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Intro: "Is Roger Ailes clerking for Supreme Court Justice Antonin Scalia? One might be forgiven for thinking so following last week's oral arguments on the health-care law before the nation's highest court."

Supreme Court Justice Antonin Scalia speaks to a policy forum in Washington last month. (photo: Manuel Balce Ceneta/AP)
Supreme Court Justice Antonin Scalia speaks to a policy forum in Washington last month. (photo: Manuel Balce Ceneta/AP)

Scalia, Fox's Man in Washington?

By Matthew DeLuca, The Daily Beast

05 April 12


The Supreme Court justice more than once cited arguments that are suspiciously similar to ones made often on the right wing’s favorite news source, writes Matt DeLuca.

s Roger Ailes clerking for Supreme Court Justice Antonin Scalia?

One might be forgiven for thinking so following last week’s oral arguments on the health-care law before the nation’s highest court.

As has been pointed out elsewhere, some of Scalia’s questions from the bench made use of the tone and even the diction of the attacks on the Affordable Care Act frequently heard on Fox News and conservative talk-radio shows.

After Scalia picked up on the idea that a government empowered to have its citizens buy health insurance or face a penalty may also strong arm them into buy some other good, such as broccoli, Charles Fried, who served as solicitor general under President Ronald Reagan, told The Washington Post that the court was trumpeting “the most tendentious of the Tea Party arguments.”

“I even heard about broccoli,” Fried said. “The whole broccoli argument is beneath contempt. To hear it come from the bench was depressing.”

On the second day of arguments, Scalia did indeed invoke the humble crucifer.

“Why do you define the market that broadly?” Scalia asked Solicitor General Donald Verrilli. “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 was far from the first to use the idea. That distinction may go to C. Roger Vinson, a federal judge in Florida, who brought up the broccoli-as-health-care analogy during one of the earliest cases against the ACA, in December 2010.

Scalia Chicago

Supreme Court Justice Antonin Scalia speaks to students at the University of Chicago Law School on Monday, Feb. 13, 2012 in Chicago. , Brian Kersey / AP Photo

In that case, Ian Gershengorn, an attorney with the U.S Justice Department, had argued that the government can constitutionally regulate the purchasing of health-care insurance under the Constitution's Commerce Clause. In response, the states’ attorney, David B. Rivkin, contended the government cannot regulate what citizens choose not to do (such as not buy health insurance).

Vinson asked Rivkin, “They can decide how much broccoli everyone should eat each week?”

“Certainly,” Rivkin replied.

(Rivkin, an attorney at Baker & Hostetler in Washington D.C., told The Daily Beast that this wasn’t the only time he used a food product as a way to illustrate what he saw as flaws with the individual mandate. Recalling a previous debate with Fried, Rivkin said, “I got him to agree that if you can support the insurance purchase mandate you can support a mandate to purchase Froot Loops.”)

Ultimately, Vinson ruled that the health-care plan’s individual mandate was unconstitutional, and on those grounds found the entire piece of legislation to be unconstitutional, but when Fox reported on the case, Vinson’s broccoli remark led the story.

Then, in early February, Fox News picked up the thread, when one of its guests, Chapman University law professor John Eastman, said, “If the government can order you to buy health insurance it can order you to buy broccoli, it can order you to buy General Motors cars.”

Fox legal analyst Andrew Napolitano jumped in. “I don’t see where they found in the Constitution the authority for the Congress to force you to buy something,” Napolitano said last July on Fox. “Not a hat in the sun, not broccoli at dinner, but health insurance.”

By the time Scalia weighed in last week, the broccoli analogy had acquired slightly more legal nuance, but it was essentially the same. your social media marketing partner


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For months a stream of media reports have warned of coordinated propaganda efforts targeting political websites based in the U.S., particularly in the run-up to the 2016 presidential election.

We too were alarmed at the patterns we were, and still are, seeing. It is clear that the provocateurs are far more savvy, disciplined, and purposeful than anything we have ever experienced before.

It is also clear that we still have elements of the same activity in our article discussion forums at this time.

