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Specious Argument Theater, With Nino Scalia

[ 145 ] March 27, 2012 |

Much more later about today’s argument, but I’d like to address this particular slippery slope hypothetical from Scalia, responding to the government’s argument about the necessity of the mandate to the plainly constitutional regulatory framework established by the rest of the act:

General Verrilli, you -you could say that about buying a car. If — 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 are hurting these other people by not buying a car.

I’m sure most of you have spotted the problem here, but there’s an obvious difference: the taxpayers aren’t obligated to buy you a care if you need one. You can choose to not participate in the market for cars; you can’t choose to not to participate in the market for health care because emergency rooms have to treat you.

Not that I think the slippery slope argument would prove much of anything even if the analogy was valid, but it’s not.


Comments (145)

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  1. Njorl says:

    You’re assuming that people have the ability to drive past hitch-hikers.

  2. catclub says:

    Are the proponents willing to argue that the government _can_ force one to buy something? – Militias and their requirement that every member be armed at his own expense is one example I know of. ( The whole damned military is another, but then I would have to follow up with a ‘consarn it’ — I just did. )

    Just because one may not like the fact (or ‘that seems so unfair – spoken like a teenage child to a parent) that the government can force you to buy something does not make it ipso facto unconstitutional.

    [ I know my example of a teenage child is not ideal. In many cases the teenager is right and the parent just says ‘do it because I say so.’ ]

    I think the constraint on congress forcing people to buy things is the same as always – if they force the people to buy something they do not want, they can vote them out.

  3. calling all toasters says:

    If you didn’t tell me this was Scalia, I would have assumed it was someone throwing a softball to the government.

    On a related note: can someone please explain to me why Scalia is thought to be intelligent? Whenever he speaks he seems to be Jonah Goldberg-level in his reasoning.

    • howard says:

      calling all toasters, i used to ask myself the same question, and the conclusion i finally came to is that people confuse the pungence of his prose with deep thought.

    • actor212 says:

      Really, the obvious answer (in addition to Scott’s deconstruction) would be “Well, if an uninsured driver has an accident, any medical bills would be incumbent upon the rest of us, yadayadayada”

      • Sammy says:

        Scalia isn’t even talking about car INSURANCE here, though. He’s talking about the actual car itself, which is ridiculous.

        • Spud says:

          The funny part of the analogy is you have to buy insurance for your car as mandated by law.

          Using his logic, you are hurting people by not having auto insurance when you drive.

          • Sherm says:

            But that mandate comes from the state level, not the federal government under the commerce clause.

            And, for the record, this is all complete and utter bullshit. I’m no constitutional scholar, but the arguments against this bill are laughably contrived by right wing zealots, and any holding against this bill will be as intellectually honest as Bush v. Gore. This is pure politics.

            • Spud says:

              But that mandate comes from the state level, not the federal government under the commerce clause.

              Its still some guvmint forcing people to buy something it feels is necessary. It is what they are all caterwauling about. SOSHILIZM!!!!

              Bush v. Gore made a drop MORE sense. You could tell from that case that SCOTUS really didn’t want to touch it with a 10′ pole and took a judicial mulligan on that.

              • Craigo says:

                Constitutionally, the states actually have broader authority over their citizens than the Federal government in many ways (health, safety, welfare).

                • Spud says:

                  Craigo is correct.

                  States have all of the power not specifically enumerated to the federal government. The Constitution declares limitations on the federal government.

                • Paulk says:

                  States have broader authority over these areas where the regulations are specifically local.

                  As others have pointed out, when there is an interstate commerce issue, the federal government has exactly the same authority as the states. Car registration is operated through the states, as most driving occurs within states—and that which occurs between states can be easily handled by the respective state statutes.

                  How do we know this isn’t about power, but jurisdiction? The federal government regulates and licenses interstate trucking. And requires insurance of those truckers.

                  This argument is so bad, they really should feel embarrassed. (Which, of course, they won’t.)

            • DrDick says:

              laughably contrived by right wing zealots

              Pretty much describes Scalia, Alito, Roberts, and Thomas.

        • Njorl says:

          The analogy would work if people without cars called taxis to take them everywhere, and stuck the government with the bill. When was the emergency taxi reimbursment act passed?

          • efgoldman says:

            If someone is going to introduce autos into the argument, well there are federal regulations requiring seat belts, airbags, pollution control, unleaded gas, etc., all of which (along with other requirements) raises the price of every vehicle.
            The nutters will probably go after all that next. In twenty years we’ll all be driving Corvairs and Pintos again.

      • Sherm says:

        FYI — Many states have special funds set up for victims of uninsured drivers.

      • Hogan says:

        “Well, if an uninsured driver has an accident, any medical bills would be incumbent upon the rest of us, yadayadayada”

        Scalia seemed surprised to hear that. “We do that? Why?” It was kind of like General Dreedle asking, “You mean I can’t shoot anyone I want to?”

    • Incontinentia Buttocks says:

      Scalia was invited to give a series of talks on legal history at Princeton University when I was in grad school in the early ’90s. His reputation for brilliance and a concern for constitutional history of course preceded him. It was a real emperor-has-no-clothes moment for me. I expected to disagree with his conclusions. What I didn’t expect was that his knowledge of the past would be so thin nor that his understanding of how to do legal history would be so poor.

