Obamacare

The Supreme Court ObamaCare Decision Is Full of…Broccoli

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Broccoli gets an awful lot of shout-outs in today's ObamaCare court decision [PDF]. Below, a compendium of broccolonia:

Chief Justice John Roberts' Opinion:

  • According to the Government, upholding the individual mandate would not justify mandatory purchases of items such as cars or broccoli because, as the Government puts it, "[h]ealth insurance is not purchased for its own sake like a car or broccoli; it is a means of financing health-care consumption and covering universal risks."  Reply Brief for United States 19. But cars and broccoli are no more purchased for their "own sake" than health insurance.  They arepurchased to cover the need for transportation and food.
  • The dissent dismisses the conclusion that the power to compel entry into the health-insurance market would include the power to compel entry into the new-car or broccoli markets.

Justice Ruth Bader Ginsberg, concurring:

  • The inevitable yet unpredictable need for medi­cal care and the guarantee that emergency care will be provided when required are conditions nonexistent in other markets. That is so of the market for cars, and of the market for broccoli as well.  Although an individual might buy a car or a crown of broccoli one day, there is nocertainty she will ever do so.  And if she eventually wants a car or has a craving for broccoli, she will be obliged topay at the counter before receiving the vehicle or nour­ishment. She will get no free ride or food, at the expense of another consumer forced to pay an inflated price.
  • As an example of the type of regulation he fears, THE CHIEF JUSTICE cites a Government mandate to purchase green vegetables.  Ante, at 22–23. One could call this concern "the broccoli horrible."
  • THE CHIEF  JUSTICE accepts just such specious logic when he cites the broccoli horrible as a reason to deny Congress the power to pass the individual mandate.

Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito, dissenting:

  • The dissent dismisses the conclusion that the power to compel entry into the health-insurance market would include the power to compel entry into the new-car or broccoli markets. The latter purchasers, it says, "will be obliged to pay at the counter before receiving the vehicle or nourishment," whereas those refusing to purchase health-insurance will ultimately get treated anyway, at others' expense. "[T]he unique attributes of the health-care market . . . give rise to a significant freeriding problem that does not occur in other markets." And "a vegetable-purchase mandate" (or a car-purchase mandate) is not "likely to have a substantial effect on the health-care costs" borne by other Americans. 
  • Those differences make a very good argument by the dissent's own lights, since they show that the failure to purchase health insurance, unlike the failure to purchase cars or broccoli, creates a national, social-welfare problem that is (in the dissent's view) included among the unenumerated "problems" that the Constitution authorizes the Federal Government to solve.  

Mmmmm…broccoli. 

The Reason-Rupe poll found that most Americans aren't keen on a broccoli mandate.