The Broccoli Test

Well, my Easter break, including a couple of pleasant days at the beach - much too pleasant for early April, but that’s a topic for another day - is over, and it’s time to resume pondering the strange ways of the political world.  There have been so many oddities these last few days that choosing among them is tough.  One of the oddest, that I’ve shied away from because the field was so crowded, was the strange Q&A session of the Supreme Court about the Affordable Care Act.  The high point (?) of the session was the series of questions raised by Justice Scalia about the Individual  Mandate, including “does the government’s position mean that the power to regulate interstate commerce includes the ability  to mandate eating broccoli?”  Clearly he is still dealing with childhood issues.  Actually it is a serious question in its way, involving the issue of establishing a clear legal limit to the power of government to intervene in markets.

The question deserved a clearer answer than it got, but that was left, interestingly enough, not to lawyers, but to Donna Dubinski, former CEO of Palm Computing, in a Sunday column in the Washington Post.  It certainly gives weight to the famous observation by FDR that the Constitution was not written for lawyers.  Ms. Dubinski gave a both legal and economic answer that merits wider circulation.  Her criteria for government mandate under the Interstate Commerce Clause were that 1) the product or service involved must be something everyone must have at some point in their life, and 2) the market for that product or service does not function.  In other words, it must involve a failed market for a required product or service.  That’s about as clear as it gets in Constitutional circles.

Ms. Dubinski goes on to point out that the broccoli fails both tests while the ACA clearly meets both, in that health service is required by everyone at some point, is too expensive for the individual without insurance if left until sickness occurs, and is too expensive for society if the individual “free loads” by refusing insurance while healthy.  She points out that additional evidence of a failed market is that at least 25% of individuals not covered by employment based insurance are uninsured because they are denied coverage even while reasonably healthy, not for failure to seek it. Perhaps, unlike Scalia, she does not see the feasibility of leaving someone dying of leprosy in the streets.  In any event, the “failed market” argument seems powerfully persuasive.  Let us hope Scalia gets over his distaste for broccoli enough to consider the arguments carefully and dispassionately.