Fear of a Vegetarian State -- and Other Reflections on the Obamacare Decision

By Mike Dorf

I spent the better part of today reading the Supreme Court's ACA ruling and talking to the press about it.    Consequently, I had very little time to attend the sessions at the conference I happen to be attending: Vegetarian Summerfest, an annual vegan gathering that includes programs discussing the various reasons for adopting a vegan lifestyle.  These are chiefly: reducing harm to animals; mitigating environmental damage; and health benefits.  Given the much-ballyhooed prominence of the "broccoli question" in the Obamacare case, I was not entirely surprised to see that each of the three main opinions discussed the consumption of vegetables, but I did nonetheless sit up when I read the following passage in the portion of the opinion of CJ Roberts in which he concludes that the individual mandate does not fall within the Commerce Clause (with citations omitted):

[M]any Americans do not eat a balanced diet. That group makes up a larger percentage of the total population than those without health insurance.  The failure of that group to have a healthy diet increases health care costs, to a greater extent than the failure of the uninsured to purchase insurance.  Those increased costs are borne in part by other Americans who must pay more, just as the uninsured shift costs to the insured. Congress addressed the insurance problem by ordering everyone to buy insurance. Under the Government’s theory, Congress could address the diet problem by ordering everyone to buy vegetables.  
Amen brother Roberts, I imagine many of my fellow Vegetarian Summerfesters saying.  Not so much for the proposition that Congress might mandate vegetable purchases.  As Justice Ginsburg correctly notes in her dissent/concurrence, a "vegetarian state," in which Congress "prohibit[s] the purchase and home production of all meat, fish, and dairy goods, effectively compelling Americans to eat only vegetables," is a "hypothethical and unreal possibility."  And anyway, we vegans aim to convert, not coerce.  But still, here we have in the lead opinion of the most closely-watched Supreme Court case in a decade, an uncontradicted statement by the Chief Justice of the United States that Americans' unhealthy eating--expressly described as a failure to eat plant-based foods--imposes greater costs on our health care system than the enormous costs imposed by people going uninsured.  So I'll say it myself.  Amen brother Roberts.

What about those other observations?  I've got something moderately important to say about the Medicaid aspect of the case and then something utterly trivial to say about wording.

Medicaid.  I am not sure whether I was more mystified by the position of CJ Roberts (joined in this portion of his opinion by Justices Breyer and Kagan) or horrified by the joint opinion (of Justices Scalia, Kennedy, Thomas and Alito).  Roberts et al find the 2010 amendments to Medicaid unduly coercive because of the amount of money at stake and because compliance with the new conditions was made a prerequisite for obtaining not only (first all, then 90% of) the money to pay for insuring the newly eligible Medicaid recipients, but also a prerequisite for continuing to get federal money under the old (pre-ACA) version of Medicaid.  Yet as Justice Ginsburg (joined by Justice Sotomayor) noted, there is no "old" Medicaid in the sense of a set of reimbursement conditions on funds that the States have already accepted.  The ACA imposed conditions on future payments: If States want to get any of the funds, they have to comply with all of the conditions.  She gave what I regard as a killer hypo: Suppose Congress had simply repealed and re-enacted old Medicaid along with new Medicaid.  That would satisfy the Roberts concern about "notice," so why make Congress go through that formality?  The answer in the Roberts opinion is that there are political obstacles to repealing and re-enacting Medicaid, but if so, it's not clear why that same answer doesn't apply to his view of the taxing power, where he did reject a highly formal distinction.  After all, the whole reason Congress called the exaction a "penalty" rather than a "tax" was because of political obstacles to raising taxes.

Scalia et al avoid the force of the Ginsburg repeal/re-enact hypo because they think that new Medicaid is coercive simply in virtue of how much money is at stake.  But there's a ton of money at stake with old Medicaid too.  Why isn't that also unconstitutional under their approach?

Finally, my utterly trivial, indeed, ridiculous observation: At page 58 of Justice Ginsburg's opinion, she uses the word "foregone" when she ought to have used "forgone."  This is doubly surprising because: a) Justice Ginsburg is usually a perfectionist; and b) at page 12 of the Scalia et al opinion, one finds the term "sic" pointing out the very same mistake in the statute.

So yes, I spent way too much time with this opinion today.  Back to Summerfest!