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Welcome to the nexus of ethics, psychology, morality, technology, health care, and philosophy
Showing posts with label SCOTUS. Show all posts
Showing posts with label SCOTUS. Show all posts

Wednesday, March 27, 2024

Whitehouse floats congressional intervention for SCOTUS fact-finding adventurism

Benjamin S. Weiss
Originally posted 21 Feb 24

One of the Senate’s most prominent Supreme Court critics on Wednesday floated the idea that Congress could step in to block the high court from what he characterized as efforts to manipulate facts in cases that benefit Republican special interests.

Under the leadership of Chief Justice John Roberts, the Supreme Court has had a “near-uniform pattern of handing down rulings benefitting identifiable Republican donor interests” on a smattering of issues including reproductive rights, immigration and health care, wrote Rhode Island Senator Sheldon Whitehouse in an article published in the Ohio State Law Journal.

The Roberts court has presided over more than 80 5-4 rulings on issues advancing GOP policy priorities with few exceptions, he said, contending that the high court’s current conservative supermajority has pursued “results-oriented jurisprudence” for Republican political operatives.

A pattern of “extra-record fact finding” has contributed to these decisions, Whitehouse said — arguing that justices have repeatedly and improperly undertaken efforts to manipulate the facts of cases in which a lower court, or Congress, has already established a factual record.

Such malfeasance means taking the Supreme Court’s decisions on faith “is no longer automatically justified,” he said. “Too many decisions are delivered goods, not judicial work.”


Here is a summary:

Senator Sheldon Whitehouse suggests potential congressional intervention to address concerns about the Supreme Court's increasing reliance on "extra-record fact-finding" in recent rulings. He argues that this practice, where justices seemingly manipulate or ignore established facts, undermines the Court's credibility.

Whitehouse argues that a pattern of disregard for congressional findings and longstanding appellate court norms is evident in several recent Supreme Court decisions. He believes this approach benefits certain special interests and erodes trust in the Court's impartiality.

The article highlights the need for a potential response from Congress to curb this perceived judicial overreach by the Supreme Court.

Wednesday, August 16, 2023

A Federal Judge Asks: Does the Supreme Court Realize How Bad It Smells?

Michael Ponsor
The New York Times: Opinion
Originally posted 14 July 23

What has gone wrong with the Supreme Court’s sense of smell?

I joined the federal bench in 1984, some years before any of the justices currently on the Supreme Court. Throughout my career, I have been bound and guided by a written code of conduct, backed by a committee of colleagues I can call on for advice. In fact, I checked with a member of that committee before writing this essay.

A few times in my nearly 40 years on the bench, complaints have been filed against me. This is not uncommon for a federal judge. So far, none have been found to have merit, but all of these complaints have been processed with respect, and I have paid close attention to them.

The Supreme Court has avoided imposing a formal ethical apparatus on itself like the one that applies to all other federal judges. I understand the general concern, in part. A complaint mechanism could become a political tool to paralyze the court or a playground for gadflies. However, a skillfully drafted code could overcome this problem. Even a nonenforceable code that the justices formally pledged to respect would be an improvement on the current void.

Reasonable people may disagree on this. The more important, uncontroversial point is that if there will not be formal ethical constraints on our Supreme Court — or even if there will be — its justices must have functioning noses. They must keep themselves far from any conduct with a dubious aroma, even if it may not breach a formal rule.

The fact is, when you become a judge, stuff happens. Many years ago, as a fairly new federal magistrate judge, I was chatting about our kids with a local attorney I knew only slightly. As our conversation unfolded, he mentioned that he’d been planning to take his 10-year-old to a Red Sox game that weekend but their plan had fallen through. Would I like to use his tickets?

Wednesday, May 3, 2023

Advocates of high court reform give Roberts poor marks

Kelsey Reichmann
Courthouse News Service
Originally published 27 April 23

The final straw for ethics experts wondering if the leader of one of the nation’s most powerful bodies would uphold the institutionalist views associated with his image came on Tuesday as Chief Justice John Roberts declined to testify before Congress about ethical concerns at the Supreme Court. 

“You can't actually have checks and balances if one branch is so powerful that the other branches cannot, in fact, engage in their constitutionally mandated role to provide a check on inappropriate or illegal behavior,” Caroline Fredrickson, a distinguished visitor from practice at Georgetown Law, said in a phone interview. “Then we have a defective system.” 

