Sunday, April 1, 2012

L'Esprit d'Escalier, Supreme Court Edition

It's French for "staircase wit," meaning all the clever remarks that occur to you immediately after you leave the party. Not being notably quick verbally, I can sympathize with Solicitor General Verrilli for sometimes having trouble, at the Supreme Court's recent health-care jamboree, fielding questions from out of right field. Herewith, some wittier answers.

JUSTICE SCALIA: 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.

CLARITAS: [All the law students listening to the audio have a drink at the first mention of broccoli. Some of them will end up under the table; the index to the transcripts lists eight occurrences of the word.] No, Justice Scalia, that would be a good analogy if the health care law said that people had to have heart transplants, but it doesn't.

JUSTICE SCALIA: Mr. Verrilli, you could say that about buying a car. If people don't buy cars, the price that those who do buy cars pay will have to be higher. So, you could say in order to bring the price down, you're hurting these other people by not buying a car.

CLARITAS: No, we're saying that by not buying insurance, they're shifting costs onto other people, just like when a car doesn't have pollution control equipment. There's been an extraordinary amount of energy devoted to the claim that this law is completely unprecedented, that it's making people buy a product, that it's regulating "inactivity." Actually, it's no different from when the government makes drivers buy catalytic converters, which is clearly Constitutional. The only difference is that people can, in theory, choose not to drive, but everyone uses health care. 

It's also true that the problem is worsened by not allowing insurance companies to exclude people for preexisting conditions, which leads to higher prices, but it's hard to think of a car analogy there.

GENERAL VERRILLI: No. It's because you're going -- in the health care market, you're going into the market without the ability to pay for what you get, getting the health care service anyway as a result of the social norms that allow -- that -- to which we've obligated ourselves so that people get health care.

JUSTICE SCALIA: Well, don't obligate yourself to that. Why -- you know?

CLARITAS: Justice Scalia, since you've said you'll resign if there's ever any conflict between your duties as a justice and your Catholic faith, I hope it's not true that your best solution to this Constitutional question is, "Let 'em die!"

JUSTICE SCALIA: An equally evident constitutional principle is the principle that the Federal Government is a government of enumerated powers and that the vast majority of powers remain in the States and do not belong to the Federal Government. Do you acknowledge that that's a principle?

CLARITAS: So what you're saying is that the Constitution reserves to the states the power to make people buy broccoli?

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