I hadn't heard of the broccoli argument against the insurance mandate until Scalia referenced it during oral arguments. Why do right-wingers keep trying to compare health care to food service? That just makes no sense. And why are they picking on delicious, healthful broccoli? Perhaps they empathize with Bush I, who was such a big baby that he stomped his feet and held his breath to avoid eating it as president.
A sitting supreme court judge seems to think the argument has some kind of legal force, but it's hard to see why. As a slippery slope it's worthless. Not only are slippery slope arguments always a logical fallacy -- always an invalid argument -- but it's especially so in this case. It's not the job of the court to protect congress from powers that it might abuse in the future. Congress has the full constitutional ability to make all kinds of terrible laws, and elections are the proper remedy should that happen.
It's also bad as an analogy. As Krugman points out, when people don't buy health insurance it becomes unaffordable for others; if Gary refuses to buy broccoli it remains plentiful and cheap for Sue. Also as Akhil Amar explained on Chris Hayes' show, health insurance costs have interstate spillover, such as when a citizen of one state needs emergency care in a different state. This is clearly a case of interstate commerce, a feature not inherent the vegetable market.
Finally, this strikes me as projection and hypocrisy. Republican legislators are constantly playing food police, but only for poor people. Bill after bill are introduced, by Republicans, to force people on food stamps to buy "healthy" food. Couched as if it was concern for child health or adult obesity, these laws are really just there to stigmatize and punish people for needing assistance. Not only was the individual mandate a Republican idea, so was the law forcing people to buy broccoli. It's what they really want to do, but only to others.
- jack *