Roberts cited concerns about separation of powers as the basis for declining to testify before the Senate Judiciary Committee on the court’s ethical standards — or lack thereof. Fredrickson said it was a canard that a system based on checks and balances would not be able to do just that. 

“It sort of puts the question to the entire structure of separation of powers and checks and balances,” Fredrickson said. 

For the past several weeks, one of the associate justices has been at the heart of controversy. After blockbuster reporting revealed that Republican megadonor Harlan Crow has footed the bill for decades of luxury vacations enjoyed by Justice Clarence Thomas, the revelations brought scrutiny on the disclosure laws that bind the justices and it called into question why the justices are not bound by ethics standards like the rest of the judiciary and other branches of government.

“For it to function, it relies on the public trust, and the trust of the other institutions to abide by the court's findings,” Virginia Canter, chief ethics counsel at Citizens for Responsibility and Ethics in Washington, said in a phone call. “If the court and its members are willing to live without any standards, then I think that ultimately the whole process and the institution start to unravel.” 

Many court watchers saw opportunity for action here on a call that has been made for years: the adoption of an ethics code.

“The idea that the Supreme Court would continue to operate without one, it's just ridiculous,” Gabe Roth, executive director of Fix the Court, said in a phone call. 

Along with his letter declining to testify before Congress on the court’s ethics, Roberts included a statement listing principles and practices the court “subscribes” to. The statement was signed by all nine justices. 

For ethics experts raising alarm bells on this subject, a restatement of guidelines that the justices are already supposed to follow did not meet the moment.

“It's just a random — in my view at least — conglomeration of paragraphs that rehash things you already knew, but, yeah, good for him for getting all nine justices on board with something that already exists,” Roth said. 

Thursday, January 5, 2023

The Supreme Court Needs Real Oversight

Glen Fine
The Atlantic
Originally posted 5 DEC 22

Here is an excerpt:

The lack of ethical rules that bind the Court is the first problem—and the easier one to address. The Code of Conduct for United States Judges, promulgated by the federal courts’ Judicial Conference, “prescribes ethical norms for federal judges as a means to preserve the actual and apparent integrity of the federal judiciary.” The code covers judicial conduct both on and off the bench, including requirements that judges act at all times to promote public confidence in the integrity and impartiality of the judiciary. But this code applies only to lower-level federal judges, not to the Supreme Court, which has not issued ethical rules that apply to its own conduct. The Court should explicitly adopt this code or a modified one.

Chief Justice Roberts has noted that Supreme Court justices voluntarily consult the Code of Conduct and other ethical rules for guidance. He has also pointed out that the justices can seek ethical advice from a variety of sources, including the Court’s Legal Office, the Judicial Conference’s Committee on Codes of Conduct, and their colleagues. But this is voluntary, and each justice decides independently whether and how ethical rules apply in any particular case. No one—including the chief justice—has the ability to alter a justice’s self-judgment.

Oversight of the judiciary is a more difficult issue, involving separation-of-powers concerns. I was the inspector general of the Department of Justice for 11 years and the acting inspector general of the Department of Defense for four years; I saw the importance and challenges of oversight in two of the most important government agencies. I also experienced the difficulties in conducting complex investigations of alleged misconduct, including leak investigations. But as I wrote in a Brookings Institution article this past May after the Dobbs leak, the Supreme Court does not have the internal capacity to effectively investigate such leaks, and it would benefit from a skilled internal investigator, like an inspector general, to help oversee the Court and the judiciary.

Another example of the Court’s ineffective self-policing and lack of transparency involves its recusal decisions. For example, Justice Thomas’s wife, Virginia Thomas, has argued that the 2020 presidential election was stolen, sent text messages to former White House Chief of Staff Mark Meadows urging him and the White House to seek to overturn the election, and expressed support for the pro-Trump January 6 rally on the Ellipse. Nevertheless, Justice Thomas has not recused himself in cases relating to the subsequent attack on the Capitol.

Notably, Thomas was the only justice to dissent from the Court’s decision not to block the release to the January 6 committee of White House records related to the attack, which included his wife’s texts. Some legal experts have argued that this is a clear instance where recusal should have occurred. Statute 28 U.S.C. 455 requires federal judges, including Supreme Court justices, to recuse themselves from a case when they know that their spouse has any interest that could be substantially affected by the outcome. In addition, the statute requires justices and judges to disqualify themselves in any proceeding in which their impartiality may reasonably be questioned.