      • DrDick says:

        I think that reputation is mostly based on the creativity he employs to justify his desired outcome in the face of all precedent (including his own prior decisions), logic, or decency.

    • sleepyirv says:

      A sharp sense of humor can make up for a lot in the brains department.

      Besides, any lawyer can have a strong understanding of logical argument but it takes a true artist of obfuscation to go against the painfully obvious.

      • Craigo says:

        Scalia is inventive, if nothing else – I’ve never seen a judge who was skilled at ignoring his own previous rulings, without actually renouncing them.

    • Bruce Baugh says:

      He’s arrogant and brutal. These are qualities that our hegemons associate with intelligence, or define intelligence by. (A very smart but kind, courteous, and humble person would not be widely regard as intelligent in the circles close to power.)

  4. Malaclypse says:

    If — 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 are hurting these other people by not buying a car.

    This is not how demand curves work, actually.

    “We have too many cars on our lot, so we’re driving prices HIGHER! HIGHER! HIGHER!”

    • The Bobs says:

      I too was shocked to find that Scalia is as ignorant of economics as he is of everything else.

    • elm says:

      Yeah, that was my thought. What was the government’s response to this stupid question: “Actually, your honor, forcing people to buy cars would drive UP the price for everyone else given that there is no adverse selection issue in the automobile market. Oh, and we do force everyone to buy car INSURANCE if they wish to drive, as there could be an adverse selection effect there since the best drivers who are least likely to get into accidents might be most likely to opt out of insurance, thus driving up the price for the rest of us.”

      No, too long. “Actually, your honor, that’s just a dumb question. Get one of your clerks to pick up an intro econ textbook and open up to the chapter on supply and demand.”

    • patrick II says:

      Health is not a commodity. Nobody is going to give themselves cancer so they can take advantage of a cancer drug sale at the corner oncologist’s.

    • efgoldman says:

      “We have too many cars on our lot, so we’re driving prices HIGHER! HIGHER! HIGHER!”

      Actually, that’s how GM acted in the 80s. That plus cars made out of baling wire and chewing gum, almost did them in at the time.

  5. rea says:

    It’s more-or-less axiomatic that you can’t tell how a judge will vote from the questions he or she asks at oral argument.

    • Scott Lemieux says:

      Is this axiom derived from people who have never seen an oral argument at the Supreme Court?

      • Tcaalaw says:

        It’s derived from actual practicing lawyers. Anyone who does appellate work will tell you that trying to predict a ruling from the questions being asked at oral argument is only slightly more accurate than flipping a coin. If you read the transcript of the SCOTUS argument on the California violent video games law, for example, you would swear that was going to be a 4-4 ideological split, with Kennedy as the deciding vote. Instead it was a 7-2 decision with Scalia writing the opinion, while Thomas and Breyer were the dissenters.

        • Scott Lemieux says:

          So read today’s oral argument. You really can’t tell the justices who are likely to overturn from those who aren’t? You see no difference in how Scalia and Breyer questioned the different sides? I’m not saying it’s definitive, but it is evidence. To say you can’t tell anything from it is absurd.

          • Sherm says:

            The point is that judges often play devil’s advocate, although its assuredly just the former in this case. From my experience (and I have never been in front of the Supreme Court), its really hard to predict the outcome of an appeal when you have a “hot bench” with the judges asking lots of questions. Its only easy to predict when the bench is largely disinterested.

          • L2P says:

            If Scalia’s questions had come from Ginsberg, and Kagan’s from Scalia, would you still say you knew how the justices were going to vote?

            Let me give you an example. I argued a case to bar a taxpayer from bringing an equitable claim on jurisdictional grounds. Two of the justices spent the ENTIRE ARGUMENT telling me that I was completely misreading the case law and the statutes. One justice told me my misstatements of the law bordered on unethical. Another justice gave me hypothetical after hypothetical about why my position was ludicrous (it kind of was, but for good policy reasons.

            The opinion, however, was unanimous in my favor. A lot happens after argument and writing the opinion. There’s additional research, and actually having to support your opinion with cites can change it completely.

          • rea says:

            I have read todays oral argument. I see a difference in how Scalia and Breyer questioned both sides. But, both Roberts and Kennedy asked hard questions of both sides, and I can’t necessarily predict their votes on the basis of their questions. And even Scalia, I think, left himself some wiggle room. And the thing about oral argument is this–nothing the judges say commits them in any way. Read internal accounts of the Court’s deliberations, and you’ll see that judges change their positions after oral argument all the time. They don’t take the initial vote until Friday.

            • Scott Lemieux says:

              I concede the point — oral arguments do not provide 100% perfect evidence of how people will vote! In the unlikely event that someone argues this your point will come in handy.

              • efgoldman says:

                …oral arguments do not provide 100% perfect evidence of how people will vote!

                I’m sure that’s true (I have no experience). But oral argument plus the Justice’s history and past opinions may provide a pretty good indicator.

      • rea says:

        I’ve never seen an argument at the US Supreme Court, but I’ve made several hundred appellate arguments.

        • Sherm says:

          You gave yourself away with your use of the word” axiomatic.”

        • Richard says:

          I’ve argued before the court of appeals, federal and state, a half dozen times. Once I knew I had won. The other times, I had no clue what the decision would be. Rea, I assume your experience is the same (despite having had much more appellate experience)?

