Short Takes On News & Events

The Supreme Court, The Individual Mandate, And Eating Your Broccoli

By Phil Galewitz

January 6th, 2012, 4:24 PM

One of the major arguments against the individual health insurance mandate in the federal health overhaul is this: If Congress can force most Americans to buy health insurance, can’t it also require people to buy broccoli?

It’s a question a senior Obama administration official faced Friday in a briefing with reporters an hour before the Justice Department filed its first briefs with the Supreme Court for the Florida vs. HHS case.

His answer: “That is a hypothetical. It is wildly unrealistic.” The official said it is not fair to compare broccoli consumption to health care, because the United States is facing a “crisis” of rising health insurance costs and more than 50 million people lacking any coverage.

The official, who would not allow his name to be used, said Congress already requires Americans to buy certain things. “If you buy a car you have to buy the seat belts, too,” he said.

When the individual mandate takes effect in 2014, anyone who fails to buy health insurance will face a financial penalty.

The Supreme Court has said that in hearing the Florida case, it will review whether or not the 1867 “Anti-Injunction Act” requires deferring any challenge to the individual mandate until after that provision of the health law is implemented.  The official said the administration does not want the court to delay a ruling on the mandate. “This issue needs to be resolved now in order to alleviate uncertainty and to let us proceed without any concerns to implementation.”

The plaintiffs in the case also filed a brief Friday.

The Supreme Court has scheduled three consecutive days of hearings on the health law to begin March 26. A ruling is expected by late June.

20 Responses to “The Supreme Court, The Individual Mandate, And Eating Your Broccoli”

  1. mandrake says:

    Even after you die, you still need a health professional to declare that you are no longer alive and to sign your death certificate. So, everyone will need health care services, sooner or later. If you want to argue individual mandates and how they relate to our Constitution, then it’s unconstitutional to require me to pay for the freeloaders when they get free health care at the hospital. Those freeloaders increase my taxes and my insurance premiums. That’s unconstitutional! The broccoli argument is an argument of the absurd. Only someone with no serious ideas promotes the broccoli argument.

  2. Danielle says:

    People who go to the hospital emergency room and get free care are costing all of us a lot of money. If individual mandates are unconstitutional, then mandated emergency care should also be unconstitutional and hospitals should not be required to accept every person that comes into the emergency room. How does broccoli fit into this discussion? I should not have to pay higher taxes and higher premiums to cover the cost of mandated emergency room care. If individually mandated health insurance is unconstitutional, then “all” mandates should be unconstitutional. That includes forcing hospitals to care for those that will not pay! Broccoli? That’s simply an insane comparison!

  3. Alan says:

    The argument that “freeloaders increase my taxes and my insurance premiums” lacks any credibility whatsoever as it applies to justifying the constitutional basis for the individual mandate. By extension, why aren’t the 47% of individuals who pay $0 federal income tax also freeloaders who truly increase taxes for the other 53%? The broccoli comparison only serves to insult those of us who enjoy its nutritional benefits.

  4. Kishore says:

    I understand that individual mandate will result in more people contributing to the insurance pool and I am looking forward to the resulting benefit for all us when we can get insurance regardless of pre-existing conditions.

    However, I cannot find an argument that does an unbiased mathematical checks and balances to back up this solution. The number of real uninsured people ranges from 12M to 30M from various reports. Is there some analysis that shows how much more money will be added to the pool if all of these people either buy insurance (or pay the fine)? Will this additional monies keep the providers/insurers solvent assuming the same number of people get sick and won’t enter emergency rooms?

  5. nospam says:

    health care IS NOT broccoli

    health care is a good that 99.9% of the people will NECESSARILY USE sometime in their life at a level in which the US goverment is OBLIGED to provide out of moral obligations and a skyrocketting cost.

    Name another good that has those qualities:

    * broccoli, no
    * cars, no
    * homes, no
    * food, no
    * coffins, no

  6. Danielle says:

    “The number of real uninsured people ranges from 12M to 30M from various reports.”


    That’s insane!

    What reports are you reading?

    Tea Party reports?

    The article below is over a year old and it’s saying over 50 million are uninsured. The numbers have increased since then. Show me where you are getting your numbers…

  7. Danielle says:

    All you hear these days are political talking points and Republican spin! Brought to you by our friends on K Street in Washington DC…

    AHIP, AMA, AHA and PhRMA!

  8. Jonathan H says:

    Danielle, all the organizations you mention are in favor of the mandate. Perhaps you meant a different set of acronyms?

  9. Susan R. Chollet says:

    Number one priority is to reduce health care costs. Those citizens who refuse insurance (often because it is too expensive) end up in emergency rooms which are the most expensive and least effective form of health care. Those without insurance are usually unable to pay for services in case of accidents. Case in point: My builder was hit by a car, had no insurance and now cannot pay for the $370,000 medical bill.

    The current health care bill would require him to have insurance and would, at the same time, work to reduce the costs of premiums. What’s not to like?

