Thursday April 05, 2012
Imaginary Conversations with Justice Scalia
SCENE: U.S. Supreme Court Building, March 2012. EL, friend of the court, and, really, lots of folks, tells the court an individual mandate is essential for the health insurance market to work.
JUSTICE ANTONIN SCALIA: Why do you define the market that broadly? Health care. 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. I mean. . . Could you define the market? Everybody has to buy food sooner or later...
EL: Some of us sooner. Some of us more often.
SCALIA: ...so you define the market as food, therefore, everybody is in the market. Therefore, you can make people buy broccoli.
EL: “But you can't make them eat it.” I believe George H.W. Bush said that.
SCALIA: Is that a principled basis for distinguishing this from other situations? I mean, you know, you can also say, well, the person subject to this has blue eyes. That would indeed distinguish it from other situations. Is it a principled basis?
EL: There's a more principled basis for distinguishing the health care markets from other markets than there was in distinguishing Florida from other states in Bush v. Gore, but some institution or other, which shall remain nameless, did that very thing. Here are some words from that decision: “Our consideration is limited to the present circumstances.” Does that help you with this case? Now eat your broccoli.