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Ginsburg’s Concurrence: The Gift that Keeps Giving

[ 110 ] June 28, 2012 |

Even beyond the delightful, subtle skewering of Scalia’s hackery, Ginsburg’s concurrence is a tour de force. Among many other great points, she completely destroys the broccoli mandate argument:

Maintaining that the uninsured are not active in the health-care market, The Chief Justice draws an analogy to the car market. An individual “is not ‘active in the car market,’ ” The Chief Justice observes, simply because he or she may someday buy a car. The analogy is inapt. The inevitable yet unpredictable need for medical care and the guarantee that emergency care will be provided when required are conditions nonexistent in other markets. That is so of the market for cars, and of the market for broccoli as well. Although an individual might buy a car or a crown of broccoli one day, there is no certainty she will ever do so. And if she eventually wants a car or has a craving for broccoli, she will be obliged to pay at the counter before receiving the vehicle or nourishment. She will get no free ride or food, at the expense of another consumer forced to pay an inflated price. Upholding the minimum coverage provision on the ground that all are participants or will be participants in the health-care market would therefore carry no implication that Congress may justify under the Commerce Clause a mandate to buy other products and services.

[...]

Consider the chain of inferences the Court would have to accept to conclude that a vegetable-purchase mandate was likely to have a substantial effect on the health-care costs borne by lithe Americans. The Court would have to believe that individuals forced to buy vegetables would then eat them (instead of throwing or giving them away), would prepare the vegetables in a healthy way (steamed or raw, not deep-fried), would cut back on unhealthy foods, and would not allow other factors (such as lack of exercise or little sleep) to trump the improved diet. Such “pil[ing of] inference upon inference” is just what the Court refused to do in Lopez and Morrison.

Other provisions of the Constitution also check congressional overreaching. A mandate to purchase a particu- lar product would be unconstitutional if, for example, the edict impermissibly abridged the freedom of speech, interfered with the free exercise of religion, or infringed on a liberty interest protected by the Due Process Clause.

Supplementing these legal restraints is a formidable check on congressional power: the democratic process. As the controversy surrounding the passage of the Affordable Care Act attests, purchase mandates are likely to engender political resistance. This prospect is borne out by the behavior of state legislators. Despite their possession of unquestioned authority to impose mandates, state governments have rarely done so.

When contemplated in its extreme, almost any power looks dangerous. The commerce power, hypothetically, would enable Congress to prohibit the purchase and home production of all meat, fish, and dairy goods, effectively compelling Americans to eat only vegetables. Yet no one would offer the “hypothetical and unreal possibilit[y],” of a vegetarian state as a credible reason to deny Congress the authority ever to ban the possession and sale of goods. The Chief Justice accepts just such specious logic when he cites the broccoli horrible as a reason to deny Congress the power to pass the individual mandate.

But, really, read the whole thing. She makes makes it clear why this should have been an easy case.

Comments (110)

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  1. Hogan says:

    “Lithe Americans”? I will never stop laughing at that.

  2. Bartleby says:

    You are right about Ginsberg, but you know what’s depressing? That a Supreme Court justice had to waste ink, paper and neurons refuting such a stupid fucking argument.

  3. RhZ says:

    Typo in the first line, not a dissent at all…

    • Manju says:

      zing in the first line

      • GFW says:

        I’m confused. How is calling the concurrence (correctly labeled in the title) a dissent in the first line a zinger?

        Ah, I suppose that because Ginzberg is explaining that the mandate should have been upheld on the commerce clause without recourse to the taxation clause, she’s effectively dissenting from the majority of the current court.

        • GFW says:

          Ah, here’s the real reason from Salon’s article strongly suggesting that Roberts switched his vote late in the game: “No less than 15 times in the space of the next few pages, the dissent refers to Ruth Bader Ginsburg’s concurring opinion as “Justice Ginsburg’s dissent.””

