What the heckhappened at the Times? In an article about ObamaCare they present a long genesis of the 'broccoli' argument without ever presenting rebuttal. How could they leave our friends (and their readers) on the left in such an unseasoned broccoli soup?
Broccoli, of all things, came up in the Supreme Court during arguments over the constitutionality of the Obama administration’s health care legislation. If Congress can require Americans to buy health insurance, Justice Antonin Scalia asked, could it force people to buy just about anything — including a green vegetable that many find distasteful?
“Everybody has to buy food sooner or later,” he said. “Therefore, you can make people buy broccoli.”
Since then broccoli has captured the public imagination and become the defining symbol for what may be the most important Supreme Court ruling in decades, one that is expected any day and could narrow the established limits of federal power and even overturn the legal underpinnings of the New Deal.
If the court strikes down the health care law — which many constitutional experts on both the right and left long doubted it would do — many lawyers say they believe one reason may be the role of broccoli in shaping the debate.
A non-rebuttal eventually is offered:
Even those who reject the broccoli argument appreciate its simplicity. Whatever the Supreme Court rules, Mr. Rivkin and his libertarian allies have turned the decision into a cliffhanger that few thought possible.
“I have some grudging admiration for them,” said Akhil Amar, a professor of law and political science at Yale and author of a book on the Constitution. “All the more so because it’s such a bad argument. They have been politically brilliant. They needed a simplistic metaphor, and in broccoli they got it.”
I have no doubt Prof. Amar had more to say, but that is all the ink he got. And much later, we see this cryptic rebuttal:
Judge Vinson also indicated that he had seen the Reason video citing vegetables. He said, “You know, my friend Dean Chemerinsky says the government can, under the commerce clause, in his view, order Americans to buy G.M. cars.”
Ian Gershengorn, a lawyer from the Justice Department, replied: “But what this case is about is the purchase of a very particular product, and it is not shoes, it is not cars, it is not broccoli.”
That argument summed up the prevailing view among legal scholars, but broccoli figured prominently in Judge Vinson’s ruling that the law was unconstitutional, as did the Reason video.
I have no doubt Mr. Gershengorn had somethig in mind, but the Times doesn't say what that was.
Let me try to fill in the blanks. Dahlia Lithwick of Slate emphasizes that the uninsured have a right to health care that is not matched by a similar right to pick up broccoli off a store's shelf; this cost-shifting gives the government a right to regulate health care.
Hmm - one might note that it was a government rule (embodying a widely shared sense of ethics) that created the hospital's obligation to provide "free" service to the indigent. One could imagine a (dumb) law that, instead of food stamps, simply gave people the right to pick up groceries, plead poverty and hunger, and leave without paying.
However, Jon Cohn of TNR addresses that point, noting that broccoli is quite specific and the limiting principals of the Commerce Clause are already sufficient:
Focus instead on this question of the limiting principle, because at least some conservatives believe it to be important and at least some commentators believe this is a problem for the government. Can the government identify one? Can it draw a line that justifies the mandate but still provides some constraints on federal action?
Actually, it more or less has, although I'm not quite sure it's put it that way: Government may regulate what the plaintiffs call "inactivity" when it is merely a prelude to an inevitable activity that government has the right to regulate. Since getting sick and consuming medical services is inevitable, and since even (most of) the law's critics acknowledge the government can regulate the way sick people pay for their medical care, the mandate is acceptable.
A government mandate to buy broccoli would not satisfy this limiting principle, because not everybody will eventually consume broccoli. Similarly, a government mandate to buy a GM car might not pass muster because not everybody will eventually buy a GM car. Broader mandates, on the other hand, might work. Congress could, for example, force everybody to obtain food vouchers, join a grocery club, or demonstrate they had plans for paying for their food—paying some sort of fine if they did not. And Congress might be able to pass a law requiring everybody to get a car, obtain a transit pass, or, again, pay a fee to offset the costs of future transportation.
These would be constitutional because everybody really does need to eat—and everybody, or almost everybody, has to get places from time to time. Of course, such laws would also be really stupid.
That is tricky - a mandate to eat broccoli would be beyond the scope of the Commerce Clause but a broader mandate, such as to join a grocery club, would not be. So now the Constitution protects us against petty annoyances but not major intrusions on our liberty? Odd.
A stronger argument, although still problematic, is that the health insurance is fundamentally different from the broccoli market because of informaton asymmetries. I am going to trail off here for a moment, but when I get to my Big Finish it will be to note that the Times probably should have made one or more of these points during this article.