said that the federal government has no right to regulate commerce?

    Frankly, if you’ll open your mind for a moment, the federal government’s involvement with healthcare is the crux of our healthcare problem now. By taking large segments of the population (Medicare and Medicaid) and capping their costs the rest of us are forced to pay more. What is the upshot of rent controls? When rents are capped, it results in fewer apartments being available – or a a dearth in the supply of available apartments. What will happen if Obamacare is found to be Constitutional? Healthcare will be rationed. My insurance company, my physician, and me will have little to say when the Health Care Review Board decides I don’t need knee replacements at my age. I will have entered into a contract against my will that curbs my rights and liberties. Sounds like something I want…

    • Dan Radmacher says:


      You are not forced into a contract. You can either get insurance or pay a penalty tax. The choice is yours. (And, actually, a public option would have nullified this argument, since clear precedent – Medicare – shows that government can require you to pay into a government insurance plan.)

      Your fear-mongering about rationing makes no sense. Aren’t you on Medicare now? If that isn’t rationed, why would rationing take place under Obamacare – which expands PRIVATE-sector insurance.

      Never forget that the individual mandate was a conservative idea – a free-market approach to achieving universal coverage and eliminating the free-rider moral hazard.

      • James Gilligan says:

        “fear-mongering”? So far as I know, Dan, I’m talking to you. Am I scaring you? My “fear-mongering” makes perfectly good sense. If you control the price, you affect the supply. Remember that curve thingy in Econ 101? It’s not just a good idea, it’s the law. No, I am not on Medicare now. I am aware that great liberal ideas always entail unintended consequences.

        “You are not forced into a contract. You can either get insurance or pay a penalty tax.” Oh, please. That’s a choice for free men? Do two positives ever make a negative? Yeah. Right.

        The individual mandate was favored by the Cato Institute, a libertarian-leaning think tank you would never cite. The Cato Institute doesn’t make my bread and butter any more than they make your’s. When your health care is rationed you’ll regret this unprecedented expansion of the federal government. The tragedy is that I will suffer it long before you do.

        • Dan Radmacher says:

          Actually, the individual mandate was proposed by Heritage, not Cato. It was supported by Bob Dole, John McCain, Mitt Romney (for it before he was against it), and many other Republicans).

          You don’t appear to understand the individual mandate or Obamacare. Neither represents an unprecedented expansion of federal government. Both are very conservative efforts to fix the health care system through the private marketplace. Trust me, I would have preferred a far more liberal solution.

          Medicare has been around for 40 years. There has yet to be any rationing. What makes you think Obamacare, which depends almost completely on private insurers for coverage, will be different?

          • James Gilligan says:

            I don’t understand the individual mandate or Obamacare yet, it is you, citing the Commerce Clause to defend against a charge no one is making – that the Administration does not have the right to regulate health care commerce. Once more, who is making that charge?

            It is you who is outraged about a Supreme Court opinion that has yet to be rendered.

            I told you what makes me think there will be rationing: the Law of Supply and Demand and the establishment of the Health Care Review Board. Yes, I know you would have preferred a far more liberal solution that tortured and bent the Constitution in new and creative ways.

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