We have hosted and encouraged reader expression since the turn of the century. The comments of our readers are the most vibrant, best-used interactive feature at Reader Supported News. Accordingly, we are strongly resistant to interrupting those services.

It is, however, important to note that in all likelihood hardened operatives are attempting to shape the dialog our community seeks to engage in.

Adapt and overcome.

Marc Ash
Founder, Reader Supported News

+36 # Barbara K 2012-04-05 10:38
Absolutely, no doubt about it.
-39 # truthbug 2012-04-05 12:22
Not really.

The article is silly, and it reflects a key weakness in the Liberal movement (of which I'm a part); i.e., how to energize people. "Broccoli" has become a very efficient concept by which the right propagates its agenda, and the Left would do well to learn from this.

This article harps on "broccoli" yet shows no understanding of the fundamentals in question. There is a legitimate concern for these fundamentals here. If the mandate goes through, it will be unprecedented, wherein the Federal Government will be allowed to force people to participate in something they may otherwise choose not to. Car insurance is in the realm of States rights and is not part of this issue. Thus the food analogy is valid.

Now let's have an article that talks about the fundamental issue here, and who gives a damn about broccoli itself.
+81 # Billsy 2012-04-05 12:33
Not really.

Scalia describes a ludicrous extension while disregarding the fact that whether you and I choose to buy broccoli or not does not necessarily effect the cost to others. Nor is a grocery store FORCED to sell you broccoli whereas a hospital may be forced to treat your heart attack whether or not you purchased health insurance. Scalia is without a doubt poltically motivated.
+56 # readerz 2012-04-05 13:24
I know that people have been blaming the President for "attacking" the court (and made the administration write a 3 page memo, single-spaced, as if the President is in kindergarten). But, if the SC does not pass the health care act, President Obama should take away the SC's health care. He should at least have these conservative Justices' records of golf games with special interest groups followed. SC Justices CAN and SHOULD be impeached if there is a conflict of interest and they do not recuse themselves.
+46 # Mike Farrace 2012-04-05 13:06
Government at every level forces people to do something every single minute of every day, and that's pay taxes. I don't see the difference in that the Affordable Care Act requires the entire populous to contribute to a fund which pays for the maintenance of an asset we all share: our health. By the way, the point of the article is that Scalia is bought and paid for, not a treatise on the fundamentals of health care.
+20 # readerz 2012-04-05 13:19
I'll bet that you are going to get sick and die someday, in fact, I'll bet your entire house, cars, paychecks, savings, on it. That's how much my parents spent in their old age on their care. Do you think you are going to get out of paying for health care WHEN you get sick?
But the "individual mandate" that we all get sick and die did not come from other people, except in the case of accident, crime, or war.
+21 # tclose 2012-04-05 14:21
"If the mandate goes through, it will be unprecedented, wherein the Federal Government will be allowed to force people to participate in something they may otherwise choose not to." Not so - the Govt at present makes us pay for Social Security whether we like it or not, and Medicare premium when we get to a certain age.
+14 # Interested Observer 2012-04-05 18:58
And not too long ago, Military service in peacetime.

That by the way should be returned. We of a certain age should not take too much collective credit for opposition to the Vietnam war when the true fuel of protest was the real prospect of participating in it or else. It would be much harder for these neo-con experiments in empire to be carried out if it were clear that nearly anyone, or anyone's, including the plutocrat's, children, could be compelled to participate, rather than our current system in which a composite of volunteers and outright corporate mercenaries do the dirty work while the rest of us can ignore it, or wear our yellow ribbon blindfolds and gags while waving flags and that big foam finger "U.S. Number 1" safe in the knowledge that we cannot be compelled to put our lives on the line. Eliminating the hot nuclear core of resistance, the draft was the real lesson learned from Vietnam. So much for principle.
+7 # RLF 2012-04-05 17:13
I agree Bugger. What we really need is a health care law that gets rid of the insurance companies completely. Obama didn't even have the guts to start there. Imagine the things that Republicans could force us to buy...Democrats are too whipped to make anyone buy anything.
0 # John Locke 2012-04-05 18:00
"the states’ attorney, David B. Rivkin, contended the government cannot regulate what citizens choose not to do (such as not buy health insurance)"

I see but the government can require us to wear seat belts or be fined!!! and if we ride a motorcycle to wear a helmet or be fined. So if the court should strike down the insurance mandate. We should next have struck the seat belt law!!!It has ben shown to have mixed reviews, some people are alive because they did not use a seat belt while others are alive because they did use should also be a choice...
+8 # Feral Dogz 2012-04-06 11:58
Massachusetts had a mandatory seat belt law that was repealed by referendum. The insurance companies made sure that the law got re-instated by the legislature.