          • Anderson says:

            I think that’s right. If the case is going to come down 3-0 or 9-0 or whatever, you can sometimes read that at argument: one side is clearly having a bad day, and the other isn’t.

            Closer cases, hard to call.

            What disturbs me, tho I shouldn’t be surprised, is the low quality of the questioning. The broccoli canard? Really?

            • rea says:

              I was disturbed by the quality of the argument, too–I thought Verilli had a couple of chances to hit one oout of the park, and whiffed. For example, he shouldn’t have mentioned the “social norm” without explaining that what he meant was that in this country, we don’t let people die simply because they can’t afford medical treatment. Given that norm, people who are ostensibly opting out of the health care system by not buying insurance are, in reality, just deciding to let the taxpayer pay for their treatment.

          • Jesse Levine says:

            Ditto. In my experience certain judges loved to play to their perceived audience at argument without actually voting that way. On the other hand, the Frightening Five have been so overtly political that I would not be surprised at all that broccoli is an important part of the decision.

          • rea says:

            Exactly. The last time out, the judges were shockingly hostile to my opponent–who won, 3-0, on a ground not much discussed at argument.

      • L2P says:

        Besides what the others say, you always have to keep in mind that judges know their job is also political, no matter that they may be unelected appointees. Many judges will absolutely destroy the arguments of the side they know they will eventually uphold in order to make it appear to the loser that they really, truly did have their day in court.

        I represented the US government in tax cases for several years, and judges would routinely find ANY tiny thing to question me harshly on. They would try very hard to avoid saying that a taxpayer was obviously lieing. The courtroom is theater, and the show is about being evenhanded – which means at least giving the loser the appearance of winning a lot of the time.

  6. catclub says:

    This is the second time in a day that I have seen someone arguing that increasing the demand for something will lower the price – or decreasing the demand will raise the price.

    Strange inversion.

    No, I can’t remember the link where I saw the other one.

  7. Anonymous says:

    Scott, what was Donald Verrilli’s response?

      • elm says:

        Dang. That was a very polite way of saying, “You’re a dumbass, sir.” And then his continuation that paying for health care is part of a social norm was a polite way of saying, “You’re also an asshole, sir.”

        I guess there’s a reason he’s the solicitor general and I’m not. (Well, that, and I don’t have a law degree.)

        • Hogan says:

          I know, right? I can understand why he was taken aback. You’d have to be a gold-plated 33rd-degree imbecile just to come up with that question.

        • Craigo says:

          I thought his response was rather weak – he danced around before finally noting that you’re not compelling participation in the marketplace, you’re compelling payment for that participation.

    • Terminology pet peeve: Why do they keep calling him “general”? It’s not his title. He is not a general. Hence the plural is attorneys general and not attorney generals. General is the job decription (as opposed to specific) Attorney is the title. They should refer to him as Attorney Verrilli.

      • dp says:

        Solicitor, not attorney, but yeah, I agree with you. The usage is the opposite, though (maybe government lawyers get tingly feelings from being compared to macho soldiers!).

  8. John says:

    Have Solicitors-General always been referred to as “General X”? That seems like a serious misuse of the term.

    • Davis X. Machina says:

      Ditto for Surgeons-General, which at least is a substantive military rank.

    • rea says:

      Yeah, that’s a longstanding usage. See also, the Attorney General and the Surgeon General.

    • elm says:

      Well, realize that military generals are “General Officers,” or to invert it, “Officers General.” Given this derivation of the term, it is no more appropriate to call them General than it is to call the attorney, surgeon, or solicitor general General.

      • John says:

        A colonel is a “field officer”, but that doesn’t make it appropriate to call them “field”. I’m not sure that your analogy makes sense.

        • elm says:

          Well, true, we don’t call them Field. But we could.

          I’m not making an analogy, I’m arguing about the etymology of the term. People started calling certain military officers “Generals” as a short-hand for “General Officers.” People started calling the solicitor general, “General” as a shorthand for “General Solicitors” and so on.

          If we had started calling colonels “Field” a long time ago and we also had positions called “Field Solicitor” and “Field Attorney,” we would likely call them Field, too.

          • Anonymous says:

            General is a rank of its own. It is not short for “General Officer.” A general officer is the kind of officer that a general is, but that’s not his formal title. A field marshal is also a kind of general officer, and it’s not acceptable to call them “General”.

            • elm says:

              General is a rank of its own as a four-star General Officer. We call Major Generals (2 stars) and Lieutenant General (3 stars), “General” just as we call the General “General.”

              Marshal is an exception to this as a general office who is not called general, because he already has a cooler title. (Brigadier in the UK is another exception, but my understanding is that a Brigadier is actually considered a field office in Britain rather than a general officer as he is considered here in the U.S., so it’s not really an exception.)

  9. Cameron Ashby says:

    Well, what if we tweaked the analogy a bit to make it about the price of wheat?

    • catclub says:

      Clarence Thomas would vote to overturn Wickard, I believe. So no real change _there_.

    • rea says:

      That’s a very good analogy, and illustrates why people with famililiarity with commerce clause jursiprudence have a hard time seeing how the mandate could be unconstitutional.