          Additional notes: Scott has “corrected” the original post, whether because it was too subtle a joke, or some other reason, I don’t know. And I misspelled Ginsburg apparently because I’m too lazy to scroll up the page :/

          • Manju says:

            The zing was a zap aimed at Scalia who, in his opinion, inexplicably kept referring to the “Ginsburg dissent”

            …or so I thought. Someone just went all Stalin on “dissent”.

            It was a good zap while it lasted tho.

  4. Emily says:

    Interesting. Also, broccoli is actually tasty which is weird. At least as a nation we got over the arugula obsession of 2004.

  5. bradp says:

    She will get no free ride or food, at the expense of another consumer forced to pay an inflated price.

    The “free ride” is a different question, and yes, if a significant number of people ceased to eat broccoli it would have an effect on the price of broccoli, eventually making it more expensive. Any time you decide to buy or not to buy a product, you effect the price level of item.

    And there are some pretty big inferences piled up in the ACA and the mandate as well.

    • Boudleaux says:

      Like what?

      Those are not inferences, they are laws requiring people to do things.

      • bradp says:

        The huge glaring one is the question as to whether the mandate will actually be effective at keeping people on insurance rolls and makes the system sustainable.

        I believe most health care policy wonks believe it is already too weak, and as health care spending and premiums outgrows inflation, it will only get weaker.

        • Boudleaux says:

          “[W]hether the mandate will actually be effective at keeping people on insurance rolls and makes the system sustainable” is not an inference.

          Are you being deliberately obtuse? Like Les Nessman?

          • bradp says:

            I think you are being willfully obtuse here, as supporters are inferring that mandate is sufficient and necessary to make insurance system sustainable given the coverage provisions.

            I’m sorry I provided a question when you asked for an inference, but the inference should have been plain from the way I phrased the question.

            • Boudleaux says:

              I DON’T THINK YOU KNOW WHAT A FUCKING INFERENCE IS.

              Courts make inferences. Laws tell you to go do things, or not do them. Did someone MAKING the law infer that it would work? Probably. Are there inferences in the ACA? No.

              • bradp says:

                If you assess a penalty of $695 (continually updated for rate of inflation), then healthy people will not avoid health insurance markets.

                If people do not avoid the health insurance markets then health insurance pricing is sustainable.

                There are major, major inferences included in there, and they are vital to supporting the mandate and the ACA.

                • DrDick says:

                  There is also an assumption (not “inference”) in any criminal law that the penalties will deter the behavior. This is exactly what all laws of this type do. Please do not act like you are actually stupid, since we know you are not.

                • bradp says:

                  There is also an assumption (not “inference”) in any criminal law that the penalties will deter the behavior. This is exactly what all laws of this type do. Please do not act like you are actually stupid, since we know you are not.

                  Yes, they all do that, but Ginsburg declared one limiting principle to be the avoidance of “pil[ing of] inference upon inference”.

        • timb says:

          yay, single payer around the corner!

          As soon as the American people learn about the lies told about this, they will understand life is going on.

          Just like LBJ’s weak Civil Rights Bill set the stage for the ’64 act, this one will set the stage for an actual alternative

    • mark f says:

      if a significant number of people ceased to eat broccoli it would have an effect on the price of broccoli

      But “to affect the price of broccoli” was not the purpose of the hypothetical broccoli mandate raised by Roberts. The purpose of that mandate was to regulate health care commerce by forcing healthier eating habits.

      • bradp says:

        I have not seen a good limiting principle yet, above and beyond certain limitations spelled out by the constitution.

        • Boudleaux says:

          There are no “limiting principles spelled out by the [C]onstitution.”

          • anonymoose says:

            Bill of Rights has some, though.

          • bradp says:

            I’m referencing this part of the Ginsburg concurrence:

            Other provisions of the Constitution also check congressional overreaching. A mandate to purchase a particu- lar product would be unconstitutional if, for example, the edict impermissibly abridged the freedom of speech, interfered with the free exercise of religion, or infringed on a liberty interest protected by the Due Process Clause.