Are people better off? The insurance companies' statistics indicate fewer and less severe injuries overall, which reduces the cost of insurance for all drivers.
All insurance is a form of socialism by definition. A form of insurance (single payer) that is not profit driven (run by a Govt. of the people by the people) would benefit everyone except insurance executives, who, IMHO, are grossly overpaid and notoriously tightfisted when it comes time to pay claims.
+5 # hobbesian 2012-04-07 07:37
yes it is as ludicrous as that. If mandated health care is so terrible let's help the Supremes by whipping it out from under them, then we'll all be in the same boat. They should definitely not be allowed to vote against it for US while they enjoy it and we pay it for THEM. Gosh it seems so wonky, doesn't it!
+7 # 2012-04-06 11:02
Unprecedented, really? I guess we ignore Social Security, Medicare and unemployment insurance mandates. Everyone is required to pay Social Security and Medicare taxes. That's a government mandate. Every employer with a minimum number of employees is required to collect and match unemployment insurance. To claim that the Health Care Act mandate is unprecedented is simply inaccurate. The only difference with the ACA is that it directs the benefit of the mandate directly to participants in an industry (health insurance) rather than a government the insistence of conservative Republicans, who refused to allow a single payer, government-run system, which would be much more cost-effective.
+87 # corallady 2012-04-05 10:58
And don't forget to throw in Clarence Thomas as a shill for Fox; after all, he's joined at the hip with Scalia. What a mockery these right-wing justices make of our highest court. Impeachment is too good for them.
+12 # Buddha 2012-04-06 10:04
And worse, Thomas' wife (and therefore, their entire family unit) made money traveling the country participating in Tea Party rallies against Obamacare.
+1 # hobbesian 2012-04-07 07:39
Where is the FBI on this?
+40 # smsmith 2012-04-05 11:02
So much confusion and so little substance! There is precedent for controlling food purchases in the name of public health. For example, the FDA requires labeling, prevents certain preservatives from being included in a packaged food; moreover, the USDA continually updates their food recommendations . Regarding healthcare, however, the minimum needed to keep a whole community safe has not been identified as within the interest of public good. If the mandate does not go through, I suggest it opens the door for universal healthcare paid through every other industrialized country. The only realy we are arguing is that we are forcing the public to purchase private health insurance. So, forget this and move on to what we really need: public paying for public healthcare through taxes, which is already tiered according to income. This would not prevent an individual from purchasing privately, but would provide the minimum needed.
+56 # bugbuster 2012-04-05 11:27
Not to mention far lower administrative costs. When I signed up for Medicare, I was struck by how simple it was and easy to deal with the person on the other end of the phone line.