Tuesday, November 29, 2022

The Supreme Court has lost its ethical compass. Can it find one fast?

Ruth Marcus
The Washington Post
Originally published 23 Nov 22

The Supreme Court must get its ethics act together, and Chief Justice John G. Roberts Jr. needs to take the lead. After a string of embarrassments, the justices should finally subject themselves to the kind of rules that govern other federal judges and establish a standard for when to step aside from cases — one that is more stringent than simply leaving it up to the individual justice to decide.

Recent episodes are alarming and underscore the need for quick action to help restore confidence in the institution.

Last week, the Supreme Court wisely rebuffed an effort by Arizona GOP chair Kelli Ward to prevent the House Jan. 6 committee — the party in this case — from obtaining her phone records. The court’s brief order noted that Justice Clarence Thomas, along with Justice Samuel A. Alito Jr., would have sided with Ward.

Thomas’s involvement, though it didn’t affect the outcome of the dispute, is nothing short of outrageous. Federal law already requires judges, including Supreme Court justices, to step aside from involvement in any case in which their impartiality “might reasonably be questioned.”

Perhaps back in January, when he was the only justice to disagree when the court refused to grant former president Donald Trump’s bid to stop his records from being turned over to the Jan. 6 committee, Thomas didn’t realize the extent of his wife’s involvement with disputing the election results. (I’m being kind here: Ginni Thomas had signed a letter the previous month calling on House Republicans to expel Reps. Liz Cheney of Wyoming and Adam Kinzinger of Illinois from the House Republican Conference for participating in an “overtly partisan political persecution.”)

But here’s what we know now, and Justice Thomas does, too: The Jan 6. committee has subpoenaed and interviewed his wife. We — and he — know that she contacted 29 Arizona lawmakers, urging them to “fight back against fraud” and choose a “clean slate of electors” after the 2020 election.

Some recusal questions are close. Not this one. Did the chief justice urge Thomas to recuse? He should have. This will sound unthinkable, but if Roberts asked and Thomas refused, maybe it’s time the chief, or other justices, to publicly note their disagreement.

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One obvious step is to follow the ethics rules that apply to other federal judges, perhaps adapting them to the particular needs of the high court. That would send an important — and overdue — message that the justices are not a law unto themselves. It’s symbolic, but symbolism matters.

Thursday, July 28, 2022

Justice Alito's bad theology: Abortion foes don't have "morality" on their side

E. M. Freese & A. T. Taylor
Salon.com
Originally posted 26 JUL 22

Here is an excerpt:

Morality has thus become the reigning justification for the state to infringe upon the liberty of female Americans and to subjugate their reproductive labor to its power. An interrogation of this morality, however, reveals that it is underpinned by a theology that both erases and assumes the subjugation of female gestational labor in procreation to patriarchy. We must shatter this male-dominant moral logic and foreground female personhood and agency in order for every American to be equally free.

According to Alito, moral concern for "an unborn human being" apparently exempts pregnant people from the right to "liberty" otherwise guaranteed by the 14th Amendment. In other words, the supposed immorality of abortion is weighty enough to restrict bodily autonomy for all pregnant people in this country and to terrorize potentially pregnant females more broadly. This logic implies that pregnant people also lack 13th Amendment protection from "involuntary servitude," contrary to the strong argument made by legal scholar Michele Goodwin in a recent New York Times op-ed. Consequently, the court has now granted permission to states to force pregnant people to gestate against their will.

To be clear, the 13th and 14th Amendments are specifically about bodily autonomy and freedom from forced labor. They were created after the Civil War in an attempt to end slavery for good, and forced reproduction was correctly understood as a dimension of slavery. But Justice Alito asserts that abortion morality puts pregnant bodies in a "different" category with fewer rights. What, exactly, is the logic here?

At its heart, the theological premise of the anti-abortion argument is that male fertilization essentially equals procreation of a "life" that has equal moral and legal standing to a pregnant person, prior to any female gestation. In effect, this argument holds that the enormous female gestation labor over time, which is literally fundamental to the procreation of a viable "new life," can be ignored as a necessary precursor to the very existence of that life. On a practical level, this amounts to claiming that a habitable house exists at the stage of an architectural drawing, prior to any material labor by the general contractor and the construction workers who literally build it.

