It looks as though Obamacare is going down. Five Supreme Court members will declare it unconstitutional. Anyway, that’s what the pundits think.
Why will they do this? Justice Scalia’s broccoli argument. If the government can force us to buy health care, why can’t it force us to eat broccoli?
I love this. It shows the power of a good symbolic argument. Americans don’t like to be told what they have to do, and eating broccoli is one of these things. The mental image of our mothers telling us to eat broccoli is too hard to resist. The power of this argument is its simplicity.
What’s the legal issue? The infamous commerce clause of the Constitution. Because of the way the law is structured, the poor saps in the Justice Department are forced to argue that our refusal to buy insurance — non-commerce — is in fact a commercial act. Therefore, the government has control over health care. It can force us to pay for what we don’t want.
It looks as though five justices are not buying this argument — another non-commercial act, I guess. That the other four are willing to swallow it — like broccoli — which indicates the wide scope allowed to the Court to interpret the Constitution as authorizing government power that is close to unlimited.
It turns out that the Latina on the Court identified a way that Obama could have gotten this through the Constitutional minefield. The Court lets Congress tax anything it wants. What if the Obamacare law had imposed a health care tax, like Medicare does? Then the Congress could have given a rebate to poor people. Presto: no Constitutional issue. The law would now be unassailable.
But that’s not what the law did. Why not? Because candidate Obama had promised not to raise taxes on the middle class.
George H. W. Bush had made the same promise in 1988. “Read my lips. No new taxes.” Then he broke his word and hiked taxes. That let Bill Clinton defeat him in 1992. This message was not lost on Obama. So, Obama refused to let the law impose a tax. He was not going to suffer Bush’s fate.
If Obamacare goes down, it is unlikely that Obama will get a replacement bill through Congress. He does not have the votes. He did in 2010.
To add insult to injury, Justice Scalia has used the B-word: broccoli. George H. W. Bush said he didn’t like broccoli.
”I do not like broccoli,” the President said, responding to queries about a broccoli ban he has imposed aboard Air Force One, first reported this week in U.S. News and World Report. ”And I haven’t liked it since I was a little kid and my mother made me eat it. And I’m President of the United States, and I’m not going to eat any more broccoli!”
So, basically, the twin legacy of Bush, Sr. has scuttled Obamacare: no new taxes and no broccoli.
Thanks, H. W. Your Presidency finally paid off . . . a little.