Contrast that to dealing with any private insurer. No contest. There you are dealing with a *real* death panel.
-75 # Robt Eagle 2012-04-05 12:13
OK, so if through the ObamaCare doctrine you were mandated to buy a supplemet containing things that you really did not want to take, or was contra-indicate d per your doctor, but you were mandated to take it...would you??? With ObamaCare you are being mandated to buy something that you might not want to buy, just because you exist in the US. If you chose NOT to have health care you would be violating the law. If you chose not to drive a car, could they mandate that you pay for auto might one day get hit by a vehicle, so you better have auto insurance, EVEN IF YOU DON'T DRIVE. Same philosophy. Your right to chose will be taken away, and then Emperor Obama will take away your other rights. Open your damn minds and see what is going on here. Open your eyes and ears...Obama wants control over everything and then it will be too late to get it back. Emperor Obama MUST NOT be re-elected into the White House or he will surely destroy America and violate all of our constitutional rights, as he is already subverting them using his Executive Orders. Vote Obama out of the White House for the safety of the US, and your freedom of choices.
+34 # Billsy 2012-04-05 12:37
On the other hand why should I wind up paying a substantially higher health insurance premium because so many other policy holders fail to watch their weight and diet, winding up on expensive diabetic treatment protocols or requiring coronary bypass surgery? This is a case where Scalia applies his one size fits all judicial philosophy to a highly complicated problem affecting us all regardless the impact of his narrow minded philosophy. Moreover, he discards his philosophy (states rights e.g.) when the outcome (Gore vs. Florida) is not to his liking. The roberts court is a disgrace.
+13 # readerz 2012-04-05 13:28
There are a lot of people who do not smoke, do not drink, eat their fruits and vegetables, and walk, but get sick. You want to weigh everybody to determine if they should get healthcare? You know, of course, that there are some illnesses that are more prevalent among those who are thin? We live in a very polluted country, and there is more and more pollution in the form of fracking, coal slag that is high in uranium, etc.; you want to blame the patients for the policies of these businesses?
+28 # vt143 2012-04-05 12:44
"With ObamaCare you are being mandated to buy something that you might not want to buy, just because you exist in the US. If you chose NOT to have health care you would be violating the law. If you chose not to drive a car, could they mandate that you pay for auto insurance..."

The point is, that by living in the U.S. you are guaranteed to have your health care paid for if you are sick, need treatment and do not have insurance. Thus, by choosing to NOT have insurance, you are forcing others (i.e. other citizens WITH insurance) to subsidize your care. That's the nut. So if everyone has insurance, the costs are spread out more equitably. It really helps everyone in a health system that is admittedly crazy...
+24 # readerz 2012-04-05 13:34
Robert, I hate to break it to you, but you will get sick and die one day. No doubt about it. You can't avoid it. I wish that some nice Supreme Court could come down and prevent it, I really do, but unfortunately, you are going to get sick and die. And if you haven't bought any health insurance, you are asking me to pay for your care, even if that only means hospice care. Even if you think right now, healthy as you are, that you would say "Do Not Resuscitate," I assure you that if the police find you unconscious somewhere, they are going to bring you to a hospital, and I will be paying for it. This is unavoidable. If you are talking about freedom, yes, you have the freedom to go live on a desert island, a "man without a country." But what you advocate here is to prevent anybody else from having a country, because without health care, anybody who can afford to will leave, including doctors.
-28 # Robt Eagle 2012-04-05 15:47
Nice argument, so then all the illegals that Obama is now turning a blind eye to and Eric Holder is failing to do the DoJ job he is sworn to uphold, will add to the incredible number of people who will now get coverage when they absolutely can not afford it and won't pay for it. So I break my ass working and pay tax so Obama can have more people vote for him and he becomes the American Emperor and we lose all our rights, unless he deems it to his liking. This is nuts. Personally I think in every emergency room in the country there should be an ICE booth right next to the admitting room. Sure fix up the really injured or sick illegal and then deport them right back to where they came from. Why are we supposed to support the refuse of the world???
+8 # BobboMax 2012-04-07 12:41
Quoting Robt Eagle:
Why are we supposed to support the refuse of the world???

Mr. Eagle,

It's clear you don't really know any undocumented immigrants. By and large, these people are some of the hardest working, least rewarded members of our communities.

They've overcome obstacles most of us can't even imagine, in the hope of making a better life for themselves and their families- that's right, most of them have strong family values. As a group, these are exactly the kind of people we want as citizens, people who see a way forward and risk everything to achieve it. I'll bet most of them work much harder than you, and with your attitude, would consider you the refuse of the USA.

