Eat your vegetables! Arguing the Affordable Care Act ("Obamacare")

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.

SOLICITOR GENERAL VERRILLI: Justice Scalia, broccoli and health insurance are quite different.  Broccoli is green and chunky and frankly I’m not sure if there is any color to health insurance.  And as much as healthy people hate to buy broccoli, they really, really, really hate to buy health insurance. 

CHIEF JUSTICE ROBERTS: 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 of transportation or, in broccoli, covering the need for food.

SOLICITOR GENERAL VERRILLI: Mr. Chief Justice, it is the government’s position that many people purchase broccoli just for show so other people can see it in their grocery carts. Yet, they have no intention of eating it.  So, the broccoli is often purchased for its own sake and not for food.  Whereas, health insurance is not purchased for show.  Even if you put a health insurance policy in a grocery cart, nobody could really read the fine print or even recognize that the clump of papers was an insurance policy.  People might just think that it was the sales sheet that you get in the front of the store—you know, the one with all the coupons.

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…

CHIEF JUSTICE ROBERTS:  Are you saying that if someone wanted to pay for their health insurance with broccoli, the government would not accept that?

GENERAL VERRILLI:  I have heard of people paying for their doctor’s visits with chickens and perhaps even corn on the cob, but broccoli is not really convertible into health care.  In fact, despite this economy, even chickens and corn are now almost universally rejected at emergency departments across the country.

JUSTICE BREYER: All right. But all that sounds like you're debating the merits of the bill. You asked really for limiting principles so we don't get into a matter that I think has nothing to do with this case: broccoli. Okay?

MR CLEMENT [arguing against the Government]: (with an approving glance toward Justice Scalia) On the contrary, broccoli has everything to do with this case.

JUSTICE ALITO: […] isn't there this difference between Justice Breyer's hypothetical and the law that we have before us here? […] here the reason why there is cost- shifting is because the government has mandated that. It has required hospitals to provide emergency treatment and, instead of paying for that through a tax which would be born by everybody. It has required -- it has set up a system in which the cost is surreptitiously shifted to people who have health insurance and who pay their bills when they go to the hospital.

JUSTICE SCALIA:  If the government wants us all to eat broccoli or get health care, it should tax us all to pay for it. Hah, I dare them!!  As Justice Alito stated, now our health care system is OK because the people that are already eating broccoli just have to eat a little more for those that refuse to eat broccoli.  And that’s OK because if you’re already eating broccoli, what’s a little more on your plate?  Yet, if the government makes everyone eat broccoli and you’ve never eaten it before, that’s a pretty cruel and unusual punishment.  Now if the government wanted everyone to purchase pizza…