            I agree with those limitations to congressional reaching, but approving the mandate on the commerce clause grounds would have made every economic activity (any activity period, since all product prices are affected by inactivity) fair game as long as it did not fall afoul of those aforementioned limitations.

            • James E. Powell says:

              What would be wrong with every economic activity being fair game for congress using its commerce clause power? Aren’t the political limits enough?

              • bradp says:

                For one thing, you are really setting yourself up for trouble if you say “Anything is allowable up to these limitations we have set”. I personally like the spirit of the 9th Amendment.

                Secondly, I believe that there are economic rights that should not be infringed on their own account.

                • NonyNony says:

                  What are these economic rights that should not be infringed.

                  And are they rights that can only not be infringed upon by Congress, or can the government be used to stop corporations and other individuals from infringing on my economic rights?

                  And are these economic rights of the kind where the law in its infinite majesty forbids both rich and poor to sleep under bridges?

                • bradp says:

                  And are they rights that can only not be infringed upon by Congress, or can the government be used to stop corporations and other individuals from infringing on my economic rights?

                  Rights are limitations placed on the behavior of every other member of society. So yes.

                  What are these economic rights that should not be infringed.

                  One economic right that I think this violates: No private individual should be compelled to pay rents to another private individual. The mandate, combined with the privileged position of health insurance companies practically guarantees that one effect of the ACA is that everyone here is likely going to be forcibly exploited by health insurance companies.

                • NonyNony says:

                  No private individual should be compelled to pay rents to another private individual.

                  So does this mean that you’re also in favor of striking down the law that says that Emergency Rooms have to treat everyone regardless of their ability to pay?

                  Because that’s where this leads. The economic right of the hospital to not give out free service comes into conflict with the human right to life. And we’ve already decided as a society where we come down on that, though you may be of the opinion that we’re wrong.

                  I agree that what the PPACA gives us is a bad solution – welcome to Liberal republican democracy as practiced on the planet Earth for the last few centuries. It never gives good solutions, only poor solutions that are slightly better than what the status quo was a few years ago.

                • bradp says:

                  So does this mean that you’re also in favor of striking down the law that says that Emergency Rooms have to treat everyone regardless of their ability to pay?

                  This is a fair point, and I don’t suppose that right would be an absolute.

                  On a related note, I do support a stout public option and for government to take a more active role in provision rather than payment to try and avoid that sort of problem.

                  It never gives good solutions, only poor solutions that are slightly better than what the status quo was a few years ago.

                  I get what you are saying, but I have little hope in our government accomplishing even that slight goal.

                • DrDick says:

                  Secondly, I believe that there are economic rights that should not be infringed on their own account.

                  Please cite any such enumeration in the actual Constitution. Your personal preferences are not binding precedent nor law.

                • bradp says:

                  Please cite any such enumeration in the actual Constitution. Your personal preferences are not binding precedent nor law.

                  I was asked what was wrong with every economic activity being fair game, not what was illegal about it.

            • Joe says:

              Ginsburg listed “other” provisions there … before that, she noted that the Commerce Clause itself (inference on inference, e.g.) sets forth limits too. So, “any activity” isn’t enough. I don’t know why this is not “good” enough for you. Lopez and Morrison, e.g., used it to strike down federal laws.

              • Paulk says:

                Exactly. Lopez sets the conditions that broccoli (or other vegetables) fail to meet.

                Why is it so difficult for so many of these justices to understand their own written opinions?

                • Bijan Parsia says:

                  “It is difficult to get a man supreme court justice to understand something, when his salary being a right wing hack depends upon his not understanding it!”

            • DrDick says:

              every economic activity (any activity period, since all product prices are affected by inactivity) fair game

              And what you fail to grasp is that every economic activity, at least so far as it is implicated in interstate commerce (a Constitutional limitation) already fair game to federal regulation and oversight. And this is a very good thing to everyone except deranged libertarians. The government already has the clear constitutional power to force you to buy broccoli. There is nothing in the Constitution prohibiting the passage of stupid laws.

