Chopping Broccoli

Andrew Sullivan —  Mar 28 2012 @ 11:08am

A reader writes:

If Solicitor General Verrilli struggled on Day Two to define a concise “limiting principle” for Obamacare, it’s probably because he worked too hard to distinguish the Justices’ hypothetical examples from the health insurance mandate. It’s not that there’s something inherently different between health care and, say, undertakers (Alito’s hypothetical), 9-1-1 cell phones (Roberts’) or broccoli (Scalia’s). The real question to answer is, “What is it about broccoli that might compel Congress to use its “commerce clause” authority to force us all to buy the flowery green vegetable?” Mr. Verrilli shouldn’t have to litigate the case for broccoli or for cell phones or for funeral services here. That “burden of justification” ought to be deferred to some future Supreme Court case when the Congress finally gets around to passing those mandates. Surely the Congress wouldn’t pass such a law without a powerful reason. But suppose that Mr. Verrelli had entertained the broccoli hypothetical a little more seriously. To make the argument more concrete, he could simply substitute the word “broccoli” for “health care”:

In other words, sooner or later, everybody is going to have to eat their “broccoli.” But some people are going to get their “broccoli” for free while others will be paying extra for their “broccoli” because they’re covering the “broccoli” costs of all those freeloaders. Moreover, people all over the country are being bankrupted by the high cost of “broccoli” because they didn’t buy it when it was cheap but waited until they needed it. All of this is happening because there doesn’t exist a free market for “broccoli”; rather, that market is being controlled by middle men who’ve rigged the system to deny “broccoli” to those who need it most. Clearly then, the Congress has the needed authority – even the duty – to promote a fairer and more even playing field for consumers of “broccoli” by using its powers under the Commerce Clause to direct us all to buy “broccoli” – or to pay a “broccoli” fine – so that it’s available to us when we inevitably need it.

Another is more succinct:

How can anyone make the case that individuals should not be forced to buy insurance without also insisting that hospitals have the right to turn away anyone who can’t prove they have the capacity to pay? Scalia asks if the government can force us to buy broccoli. Someone should ask him if it’s constitutional for the government to mandate that grocers give it away?

Another focuses on caskets:

Why not mandate burial insurance, too, as Justice Alito asked? The burial counter-argument is the strongest criticism I’ve heard. Its strength helps uncover why health care is special:

Burial Insurance vs. Health Insurance
One-time expense v. Open-ended, uncertain expense
Small cost for minimum service v. Potentially enormous costs

Nature of minimum service is simple and commonly replicated v. Nature of basic services are complex and highly individualized

Political branches have not identified unpaid burial expenses as major social problem v. Political branches have been debating solutions to this huge social problem for decades

There really is no market like health care. Its unique status justifies the unprecedented individual mandate prior to point of sale.

Another zooms out:

Who cannot see through the idiocy of this “slippery slope” argument that’s being advanced in the extreme? Boiled down to its essence, the argument goes: “If the government can allow X, well then – can’t the government allow anything?” (Let’s also call it the “marriage equality” scare, replacing the X with “gay marriage” and “anything” with “man-on-dog.”) Alternately, substitute the word “outlaw” for the word “allow,” and you can make – Exactly. The Same. Empty. Fearmongering. Argument.