According to the transcript of the Affordable Care Act debate before the Supreme Court, Justice Antonin Scalia used broccoli in one of his analogies. Specifically, if the government can force a person to buy health insurance, couldn’t the government force a person to eat broccoli. I think this will go down in the annals of Supreme Court history as the “Broccoli Conundrum”.
I will be the first to admit that I have not read the entire transcript of the arguments, so I may be taking his statement out of context. But that is acceptable. I simply follow Mr. Scalia who has admitted he has not read the law he will be rendering judgment on. So, following his lead, I will limit my comments and analysis to the broccoli.
His analogy was a simple one. Worthy of any 9th grade social studies student. Clear. Uncomplicated. Unfounded. And missing the point entirely. Let us examine.
He compares a requirement to pay a fee or tax to the force feeding of a specific food. Shoving something down someone’s throat is hardly analogous to charging a fee. Yet, giving Antonin the benefit of the doubt, let’s examine this idea. He has drawn the conclusion that if the government can force one to pay a fee for insurance, it can then force any behavior. As I said, not bad for a 9th grader. Not good for someone who fancies himself a legal scholar.
One weak point in the analogy is obvious. While the government mandates that an individual purchase insurance, there is no mandate to actually use the insurance. There is no physical coercion. No penalty for not seeing a doctor. No one is forced to have an operation. It is simply a financial burden.
The government is replete with similar financial burdens. For example, I am forced to pay taxes or fees for the interstate highway system, parks, dams, bridges and other government enterprises. The government does not force me to use the highways. I may never directly benefit from or use these, but I am required to pay my fair share. I am also required to pay Medicare and Medicaid taxes, though I am not a recipient of those services.
I am forced to subsidize the oil and other energy industries, the military, churches and other non-profits and a host of others who receive tax breaks. I make up the difference. And receive no direct benefit.
I am not complaining. I fully understand (as our imaginary 9th grader has yet to comprehend) that as a member of society we all need to pull our weight. All of us. And each of us pays fees or taxes for things which we do not approve.
Back to broccoli. Can the government force me to eat broccoli? In a sense, yes. The government can force feed individuals, against their will. And if I fail to provide food for my children, the government can force me to do so, or take away the kids. In fact, should I choose to die by starvation , the government will not allow it. It will demand that I be force fed against my will. So, in that sense, the government does have a right to force me to eat my broccoli.
Today we have governments that are forcing women to undergo vaginal probes. Forcing employees to give blood for drug testing. Forcing men and women to take alcohol tests. Even force men and women to go overseas to fight and die. The list is pretty long. And I have yet to hear Antonin utter complaints about those intrusions.
So, Justice Scalia’s simplistic analogy falls flat. The answer, Antonin, is “Yes”. We live in a society. We share the fruits, we share the burdens. The government has , for many years, forced us to do things far more personal and more intimate than another tax.
So, Tony, remember what your mother said. “Eat your broccoli, it’s good for you”. And pay your taxes.