      The government wanted to support wheat prices, and imposed a quota system on growers to restrict supply and therefore raise the price. Filburn grew more than his quota, but for his personal use. To the extent Filburn exceeded his quota, he was required to destroy his crop and buy in the open market, because otherwise his personal crop (substituting for what he would have bought) would have expanded the grain supply. This requirement was upheld under the commerce clause, and it’s hard to see how the health care case is distinguishable. To regulate the market without abandoning private enterprise altogether, it’s necessary to regulate everyone.

      • howard says:

        rea, my total amateur’s view of this is that we have 4 judges who would answer in the affirmative to the question “do you think commerce clause jurisprudence got off track in the 1930s and is seriously over-extended and largely poorly and wrongly decided,” but we probably don’t have 5 justices who therefore want to overturn the whole system in this case….

      • L2P says:

        Unless, of course, a justice really wants to overturn Federal regulatory power under the Commerce Clause, but has made a career of finding ways to conspicuously avoid overturning precedent. Then we get an opinion filled with epic hair-splitting and specious reasoning, probably signed by a last name starting with an “R.”

        • howard says:

          which is why i think we’ll end up 6-3 to uphold….

          • Fiske says:

            I really hope you’re right, but Jeffrey Toobin doesn’t think so.
            What do the lawyers here think about Toobin’s view?

            • L2P says:

              Like I said above, it doesn’t matter what the justices ask or say in oral argument. It’d be one thing if Scalia came out and said something like “I don’t see how I can strike down the ACA but uphold virtually EVERY STINKING FEDERAL DRUG LAW,” but that didn’t happen. Most of the questions were pretty routine.

              • Richard says:

                My take is that Toobin greatly overstates what can be gleaned from the argument.. But I’ve read several commentators and the transcript as well (although I haven’t listened to the tape). I thought as of yesterday that the odds favored the law being upheld. I now think that the odds favor the law being struck down. but I wouldn’t bet anything on either propositio.

            • Hob says:

              IANAL, but I don’t see how Toobin gets from (paraphrase) “four conservative justices seem likely to oppose the law on ideological grounds, but five justices including Roberts are giving it a fair hearing” to “this is a train wreck and it’ll be struck down.”

              And how is it supposed to be a surprise that Scalia is saying ridiculous shit?

            • rea says:

              I wonder if Toobin left early–Kennedy’s and Robert’s pro-ACA questioning came at the end.

            • hedleys says:

              Toobin overreacted. There is often little correlation between the time spent on topics in oral argument and the actual issues that are central the case. For instance, they might spend time discussing broccoli or the activity/inactivity distinction, but there’s a good chance that neither argument will make one damn bit of difference in the outcome.

      • Ben says:

        The argument made by Clement on page 64 of the transcript is that Wickard only regulated people who were already participating in the market: suppliers of wheat. It didn’t try to force new entrants into the market and make them purchase bread or something.

        One of the obvious follow-ups is “everyone is in the health care market at some point, nicht wahr?” And Clement twisted himself into knots saying that people will be in the market for health care but not health insurance necessarily, and that it’d be fine to require people to purchase insurance at the point of transaction, e.g., some uninsured guy who was in a car accident and shattered his femur would be required to purchase insurance when he’s taken to the hospital.

        Kagan asked if he wasn’t slicing the baloney a little thin. It’s nearly all surface area, Justice Kagan; the wingnutty taste has nowhere to hide.

  10. Julian says:

    To play devil’s advocate, what’s incoherent about the “government could force you to buy broccoli” argument?

    If the broccoli industry were failing, couldn’t we, under the government’s logic, compel consumers to buy broccoli to save the industry?

    Or let’s say the shrinking base of broccoli buyers leads to higher broccoli prices. Why can’t the Commerce Clause empower Congress to pass a law forcing everyone to buy 1 lb of broccoli every week?

    I realize that adverse selection is an issue with health insurance and not with broccoli – what I don’t understand is what difference that makes to the question of whether the power to compel the purchase of health insurance exceeds the commerce clause.

    • Craigo says:

      This misses the point of the law. It’s not about compelling participation in the marketplace – the inane “inactivity” distinction is meaningless. Everybody participates in the health-care market. What the mandate does is compel you to contribute towards the cost of the goods and services you will inevitably consume. Otherwise the cost is borne by the provider (who passes the buck onto other consumers), or by taxpayers.

      Everybody needs health-care. Nobody needs broccoli. And nobody else is paying for you to have it.

      • Richard says:

        So are you saying that Congress couldn’t compel you to eat broccoli because its not needed (even if Congress made a finding in the law that eating broccoli was necessary to combat certain types of illnesses)? Or that Congress couldn’t compel you to buy broccoli because the failure to eat broccoli doesn’t lead to burdens on other people in the health market?

        My view is that Congress, in the limited area of the health care market could compel you to buy (but not eat) broccoli but that it is exceedingly unlikely that it would do so. In any case, I think the broccoli question is a perfectly legitimate one which the Solicitor General had to assume would be asked.

        • Anderson says:

          That to me is why this case is about the N&P Clause, not the Commerce Clause. (NOTE: I am an expert in neither.)

          It’s difficult for me to accept that any problem of interstate commerce could justify a Broccoli Mandate.

          But we *know* that the ban on excluding preexisting conditions is within the Commerce Clause. It’s a no-brainer.

          To make the ban feasible, however, Congress has to make everyone opt into the insurance market. Straight N&P stuff – you just stand there and quote McCulloch v. Maryland until the other side starts to cry.

