(CNSNews.com) – House Minority Leader Nancy Pelosi (D-Calif.) on Thursday poked fun at an analogy, used in the argument over the individual mandate in Obamacare, that likens the federal government ordering individuals to buy health insurance to the federal government ordering people to buy broccoli.
“Let’s hope and pray that the court will love the Constitution more than it loves broccoli,” Pelosi said at her Capitol Hill press conference.
Justice Antonin Scalia used the broccoli analogy when the Supreme Court was hearing oral arguments on the constitutionality of the Obamacare individual mandate in March.
Solicitor General Donald Verrilli told the court then that the administration believed the government could order people to buy health insurance because eventually they would enter the health care market, and thus, by making people buy health insurance, the government was regulating interstate commerce, which it has the power to do under the Constitution.
“We think this is regulation of people's participation in the health care market,” said Verrilli, “and all this minimum coverage provision does is say that, instead of requiring insurance at the point of sale, that Congress has the authority under the commerce power and the necessary proper power to ensure that people have insurance in advance of the point of sale because of the unique nature of this market.”
In responding to Verrilli’s argument, Scalia said: “Could you define the market? Everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli.”
[In a June 14 article, James B. Stewart of the New York Times concluded that CNSNews.com Editor in Chief Terence P. Jeffrey, in his Oct. 21, 2009 column, had been the first to use the broccoli analogy in discussing applications of the Commerce Clause.
In that column Jeffrey wrote: "Can President Barack Obama and Congress enact legislation that orders Americans to buy broccoli? If so, where did they get that authority? What provision in the Constitution empowers the federal government to order an individual to buy a product he does not want? This is not a question about nutrition. It is not a question about whether broccoli is good for you or about the relative merits of broccoli versus other foods. It is a question about the constitutional limits on the power of the federal government. It is a question about freedom. Can President Obama and Congress enact legislation that orders Americans to buy health insurance? They might as well order Americans to buy broccoli."]
At Thursday’s press conference, a reporter asked Pelosi: “On a matter of policy, if the court strikes down the mandate and leaves in place all of the things that you know voters love and all the things that you like--the donut hole closure and all those other things--as a matter of policy can you justify leaving those things in place without the mandate that everybody knows will help explode premiums, kids under 26, preexisting, not donut hole but all those other things without the mandate. If they strike that down, how can you leave the goodies in place? Even for awhile?”
Pelosi said, “Just to borrow a Supreme Court metaphor, you have to eat your vegetables. You have to have the mandate in order for this to work from a financial standpoint. But that doesn’t mean--in other words, we want to keep those in place.”
Later, in continuing her argument, Pelosi said the health care bill was necessary because it included reforms that she believed would keep down the cost of health-care that otherwise would become “unsustainable."
“So, it’s unsustainable, so we had to have legislation, which in its oneness, and one that’s integrity, that had these things connected and took us down a path decreasing costs to all the entities of that I mentioned, including the federal budget,” she said.
“The many things in there that we don’t get credit for from the CBO,” Pelosi continued, “wellness, some things that go along with it like electronic medical records, that kind of thing helped IT, which will drive down cost of health care as well. That’s not figured in the CBO report. But the think tanks have said this will be hundreds of billions of dollars in savings over the life of the bill.”
“So, let’s hope and pray that the court will love the Constitution more than it loves broccoli, and that we will have a decision that is based on merits and the Constitution of the United States,” she said.