Abortion opponents draw upon the biblical story of creation found in the book of Genesis (chapters 1-3) to ostensibly ground their theology in tradition. But Genesis narrates that multiple participants labor at God's direction to create various forms of life through a material process over time, which actually contradicts a theology claiming that male fertilization equals instant-procreation. The real political value is the story's presumption of a male God's dominance and appropriation of others' labor for "His" ends. Using this frame, abortion opponents insert a "sovereign" God into the wombs of pregnant people — exactly at the moment of male fertilization. From that point, the colonization of the female body and female labor becomes not only morally acceptable, but necessary.

Thursday, March 31, 2022

Democrats push for Supreme Court ethics code following Ginni Thomas revelations

Lauren Fedor 
The Financial Times
Originally published 29 MAR 22

Senior Democratic lawmakers are increasing calls to create a code of ethical conduct for the US Supreme Court amid mounting scrutiny of associate justice Clarence Thomas and his wife, Virginia “Ginni” Thomas.

Chris Murphy and Amy Klobuchar, Democratic senators from Connecticut and Minnesota, respectively, and Hank Johnson, a Democratic representative from Georgia, have made a renewed push for the Supreme Court Ethics Act, a piece of legislation first introduced last summer to create a code of ethical conduct for America’s highest court.

Unlike other federal judges, Supreme Court justices are not required to follow the existing code of conduct.

The lawmakers said in a joint statement on Tuesday: “Recent revelations regarding the political activities of Supreme Court justices and their spouses have increased scrutiny of the court and eroded public confidence in the institution.”

The Washington Post first reported last week the existence of almost 30 text messages exchanged between Ginni Thomas, a conservative activist, and Mark Meadows, the former Republican congressman who served as Donald Trump’s final chief of staff, in late 2020 and early 2021.

The texts showed Ginni Thomas repeatedly espousing conspiracy theories and pushing Meadows to overturn the results of the 2020 presidential election.

The publication of the messages has raised fresh questions about the independence of the federal judiciary and led several Democratic lawmakers to call for Thomas to recuse himself from cases relating to the 2020 election and the January 6 2021 attack on the US Capitol. Earlier this month, Ginni Thomas revealed in an interview that she had attended the “Stop the Steal” rally on January 6.


Editor's Note: As a professional organization and highest court in the land, why does the Supreme Court not have a code of ethics?  More than slightly disturbing.

Saturday, December 21, 2019

Trump Should Be Removed from Office

Trump Should Be Removed from OfficeMark Galli
Christianitytoday.com
Originally posted 19 Dec 19

Here is an excerpt:

But the facts in this instance are unambiguous: The president of the United States attempted to use his political power to coerce a foreign leader to harass and discredit one of the president’s political opponents. That is not only a violation of the Constitution; more importantly, it is profoundly immoral.

The reason many are not shocked about this is that this president has dumbed down the idea of morality in his administration. He has hired and fired a number of people who are now convicted criminals. He himself has admitted to immoral actions in business and his relationship with women, about which he remains proud. His Twitter feed alone—with its habitual string of mischaracterizations, lies, and slanders—is a near perfect example of a human being who is morally lost and confused.

Trump’s evangelical supporters have pointed to his Supreme Court nominees, his defense of religious liberty, and his stewardship of the economy, among other things, as achievements that justify their support of the president. We believe the impeachment hearings have made it absolutely clear, in a way the Mueller investigation did not, that President Trump has abused his authority for personal gain and betrayed his constitutional oath. The impeachment hearings have illuminated the president’s moral deficiencies for all to see. This damages the institution of the presidency, damages the reputation of our country, and damages both the spirit and the future of our people. None of the president’s positives can balance the moral and political danger we face under a leader of such grossly immoral character.

The info is here.

Wednesday, October 23, 2019

Supreme Court Ethics Reform

Johanna Kalb and Alicia Bannon
Brennan Center for Justice
Originally published September 24, 2019

Today, the nine justices on the Supreme Court are the only U.S. judges — state or federal — not governed by a code of ethical conduct. But that may be about to change. Justice Elena Kagan recently testified during a congressional budget hearing that Chief Justice John Roberts is exploring whether to develop an ethical code for the Court. This was big news, given that the chief justice has previously rejected the need for a Supreme Court ethics code.