          • Richard says:

            I get your argument. But are you saying that the broccoli mandate would be unconstitutional because not necessary and proper to the excercise of power under the Commerce Clause even if Congress said that it was necessary and proper? In other words, the Court makes its own deterination of what is necessary and proper?

            • Anderson says:

              I’m saying, I want to hear the facts under which “buy broccoli!” is valid under the Commerce Clause.

              Put another way: if Congress had required everyone to buy health insurance under the Commerce Clause, just because that seemed like a good idea to Congress, I might have a problem with that.

              But where the CC power is clearly being used properly (the exclusions ban), and the mandate is necessary for that end (in the broad, McCulloch sense of “necessary”), then I have a very hard time seeing how it’s not “proper” as well.

              • rea says:

                The distinction between taxing everyone and using the proceeds to subsidize broccoli growners (just like current farm programs), and making everyone buy a bit of broccoli, is difficult to fathom.

            • Ben says:

              These issues will probably loom larger tomorrow when they consider severability.

              But there’s nothing in that argument which assumes only Congress can determine the health insurance mandate is essential for a necessary and proper regulatory regime. Most every dingus you can find admits the key to making the ACA work is the mandate, whereas it’s hard to even think of what a similar argument for a broccoli mandate would look like. Maybe if broccoli had some nutrient that prevented zombie outbreaks, or something.

        • Hob says:

          But Congress isn’t compelling you to buy health insurance; they’re compelling you to pay higher taxes if you don’t buy it. Obviously the point is to encourage people to buy it, but it’s still perfectly legal to not have it. Does the existence of the mortgage interest deduction mean that I’m being forced to buy a house?

          • Richard says:

            So if the ACA, instead of compelling you to pay higher taxes if you don’t buy insurance, instead made it an infraction not to buy it and imposed a fine, you would find the law unconstituional? I don’t find the distinction between these two enforcement mechanisms persuasive on the question whether the law violates the commerce clause or the necessary and proper clause.

            • Hob says:

              I’m not sure I follow you. My point about the mortgage interest deduction is that the tax code is already structured so as to encourage certain behaviors, but no one calls those “enforcement mechanisms” or thinks they’re equivalent to criminal penalties for not doing a thing.

              And I made no claim as to the constitutionality of the law; all I said was that I think it’s a stretch to say it “forces you to buy health insurance.”

        • Craigo says:

          “In any case, I think the broccoli question is a perfectly legitimate one which the Solicitor General had to assume would be asked.”

          I agree with the second part. It’s legitimate only if we agree that it’s okay to compare actual consequences of the law with hypotheticals that are in no way similar.

          The mandate does not force you to purchase anything. It does force you to help pay for what you will consume. There is no invasion of personal liberty, unless you consider free ridership to be fundamentally protected by the Constitution.

          This is no more legitimate than the accusation that Medicare would allow the government to make health-care decisions for individuals, or that Social Security meant it could tell you where to work. It’s specious to argue against a law by invoking a parade of horribles created by a different, completely imaginary law. But I’m not surprised the question was asked.

          • Richard says:

            Lets assume a law that forced you to buy insurance and, if you didn’t , you’re guilty of an infraction and you are fined and, if you don’t pay the fine, you serve five days in jail. In other words, teeth to the mandate. Would that scenario, which I concede is slightly different than the one set forth in the ACA, make the law unconstitional in your opinion? It wouldn’t in mine. I think the feds have the right to mandate purchase of health insurance and the means of enforcing it is irrelevant to any discussion of constitutionality.

            • Anonymous says:


              Then WHAT would be off the table in the future? Anything?

              Tell me what would be off limits for federal power if this flies.

              • John says:

                Things that violate the 14th amendment and the bill of rights? Things like gun free school zones that were held to be state responsibilities in Lopez because they have no connection at all to interstate commerce?

              • timb says:

                How about the people being a check on Congress’s power through these things we call elections? We have them relatively frequently.

      • Julian says:

        It may be true that the inactivity/activity distinction is meaningless and inane, but asserting that is not convincing. Does the government have an argument besides “that distinction is stupid?” What is it?

        “What the mandate does is compel you to contribute towards the cost of the goods and services you will inevitably consume. Otherwise the cost is borne by the provider (who passes the buck onto other consumers), or by taxpayers.”

        I think Scalia’s point was that we could just stop having healthcare providers give free healthcare to indigent / poor patients. That made me wonder what mechanism we even use to compel the provision of free healthcare to indigents, and where the duty to provide that healthcare comes from. Some cursory googling by my fiancee found the EMTLA, which makes it a legal obligation on the part of hospitals to not deny emergency care to indigents (I still don’t know exactly how those costs are passed to taxpayers – do hospitals charge more to all other patients which results in higher premiums? Does Uncle Sam reimburse hospitals directly?).

        But that’s just a statute, and I think Scalia’s point is that if it’s unconstitutional to mandate that people purchase health insurance, but it’s also economically necessary in light of the fact that we force hospitals by law to give healthcare to indigents, then you can just stop doing the nice and noble thing and keep the Constitution intact.

        The N&P argument makes a lot of sense to me but I haven’t read much N&P jurisprudence (caveat: I am in Con Law now, so you might say I have read the bare minimum) so I don’t know how much refinement it has undergone since McCulloch.