        • mark f says:

          Limiting principles above and beyond certain limitations spelled out by the Constitution are out of the Court’s purview.

    • efgoldman says:

      yes, if a significant number of people ceased to eat broccoli it would have an effect on the price of broccoli, eventually making it more expensive.

      What? General Motors tried to repeal the law of supply and demand in the early 1980s; it didn’t work for them, either.

      [I had to read this five times to realize you really said that]

      • bradp says:

        Initially prices will decrease as inventories slip to meet demand. After inventories stabilize with production falling to meet demand, production and distribution of broccoli would be less efficient and unit prices will go up.

        • Cody says:

          Couldn’t we all just stop eating broccoli then, effectively killing off broccoli sales? There is no basic need for broccoli. I’ll have my arugula.

          In the case of health insurance, I can’t stop getting sick.

          • bradp says:

            Couldn’t we all just stop eating broccoli then, effectively killing off broccoli sales?

            Sure. I’m just saying that you effect the price of anything by purchasing it or not purchasing it.

            • catclub says:

              so whether you are active (buying) or passive (not buying) in commerce you affect said commerce (the price at which such a good is traded)? isn’t that exactly what the commerce clause therefore covers?

              Are you arguing that therefore the mandate is clearly under the commerce clause?

              • bradp says:

                I am arguing that there is no limiting principle to what is allowed. If the mandate’s justification under the commerce clause were accepted, a justification for the regulation of any activity except those specifically enumerated in the constitution could be easily formulated.

                • Paulk says:

                  I’m trying to follow your argument, but if you are having trouble identifying a limiting principle to a health insurance mandate, you don’t appear to be looking hard enough. (Jack Balkin offered about a dozen or so.) But then again, so does Ginsberg here, including Lopez, which makes the lines fairly clear and is why most scholars didn’t see this as a close call.

                  Even leaving all of that aside, just because a government use of power may seem ridiculous or distasteful to us doesn’t make it unconstitutional. Ginsberg nailed that point fairly spectacularly , I thought, as well.

                • bradp says:

                  I’m trying to follow your argument, but if you are having trouble identifying a limiting principle to a health insurance mandate, you don’t appear to be looking hard enough. (Jack Balkin offered about a dozen or so.)

                  What I saw were basically statements that the government could only intervene when there was an information assymetry or an “interstate externality”.

                  It seems a little absurd to think that future economic regulation would be judged based upon whether the particular outcome we want to change is the result of an information assymetry.

                  But then again, so does Ginsberg here, including Lopez, which makes the lines fairly clear and is why most scholars didn’t see this as a close call.

                  I don’t believe she does. In fact, she seemed to just repeat the same one’s I have heard many times but never found that compelling.

                • Paulk says:

                  What I saw were basically statements that the government could only intervene when there was an information assymetry or an “interstate externality”.

                  This is a limiting principle, but it’s not by any stretch of the imagination the only one presented and this is not the crux. In other words, if this is satisfied, it does not give carte blanche to any regulation that follows. That would be silly and that isn’t what Ginsberg argues. But it must pass this test, which clearly this legislation does.

                  I don’t believe she does. In fact, she seemed to just repeat the same one’s I have heard many times but never found that compelling.

                  I have no idea what this is supposed to mean. For some reason you don’t find compelling the very specific limitations on commerce clause power that she cites, which (as the majority of constitutional scholars note) the mandate passes but which the hypothetical broccoli mandate doesn’t even approach?

                  You really don’t seem to be trying very hard to follow this argument.

        • elm says:

          Is this a generalizable principle (falling demand increases prices) or is something specific to the brocolli market? If you’re arguing the former, whoah nelly! If you’re arguing the latter, care to share what makes broccoli special?

