More broccoli

Well, my post on broccoli and slippery slopes certainly got quite the conversation going.  Was not planning on returning to it, but was really quite surprised to see that supposed intellectual giant, Antonin Scalia, relying on this tired and intellectually lame argument in oral arguments.  First, I’ll highlight Itchy’s wonderfully pithy response:

“What’s to stop the government making you buy broccoli?”

Democracy. Next question.

And now on to Drum (actually a quote from an attorney correspondent of his:

Toobin’s hair on fire response is interesting because I think legal watchers deep down believed that the Court would not be so superficial as to unhinge established jurisprudence for an ideological cause. It’s a fun parlor game, but they figure that when sobriety prevails the court will bow to precedent where — as here — the issue is squarely within existing precedent. Well, no, and they are perfectly free to channel right wing bullshit points such as inactivity vs. activity.  I think this really rattled Toobin to see justices behaving like congressmen from Alabama in their arguments.  [emphasis in original]

Lithwick points out that no one on the right discussed the case law. I mean …. why, who needs it!?

Really, this whole activity/inactivity bit is just a conservative canard.  I’ll go back to Itchy who said it best in comments (I was going to write much the same thing myself, but since he’s already gone to the trouble):

“the reason [the individual mandate] is concerning is because it requires the individual to do an affirmative act.”

What does this actually mean? It seems like semantics.

Paying for an interstate highway is an affirmative act. Paying to educate children is an affirmative act. Paying for a drone strike is an affirmative act. Water treatment plants, garbage collection, prisons, fire services, food safety, space exploration … all affirmative acts.

What is a negative act?

“Justice Samuel Alito appears to be particularly concerned about the young, healthy person who “on average consumes about $854 in health services each year” being saddled with helping pay for the sick or infirm … ”

Guess what I’m saddled with paying for? National parks I’ve never visited, highways I’ve never traveled. Schools I’ve never gone to, clean air I’ve never breathed, safe food I’ve never eaten. Fire protection for property I don’t own, the killing and imprisonment of people who never harmed me. Fancy robes and mahogany desks for Supreme Court justices who rule against my wishes.

What a scam that all my money is going to rescue other people.

It actually does not take a Constitutional scholar to see through ideological BS posing as Constitutional scholarship.  Though, I’ll close with a quote from an actual Constitutional scholar, Reagan’s Solicitor General, Charles Fried:

Now, is it within the power of Congress? Well, the power of Congress is to regulate interstate commerce. Is health care commerce among the states? Nobody except maybe Clarence Thomas doubts that. So health care is interstate commerce. Is this a regulation of it? Yes. End of story.

And if you’re still with me, you should read Ezra’s whole interview with Charles Fried– it’s really quite devastating to the conservative case.

About Steve Greene
Professor of Political Science at NC State

One Response to More broccoli

  1. itchy says:

    I tell myself I don’t have enough time for my own blog, so instead, I crash others’!

    What I don’t like about the slippery slope argument, especially in constitutionality cases, is the assumption that a court decision will lead inevitably to some poor outcome.

    The judicial system defines the boundaries of the laws we’re allowed to have; it doesn’t tell us what laws to pass. It says, even if most of us *do* want to pass an unconstititional bill, we’re not allowed to do it.

    I think libertarians would agree that the scope of these rulings, then, should be very narrow. It should be limited mostly to rights of the minority.

    Within those bounds, we then pass laws based on the will of the majority (in theory, anyway). So only if the majority wants to have everyone pitch in for broccoli do we pass such a law. If most of us don’t want that, we don’t do it.

    In practice, I know, it’s not so simple, and I do have sympathy for the argument. It would be easier if an issue on which I disagreed was put out of bounds from the start. I understand the fear that, despite the ideal of majority rule, we can and do end up with political insiders wielding power in ways that do not benefit most of us.

    But our arguments in these cases should be with the legislature. I think it does more harm to have the courts rule incorrectly in order to “fix” the inadequacies of the legislature. This just leads to a brittle, incoherent set of laws with unintended consequences.

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