I like broccoli. There, I said it. Now, I like it when it is covered in olive oil, garlic and chili pepper flakes but that’s pretty much how everyone likes it, right? Broccoli played a prominent role in this week’s Supreme Court oral arguments over the Affordable Care Act (I will call it Obamacare).
You see, the argument goes that if the government can force citizens to purchase health insurance to prevent a free rider problem and generally promote health nationally, can’t the government force you to buy broccoli because broccoli is nutritious and eating it will generally promote health nationally?
Now, to be fair, opponents of Obamacare and Justice Scalia are only deploying broccoli as a way of otherwise asking the rhetorical question - what couldn’t the government make you buy in the name of promoting heath?
However, buying health insurance isn’t just a way to promote health, it’s a way of regulating a market which is not functioning optimally from a public policy perspective. Part of me is wondering why the Solicitor General didn’t say that the government isn’t forcing people to buy insurance to make them healthier, it’s forcing them to buy insurance in order to prevent free riders. The government actually doesn’t care about your health, frankly, it would prefer it if you either died quickly or recovered quickly. Too blunt? (As I get ready to “publish,” I see that the avoiding free riders principle is one of the three limiting principles suggested by Yale professor Jack Balkin yesterday on his blog. I recommend that you read it.)
But, more to the point, aren’t there several ways in which the government can compel you to buy broccoli? Couldn’t the government tax all other non-broccoli vegetables? (After all, it taxes cigarettes). Further, couldn’t the government subject me to an income tax if I don’t buy broccoli? I think the answer is also yes.
Akil Reed Amar made a version of this point in a dialogue yesterday with Ezra Klein. Congress has all sorts of powers which it could Constitutionally use but doesn’t. Amar likened some of these arguments to the initial opposition to the income tax, that is, we could be taxed at 100%! Yes, we could be but, politically, Congress would never do so. (The counter to that argument is that at least the Constitution clearly provides for an income tax. It does not as specifically set forth the means of enforcing the commerce clause. Most people see this lack of specificity as both intentional and beneficial.)
I’ll repeat this prediction. The individual mandate will be stricken down by a 6-3 margin. It also seems as though there is at least a group of 3 justices who would happily throw the entire statute out. I tend to agree with James Carville. Democrats could eventually politically benefit from this in several ways. One, Democrats will claim that they attacked rising health care costs but were prevented by doing so by an activist, Republican nominated court responding to a Republican-only challenge to the bill. Two, it reinforces how serious Presidential elections are. The composition of the Court matters. Three, the logic of such a decision will serve as a counter-argument to many conservative efforts to privatize government services. It’s hard to see how you could privatize Social Security after listening to these arguments. Any effort to privatize Social Security would have to eventually be comprehensive because you can’t continuously fund current beneficiaries if current workers/taxpayers are privately investing what would otherwise be their FICA payments.
By the way, of all of these, I am uncomfortable from the “this is all a Republican judicial plot” argument which will be made by Democrats. I have too much respect for the Court. If a law is truly unconstitutional, it’s a public good to have it declared so. That I might vehemently disagree with the finding, it is what it is. There’s not a special level of close-to-constitutionality that attaches to 5-4 or Republican-Justices-only decisions.