        • Craigo says:

          It may be true that the inactivity/activity distinction is meaningless and inane, but asserting that is not convincing. Does the government have an argument besides “that distinction is stupid?” What is it?

          There is no such as inactivity when it comes to health care. Everybody participates. If we lived in a society that was so inhumane that every health care transaction was cash on delivery and those who couldn’t pay invariably went without treatment, this would be a different story. (And a much worse one.)

          And in any case, as far back as Wickard, the Supreme Court has declined to draw a line between inactivity and activity. The issue is whether you (or a number of people in the aggregate) have a substantial effect on interstate congress. The issue there was just as much that Filburn declined to participate in the wheat market as it was his overproduction. If he had overproduced and then burned his surplus wheat, or let it rot, it would have been difficult to argue that he’d had a substantial effect on the wheat market. A court which held the modern view of interstate commerce, but also considered inactivity to be an important distinction, would have decided for Filburn on the grounds that he had not participated in the market.

          • Ben says:

            There are a few arguments that got tossed around which you’re probably interested in that I haven’t seen anyone break up yet.

            The General made a distinction between regulating existing commerce and promoting new commerce (Carvin goes into a little more detail of the issue during his time).

            Everyone participates in the health care market. Not everyone participates in the broccoli market. And the distinction is relevant because the commerce clause allows for the regulation of commerce but not a promotion of commerce. A “buy broccoli or pay a tax penalty” law would be forcing new participants into the broccoli market and promoting commerce in a way that the health care mandate would not do in the health care market.

            There’s a related issue that’s explored in a little more depth: if Congress has the power to mandate insurance coverage, what can’t it do w/r/t health care? Can it mandate that everyone exercise?

            The General gives a few preliminary responses, but when asked to drill down on the specific issue provides a Necessary and Proper clause justification and a Commerce clause justification for why allowing the mandate to be constitutional wouldn’t open the door to wider regulation.

            The NPC justification is that compelling the purchase of a product is constitutional when a Necessary and Proper regulation regime requires it as an essential component in making the regime work. Similar-ish arguments were made in Wickard and Raich, which upheld Congressional intrusions into the economy.

            The Commerce Clause justification, which I think you’re the most interested in, starts with the argument that both the government and the wingnuts agree that a mandate requiring insurance to be purchased at the point of receiving health care would be constitutionally allowable through the commerce clause. (And it’s hard to argue with that; if it’s ok to mandate fuel efficiency standards on cars, it’s ok to require the purchase of health insurance when receiving health care).

            But there’s a problem, because unavoidable features of the health care market make such a mandate impossible. It’s uncertain when one will consume the good, when payment will be due, and whether costs will be shifted onto other participants. The first two are inherent in the provision of health care, and the last is an unavoidable consequence of the unquestionably constitutional mandate to guarantee treatment. It’s pretty easy to see why these factors make a “buy insurance right before the operation” scheme impossible.

            Putting it all together: mandates to purchase insurance when health care is delivered are constitutional BUT it’s a fundamental feature of the health care market that the amount and timing of payment is uncertain, and it’s an unavoidable characteristic of the current health care regulatory scheme that costs not payed by the consumer will be borne by other actors SO in order for regulation to deal effectively with these problems specific to the health care market, the timing of the purchase of insurance has to be pushed back before the time health care is consumed.

            Hope that was semi-coherent.

            • Julian says:

              You said “Everyone participates in the health care market. Not everyone participates in the broccoli market. And the distinction is relevant because the commerce clause allows for the regulation of commerce but not a promotion of commerce.”

              Where’d you find that? I am taking con law now and I didn’t see that distinction mentioned (not saying it doesn’t exist, I didn’t catch it).

              Also, not everyone participates in the wheat market, yet Wickard is still good law, right? Why does universal participation have any effect on the determination of whether this is within the commerce clause?

              “and the last is an unavoidable consequence of the unquestionably constitutional mandate to guarantee treatment.”

              But on p 19 or 20 of the transcript from today’s oral argument, I think Scalia was getting at the fact that if the Mandate is only Necessary&Proper because of EMTALA, we should ditch EMTALA before we hold that an otherwise unconstitutional exercise of power is N&P.

              Otherwise Congress could expand the commerce clause power granted by Article 1 just by passing legislation that required them to do more and more stuff (this is my guess at Scalia’s thinking). This might be okay as far as I know, it just sounds like the kind of slippery slope concern judges raise a lot.

              • Ben says:

                Imma leave a couple links up here and refer back to them a few times so I can avoid moderation. The first links to a collection of PDFs, the second is a PDF.

                Link 1

                Link 2

                1. regulation/promotion distinction

                Good reason your class doesn’t cover it: this is a distinction that respondents (wingnuts) are trying to create by claiming that the major commerce clause cases all deal with situations in which 1) attempted regulation over pre-existing non-regulated economic activity is upheld and 2) would not have been upheld if the regulation were creating the economic activity it’s controlling. The specific language is that pre-existing economic activity is “regulated”, and newly created economic activity is “promoted”.

                Nice little synopsis at link 2 starts at page 98a and is a few pages long.