In fact, however, the Supreme Court regularly faces challenging ethical questions, and because of their crucial and prominent role, the justices receive intense public scrutiny for their choices. Over the last two decades, almost all members of the Supreme Court have been criticized for engaging in behaviors that are forbidden to other federal court judges, including participating in partisan convenings or fundraisers, accepting expensive gifts or travel, making partisan comments at public events or in the media, or failing to recuse themselves from cases involving apparent conflicts of interest, either financial or personal. Congress has also taken notice of the problem. The For the People Act, which was passed in March 2019 by the House of Representatives, included the latest of a series of proposals by both Republican and Democratic legislators to clarify the ethical standards that apply to the justices’ behavior.

The info is here.

Tuesday, July 16, 2019

Experts Recommend SCOTUS Adopt Code of Ethics to Promote Accountability

Jerry Lambe
www.lawandcrime.com
Originally posted June 24, 2019


Here is an excerpt:

While the high court’s justices must already abide by an ethical code, many of the experts noted that the current code does not sufficiently address modern ethical standards.

“The impartiality of our judiciary should be beyond reproach, so having a basic ethics code for its members to follow is a natural outgrowth of that common value, one that should be no less rigorously applied to our nation’s highest court,” Roth testified.

He added that disclosures from the court are particularly opaque, especially when sought out by the general public.

“To the outside observer, the current protocol makes it seem as if the judiciary is hiding something. […] With members of the judiciary already filling out and filing their reports digitally, the public should obtain them the same way, without having my organization act as the middleman,” Roth said.

Frost told the subcommittee that holding a hearing on the topic was a good first step in the process.

“Part of what I care about is not just the reality of impartial and fair justice, but the public’s perception of the courts,” she said, adding, “There have been signals by the justices that the court is considering rethinking adopting a code of ethics.”

The info is here.

Tuesday, June 11, 2019

The Lawyer Who Wants to Transform Legal Ethics with Behavioral Science

Brian Gallagher
www.ethicalsystems.org
Originally posted May 28, 2019

Here is an excerpt:

In a paper on the psychology of conflicts of interest, you wrote that, “Too often, the Supreme Court has made assumptions about the behavior of defense lawyers without empirical support.” How does behavioral science inform the way the Supreme Court should think about defense lawyers?

In the last 40 years, the Supreme Court has analyzed conflicts of interest in a manner that, I believe, makes unsupported assumptions about how criminal defense lawyers respond to allegations about their own misbehavior. My argument is that lawyers—like all people—are poorly equipped to recognize and address their own conflicts of interest. As a result, I propose that constitutional standards for conflicts of interest should be treated more like the ethical rules concerning conflicts, which focus on the risk that a conflict will influence a lawyer’s behavior rather than whether a conflict has, in fact, caused an adverse effect on the legal representation that a client received. I’m happy that my analysis has been cited by a few state courts that have looked at these and similar issues—and who knows, maybe someday the Supreme Court will cite behavioral research in forming its opinion on this topic.

You recently shared a paper on your blog, calling it a “fascinating discussion of the role of behavioral ethics in the context of judicial decision-making.” Which points or lessons stood out to you the most?

Interestingly, in a series of decisions about the constitutional standards for judicial conflicts of interest, the Supreme Court seems to be a bit more behaviorally realistic about conflicts of interest than it has been about attorney conflicts. For instance, in a case from a few terms ago, the Supreme Court—in deciding whether a justice on the Pennsylvania Supreme Court could properly adjudicate a death penalty case when he had previously been the prosecutor who authorized capital charges against the defendant—noted that “bias is easy to attribute to others and difficult to discern in oneself.” The Court went even further, noting that when a judge is asked to participate in a case in which he or she previously served as a prosecutor, there is “a risk that the judge would be so psychologically wedded to his or her previous position as a prosecutor that the judge would consciously or unconsciously avoid the appearance of having erred or changed position.”

The info is here.

Thursday, March 7, 2019

Supreme Court should adopt an ethics code

Robert H. Tembeckjian
Special to the Washington Post
Originally published February 23, 2019

During the contentious Supreme Court confirmation process for Brett Kavanaugh, and soon after he was confirmed on Oct. 6, dozens of ethics complaints against him were filed. All were dismissed on Dec. 18 by a federal judicial review panel, without investigation, because once Kavanaugh was elevated to the Supreme Court, he became immune to ethics oversight that applies to judges in lower courts.

Allegations that the review panel had deemed “serious” – that Kavanaugh had testified falsely during his confirmation hearings about his personal conduct and about his activities in the White House under President George W. Bush, and that he had displayed partisan bias and a lack of judicial temperament – went into ethical limbo.

