Tuesday, March 27, 2012





Fun With Mandates


Justice Samuel Alito today asked the Obama Administration's Solicitor General today (audio here- and a lot of other places) whether, if the commerce clause enables the federal government to mandate purchase of health insurance, it can mandate purchase of burial insurance.      It is an intriguing question, though a couple of liberal Justices offer reasonable explanations for why the situations are not analogous.    If purchase of health insurance is put off until absolutely necessary, the inevitable acquisition of healthcare, as uncompensated care, results in a significant increase in cost.    Additionally, health care is a nearly unique commodity in that its adequate provision requires (for all but the supremely wealthy) the purchase of insurance.

The example of burial insurance has the advantage of being at least vaguely analogous to health insurance.    But Chief Justice Roberts asks whether the federal government could mandate purchase of a cellphone and Justice Scalia asks if it applies to broccoli. Seriously.

Antonin Scalia, before receiving his law degree from Harvard Law School, received a Bachelor of Arts degree from Georgetown University in Washington, D.C. and prior to that, graduated from St. Francis Xavier, a military preparatory school in New York City, New York.         John Roberts, before receiving his law degree from Harvard and before that, received a Bachelor of Arts degree from Harvard and prior to that, graduated from LaLumiere School, a Catholic boarding school in La Porte, Indiana.

Broccoli and even cellphones are unnecessary.     Land line phones have not been abolished and, once upon a time, people making phone calls used only a land line which, at the time, was known simply as a phone.       Some individuals remain holdouts, preferring not to utilize cell phones.

Broccoi, admittedly a very nutritious kind of food, is even more clearly unnecessary.     Vitamins, minerals, fiber, phytochemicals and the other antioxidants generously supplied in broccoli are obtainable in other food.      Additionally, broccoli contains little if any protein or fat, essential for the human mind and body.     There are alternatives- even within the family of vegetables (and consumption of vegetables, though greatly desired, is not absolutely, invariably necessary to human health-) to broccoli, and even effective means of communication aside from the cell phone.

There is another difference between mobile phones/broccoli that any high school graduate, even Justices Alito and Roberts, understand:    phones and vegetables are products; health care, irrelevant until it is supplied, is a service.

Antonin Scalia and John Roberts obviously are not uneducated, unintelligent, or even weak in the art of logic.     Unfortunately, though, a Justice who suggests that the purchase of cell phones and broccoli are equivalent to the acquisition of health insurance has his mind made up before oral arguments.


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