The Supreme Court ObamaCare Decision Is Full of…Broccoli


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.  


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

NEXT: Here's the Supreme Court's Ruling on Obamacare

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  1. The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil, in case he do otherwise. To justify that, the conduct from which it is desired to deter him must be calculated to produce evil to some one else. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

    1. However:

      ...we may leave out of consideration those backward states of society in which the race itself may be considered as in its nonage. The early difficulties in the way of spontaneous progress are so great, that there is seldom any choice of means for overcoming them; and a ruler full of the spirit of improvement is warranted in the use of any expedients that will attain an end, perhaps otherwise unattainable. Despotism is a legitimate mode of government in dealing with barbarians, provided the end be their improvement, and the means justified by actually effecting that end. Liberty, as a principle, has no application to any state of things anterior to the time when mankind have become capable of being improved by free and equal discussion. Until then, there is nothing for them but implicit obedience to an Akbar or a Charlemagne, if they are so fortunate as to find one.

      1. Therefore a question: Are we reverting to one of those "backward states of society in which the race itself may be considered as in its nonage?"

  2. I'm confused. There are four justices listed in the dissent. But the ruling was 6-3?

    1. I guess the initial report was wrong...

      1. No actually Hugo Chavez was invited to do a "guest concurrence". They do that from time to time.

    1. "Vile weed. Yes,Yes. Now please, someone, honey mustard."

    2. Broccoli? Fuck that shit. Try some Beef Bologna!

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