                Petitioners (Obama) have a couple responses. First they reject the characterization of all commerce clause cases turning on a heretofore repressed regulation/promotion distinction. NLRB v. Jones & Laughlin Steel Corp has language allowing Congress the power to “promote [commerce’s] growth”, “foster” it, and achieve its “advancement.” Hard to square with respondents’ story. They also cite an appellate court case waiting for S. Court cert. in which the judge picks apart the “activity/inactivity” distinction, which respondents use to try and define that which can be regulated and that which can’t.

                But most of the firepower goes to trying to establish that this distinction doesn’t matter for the case, because even if there is an absolute bright-line firewall someothercliche separating regulation and promotion, pre-existing and created economic activity, active or inactive activity, the health insurance mandate would belong in the constitutional group. For the reasons given in my previous comment.

                Nice little summary of Obama’s position at link 1 starting on page 2 of the document called “Reply Brief for Petitioners Department of Health and Human Services, et al.” under Merit Briefs.

                2. Wickard

                Not entirely clear what your question is, but I think it’s something like “Wickard doesn’t talk about universal market participation. So why is Obama saying that universal participation in the health care market makes the ACA constitutional under Wickard?”

                Assuming I’ve got it right: because the distinction between Wickard and the ACA that the wingnuts are trying to make is that the wheat farmer in Wickard was already participating in the wheat market; there was pre-existing economic activity that the government was constitutionally able to regulate. This is an example of the general wingnut argument outlined above: say that pre-existing economic activity is the critical factor for commerce clause compliance, and claim the health insurance mandate doesn’t regulate pre-existing economic activity.

                So, if Obama can demonstrate that an insurance mandate similarly regulates pre-existing economic activity – that everyone at some point is in the health care market, that being uninsured doesn’t exempt someone from participating in the health care market, that on any given day anyone could involuntary participate in the health care market – then there will be no distinction between the wingnut commerce clause interpretation and the ACA.

                You can find the argument at link 1 in a document called “Brief for Petitioners Department of Health and Human Services, et al.” under Merit Briefs, last paragraph on page 50.

                3. EMTALA

                Short answer is that the federal legislation you cite was put into place in order to provide some consistency among various state legislation and common law dealing with an obligation to provide treatment regardless of ability to pay, as well as reflecting not only the self-conduct of the profession (hippocratic oath and all that) but strong social norms against letting people die in the street. So the federal contribution to the requirement to provide treatment regardless of ability to pay is pretty minimal.

                More discussion starting on page 247a at link 2. There’s also a footnote that deals specifically with EMTALA on page 250a.

                I’ll also note that even if you think that Congress shit in its own bed and EMTALA is entirely responsible for the massive economic cost of the uninsured ($40 billion or thereabouts), I don’t think it changes much. The justification for the mandate stemming from the massive cost of the uninsured is never singularly responsible for a part of the Administration’s case. There are always other pillars holding up the arguments which can take the weight if this one should crumble.

            • Murc says:

              Everyone participates in the health care market. Not everyone participates in the broccoli market.

              My understanding of Wickard, which may be erroneous, seems to indicate that, in fact, under current law, everyone participates in just about every market.

              If I go to the supermarket, see a stalk of broccoli, and go “Ugh! Broccoli!” I am deemed to have participated in the broccoli market, because I declined to purchase it and spent my money on something else instead.

              Similarly, if I see a stalk of broccoli, and go “Ugh! Factory-farmed vegetables. I’ll grow my own at home, thanks.” I am also deemed to have participated in the broccoli market.

              • Ben says:

                I’m just basically paraphrasing the Wickard section of my comment right above this one:

                There are two inaccuracies, I think, in your summary. First is on the merits of the case: Filburn was found to be participating in or having an effect on the supply side of the market by growing excess wheat against regulation. Not by participating in or having an effect on the demand side by consuming wheat he didn’t get at the market.

                The statute at issue was one that regulated the production of wheat, and there wouldn’t have been a case if Filburn just found some wheat on the side of the road and fed his chickens with that instead of going to market.

                The second inaccuracy, then, stems from the first: forcing yourself past the broccoli aisle without succumbing to temptation isn’t analogous to what Filburn did. Because in the broccoli case you didn’t make an interaction with a good, whether buying it, selling it, stealing it, destroying it. Filburn made an economic decision in which he undertook an action with a good: he grew excess wheat and so increased the supply.

                (Note that this is completely consistent with the Administrations ACA arguments; the uninsured alter the insurance market to the tune of $40 billion/year which have to be picked up by other actors).

                • Murc says:

                  Hmm. Okay, so I was wrong on the first example.

                  What about the second example, vis a vis ‘I grow my own broccoli.’

          • Julian says:

            In what other Commerce Clause case was Congress legislating inactivity? You assert that SCOTUS has never distinguished between activity/inactivity, but my understanding was that they hadn’t needed to.

            Wickard was about the farmer growing wheat in excess of his allotted quota, which is pretty clearly activity, so I don’t see how SCOTUS has grappled with the issue before.

    • rea says:

      let’s say the shrinking base of broccoli buyers leads to higher broccoli prices.

      A shrinking base of broccoli buyers would ordinarily led to lower broccoli prices.

      And what you are saying is that although the government’s commerce power allows it to tinker with supply (see the wheat case discussed above) it can’t tinker with demand. That’s hard to reconcile with logic, or the language of the clause.

      • Julian says:

        2 things:

        1) You’re right, I apologize, but ignore my econ mistake. Let’s say a shrinking base of broccoli buyers leads to lower prices, so government wants to compel purchase of broccoli by citizens to save the industry, which might be duplicative of my first hypo.

