Paul Krugman on the Broccoli Fallacy
April 2, 2012 10 Comments
One of the ways in which the right wing have taken aim at the attempt to provide health care in this country is to compare the individual health care mandate (a conservative proposal invented by their very own Heritage Foundation) to the forced purchase and consumption of broccoli. Yeah, it doesn’t really work on any level, but did you expect the Supreme Court justices to act like Tea Party enthusiasts? Paul Krugman didn’t.
Given the stakes, one might have expected all the court’s members to be very careful in speaking about both health care realities and legal precedents. In reality, however, the second day of hearings suggested that the justices most hostile to the law don’t understand, or choose not to understand, how insurance works. And the third day was, in a way, even worse, as antireform justices appeared to embrace any argument, no matter how flimsy, that they could use to kill reform.
It’s embarrassing that he is forced to do so, but Krugman details why broccoli is different than health care.
When people choose not to buy broccoli, they don’t make broccoli unavailable to those who want it. But when people don’t buy health insurance until they get sick — which is what happens in the absence of a mandate — the resulting worsening of the risk pool makes insurance more expensive, and often unaffordable, for those who remain. As a result, unregulated health insurance basically doesn’t work, and never has.
There are at least two ways to address this reality — which is, by the way, very much an issue involving interstate commerce, and hence a valid federal concern. One is to tax everyone — healthy and sick alike — and use the money raised to provide health coverage. That’s what Medicare and Medicaid do. The other is to require that everyone buy insurance, while aiding those for whom this is a financial hardship.
I’m less optimistic about the Court than Krugman is. Ruling against health care for political reasons would simply be more evidence that the Court is a political instrument promoting right wing causes in whichever fashion it can. After the ways in which they ignored precedent in Bush v. Gore and Citizens United, it’s pretty clear that they are the Tea Party Court.
The United States Supreme Court in 2010. (Photo credit: Wikipedia)
Clarence Thomas’s wife has quite literally earned her keep as a Tea Party lobbyist. When Antonin Scalia scoffs at citizens who are concerned about the government counting votes properly, he positions himself as the heir to the late great Andrew Breitbart, who took aim at the organization ACORN because they were far too effective in actually increasing voter participation.
It reminds me of the earlier days of Fox News, before it became common knowledge that they are the Fox Republican News Network, a media company set up to serve the Republican Party. We can’t compete with Fox and their Supreme Court justices on the grounds of money, but we can at least treat them as the partisan operatives that they are.
The United States Supreme Court is a political body, a branch of the government, and while I’d support making it more deliberative, progressives do themselves a big disservice if they don’t acknowledge the Court’s conservative bent and work to make that understood by the broader public.
SEE ALSO
Polentical: The Argument for Health Care
Polentical: Jeffrey Toobin on Conservative Justices and Health Care
About Matthew
“It’s embarrassing that he is forced to do so, but Krugman details…”
Nail on the head–that’s exactly what it is. Back in the days of sensible moderates we didn’t need economists explaining why the broccoli market is different from the health care market.
Glad I found this blog, it’s good stuff.
-Chris
http://www.culturedsavages.com
Thanks, Chris! I just signed up to follow you on CulturedSavages. I notice that you’re a Red Sox fan as well, which has at times (growing up) been as difficult as being a progressive in this political climate.
You fail to mention Justice’s Kegan’s role as former solicitor general during the administrations crafting of the law. Personally, I am not sure any of the justices should have abstained from voting on this issue, but lets try to be honest when scoring political partisans on the bench.
As for framing the decision of finding the mandate unconstitutional as partisan right-wing activism you would be jumping the gun. The expansive and activist view of interstate commerce would be the government’s argument. Commerce has never been defined as those who may engage in commerce in the future and that is how the government wants the Supreme Court to define commerce. This issue before the court isn’t if the justices can or should create a workable health insurance industry. The issue is if Obamacare plays by the rules set forth in the constitution.
If the court defines commerce as anyone who can in the future engage in commerce then yes, they can force you to purchase something before hand like broccoli. I can’t see how the court can maintain any limit to that definition of commerce.
By the way, the Supreme Court does not need to strictly adhere to precedent. Typically, it is left up to each individual judge if the precedent should or should not be part of their individual decision making process, but to argue that judges who rule against precedent are objectively wrong is just not true. Lower courts, on the other hand, must observe precedent set by the Supreme Court.