The fate of the Kavanaugh complaints seems to have stirred House Democrats to action: The first bill introduced in the 116th Congress, H.R. 1, includes, along with provisions for voting rights and campaign finance reform, a measure to require the development of a judicial code of ethics that would apply to all federal judges, including those on the Supreme Court.

Chief Justice John Roberts is on the record as opposing such a move. In 2011, he addressed it at some length in his year-end report on the federal judiciary. Roberts argued that the justices already adhere informally to some ethical strictures, and that the separation-of-powers doctrine precludes Congress from imposing such a mandate on the Supreme Court.

Roberts’ statement didn’t deter Rep. Louise Slaughter, D-N.Y., from introducing legislation in 2013 and in subsequent sessions that would impose a code of ethics on the Supreme Court. Slaughter died last year. Her proposals never gained traction in Congress, and the current incarnation of the idea probably faces a steep challenge, with Republicans controlling the Senate and Democrats controlling the House.

The info is here.

Monday, May 4, 2015

Informed Consent and the First Amendment

Wendy K. Mariner, and George J. Annas
N Engl J Med 2015; 372:1285-1287
April 2, 2015
DOI: 10.1056/NEJMp1501190

Here is an excerpt:

Medical services are analogous to commercial practices for purposes of the First Amendment. The government has an interest in regulating medical practice to ensure safe and effective care. It also has an interest in ensuring that patients have enough accurate information to make voluntary, informed treatment decisions. Hence, it is the physician's duty under the doctrine of informed consent to provide material information about the benefits and risks of both the recommended treatment and its alternatives. However, the First Amendment prohibits the government from compelling people to make false or misleading statements or to express the government's point of view as their own.

Relying on the 1992 Supreme Court decision, North Carolina contended that the required fetal sonogram descriptions are merely statements of fact. The Fourth Circuit, however, found that North Carolina's display provision represented “quintessential compelled speech,” calling the required description “ideological; it conveys a particular opinion.” The court, finding that the “state's avowed intent and the anticipated effect” were to discourage abortion, said that the provision compelled physicians to serve as a mouthpiece for the state's point of view.

The entire article is here.

Thursday, May 10, 2012

Yoo Can't Be Sued for Allegedly Authorizing Torture

By Scott Graham
The Recorder
Essential California Legal Content
Originally published May 2, 2012

John Yoo is off the hook.

John Yoo
A panel of the U.S. Court of Appeals for the Ninth Circuit that included two Democratic appointees ruled Wednesday that the former Bush administration lawyer cannot be sued personally for allegedly authorizing the torture and months-long detention of an American citizen deemed an enemy combatant.
 
The court ruled that 10 years ago, when Yoo was with Justice Department's Office of Legal Counsel, it was not "beyond debate" that suspected terrorists were entitled to the same constitutional protections as ordinary accused criminals. In fact, the court held, that law remains unsettled to this day.
 
Thus, Yoo, now a professor at UC-Berkeley School of Law, enjoys qualified immunity from a suit by Jose Padilla, who alleges he was brutalized by the government while being denied access to counsel or his family for 21 months. Although the government dropped the most serious charges against him, Padilla was ultimately convicted in 2007 of conspiring to murder, kidnap and maim people overseas, and was sentenced to 17 years in prison.

The entire story is here.

Thanks to Gary Schoener for this story.

Saturday, March 31, 2012

Here’s why health insurance is not like broccoli

By Ezekiel Emanuel
The Great Debate - Reuters
Originally published March 29, 2012

The fate of universal healthcare coverage that the United States has been trying to achieve for over 100 years may boil down to broccoli.

The broccoli argument is simple and was frequently referred to in the recent Supreme Court arguments: If the government can require people to buy health insurance, why couldn’t it require people to buy broccoli, which also enhances people’s health? This question, at the heart of the conservative objection to the individual mandate to buy health insurance, illustrates the so-called limiting principle the Supreme Court must rule on: Under the Commerce Clause, does Congress have the constitutional power to compel people to act, in ways they might object to, when their inaction can harm others?

The High Court never got clear on why health insurance is not like broccoli and can thus be constitutionally regulated. There are two important differences that inform the principle for limiting congressional power to compel people to purchase goods and services.

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The difference between broccoli and health insurance is simple. It leads to a clear limiting principle. Congress can urge people to eat their broccoli, but not compel them to buy it, because the broccoli market will function regardless of what people do. Congress can compel people to buy their health insurance because otherwise there will be no health insurance market.

The entire story is here.