        Now that my screw-up is fixes, can the Commerce Clause give Congress power to compel purchase of Broccoli?

        2) “And what you are saying is that although the government’s commerce power allows it to tinker with supply (see the wheat case discussed above) it can’t tinker with demand. That’s hard to reconcile with logic, or the language of the clause.”

        You are incorrect. I did not say that the commerce power doesn’t allow it to tinker with demand. I specifically ASKED if it could tinker with demand, using the Obama’s administration’s logic.

        My point is that the Govt argument CAN be used to force broccoli purchases, so it’s not a crazy example.

        My shallow, shallow knowledge of Con Law gives me the impression that the real problem with Commerce Clause arguments is not that it is hard to justify X or Y exercise of power. The problem is in finding a limiting principle – there really is no convincing way to do so, which is why the SCOTUS has flailed from one arbitrary line to another. Absent a limiting principle, Congress can legislate everything under the Commerce Clause, which would probably have very little practical consequence but which would freak out SCOTUS.

        • L2P says:

          The Commerce Clause obviously DOES let the Feds “tinker with demand.” The Feds can (and have!) put in minimum prices, maximum prices, and all sorts of things that affect demand.

          What the Commerce Clause doesn’t do is let the Feds regulate where there’s no link to commerce. If someone isn’t currently buying Broccoli, unlike with health care there isn’t any way to reasonably say, “Yeah, but they will be eventually.” Because of EMTALA and the fact that we aren’t jackasses, everybody eventually will be hooked into the health care market.

          • Julian says:

            The “link to commerce” is why inactivity is a concern – failure to buy something (inactivity) would, if turned into activity (purchasing) always affect the market, so if inactivity can be regulated, then Commerce Clause power would reach all inactivity … unless we could prescribe some kind of limiting principle that inactivity does not per se affect commerce (sufficiently to grant Commerce Clause power to Congress) unless the inactivity pertains to a market the actor will inevitably enter. But how do you justify that limitation?

        • L2P says:

          Plus, the Feds CAN make people buy broccoli, so long as they already are buying some. The Feds could mandate that Broccoli only be sold retail in 5 pound batches, for example. That would be ENTIRELY unobjectionable, but would clearly be forcing most people to buy WAY more broccoli than they could reasonably want or need.

    • patrick II says:

      What is the functional difference between the government compelling everyone to buy broccoli or compelling you to pay taxes and buying broccoli for everyone?

      …and, if buying broccoli is commerce related and does not conflict with the bill of rights (does not impinge on free speech, etc.) isn’t the ballot box the proper restriction on stupid laws?

      …and, aren’t we having an election right now? And if Romney wins and there is a Republican congress, won’t this be resolved by popular vote — the preferred method the minimalist judges assert they prefer?

      • L2P says:

        The functional difference?

        Taxes are progressive. The “forced buy” law would be onerous for the poor, but easy on the rich. The “tax and buy” law would increase taxes proportionately, but be slightly easier on the poor. There’s a bunch of regulatory issues, too.

    • Steve H says:

      Doesn’t Congress already have the power to force everyone to buy and eat 1 lb of broccoli every week?

      1. Pass a law drafting everyone into the Army.

      2. Amend the UCMJ to require all members of the Army to buy and eat 1 lb of broccoli every week.

      So, this parade of horribles has already come to pass — Congress already has the power to force all of us to eat broccoli.

      Sure, this is not a commerce clause power, but as far as our Liberty (!) is concerned, what is the difference?

      • Richard says:

        As a liberty issue, I totally agree. It is nonsensical for conservatives/libertarians to argue that the ACA will take away all our freedoms when many “freedoms” are taken away by other governmental powers. The issue before the court is really quite limited – does Congress have the power under the commerce clause to mandate purchase of insurance and a finding in support of the law will have no real effect on our “freedoms”.

  11. Anonymous says:

    I must say that it’s been a long, long time since I’ve seen those who promote the soft tyranny of socialism here as wild-eyed as they currently are.

    And that is really what this boils down to…the power of the federal government to force it’s citizens to purchase a product or service.

    If they rule that the madate is lawful, it will fundamentally change the relationship of government to it’s citizens. You will then be a subject and not really a citizen anymore. You will do what they tell you to do and swallow what they give you to swallow.

  12. timb says:

    If Scalia votes against this, he should just turn in his robe. This law is SO consistent with his Raitch opinion. In Admin law, when we studied these things, I found I disagreed with Scalia’s politics, but he was remarkably consistent. You knew where he stood. Now, in First Amendment questions, he sometimes went back and forth.

    It seems unlikely to me that he will eviscerate the New Deal, but, I suppose impossible. He was already able to lecture that ignorant Florida Supreme Court on how he knew more about Florida law than they did.

    Damn it, I want to believe in the Court. I want to believe all those right wing sophists who talked about restraint and deference to Congress for political questions. I don’t want to be cynical. Why don’t they just make me happy?

  13. Thomas says:

    Not sure if mentioned above (no time to read the comments), but my refusal to buy a car does not put upward pressure on the price of cars. Quite the opposite, in fact. Scalia seems to have missed the first day of Econ 101.

  14. […] — appropriately enough in the context of an argument in which Scalia is the poster boy — we also have a slippery […]

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