It’s Justice Kagan, and while I see a difference acting as a civil and serving as a lobbyist, I’d be fine with both of them recusing themselves, but this conservative court doesn’t do that sort of thing.
No, broccoli is not the same as health care. Not everyone is going to buy broccoli in their life. And as Krugman says, “When people choose not to buy broccoli, they don’t make broccoli unavailable to those who want it. But when people don’t buy health insurance until they get sick — which is what happens in the absence of a mandate — the resulting worsening of the risk pool makes insurance more expensive, and often unaffordable, for those who remain.”
You contradict yourself, first saying that the precedent is of a limited commerce clause and then saying that the court would not be overturning precedent by ruling for a limited commerce clause.
Of course, this all could have been avoided had President Obama not chosen the conservative option (the mandate) and instead chosen the progressive option (single payer, or a public option). Why is it that this option previously so popular among Republicans suddenly got discovered as unconstitutional once Obama adopted it? Were the conservatives previously mistaken?
I never said broccoli is the same as health care, but the broccoli remark does make sense if the commerce clause is as broadly defined as Obama wants it to be, which was the point of the remark.
If you are stating that the broccoli market and health care market should be treated different under the commerce clause because of the way the healthcare market works then you are not making a principled stand on the commerce clause. Instead, you are saying that pragmatism should over rule principled constitutional limits.
As for precedent: if you are defining original intent defined by the drafters of the law or constitutional clause then yes, I would say it is the duty of all judges to uphold precedent. However, if you are defining precedent as past cases decided by the Supreme Court then no I am not contradicting myself. There is a major difference between original intent/common understanding of the law and precedent set by judges years after the drafting of the law.
By the way, the legal community widely defines precedent as past cases decided by the courts. So, using the commonly held definition you argument that I contradict myself, is nothing short of false.
No, Obama is not arguing that upholding the health care mandate would extend to forced broccoli consumption. Only conservative activists (including those on the Supreme Court) are arguing that.
The common consensus in the legal community has long presumed that the mandate was constitutional. This has been a shared view on the left and on the right. The health care mandate is, after all, a conservative idea that Republicans used to champion. One reason why I think overturning the law would be partisan is because most conservatives and Republicans only started arguing against it once Obama embraced this conservative solution.
I know Obama isn’t arguing that the health care mandate would extend to broccoli, but that would be the net result if this mandate is upheld.
As for the legal community long presuming that the mandate is constitutional. 1) isn’t true. There are a lot of legal experts who rightly point out that the original understanding of the commerce clause does not allow government to compel those to enter into commerce. 2) Even if the mandate was considered by the legal community to be constitutional, their opinions don’t matter only the 9 justice’s opinions do and at least 3-4 of them think this is unconstitutional.
The Republicans who have changed their mind over a federal mandate are probably playing politics and acting in a partisan manner. However, we are discussing the courts. The partisan activities of the Republican party and Republican politicians in congress and running for president shouldn’t be used as a justification for attacking the conservative justices on the bench as partisan hacks. I don’t think any of the conservative judges are on the record supporting this mandate in the past.
No, the only ones arguing that upholding the health care mandate could lead to government regulation of individual broccoli consumption are conservative activists, and yes I include the activist Supreme Court justices among them, particularly when they specifically tap into the same arguments and also make money off of their wives lobbying for those arguments. The conservative activist court justices are very much a part of (and often leaders in) the conservative movement.
Well, have fun continuing to use illogical attacks and smears in an attempt to make your point. Just remember, you are not convincing anyone who is not already ideologically in-line with your point of view. It doesn’t make any sense to say that the broccoli argument is argued by conservatives and therefore is incorrect. It doesn’t make any sense to say that two previous decisions: Bush v. gore and Citizens united makes the conservative case against the mandate incorrect. It defies logic to continue to argue that some Republican politicians argued for this mandate in the past; therefore, their current position is wrong.
I appreciate your point that we are not engaged in a productive discussion but I do not appreciate the personal nature of your remarks. This is not the first time that we’ve had to speak with you about maintaining civility within the conversations in the comments section, and after having warned you last time, I’ve decided this time to no longer post your comments in the future. I’m confident that you can find a more beneficial home for them elsewhere.