National Editor Tom Karst
National Editor Tom Karst

If the government can make everyone buy health insurance, couldn't the government require that consumers purchase broccoli? That was the question that Supreme Court Justice Antonin Scalia of the Supreme Court asked Solicitor General Donald Verrilli during the argument before the Supreme Court on the question of the individual mandate for health care. The debate is fascinating. Here is an excerpt:

JUSTICE SCALIA: 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.

GENERAL VERRILLI: No, that's quite different. That's quite different. The food market, while it shares that trait that everybody's in it, it is not a market in which your participation is often unpredictable and often involuntary. It is not a market in which you often don't know before you go in what you need, and it is not a market in which, if you go in and -- and seek to obtain a product or service, you will get it even if you can't pay for it. It doesn't have -

JUSTICE 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?  I mean, it's -- it's a basis that explains why the government is doing this, but is it -- is it a basis which shows that this is not going beyond what -- what the -- the system of enumerated powers allows the government to do.

GENERAL VERRILLI: Yes, for two reasons. First, this -- the test, as this Court has articulated it, is: Is Congress regulating economic activity with a substantial effect on interstate commerce?
The way in which this statute satisfies the test is on the basis of the factors that I have identified.


Later, another exchange...

CHIEF JUSTICE ROBERTS: That, it seems to me, is -- and it's a passage in your reply brief that I didn't quite grasp. It's the same point. You say health insurance is not purchased for its own sake, like a car or broccoli; it is a means of financing health care consumption and covering universal risks. Well, a car or broccoli aren't purchased for their own sake, either.
They're purchased for the sake o transportation or, in broccoli, covering the need for


CHIEF JUSTICE ROBERTS: I don't understand that distinction.

GENERAL VERRILLI: The difference, Mr. Chief Justice, is that health insurance is the means of payment for health care, and broccoli is -

CHIEF JUSTICE ROBERTS: Well, now that's a significant -- I'm sorry.

GENERAL VERRILLI: And broccoli is not the means of payment for anything else. And an automobile is not -

CHIEF JUSTICE ROBERTS: It's the means of satisfying a basic human need -


CHIEF JUSTICE ROBERTS: -- just as insurance is the means of satisfying -

GENERAL VERRILLI: But I do think that's the difference between existing commerce, activity in the market already occurring -- the people in the health care market purchasing, obtaining health care services -- and the creation of commerce. And the principle that we're advocating here under the Commerce Clause does not take the step of justifying the creation of commerce.


TK: Justice Scalia might have run upon  a great idea. Why not compel everyone to buy broccoli and perhaps some of the massive health care costs of two decades hence can be avoided. Pay the price for broccoli, if  not health insurance. Surely our 20-somethings could stomach that.