The individual mandate and broccoli: Taking it to extremes

03/27/2012 08:45:00 PM
Tom Karst

If the government can make everyone buy health insurance, couldn't the government require that consumers purchase broccoli? That was the question that Supreme Court Justice Antonin Scalia of the Supreme Court asked Solicitor General Donald Verrilli during the argument before the Supreme Court on the question of the individual mandate for health care. The debate is fascinating. Here is an excerpt:

JUSTICE SCALIA: Could you define the market -- everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli.


GENERAL VERRILLI: No, that's quite different. That's quite different. The food market, while it shares that trait that everybody's in it, it is not a market in which your participation is often unpredictable and often involuntary. It is not a market in which you often don't know before you go in what you need, and it is not a market in which, if you go in and -- and seek to obtain a product or service, you will get it even if you can't pay for it. It doesn't have -

JUSTICE SCALIA: Is that a principled basis for distinguishing this from other situations? I mean, you know, you can also say, well, the person subject to this has blue eyes. That would indeed distinguish it from other situations. Is it a principled basis?  I mean, it's -- it's a basis that explains why the government is doing this, but is it -- is it a basis which shows that this is not going beyond what -- what the -- the system of enumerated powers allows the government to do.


GENERAL VERRILLI: Yes, for two reasons. First, this -- the test, as this Court has articulated it, is: Is Congress regulating economic activity with a substantial effect on interstate commerce?
The way in which this statute satisfies the test is on the basis of the factors that I have identified.

 

Later, another exchange...

CHIEF JUSTICE ROBERTS: That, it seems to me, is -- and it's a passage in your reply brief that I didn't quite grasp. It's the same point. You say health 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. Well, a car or broccoli aren't purchased for their own sake, either.
They're purchased for the sake o transportation or, in broccoli, covering the need for
food.


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