It Ingredient: Broccoli |

It Ingredient: Broccoli

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Most foodstuffs become "it" ingredients by virtue of their taste, texture and use in the kitchen. But in the case of broccoli, most of it's moments in the spotlight have been driven by politics.

Who among us can forget the moment in 1990, when President Bush expressed his presidential power by announcing his hatred of the green crucifer. "I do not like broccoli, and I haven’t liked it since I was a little kid and my mother made me eat it, and I’m President of the United States and I’m not going to eat any more broccoli.” he explained before more stridently making his point for those who didn't get it the first time. “Just as Poland had a rebellion against totalitarianism, I am rebelling against broccoli, and I refuse to give ground.” Bush Junior was also not a fan of broccoli. (The Obamas are good with the green stuff but apparently there are no beets in the White House these days.)

The Supreme Court certainly did not forget. During oral arguments about Obamacare several months ago Chief Justice John Roberts and Justice Antonin Scalia raised the compelling if somewhat bizarre question, if the government can compel someone to buy health insurance, can't it also compel them to buy broccoli. We aren't really sure why anyone would have to be forced to buy broccoli — have they never had it roasted with a little garlic and parmesan cheese?

And in yesterday's ruling on healthcare reform, broccoli was mentioned no fewer than a dozen times. Let's count'em up:

The Government argues that the individual mandate can be sustained as a sort of exception to this rule, because health insurance is a unique product. 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, “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.” 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.

... The inevitable yet unpredictable need for medi­cal care and the guarantee that emergency care will be provided when required are conditions nonexistent in other markets. That is so of the market for cars, and of the market for broccoli as well. 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.

From Justice Ginsberg's opinion:

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.

... The commerce power, hypothetically, would enable Congress to prohibit the purchase and home production of all meat, fish, and dairy goods, effectively compelling Americans to eat only vegetables. Cf. Raich, 545 U. S., at 9; Wickard, 317 U. S., at 127–129. Yet no one would offer the “hypothetical and unreal possibilit[y],” Pullman Co. v. Knott, 235 U. S. 23, 26 (1914), of a vegetar­ian state as a credible reason to deny Congress the author­ity ever to ban the possession and sale of goods. THE CHIEF JUSTICE accepts just such specious logic when he cites the broccoli horrible as a reason to deny Congress the power to pass the individual mandate.

From the dissent by Justices Kennedy, Scalia, Thomas and Alito:

... The dissent dismisses the conclusion that the power to compel entry into the health-insurance market would include the power to compel entry into the new-car or broccoli markets.

... Those differences make a very good argument by the dissent’s own lights, since they show that the failure to purchase health insurance, unlike the failure to purchase cars or broccoli, creates a national, social-welfare problem that is (in the dissent’s view) included among the unenumerated “problems” that the Constitution authorizes the Federal Government to solve. But those differences do not show that the failure to enter the health-insurance market, unlike the failure to buy cars and broccoli, is an activity that Congress can “regulate.” (Of course one day the failure of some of the public to purchase American cars may endanger the existence of domestic automobile manufacturers; or the failure of some to eat broccoli may be found to deprive them of a newly discovered cancer-fighting chemical which only that food contains, producing health-care costs that are a burden on the rest of us—in which case, under the theory of JUSTICE GINSBURG’s dissent, moving against those inactivities will also come within the Federal Government’s unenumerated problem-solving powers.)


haisoodewa • 06/29/2012
I love this article.
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