Corporations obviously like to hire them for the nastiest jobs around, such as slaughterhouses and stoop labor in agriculture- they work hard, they accept low pay and they don't dare complain. And I'm pretty sure the corporations appreciate your help in devaluing these workers.
+4 # BobboMax 2012-04-07 12:45
[quote name="Robt Eagle"] "Eric Holder is failing to do the DoJ job he is sworn to uphold"

Mr. Eagle,

One other comment- the Obama administration has been departing many undocumented immigrants, but they've focused on the genuinely bad apples, the criminals, not the workers who are subsidizing our way of life by working for starvation wages.
+11 # bugbuster 2012-04-05 16:22
You are full of silly ideas. Nobody is mandating anything but paying your own way. You freeloading right wingers have been living on our dime too long. It's time for you to stop whining, step up, and take care of yourselves.
+7 # bugbuster 2012-04-05 17:43
The Strip Search decision proves that these people do not understand the spirit of the US Constitution, real life, reality, dignity, and I hope and pray that they, their wives, daughters, mothers, and sons are stopped for a bad tail light, strip searched, held for 24 hours, then released because they were picked up due to a computer error.
+2 # Buddha 2012-04-06 10:08
Meanwhile, this same SCOTUS, who is protecting your God Given Freedom to not buy brocolli and to make everyone else pick up your health care tab by you not being insured and still have a right to treatment in emergency rooms, has determined that the State has a right to perform strip searches of ALL people arrested for ANY crime...and I don't see it striking down the NDAA, allowing the State to detain indefinitely an American simply on suspicion of supporting terrorism. But be happy you aren't compelled to be insured, as you are strip searched for spitting on the sidewalk. God Bless Amerikkka.
+8 # Feral Dogz 2012-04-06 12:17
Robt. Eagle, your ravings can only be described as paranoid and delusional. The auto insurance analogy is absurd and leads to no logical conclusion.
Who pays you to make this stuff up? I bet you feel fine about what happened under the last administration. Funny how no one even mentions W anymore. If McCain-Palin had been elected, its very likely we'd be at war with Iran and under marshal law at home by now. Are those the kind of choices you'd prefer?
-10 # Robt Eagle 2012-04-07 09:55
Feral, wait and see what happens if Obama is re-elected. You think things are bad now, when Emperor Obama starts to make his decrees, and with the help of Eric Holder and the DoJ who will do nothing to stop them, Obama will take control over everything and destroy the US as sure as the sun comes up in the east every day. Obama's agenda is to cause so much strife and turmoil and sell us out to the Chinese and Russians (while whispering). You won't believe it because it is to impossible for you to believe. If Obama gets his way with gun control in the US, the next thing will be confiscating our weapons, then he'll begin going after the businesses and make them into government controlled enterprises...o h wait he has already done that with the auto industry, hasn"t he??? Our currency will be worthless in the world after the rampant inflation due to QE1 and QE2, not to mention what the Obama Administration wants to do next. Obama MUST be voted out of the White House, or we will be doomed. Open your mind to that possibility and you might see the clarity that is right in front of your nose.
+4 # Feral Dogz 2012-04-07 10:55
It seems reasonable to think that the GOP is more likely to bring about the strife and turmoil of which you rant. They would love to crash the Govt. (they already tried) and there's nothing the right wing loves more than calling out the storm troopers to suppress dissent (remember Kent State and recent events with Occupy protesters?).
Guns? I don't own any, don't need them. I'm sure you and your militia buddies are well armed and ready to face the Emperor's tanks and jets. Good luck with that.
A progressive, liberal, socialist political agenda is the new paradigm that is evolving as a result of true Christian (teachings of Christ), humanitarian philosophy and a greater awareness of the interdependent, finite nature of life on Earth.
You, Robt and your "Conservative" views will go the way of the dinosaurs and the flat earth society. Open your mind to reality and turn off the noise on Fox "news".
+14 # grouchy 2012-04-05 11:12
What a totally terrifying thought! It might explain a lot though.

