Scalia worries about broccoli?

In today’s oral arguments regarding the constitutionality of the health care mandate, Justice Scalia used an analogy to question the validity of the mandate to purchase health insurance.  He said “It may well be that everybody needs health care sooner or later, but not everybody needs a heart transplant, not everybody needs a liver transplant,” Scalia continued. “Could you define the market so that 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?”

This is rather disingenuous.  The point about the mandate is not just that everybody needs health care sooner or later – the point is that a gunshot victim showing up at a hospital has an affirmative right to demand treatment be provided and that the costs be passed on to those who do pay for insurance (and woe to the hospital that doesn’t provide the best possible life-saving care to accident or crime victims that ambulances deliver to their ER — that is what tort lawyers live for).

There is NO comparable right to food or housing — no one can show up at a grocery store and say “I’m starving — I demand you feed me; and if I can’t pay, just charge other customers more for their food!”   The poor may get food stamps if they meet eligibility requirements, as they can qualify for medicaid, of course, but that is a wholly different matter.  There is no obligation to use private funds to feed people in need that is comparable to the obligation to use private funds (provided by individuals paying for private insurance) to pay for the health care of uninsured individuals needing emergency care.

So the “Brocolli argument” is just as distateful as the vegetable for which it is named — I can’t digest either one …

(PS, fresh brocolli, properly cooked, is delicious; but I sympathize with those who have been served overcooked or non-fresh brocolli…or bad arguments).

About jackgoldstone

Hazel Professor of Public Policy at George Mason University
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