Yes, Supreme Court Justice Antonin Scalia really did say that if the government can force you to buy health insurance, then it could force you to buy broccoli. Steven Pearlstein easily tears this argument to shreds:
Another of Scalia and Alito’s cute debating tricks was to latch on to an opposing argument and take it to its illogical extreme in order to show how silly it is. By this technique, the individual mandate suddenly became the first step on the proverbial slippery slope to government requiring that all Americans buy broccoli or a gym membership because those, too, will make us all healthier and thereby lower health-care costs.
It is axiomatic, of course, that the power to regulate, or to tax, or to criminalize is the power to regulate, tax or criminalize stupidly. The power to require you to buy airbags for your car is also the power to require you to buy leather seats and a surround-sound stereo. The power to levy a fee for buying a handgun is the power to levy a fee for not buying a handgun. The power to criminalize abortions is the power to criminalize condoms and birth-control pills.
But for some reason, when it comes to requiring Americans either to buy health insurance or pay a fee, we are now supposed to believe that “all bets are off,” according to Chief Justice John Roberts, or that “a fundamental shift” has occurred in the relationship between the individual and government, according to Justice Anthony Kennedy.
For starters, the Constitution already limits the “abuse” of such power by subjecting those who wield it to regular elections in which citizens are free to decide what is going too far and what is not.
And as justices know all too well, there are already in the case law scores of judicial tests that have been successfully applied to a wide range of congressional actions and powers to assure that they are reasonable and rational, that they are not arbitrary, that they are necessary to achieve a legitimate or compelling state interest. Surely Justices Roberts and Kennedy and their legion of summa cum laude law clerks can conjure up a workable criteria to distinguish a law requiring the purchase of health insurance from a law requiring the purchase of pomegranate juice.