          • bradp says:

            I think its fairly generalizeable for ubiquitous consumer goods like broccoli. Here is the chain of events I would predict:

            1. Demand shrinks.

            2. Prices drop as supply overshoots demand and inventories swell.

            3. Falling prices lead to a lower supply.

            4. THe market finds equilibrium with prices set by the new quantity supplied and demanded.

            5. Because the supply is lower, presumably certain economies of scale are lost, and the market finds equilibrium at a slightly higher cost per unit.

            • elm says:

              You do realize you’re inventing a new form of economics right here in the comments section?

              I’ll give you a hint: for normal goods, falling demand equals falling prices; rising demand equals rising prices. You’re turning the laws of supply and demand on their head and it leads to absurd results if you follow your thought process, through.

              Let’s take a look:

              0. Consumers buy less of a normal good the more expensive it is. (Normal here largely distinguishes from ‘luxury goods,’ where paying a high price might be the reason you buy the good. Broccoli is certainly not a luxury good in this sense.)

              1. Demand shrinks. [Because of some exogenous policy change? Weather changes? A new recipe that makes cauliflower temporarily more popular and broccoli less Something else? I guess it doesn't actually matter because in the real world, demand will fluctuate for all products, so every product will eventually see a shrink in demand of some amount.]

              2. Prices drop as supply overshoots demand and inventories swell.

              3. Falling prices lead to a lower supply.

              4. THe market finds equilibrium with prices set by the new quantity supplied and demanded.

              5. Because the supply is lower, presumably certain economies of scale are lost, and the market finds equilibrium at a slightly higher cost per unit. [Here ends your causal process, but something will happen after this]

              6. Because the price is now higher, demand shrinks and we return to your point 2.

              This will continue until all consumption stops. So, by your logic all ubiquitous consumer goods will be un-consumed. This is, quite frankly, ridiculous.

            • elm says:

              Thinking about it some more, the very well could be times when the loss of economies of scale on the supply curve could have a greater impact on prices than the shift in the demand in curve, but if this is generally true, you’ll get the feedback loop I describe above and no markets could possibly function.

              Thus, for you to be right, you’d have to have good reason to believe that the broccoli market happens to be right at that spot where the effect on prices due to economies of scale is larger than the effect on prices from demand. Why should we believe this?

      • elm says:

        I didn’t notice it until, you pointed out, but, wow, I think Mal needs to cut and paste that and post it everytime Brad tries to argue economics like he does with soullite’s gem to soullite.

        • Malaclypse, NOT SOME SHITHOLE WITH A FUCKING BIG ARBYS says:

          Nah, I have this link for that.

          • elm says:

            That link proves he doesn’t understand basic accounting principles. This discussion proves he doesn’t understand basic economic principles. Forgive me for saying so, and I hope this isn’t an insult to your professional honor, but the two are not the same thing. One can easily understand one without understanding the other.

            Now we know Brad doesn’t understand either. (OK, we already knew his understanding of economics was, well, non-standard, but I always assumed before yesterday that he understood supply and demand. Guess not!)

            • Malaclypse, NOT SOME SHITHOLE WITH A FUCKING BIG ARBYS says:

              No insult taken. I’m painfully aware that most accountants’ understanding of economics can be reasonably summarized as TAXES BAD.

    • Bijan Parsia says:

      I feel that there must be some lacunae here.

      Ginsberg is clearly pointing out something that is true: if you find yourself without broccoli in an emergency situation (or any situation, really), there’s no emergency broccoli room or other compelled source of broccoli. The free broccoli corps do not have to be continually funded nor are they continually called upon. Furthermore, broccoli may or may not be subsidized (or discouraged) in any number of ways.

      Now, it’s true that different patterns of consumption and production will affect the price of broccoli…but so too with all goods.

      I guess I don’t see where the fact that my future nonconsumption of a discretionary good I don’t buy now may affect the price (positively or negatively) has anything to do with my likely (90% of uninsured people in five years) future consumption of a very less discretionary (certainly highly nonsubsutitutable) good strongly negatively affecting the price of the good now.

