03/28/2012 08:19 am ET Updated May 28, 2012

Health Care Is Not Broccoli

To listen to our Supreme Court justices Tuesday, you'd think they were shopping for produce rather than reviewing the law. It seemed so because the arguments devolved to how is broccoli different from health care. Verrilli seemed unable to explain the difference in a meaningful way.

Conservatives and their pet judges, as always, fear the slippery slope to more progressive legislation. The conservative judges argue a slippery slope of government mandating health insurance while their legislative counterparts make law mandating women buy an intentionally punitive vaginal sonogram in order to proceed to a perfectly legal abortion. At the same time they don't seem to think turning elections into auctions with victory going to the highest bidder is a slippery slope. Maybe because Citizens United is more of a free fall than a slope?

Logic does not seem to be a conservative virtue. Or maybe they are just ruling/legislating for the greater good according to themselves, a privilege they won't countenance for liberals.

In any case, no one on or before the court seemed able to define a difference between a broccoli and health insurance.

So if the court and all the legions of the advocacy class can't figure it out, maybe they'll allow an old Texan to point out the difference.

Because of state mandates, anyone who shows up at an emergency room must be treated whether they have either of insurance or cash or not. No state mandates that if you show up to a grocery store that the store must give you broccoli whether you can pay for it or not. Therein lies the difference to date.

Currently you can't get free broccoli by government mandate and you can get free health care. Any way you look at it, someone has to pay for the broccoli, the recipient, the grocer or the next guy in line. It's hilarious that the conservative justices are tacitly arguing that it's ok to force a grocer to give away broccoli, but that its not ok to force someone to buy broccoli.

The actual argument. and call for federal mandate, derives from the state mandates for indigent care. Government has created, with the best of intentions, a state of affairs whereby individuals can game the system, the indigent and providers both.

The mandate of indigent care forces costs on providers who then must recoup the costs by passing it on to the next guy in line, with an inexcusable amount of accounting inflation, health insurance providers. Health insurance providers then pass their increased costs on to their consumers.

What state indigent mandates amount to is condoning a tax by private companies on the public to recoup their costs. In effect, it's identical to the government taxing people directly for the health care of the indigent.

From the libertarian standpoint then, free broccoli and free healthcare are constitutionally identical. If you can make a health care provider treat a patient for free, then you can make a store owner give out broccoli for free if there is a compelling public interest in it. If you can do that, then you have definitely screwed up commerce, distorted supply and demand and unduly burdened both the doctor and the grocer. If the necessary and proper and welfare clauses justify forcing care providers into giving out health care for free, they may some day justify giving out broccoli for free, running up the costs for everyone else's broccoli and colonoscopy.

Likewise, if you cause an accident you can't get the car of another person fixed for free just because you don't have any money. Sates do argue that you don't have to drive, so then a state's mandated car insurance is discretionary. The mandatory auto insurance laws are justified by the fact that if you drive without insurance and damage someone else's car, it is financial damage to the injured party and all other responsible people's insurance rates.

You have no choice in the matter of living as opposed to driving, an essential difference in perspective. You will consume health care at some point. Auto insurance mandates assume that you will have an accident at some point. The uninsured can't foretell a disease anymore than they can an accident. So if uninsured for your health care, you are in effect driving without insurance and forcing your risk off on others by just living. So the justifications for health insurance and auto insurance are logically identical. Not consuming health care requires you to be not alive. Not consuming auto repair requires you not to drive.

Going without health insurance damages others because of the mandate that health care be provided for free to the indigent. It damages other parties as a direct consequence of state law. State law requiring treatment of the indigent distorts the market for health insurance and so if those laws are constitutional, then it follows that a remedy for the problem those laws caused is constitutional under the commerce clause. The PPACA remedies an imbalance and unfairness in commerce caused by government in the first place. Otherwise we have to revisit the constitutionality of state indigent care mandates and even auto insurance mandates.

Frankly, getting the health insurance mandate off the table as a constitutional solution will move us closer to government provided health care. Taxation to provide roads, schools, defense and import/export regulation is well tested constitutionally. A tax to provide health care already exists. It's called Medicare, in light of which the whole mandate scheme seems ridiculously arcane and stupid and fraught with corruption.