ObamaCare and the Broccoli Mandate

Almost none of the commentators on the recent Supreme Court hearings devoted to "ObamaCare" (the "Patient Protection and Affordable Care Act", which I'll refer to as ACA) dare to question whether the 4 out-and-out "conservative" justices have any intention of actually fairly evaluating the issues in the light of logic or precedent. Perhaps the commentators are uneasy about outright criticism of the Court, or are worried that they may be held accountable for predictions as to the outcome (to be announced in a few months). One of the few sources that have criticized the Court on these grounds is Talking Points Memo, which recently noted that Justice Scalia's questions and remarks have exactly echoed Republican talking points about healthcare; another is Scot Lehigh, writing in the Boston Globe.

Recent pivotal cases seem to suggest that the conservative justices, whoever they may be, put their personal politics, not law or reason, first in their decisions. In Bush v. Gore, for example, justices Scalia, Rehnquist and Thomas reversed nearly all of their previous interpretations of "states' rights" and the "Equal Protection" clause in over-ruling the Florida Supreme Court. In the recent "Citizens United" case the thin conservative majority created new law and over-ruled previous precedents in claiming free-speech rights for corporations, rights that they had been rather stingy in granting to actual people. At least one of the justices, Clarence Thomas, almost never asks a question, and seems to have been clearly and predictably guided throughout his career on the bench by an internal ideology, inflexibly reactionary.

(This is not to say that liberal justices aren't predisposed to vote their biases, it's just that the conservatives are far more "activist" -- willing to overthrow established legal precedent -- and the conservative philosophy is so much more predictable and simple-minded.)

Let's take a look at the quality of the conservative questioning so far in what is officially called Florida v. Department of Health & Human Services.


First, Justice Kennedy asked administration lawyer: "Can you create commerce in order to regulate it?" and further asked him to state "some limits on the Commerce Clause."

This is disingenuous and an obvious attempt to get Solicitor General Verrilli to overstep. ACA does not create the commerce in health insurance. A large majority of Americans have some form of health insurance, and a majority of the others would buy it if they could. ACA no more creates a market for insurance than the Patriot Act creates a need for security measures against terrorism, or Medicare creates a need for healthcare for senior citizens. Furthermore, even if one were to concede that ACA creates commerce by forcing people to have healthcare insurance, that would certainly be entirely reasonable in the case of insurance, where the whole point is to protect large numbers of people at controllable cost through the central idea of insurance: spreading the risk. If only sick people bought insurance, the rates they would have to pay would be prohibitive. Invoking the Preamble to the Constitution, to "promote the general welfare" by instituting universal healthcare, the Congress would have to have either a totally government-run system, or else enforce an individual mandate as provided by ACA.


Belying his reputation as a deep thinker, Justice Scalia later stated: “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.”

The naivete and childishness of the remark is astonishing. Yes, the market is food, so we could demand that people buy food: that is the correct analogy. Would anyone make a test case against forcing people to buy food (or grow it)? This is indeed an individual mandate that seems entirely harmless because we rarely think about it. If you can't afford this individual mandate, then the government provides food stamps. Any problem with that? If you refuse both, then you can either starve yourself and your family or steal -- both of which are strongly discouraged by law.

So what about broccoli? There would be no logic in the government demanding you buy broccoli since the issue is starvation, and broccoli alone won't prevent that. No government would ever require a particular food or foods any more than it would require that you buy a particular  brand of health insurance. The government does regulate the food that is available, and does provide guidelines for healthy eating. If you choose to starve yourself, then you'll either die in seclusion, or you'll be taken to a hospital and (force) fed nutrients to save your life. The costs of such a treatment, of course, will be picked up by others. People who make a habit of doing this are not generally considered hearty independents, but rather loonies or social parasites.

So what about healthcare? Like food, everyone needs it sooner or later, but this need is distributed statistically. It can be rationed by insurance companies -- they may not cover pre-existing conditions, for example, or certain procedures or certain high-risk people. It can be rationed by expense/income. However, for all classes of people except the very young and healthy, it is least expensive when the pool of people covered is very large. So, those who can afford but refuse to buy insurance are, in the same sense as those who refuse to buy food, social parasites: they raise the costs for everyone else, and they occasionally must be underwritten by others. This is the correct analogy, not the infantile one of a government forcing us to eat broccoli.

Of course Justice Scalia may have meant broccoli to stand for "healthy foods" or a healthy lifestyle, and is worried that the government might be using the Commerce Clause as a way of setting our menus for us -- sort of a Commerce Clause "domino theory": Eating healthy food is good for you, hence lowers the cost of healthcare for all, hence the next step is to force everyone to eat broccoli under the guise of regulating interstate commerce. I wonder whether Scalia ever worried about the implications of asserting that corporations are people and thus have the same rights as people. Should they vote? Hold office? (They clearly have all sorts of sexual rights: they've been doing nasty stuff to us for decades.) Talk about inventing constitutional law.

Just a few weeks ago most legal experts felt that it was clear that the individual mandate was constitutional, and that even Scalia might end up voting that way. So now,  let me be among the first to predict: The conservatives will once again vote their ideology to overturn all sorts of legal precedent and declare the individual mandate unconstitutional.