Can’t We Do Better Than State-Sponsored Broccoli?

Legal arguments often rely on analogies.  Indeed, during the first year of law school, students learn to analogize and distinguish cases. “This case is like this one, not that one.” Good lawyers can always conjure up and deploy a good analogy.

So why was it so hard yesterday for some of the most skilled lawyers and judges in the country to identify a good analogy for the individual mandate – the Affordable Care Act’s requirement that almost everyone buy minimum essential health insurance coverage or pay a penalty?

After listening to Tuesday’s historic two-hour oral argument and reading the transcripts, I counted roughly 17 different analogies to the insurance mandate – none of which seem particularly apt.

Here’s a brief rundown of the analogies invoked yesterday (by both the justices and the advocates), and then some thoughts on why they fall flat:

1.  Is mandating health insurance like mandating that people buy cell phones to call 911? (Chief Justice Roberts).

2.  Is the mandate like a requirement that we buy insurance to pay for our own burial services? (A macabre Justice Alito, who’s right: we’re all going to die).

3.  Is the mandate like forcing us to buy broccoli? (Justice Scalia, invoking the dreaded broccoli analogy, which is apparently one of the parade of horribles that logically flows from the health insurance mandate, a canard that David Orentlicher has exposed).

4.  Is it like forcing us to buy cars? (Chief Justice Roberts and later, Justice Scalia, referring to the government’s reply brief, which tried to distinguish a federal mandate that we buy U.S. automobiles from the insurance mandate).

5.  Is it like imposing a duty to rescue strangers in trouble, like a “blind man walking in front of a car”? (Justice Kennedy).

6.  Is it like setting phone rates to require that some callers subsidize others? (Solicitor General Don Verrilli).

7.  Is it like requiring everyone to join an exercise club? (Justice Scalia).

8.  Is it like mandatory inoculation during a pandemic? (Justice Breyer, perhaps inspired by the movie Contagion).

9.  Is it like forcing people to deposit all their money in the Bank of the United States? (Justice Breyer’s colloquy with Paul Clement, counsel for the state plaintiffs, invoking McCulloch v. Maryland).

10.  Would it be like the federal government requiring us to buy car insurance if states didn’t already do so? (Justice Sotomayor, to whom Paul Clement responds that there are lots of people in Manhattan that don’t drive cars. True, but we all have bodies, which require regular tune-ups and sometimes major repairs).

11.  Would it be like Congress forcing everyone to buy “a great new wonder drug”? (Paul Clement).

12.  Is it like growing wheat (Wickard v. Fillburn), or weed (Raich), or carrying guns near schools (Lopez), or committing violence against women (Morrison)? Note that these are the four most direct Commerce Clause precedents, which get comparatively buried during oral argument, amid all the analogy-searching.

13.  Is it like Congress requiring everyone to buy an electric car? (Paul Clement, who is hitting his stride by this point).

14.  Is it like requiring us to buy anti-pollution devices or low-emission mufflers for our cars? (Justice Breyer, who is not).

15.  Is it like requiring that everyone buy private mortgage insurance? (Michael Carvin, counsel for the private plaintiffs).

16.  Is it like requiring some pesticides rather than others in food? (Justice Sotomayor).

17.  Is the decision not to purchase health insurance like local manufacturing, which is regulated federally because some products might, eventually enter interstate commerce? (Justice Sotomayor).

Finally, near the end of two hours of oral argument, Justice Kennedy–the one everyone is watching–hints that health insurance simply may be unique (p. 103 of the transcript).

This last point is important. The reason we can’t analogize health care is because it is, indeed unique. Now, to be fair, the justices are trying to locate a limiting principle here. If the federal government can make us buy health insurance, is there anything it can’t do?

Unfortunately, the limitation here isn’t so much a principle as the unique nature of health care and health insurance. None of the analogies above do the health care market justice (or the health insurance market, which is a distinction without a difference that was probably overemphasized yesterday).

The United States spends $2.6 trillion per year on health care, which is probably far more than all the markets in the above analogies combined. Everyone consumes health care at some point. Health expenses are one of the biggest contributors to bankruptcy in the United States. Insurance is designed to account for the capricious risks that we all face with a stroke of bad health luck. The federal government heavily subsidizes care, and both public and private insurance subsidizes the uninsured. Federal laws like EMTALA aren’t to blame here–most doctors and hospitals would (and do) cross-subsidize care for the uninsured on their own, even without a federal law governing emergency care.

All of the analogies above fail in some obvious way. Indeed, you’d have to combine the salient features of all 17 analogies and create a Frankenstein analogy to approximate the scope, scale, and dynamics of the health care market. Health care is not a conventional good or service by any stretch of the imagination. Whether Justice Kennedy acts on the flicker of intuition that he revealed on this point will probably decide the case.

This post first appeared at Health Reform Watch.