But would he be the ONLY justice connected to the devil?
+32 # reiverpacific 2012-04-05 11:40
Just affirms that the five reactionaries on this Kangaroo Court -def' "a mock court in which the principles of law and justice are disregarded or perverted", are and anti-social, anti-populist mockery of the judiciary which only the likes of Reagan and Dimwits Bush would stick us with.
They are fast approaching the status and predictability of Hitler's dreaded wartime People's Court, presided over by the death-Judge Hans-Joachim Rehse who signed 231 death-sentences after mock-trials. These crooks and be-robed thugs are presiding over the death of any attempts at democracy from the street!
+10 # readerz 2012-04-05 13:37
Thank you for the analogy. Think about how many people were killed by Hitler in death camps. Now think about how many people are saved by our medical knowledge every year in America; and imagine if that number could not be treated because the hospitals could not afford to treat them. Yes, these conservative Justices are signing death sentences.
+6 # SageOfOjus 2012-04-05 11:54
Gee whiz. If mandated insurance is illegal then they can't force me to buy car insurance either. Hooray!
+40 # bugbuster 2012-04-05 11:56
This SCOTUS has brought the reputation of the institution to a new low in my lifetime. Based on what we have witnessed in these questioning sessions last week, Roberts, Alito, Scalia, Kennedy, and Thomas are a disgrace to the US judiciary.
+44 # lisamoskow 2012-04-05 11:56
We need to impeach Scalia and Thomas.

They waste our time comparing health care to broccoli while our entire population suffers from a terrible and unsustainable health care system.
+13 # giraffee2012 2012-04-05 12:17
lisamoskow == Impeachment starts in the House of Representative - FAT CHANCE?Quoting lisamoskow:
We need to impeach Scalia and Thomas.

They waste our time comparing health care to broccoli while our entire population suffers from a terrible and unsustainable health care system.
+36 # SageOfOjus 2012-04-05 11:56
It is interesting what the initials of the conservative justices spell out: Roberts,Alito, Thomas and Scalia.
+4 # cordleycoit 2012-04-05 12:14
Looks like there are three weak seats not two. By weak I mean open to questioning their ideological bias that seems to influence their ability to reach a fair, honest, transparent and constitutional decision. Not something cooked up by Fox News thank you.
+21 # giraffee2012 2012-04-05 12:16
DOJ should audit the Justices financial records! Might find enough information to get rid of the R. A. T. S (Thanks SageOfOjus)
+18 # dick 2012-04-05 12:28
THANK GOD for GOPer BUFFOONS like Scalia, Limbaugh, the candidates, Walker, Palin. The ones who can hurt you are the slick ones, like Kennedy, Roberts, Nikki Haley, maybe Mitt. Obama is SO LUCKY that the opposition is focused on ultra-sounds & Fruit Loops. When we let Kennedy-SCROTUS blatantly steal an election without so much as a whimper (same old Dems) we encouraged them to become even bolder, & they did, in "We, The Corporations." Obama should be encouraged to call them out at every opportunity. Citizens United should be CRAMMED DOWN THEIR THROATS. Even T-Partyers know what "We the PEOPLE" means, species wise.
+25 # allie 2012-04-05 12:39
Not new to anyone, but we all know the Supreme Court is a bastion of conservative corruption.
+8 # lcarrier 2012-04-05 13:47
Not everyone--just Kennedy, Roberts, Alito, Scalia, and Thomas, in descending order as we spiral down the stages of Dante's Inferno.
+1 # hobbesian 2012-04-07 07:45
The women are good, though.
+23 # Regina 2012-04-05 12:51
The broccoli argument smacks of Bachmann's griping that the gummint was ordering the peepul which light bulbs they had to buy. I expect such idiocy from the Michele Bachmanns of the world -- I used to expect much better from SCOTUS, like maybe Logic? Intelligence? Comprehension?
+19 # lcarrier 2012-04-05 13:45
Justice Scalia makes me ashamed for my Italian ancestry. He would have been one of Mussolini's top picks for the fascist judiciary.
+13 # uglysexy 2012-04-05 13:56
Not only do they parallel fox...they've also cited a terrible right wing ideologue in the conservative majority's decisions 4 times. I'm talking about professor Richard Allen Epstein. Epstein is a professor at NYU who, according to wikipedia, favors the repeal of the civil rights act and other anti discrimination laws. He is a former associate of the Cato Institute. The Cato institute was founded, as few are aware, by Charles Koch of Koch Industries, and two others. Suspicious? Yes!!!
+9 # uglysexy 2012-04-05 13:56
I call Citizens United "Corporations United"
+21 # James Klimaski 2012-04-05 13:57
Scalia must have missed taking the course in logic when he went to college. The Broccoli comment is an argument one expects from as sophist. It is not a proper analogy as even Justice Kennedy pointed out. Scalia is not an intellectual, he is a blowhard.
+16 # Cassandra2012 2012-04-05 14:00
The blatant politicizing of the Supreme Court (since the Florida debacle!) flaunts its DIShonor! With Scalia (and Thomas?) apparently shilling for the Opus Dei cult, and Scalia's open arrogance (remember his defiant response to objections to his perversion of the court in Gore vs. Bush --"Get over it!"??), the disastrous, overtly anti-people decisions on 'strip and search', health "care", Citizens United (i.e., corporate 'person'hood)et c. it is becoming more and more evident that we are headed for a dismantling of our democracy in favor of a fascist police state where the corporate-suppo rted 'brown shirts' will hold dominion over all citizens.
+17 # uglysexy 2012-04-05 14:03
The Broccoli argument is pure deliberate Obfuscation. The correct argument to make is that all people are in the market for food ....therefore there should be insurance such that people don't starve when there is a price spike in essential sustenance.
To the humbug Scalia I say....Duhhhhhh h!!!!
+8 # KittatinyHawk 2012-04-05 14:07
Impeach the Leach
+8 # bugbuster 2012-04-05 14:51
The funny thing about broccoli is this: last time I checked, it was the best selling vegetable in America.
+13 # lesmcf 2012-04-05 15:33
I thought the argument had been settled years ago when everyone became "forced" into buying Social Security. As time has shown, it was a wise decision.
+7 # reiverpacific 2012-04-05 17:40
Quoting lesmcf:
I thought the argument had been settled years ago when everyone became "forced" into buying Social Security. As time has shown, it was a wise decision.

