Broccoli Loses! Oh teh Humanity!Posted: June 28, 2012
It’s one of those Bizarro World days where you get to see “liberals” cheer over an American Heritage invented, Romney inspired, aka Dolecare private insurance scheme while conservatives moan that it’s
Alas poor Scalia! His revolution has stalled. It seems Justice Roberts either cares about his name or precedent after all. He managed to shift grounds but still worries about the ‘Broccoli Horrible’.
The majority opinion written by Chief Justice John Roberts bluntly insisted that the clause does not vest Congress with “police powers … to regulate an individual from cradle to grave.” It also explicitly embraced the conservative argument regarding health care and broccoli.
In oral arguments three months ago, Roberts and Justice Antonin Scalia famously demanded that Solicitor General Donald Verrilli explain why, if the government can compel someone to buy health insurance, it can’t also compel them to buy broccoli.
Roberts, however, enshrined the broccoli-related concerns in his opinion, writing:
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 in-surance 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 are purchased to cover the need for transportation and food.In their concurrence, the four liberal justices, led by Ruth Bader Ginsburg, nevertheless took issue with some of Roberts’ conclusions — including the one about broccoli.
Ginsburg tried to explain some of the ways in which broccoli (or a car) are different from health care:
Although an individual might buy a car or a crown of broccoli one day, there is no certainty she will ever do so. And if she eventually wants a car or has a craving for broccoli, she will be obliged to pay 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.And she even seemed to poke fun at Roberts for swallowing such an argument:
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.” Congress, The Chief Justice posits, might adopt such a mandate, reasoning that an individual’s failure to eat a healthy diet, like the failure to purchase health insurance, imposes costs on others. See ibid.Consider the chain of inferences the Court would have to accept to conclude that a vegetable-purchase mandate was likely to have a substantial effect on the health-care costs borne by lithe Americans. The Court would have to believe that individuals forced to buy vegetables would then eat them (instead of throwing or giving them away), would prepare the vegetables in a healthy way (steamed or raw, not deep-fried), would cut back on unhealthy foods, and would not allow other factors (such as lack of exercise or little sleep) to trump the improved diet.
Be prepared to eat thy Broccoli or Move to Canada for that horrible Universal Health Care you all fear Teabots! Meanwhile, I’m trying to imagine all those governors actually opting out of a huge amount of federal funds to make a point about their Medicaid programs. Yes, death panels are okay as long as its for poor people. Don’t you just love those sociopaths cum libertarians?
A rejection of health care egalitarianism, namely a recognition that the wealthy will purchase more and better health care than the poor. Trying to equalize health care consumption hurts the poor, since most feasible policies to do this take away cash from the poor, either directly or through the operation of tax incidence. We need to accept the principle that sometimes poor people will die just because they are poor. Some of you don’t like the sound of that, but we already let the wealthy enjoy all sorts of other goods — most importantly status — which lengthen their lives and which the poor enjoy to a much lesser degree. We shouldn’t screw up our health care institutions by being determined to fight inegalitarian principles for one very select set of factors which determine health care outcomes.
Like I said, welcome to the new Bizzarro world. It sounds strangely like a Dickens novel. Bless their little hearts, every one!