Scalia and the Supreme Court on Health Care Reform Law

There is a phenomenon at philosophy conferences and in graduate school in philosophy in which someone can appear superficially quite intelligent, in their ability to move polysyllabic words around. Often they dress in tweed and learn a set of specialized terminology; in short, they look and sound like respectable, intelligent academics. I have even witnessed such people read papers or give presentations at conferences. It is only when one questions these people about their 'claims' that you realize that they have no idea what they are talking about, that they have no conception of how this complex web of interconnected terms might have any connection to anything outside the web. In other words, to paraphrase Mark Helprin in Winter's Tale, they don't know what an apple is. I give various names to these pseudo-intelligent persons at different times depending on circumstances, but I sometimes call them Apparently Respectable Morons.

I believe the same can be said of Antonin Scalia. He makes superficially clever, if vicious, quips, and he may, for all I know, have some superficial capacity for manipulating legalistic language. He is, however, an Apparently Respectable Moron. I have, alas, attended to the supreme court's questions about Obama's health care law. These Republicans have recently discovered a long-standing opposition to the oppressive hand of big government in its ability to support insurance companies. Scalia, who never objected to the vast expansion of the Bush administration's 'war on terror' policies, suddenly is worried that the government is not limited and that there is nothing that it might not do if it is allowed to force people to buy health insurance. Antonin Scalia claimed that torture of prisoners at Guantanamo is perfectly constitutional, that it does not violate the 8th amendment's banning of cruel and unusual punishment, on the grounds that the prisoners are not being punished for anything. On these grounds, it would be perfectly constitutional for a representative of the government to beat you with a baseball bat, as long as they were just doing it for fun and not for any punitive purpose. So, suddenly, Scalia decides that forcing people to buy health insurance is the unconstitutional excess of an unlimited government, but torturing people for no reason is perfectly constitutional.

So, what brilliant analogy does Scalia give to show why the individual mandate is unconstitutional? He asks, "Can the government force you to buy broccoli?" Obviously, food is transported across state lines and involves a significant amount of commerce, so why can't the government regulate it by forcing people to buy broccoli? This is an absurdly faulty analogy.

Insurance companies have incentives to deny health care to people who would cost them money or who try to get payment for their health care. To regulate this market and guarantee health care to Americans (clearly a worthy goal and one that would be ordinarily within the purview of the government), it is necessary to prevent health insurance companies from denying coverage. However, if the government required that insurance companies provide coverage without any protection for the insurance companies, people would only sign up for health insurance when they got sick. Since this result would undermine the possibility of a private health insurance industry, the Obama administration, following all the Republicans before them, included an individual mandate in the bill, so that everyone has to purchase health insurance. This measure is, to be clear, a protection for the private health insurance companies.

So, how is this different from the broccoli case? Simply, buying broccoli is not a necessary condition for the existence of a market for food. If it were impossible for a large percentage of the American people to purchase food if people were not forced to buy broccoli, then it would be legitimate to mandate broccoli purchases. Suppose food is so expensive that no one can afford to pay for his/her own meals, but everyone has to buy into a kind of lottery (or insurance program) so that when people really need the food, they get a payout so they can afford it, but otherwise they pay into a pool that redistributes their money to those in need of food. Now, suppose the government wants to guarantee that everyone has food when they need it, so the government requires that they sell food people even if those people cannot pay for that food. If the government passed such a law, it would undermine the food companies' ability to be profitable (or even survive). So, if the only way to force people to pay into their 'food insurance' was to make them buy broccoli, then it would be ok to force them to buy broccoli.

Or, shorter, since companies will be able to survive whether people are forced to buy broccoli or not, there can be no compelling government interest in forcing people to buy broccoli. The food industry can survive while providing food for everyone without everyone being forced to buy broccoli.

Antonin Scalia, especially, but all the conservatives on the court, are capable of making rational-sounding but utterly nonsensical arguments and claims, but they just seem to lack any legitimate understanding of anything that matters. This is a common failing, especially among creationists, climate-change deniers and other true believers, in that people believe things for reasons that have nothing to do with evidence or rationality, and then they deploy their rational capacities to justify (or rationalize) the beliefs that they have for these other reasons.