      I agree that the ACA makes some predictions (e.g., that its cost cutting measures will bend the curve…some are fairly speculative), but those are about whether some part of the law will work as intended with the acknowledgement that some of them might not (as with most laws!). And most of them are at least prima facie plausible (or obviously tweakable). The first of the risible inferences (that people compelled to buy broccoli would thereupon eat it) is enough to derail the whole thing.

      If broccoli prepared in a certain way turned out to be a universal vaccine, then congress might well be able to compel its consumption in that manner. In order for this version of the broccoli argument to work, you need to simultaneously inflate (make broccoli purchasing a reasonable improver of health) and deflate (acknowledge that forced broccoli purchasing is frivolous) the mechanism.

      • Bijan Parsia says:

        (Obviously, this is a continuation of our prior dispute. I hope that’s ok!)

      • bradp says:

        I guess I don’t see where the fact that my future nonconsumption of a discretionary good I don’t buy now may affect the price (positively or negatively) has anything to do with my likely (90% of uninsured people in five years) future consumption of a very less discretionary (certainly highly nonsubsutitutable) good strongly negatively affecting the price of the good now.

        Bijan, you can be a very persuasive person when we manage to keep these things civil.

        But this sentence…shew….this sentence.

        Anyways, I think I understand your point: The mechanism that throws effects prices and the level of the distortion in each scenario is very different.

        And that is entirely true. I would even say that the price effects of people buying broccoli or not buying broccoli are precisely the reason you want markets. That is proper resource distribution according the free pricing markets. The health insurance market and its information assymetries and free-rider problems is a complete shambles, however, and not functioning at all.

        I do not expect anybody here, although the vast majority accepts the insurance mandate, to actually buy into the reasoning behind a “broccoli mandate”. I can’t even come up with a somewhat passable excuse to call it good policy. But the real point here is that, whether or not it is good policy, it still squarely fits inside the commerce clause justification supporters of the mandate proposed. Because there is no limitations proposed to the powers of the commerce clause, other than those rights explicitly listed in the constitution and individual could feasibly be forced into any market, whether that market was functioning as it should or not.

        I know this has an effect on a broad category of “rights” that the two of us hold in different esteem, so we may never come to agreement on this.

        You also hit squarely on one of the controversial subjects, at least in my mind. This was sold to the public, this was democratically vetted, so to speak, as an established penalty that would be necessary to keep insurance markets from going into a death spiral.

        The thing is that we do not know that. From what I have read, the mandate is exceptionally weak, and we could expect to see premiums still balloon as people “game the system”. I don’t think the fact that the mandate is necessary to maintain the health insurance system we “want” is any sort of moral or legal justification for the mandate. When you add in questions of whether the mandate will be sufficient, I think one is forced to assume too much.

        In the end, I’m discussing this more for the sake of discussion than interest in what precedent is set. Briefly, my complaint is that reading the commerce clause the way that supporters of the mandate wished provided ad hoc justification for almost any policy. Since I think we have already reached that point where the constitution can be twisted to suit any policy and at least a few of the justices decide based on politics overy law, much of this is moot from my end.

        Anyways, good post, its appreciated. Hopefully you get some value out of mine.

        • Bijan Parsia says:

          But this sentence…shew….this sentence.

          It was late! I was tired! And it was composed in pieces. While dancing. With a weasel. During a root canal.

          (Ok, there was no dancing, weasel, or root canal, but I did compose it in pieces while tired and didn’t edit. Sorry! Thanks for wrestling with it.)

          Anyways, I think I understand your point: The mechanism that throws effects prices and the level of the distortion in each scenario is very different.

          I could have just said that, I guess! :)

          But the real point here is that, whether or not it is good policy, it still squarely fits inside the commerce clause justification supporters of the mandate proposed. Because there is no limitations proposed to the powers of the commerce clause, other than those rights explicitly listed in the constitution and individual could feasibly be forced into any market, whether that market was functioning as it should or not.

