The Broccoli Horrible (Crow eaten here.)

[Laelth]

If you think Justice Scalia was scathing in his dissent against the Arizona Immigration law majority opinion, you need to read Justice Ginsburg's concurrence on the ACA.

To put it bluntly, Justice Ginsburg rips Chief Justice Roberts a new one for his finding that the individual mandate impermissibly expands Congress' power to regulate under the Commerce Clause. And, she's right. This is where I eat crow. I have argued in several threads on this forum that the individual mandate is unprecedented and unconstitutional. I was wrong, as Justice Ginsburg ably demonstrates. What's more, Justice Ginsburg makes clear that the narrow interpretation of the Commerce Clause proffered by the Chief Justice threatens to take our jurisprudence back to the pre-1937 era when the SCOTUS struck down child labor laws and the minimum wage. That would be awful, indeed, but it would not surprise me if that is what the Chief Justice intended. Either way, and whether I like it or not, I think Justice Ginsburg is right to say that the mandate is constitutional under our post-1937 jurisprudence.

But here's what's funny about Justice Ginsburg's concurrence. She teases the Chief Justice mercilessly for his fear of big government. The Chief Justice argues that the Federal government, if it can order people to buy insurance in order to combat unfair shifting of the costs of health care, would also be allowed under the Commerce Clause to order people to buy broccoli to combat the obesity epidemic. Justice Ginsburg calls this concern "The Broccoli Horrible," and she shows, in example after example, how "The Broccoli Horrible" is a completely specious and irrational fear. She uses the term so many times, in fact, that it's clear she's beating up the Chief Justice with it, and it's hilarious. Well worth reading.

Here: http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf

-Laelth


Edit:Laelth--sloppy proofreading.

[aquart]

1. I am trying so hard not to imagine a recipe for broccoli and crow.

Perhaps something with Chinese spices.

[Laelth]

2. Adding: In a footnote ...

In footnote 12, Justice Ginsburg reminds other, lower-court judges who must rely on this ruling that everything the Chief Justice said about the Commerce Clause is dicta (i.e. not binding because it was not the basis of his decision). That's a very good thing. It's clear that Ginsburg is trying to minimize the damage that the Chief Justice is trying to effect by severely limiting the Commerce Clause. His ruling on the Commerce Clause can't be relied upon, she shows, because that is not the basis for the majority opinion.

She says:

In the early 20th century, this Court regularly struckdown economic regulation enacted by the peoples’ representatives in both the States and the Federal Government. [cits. omitted] THE CHIEF JUSTICE’s Commerce Clause opinion, and even more so the joint dissenters’ reasoning, see post, at 4–16, bear a disquieting resemblance to those long-overruled decisions. Ultimately, the Court upholds the individual mandate as a proper exercise of Congress’ power to tax and spend “for the . . . general Welfare of the United States.” Art. I, §8, cl. 1; ante, at 43–44. I concur in that determination, which makes THE CHIEF JUSTICE’s Commerce Clause essay all the more puzzling. Why should THE CHIEF JUSTICE strive so mightily to hem in Congress’ capacity to meet the new problems arising constantly in our everdeveloping modern economy? I find no satisfying response to that question in his opinion. 12

12 THE CHIEF JUSTICE states that he must evaluate the constitutionality of the minimum coverage provision under the Commerce Clausebecause the provision “reads more naturally as a command to buyinsurance than as a tax.” Ante, at 44. THE CHIEF JUSTICE ultimately concludes, however, that interpreting the provision as a tax is a “fairly possible” construction. Ante, at 32 (internal quotation marks omitted). That being so, I see no reason to undertake a Commerce Clause analysis that is not outcome determinative.

That's a clear signal to lower-court judges that everything the Chief Justice said about the Commerce Clause is dicta and that they should ignore it.

-Laelth

[hifiguy]

6. Justice Ginsburg is as sharp as a well-honed straight razor.

That analysis is going to be cited time and again. What a lovely bit of stiletto insertion this is. You don't get anything by Ginsburg just as you never slipped anything past Justice Stevens.

[Laelth]

7. I can only imagine what effect she has had on the Court.

I would not be at all surprised to discover that it was her influence that swayed the Chief Justice to join the majority. She certainly changed my mind on the constitutionality of the mandate.

-Laelth

[Sheri]

8. she's great!

[chowder66]

3. OMG....other people have paid for my broccoli consumption

I have never eaten free broccoli. I have paid for it. I have also eaten it at my mother's, I have eaten it elsewhere where I didn't have to pay for it but the person who cooked it had to pay for it.
I have eaten broccoli at a farmhouse that grew it's own vegetables but they had to buy the plants, they had to buy the land to grow it, they had to have water, they had to have equipment. So it still wasn't free.

If you want broccoli, there is a mandate that you have to pay for it. It just isn't stamped on the package that you have a receipt for.
Ask the grocery store...if I want this do I have to pay for it? I'm pretty sure the answer will be yes. Is there a penalty for leaving with the broccoli without paying for it? Yes. Yes there is.

[Laelth]

5. Ginsburg is really funny on this subject.

As she sees it, the specter of a vegetarian nation looms large in the mind of the Chief Justice.



-Laelth

[DevonRex]

4. Laelth, that is the best and most

Heartfelt thing you've ever written. Thank you for pointing it out. I haven't gotten to her opinion yet. Now I can't wait to read it.