Three Supreme Court Justices Used Broccoli As An Argument Against Obamacare

broccoliIs broccoli the new healthcare?

Photo: Wikimedia Commons

The next time you’re trudging through the freezer at your local bodega (or supermarket) and thinking, “Carrots? Broccoli? Both?” be thankful you have a choice. At least, the theory of a “broccoli mandate” was brought up by three of the Supreme Court justices Tuesday during the second day of oral arguments surrounding the Obama administration’s Patient Protection and Affordable Care Act. 

In all, the word “broccoli” was mentioned nine times in a variety of instances during Day 2 of the oral arguments, according to the official transcript. Justice Antonin Scalia was the first to question U.S. Solicitor General and Obama administration lawyer Donald Verrilli. His theory: All citizens are in the market for food. Why couldn’t the government make its citizens purchase, say, broccoli?

“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,” Scalia said.

Verrilli’s retort: Though the two markets do share that one trait, they remain distinctly different. The healthcare market, he said, contains participation that is “often unpredictable and often involuntary.” The food market is not that. 

“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,” Verrilli said. 

In totally important polls, a recent Reason-Rupe poll showed that 87 per cent of Americans think it is unconstitutional for the government to mandate buying broccoli. 

Broccoli wasn’t the only example the justices used to illustrate the counterpoint and question what the government could or couldn’t make someone purchase. Automobiles, cell phones and burial insurance were also mentioned. But broccoli was perhaps the most bizarre. 

Which might be why Justice Steven Breyer would have none of the broccoli argument. 

“You ask really for limiting principles so we don’t get into a matter that I think has nothing to do with this case: broccoli, OK?” Breyer said.

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