          This is an interesting question. I think it depends on whether you think there’s a direct commerce clause justification or an indirect one. I’m inclined toward the indirect, i.e., the health care/insurance market is clearly a case of interstate commerce, ACA is a reasonable regulatory scheme, and the mandate (let’s presume) is necessary for that scheme. So the mandate gets in under the necessary and proper clause, not as a direct exercise of commerce clause.

          But yeah, in the end, I’m not too bothered by the idea that there’s some possible form of broccoli mandate. Indeed, many I’d endorse (e.g., if it turned out that eating broccoli once a year prevented flu). Given the wide range of forces controlling all the markets (with monopolies and monsopolies as just two extreme variants), that the government might also have such a power is not too surprising. I’d prefer all exercises (public or private) of such powers to be rather restrained, frankly!

          I know this has an effect on a broad category of “rights” that the two of us hold in different esteem, so we may never come to agreement on this.

          Maybe? I suspect we’re still in the area of whether the specific effects exist and even if so whether the risk is enough to warrant banning the insurance mandate.

          I’m pretty against healthy behavior coercion. I’m not against other behavior incentives and manipulations (if aimed at health). The latter tend to be more effective as well as less offensive.

          (So, for example, I think doctors who refuse to treat smokers are probably quite wrong.)

          This was sold to the public, this was democratically vetted, so to speak, as an established penalty that would be necessary to keep insurance markets from going into a death spiral.

          Aren’t you overstating that? I mean, I don’t remember a big campaign about the mandate. I agree that it’s definitely a key rationale.

          The thing is that we do not know that. From what I have read, the mandate is exceptionally weak, and we could expect to see premiums still balloon as people “game the system”.

          Yes, but that’s ok, right? There’s lots of things we enact with imperfect knowledge. Policy is tricky. If it doesn’t work, or works less well, or seems unnecessary, then we adjust the policy.

          Anyways, good post, its appreciated. Hopefully you get some value out of mine.

          I did, thanks.

  6. bradp says:

    When contemplated in its extreme, almost any power looks dangerous.

    That’s because any power is dangerous.

    • Boudleaux says:

      Right. Like the power to order the flags flown at half-mast. Or to hand out parade permits.

      • bradp says:

        Like the power to order the flags flown at half-mast. Or to hand out parade permits.

        It seems like control over parade permits would be a somewhat dangerous power to invest in someone.

        • rm says:

          MLK’s “Letter from a Birmingham Jail” mentions that the power to hand out parade permits can be used to further injustice, with obvious examples.

    • Paulk says:

      “That’s because any power is dangerous.”

      Which means that nothing is constitutional for fear of how powers might be abused…or this is just a meaningless objection, which is actually her point in the first place.

  7. efgoldman says:

    I didn’t think the skewering of Scalia was particularly subtle at all,in the context of a published opinion. Its the rough equivalent of standing up on the bar and yelling “Scalia you’re a fucking fool, you need to give your law degree back and burn all your fucking robes” in a saloon.

  8. Whatever says:

    Of course, the “minimum required insurance” includes coverage for items BESIDES emergency medical care. But if one part of the mandate is sorta maybe Constitutional, then I guess the whole thing is constitutional!

    It’s kind of like if I buy a Dr. Pepper at 7-Eleven and then rape and kill the clerk. Since buying a Dr. Pepper is legal, the rape and murder are also!

    It’s a package deal, baby!

    The talk about how “emergency medical care is different from broccoli” never addresses the reality that the “individual mandate” requires insurance coverage for services BESIDES emergency medical care.

    So let that top rate liar continue “proving” the case for the need for an “individual mandate” that forces people to buy health insurance for emergency care.

    That wasn’t the bill passed. Arguments about how many angels could dance on the head of a pin would be more relevant.

    Ban me and continue lying to each other about the fake reality that nobody actually lives in where you are so so clever.

    • Boudleaux says:

      You’re right. You amply demonstrate how, in reality, not everyone is remotely clever at all.