  10. carolyn banks says:

    WE ARE already forced to buy car insurance, dog licenses, bike licenses, fishing licenses etc, so what’s the big deal?

  11. I am looking forward to the case being brought to the Supreme Court. Maybe we will all find out what the real issues are. I am an emergency room nurse and Yes, the ER is used for primary care in many cases as wel as catistrophic care. It is a safety net, not one to be used for routine care…but when you can’t leave your job between 9-5 (many people cannot) or you have not insurance or your child/husband/self get sick at 4am…the ER is the one place that is open to see you for anything that happens. It is a needed services, but often abused due to our unfriendly, healthcare centered system. As we move to a more patient centred system, we should see more access to services to meet the needs of consumers vs. providers. (after hour doctors appointments, clinics that offer services to all 24/7.

    Consumers have to take some responsibility for their health and healthcare. Having Health insurnace allows for access to providers for prevention as well as for care when an illness, injury or yes, even death occur. I am sure all reading this have made a doctors appointment recently…the first question asked: Do you have insurance and what kind is it. if you don’t have insurance, you are told the cost of the visit and to bring a check or don’t bother coming.

    There is nothing free about healthcare……no one likes to pay but if you want to contain cost, you need a system that allows access to providers (preferably in the least restrictive setting) and a public that is enganged in taking care of themselves.

    We can’t put it off any longer.

  12. K. M. McDonald says:

    Perhaps a simpler analysis would be to just conduct a deep, due diligence, reading of the plaintiffs’ brief and deeply question the assumptions built into the brief. One could simply begin with striking out all of the adjectives used in the brief, re-read the brief sans adjectives, and ponder on what remains. One might be surprised about the timbre of the content that remains.

  13. David Ruppert says:

    No government entity requires citizens to buy a car or a dog – people choose to do so, and must consider all of the costs involved. I suppose we could arrive at the point where the dog lobby convinces a sufficient number of politicians of the health benefits of canine ownership, and requires everybody to purchase a pooch with license. They can point back to the passage of the individual mandate to support their cause.
    With regard to ER as primary care – I do not believe moving millions of uninsured people to the Medicaid rolls will reduce this expensive problem in a meaningful way. Medicaid pays so poorly that many (perhaps a majority) of primary care docs do not accept new Medicaid patients now. Uninsured individuals may get a nice card that says somebody else will pay for their care, but in reality they’ll still have to go to the ER (i.e. a place that can’t say “No”) to actually get it.
    Perhaps the federal gov’t should forbid the use of motorcycle helmets in order to reduce medical costs. As one wag (a single-payer advocate, no less) put it “Guys who get in motorcycle crashes with a helmet on become ventilator-dependent. Guys who don’t wear helmets become organ donors.” Maybe the cigarette industry could buy a smoking mandate for everybody over the age of 65, along with a reduction in Medicare benefits. It would allow the gov’t to claim it created thousands of jobs in the rejuvenated American tobacco sector, while slashing medical costs as people died earlier. All in service to the greater good of society, of course.

  14. Danielle says:

    “Danielle, all the organizations you mention are in favor of the mandate. Perhaps you meant a different set of acronyms?”

    Duh, here’s my post…

    “All you hear these days are political talking points and Republican spin! Brought to you by our friends on K Street in Washington DC…

    AHIP, AMA, AHA and PhRMA!”

    Duh, do you see the word “mandate”?

  15. Sock says:

    Interested in reading about PPACA’s individual mandate? Check out the American Action Forum’s primer on the economic implications of severing the individual mandate.

  16. Rick says:

    So tell me Sock, regarding SCOTUS hearing arguments and making rulings on the individual mandate…

    who’s the injured party?

  17. Rick says:

    This is just playing partisan politics at the expense of health care consumers. Who wins? Those that get re-elected.

  18. Diane says:

    Rick has a great point. Politics and emergency rooms aside, the obesity epdemic is killing our healthcare system (albeit with many other factors). With alll the lobby groups supporting unhealthy American choices, it is going too take grass roots effforts to reverse this ttrend and save American kids (have you looked at childhood obesity rates lately?).

  19. m says:

    Those of you saying “what’s not to like” are enemies of this nation, you are communist scum, you don’t force ANYONE to buy ANYTHING, LOSERS!!!

  20. Asia says:

    If someone still chooses not to purchase insurance after the mandate and pays there penalty, what happens if he/she gets into some sort of accident and is taken to the hospital? They still do not have insurance, so how will it be paid? The exact same way as it is now. The penalties or taxes raised from this will not be used for healthcare.

    The broccoli argument is a good one. If any of you really know PPACA, then you would have heard of PCORI, or the “death panels.” Their job is the come up with treatments, procedures, methods, etc for the health care system. IPAB’s job, also part of PPACA, is to figure out the cost of health care treatments, preocedures, methods, etc. If either of these organizations decide eating 2 servings of broccoli a day will reduce heart attacks and keep costs down, there is no question they could mandate it especially if SCOTUS allows the individual mandate to stand.