Excellent analogy but*. I know that my wife and I'd be out on the street without S.S. right now -and I've been a self-employed, independent son of a globetrottin' pirate all my working and college life.
*Mind you I still think that the "must buy" is a pandering gift to the Evil Empire of the US Health non-care Mafia but Justice Ruth Bader Ginsberg made the best point at the outset of this mock-trial and selective examination of the Bill in question which is to review each section on it's own merit. There are quite a few provisions to be salvaged from it on the way to SINGLE-PAYER UNIVERSAL COVERAGE.
But then as far as I know she is not in the pocket, nor under the thrall of anybody as is the corrupt, cynical and reactionary "Gang of Five".
+4 # ericlipps 2012-04-05 16:30
Ahem. If the Constitution contains no language which empowers the government to force people to buy something, neither does it authorize compulsory military service, but the draft is never called "unconsitutiona l" by right-wingers. (Maybe it would be, though, if we were at war with some right-wing fundamentalst Christian adversary. Circumstances alter cases.)
+2 # Nell H 2012-04-05 19:13
The problem is that everybody without insurance pays about $1000/year to cover the medical expenses of those who choose not to buy insurance. Law requires Emergency Rooms to treat everybody and ask for the $$ later.

If you are happy coughing up $1000 year for the people who don't want to buy insurance to cover the cost of the medical treatment they will some day use, bless you, my child.
+1 # Nell H 2012-04-05 19:16
Maternity care provides an interesting view of Obamacare. Suppose the insurance companies cannot turn anyone down for a pre-existing condition, after you get pregnant buy the insurance.