    • J.W. Hamner says:

      The talk about how “emergency medical care is different from broccoli” never addresses the reality that the “individual mandate” requires insurance coverage for services BESIDES emergency medical care.

      If you want to buy one of those catastrophic coverage/high deductible plans on the exchange you can.

    • anonymoose says:

      Actually, even accepting your argument I think most of us here would say the mandate is still perfectly constitutional under both the commerce clause post Raich and the tax power.

      I’m sorry if that just blew your mind.

    • Cody says:

      You have the right to choose an emergency coverage plan. However, most Americans prefer to see a doctor BEFORE they’re keeling over dead and require an emergency room.

      • Whatever says:

        You know what I’d like?

        I’d like to not be required by government regulation to have my six stitch cut treated by a doctor who charges me 6000 dollars for what would cost a few hundred in a civilized nation.

        In civilized nations the fact that women hold doctors in awe and terror and just can’t hand them enough money is kept in check by men.

        That’s why better services are cheaper there and real solutions can be implemented.

        • Holden Pattern says:

          In civilized nations the fact that women hold doctors in awe and terror and just can’t hand them enough money is kept in check by men.

          I… just… wow. Most MRA trolls are slightly more subtle.

        • Pseudonym says:

          I’m unaware of any government regulation that would require you to have your six stitch cut treated by a doctor at all, and in fact I’d encourage you to forgo treatment for this and any other malady.

    • Boudleaux says:

      Of what constitutional significance is your distinction between being required to buy “minimum required insurance” and “emergency medical care?”

      Did you think the government had to prove that it was requiring you to buy exactly what you were getting for free before, and nothing more? Why would you think that?

      I think it’s quite possible that you have not the dimmest understanding of either the mandate or broccoli.

    • joe from Lowell says:

      Of course, the “minimum required insurance” includes coverage for items BESIDES emergency medical care.

      When you lack health insurance and don’t get regular care, it causes you to consume more medical care from emergency rooms than you otherwise would, including care that isn’t actually emergency or catastrophic. It also causes you to need more emergency care, as small problems are allowed to become big through lack of attention.

      You’re still free-riding on the overall health care market even if you only have emergency coverage, and what’s worse, the among you’re free-riding is entirely the result of greater inefficiency and human suffering. So, yeah, you are still influencing the national health care market in a way that the public has an interest in addressing.

    • Pseudonym says:

      Shorter Whatever: emergency and non-emergency health care are like Dr. Pepper and rape.

      Because lack of rape regularly leads to the need for Dr. Pepper.

  9. Craigo says:

    I’m in love.

  10. laym says:

    I’m not a law-talking-guy, so I’m wondering something. Was this an especially pugnacious concurrence? Or do concurrences typically contain words like “crabbed” and “makes scant sense”?

    • Boudleaux says:

      They can be very combative and condescending. Scalia has done more to drag the civility of the tone downward than anyone, so nice that he’s on the receiving end of it.

    • Holden Pattern says:

      Scalia’s do. Most other justices, not so much, IIRC. But there are law-talking persons here, so they probably know more.

  11. Joe says:

    Mets minor leaguer Collin McHugh on Twitter:

    Wife: “It’s way selfish of him to name it after himself. Why not SuperCare or UltraCare…or TacoCare. I could get on board with TacoCare.”

    Actress Elizabeth Banks:

    The funny thing about Obamacare right wing outrage is that the Mandate is actually a Republican plan.

    knew there was a reason I liked that woman.

  12. [...] ranting old man. Did Scalia Scare Off Roberts? Ilya Shapiro: We Won Everything but the Case. And Ginsberg kills it. Ruth Bader Ginsberg, hero. More (oh, so much more) from [...]

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  14. [...] try to cater to non-English speakers. On other notes: •Ruther Bader Ginsburg’s biting commentary on the Supreme Court’s Obamacare decision. She guts the idea this is equivalent to forcing [...]

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