WASHINGTON -- The part of the Affordable Care Act that would require most people to get health insurance poses this question to the American public: What's to stop the government from forcing us to eat broccoli?
That question, among other scenarios in which one is required by law to buy something, was a recurring theme in Tuesday's Supreme Court arguments. The hypotheticals popped up as often as citations of case law.
Justice Antonin Scalia, when he asked the lawyer for President Barack Obama's administration to define the market at issue, was the first to mention broccoli. The other justices mentioned cars, cell phones, burial plots and a vaccine to fight a disease sweeping the country.
The point the justices were trying to get across is that everyone is in a certain market by dint of being alive -- emergency services, health care and, of course, food.
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Everybody is in the market; therefore, you can make people buy broccoli, Scalia said.
Chief Justice John Roberts wondered if the government could make someone carry a cell phone, as no one knows when an emergency crew or an ambulance is needed.
Justice Samuel Alito conjured up a funereal image, asking if Americans could be forced to obtain burial plots because failing to do so would shift the cost to someone else, like a family member.
Solicitor General Donald Verrilli, representing the White House, responded that the Affordable Care Act regulates how Americans pay for health care that they'll eventually need.
Health insurance is the means of payment for health care; broccoli is not the payment for anything, he said.
Justice Stephen Breyer, a liberal nominated to the court by President Bill Clinton, referenced decisions affirming Congress's power to regulate personal wheat crops and medicinal-marijuana cultivation.
Also, he raised the specter of a disease that would get Congress to mandate purchase and use of a vaccine.
You'd say the federal government doesn't have the power to get people inoculated, to require them to be inoculated, Breyer said to Michael Carvin, representing the National Federation of Independent Business, which is challenging the Affordable Care Act.
My answer is no, they couldn't do it, Carvin responded.