See the problem? That's why everyone ought to be required to buy insurance. Then, when she discovers that she is pregnant, she is already insured.
+8 # dcdagmar 2012-04-05 20:08
The government can't make me buy broccoli, but they can make me have a baby that I can't afford. (Oops! -- I forgot: if I can't afford a baby, I shouldn't have sex, even if I am married.)
+3 # Grinder Monkey 2012-04-06 09:14
Health care is a service not a vegetable and affordable government backed health care is optional. Those who want to remain uninsured may choose to do so. To relegate health care to the Department of Commerce is a poor strategy; it should be a stand alone program like Medicaid and Medicare.
0 # CL38 2012-04-07 15:14
Scalia: Republican white bread (scali bread)
-2 # Loupbouc 2012-04-07 18:11

Tiresome as outrageous — the spate of Democrat-party- line misleading, even dissembling, articles trying to lambast, with snideness, sarcasm, illogic, falsehood, and affirmative ignorance, the “conservative” Supreme Court Justices' treatment of Obamacare: articles of Jack M. Balkin, Robert Parry, Robert Scheer, Paul Krugman, David R. Dow, and, now, Matthew DeLuca (and, also, Ian Millhiser, whose raging glop [http://readers upportednews.or g/news-section2 /318-66/10815-t he-5th-circuits -political-tant rum-against-oba ma] I shall criticize in comments posted in the comment-thread set to his article).

Here I shall expose some tripe and deception I have not illumined previously — in my comments treating the in-this-case yellow journalism of Balkin, Parry, Scheer, Krugman, and Dow. For the rest of my debunking of the pro-Obamacare sleaze, see

-2 # Loupbouc 2012-04-08 12:01
The web page links did not work a few minutes ago. I do not know why. I copied them from my Firefox address bar.

Use, instead, these:



-2 # Loupbouc 2012-04-08 13:27
I discovered that also the Matthew DeLuca article link does not work. And I discovered the cause. This comment system put an undisclosed space between the link's "readersupporte d" and "news."

Try this:
-2 # Loupbouc 2012-04-08 15:49
That link is broken, too, and relates to the wrong piece (DeLuca's).

Try this (Ian Millhiser's piece):
-2 # Loupbouc 2012-04-07 18:11

The broccoli argument's is valid & cogent.

The Obamacare issue is whether the individual mandate is beyond Congress's power of REGULATING commerce. The necessary (only legitimate) answer is “yes.”

Virtually all constitutional law scholars agree that the Wickard v. Filburn, 317 U.S. 111 (1942), marked the limit of Commerce Clause power. In Wickard, a WWII-era federal statute sought to protect domestic economy & War-supply by stabilizing wheat markets & wheat prices. The Act limited the wheat-quantity a farmer could grow, for sale or for on-farm consumption. The Act did NOT require, or use a money-penalty threat to extort, any individual to buy wheat or anything else.

The Supreme Court has NEVER upheld CONGRESSIONAL legislation that requires or extorts someone to make a purchase. Before passing mandate, Congress never required or extorted individuals to buy anything — never in the whole history of the U.S. [Cf. Printz v. United States, 521 U.S. 898 (1997) at page 916 (holding unconstitutiona l Congress's mandating that state officials engage in various federal-law-enf orcing affirmative acts that would require expenditure of state revenues).]

-2 # Loupbouc 2012-04-07 18:12

When an Obamacare-like mandate was being considered in the mid-1990s, Congress's advisor (CBO) warned that very likely such mandate was unconstitutiona l. In 2009, when the mandate was being reconsidered, the CRS cautioned that "[d]espite the breadth of powers that have been exercised under the Commerce Clause," likely Congress would not have a "constitutional foundation for legislation containing a requirement to have health insurance."

The Wickard case makes the “broccoli” argument critically valid & cogent. The Wickard statute was vitally different from the Obamacare mandate because the Wickard statute did not mandate BUYING wheat, but only limited the amount of wheat that could be grown on any proprietor's land.

Why is the difference vital? The Wickard statute regulated commerce occurring voluntarily — did not force anyone's engaging in commerce.

So, Obamacare's mandate is the parallel of forcing people to buy wheat. The “broccoli” argument uses the example of broccoli rather than a grain; but the matter is the same: If Congress can force people to buy medical insurance, it can force people to buy wheat and, so, force people to buy broccoli.

See also my comments posted at Reader Supported News pages cited in PART 1 of this comment AND my comment(s) I will post soon at
-3 # Loupbouc 2012-04-07 19:30
Correction of beginning of PART 2. Not: "The broccoli argument's is valid & cogent." Instead "The broccoli argument is valid & cogent."

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