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The Slippery Slope Argument Against the ACA: Unserious

[ 52 ] March 30, 2012 |

Akhil Reed Amar is making sense:

I start with the Constitution here. It’s the power to regulate interstate commerce. Is this a regulation? Yes. It’s just a regulation like regulating a well-regulated militia with a mandate. Is this interstate? Yes. And I’ve given you reasons why. Third, is it commercial? Yes, it’s purely about who is paying.

EK: In terms of liberty, I think what Barnett and other opponents of the mandate are arguing is that this is a slippery slope. First you’re saying I have to buy health insurance. Then you’re saying I have to eat broccoli.

ARA: The most important limit, the one we fought the Revolutionary War for, is that the people doing this to you are the people you elect. That’s the main check. The broccoli argument is like something they said when we were debating the income tax: If they can tax me, they can tax me at 100 percent! And yes, they can. But they won’t. Because you could vote them out of office. They have the power to do all sorts of ridiculous things that they won’t do because you’d vote them out of office. If they can prevent me from growing pot, can they prevent me from buying broccoli? Perhaps, but why would they if they want to be reelected? So if you ask me what the limits are, I’d say read McCulloch vs. Maryland. And reread it. And keep reading it till you understand it. The Constitution is a practical document,. it’s designed to work. And the powers are designed to be flexible in order to achieve the aims of the document.

On their economic ignorance, see Krugman.

Comments (52)

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  1. Thers says:

    What we really need is a grassroots movement for a Constitutional Amendment stating that the federal government can’t force you to eat broccoli, because they are not the boss of you.

    • rea says:

      And yet, no one thinks agricultrual price supports are unconstitutional.

    • Malaclypse says:

      When my daughter was four, my wife bought us matching t-shirts, each with a giant broccoli (with a face) saying “Yay Broccoli!” And most weekends, my daughter, who loved broccoli, would tell me that we needed to match today, because I can wear t-shirts today, because I’m not working.

      If I can be forced to do that, Thers had damn well better eat his broccoli.

  2. Anderson says:

    I’d say read McCulloch vs. Maryland. And reread it. And keep reading it till you understand it.

    This is what, the other day, I called “quoting McCulloch until the other side starts to cry.”

  3. patrick II says:

    An edited comment I made at Drum’s place a couple of days ago. Seems apt.

    Barrack Obama (and the rest of the democrats) made healthcare an important part of their presidential campaign. It was thoroughly discussed and voted on, and Obama won. Then it was passed in congress after much more discussion and debate. Mitt Romney has made a centerpiece of his campaign the repeal of Obamacare and has given his reasons why. If Obama wins and Mitt loses, that should say more about whether healthcare stays than Kennedy or Roberts coming up with a clever edge to where commerce ends and states rights begin. Perhaps there is no one-size-fits-all principle that applies to healthcare, education, roads, and grain subsidies except for the constitutional “necessary and proper clause”.
    I think the voters should have the most say in what is actually necessary and proper.

    • Anderson says:

      Alex Hamilton agrees with you, Patrick:

      But it may be again asked, Who is to judge of the NECESSITY and PROPRIETY of the laws to be passed for executing the powers of the Union? I answer, first, that this question arises as well and as fully upon the simple grant of those powers as upon the declaratory clause; and I answer, in the second place, that the national government, like every other, must judge, in the first instance, of the proper exercise of its powers, and its constituents in the last. If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.

  4. dp says:

    Crazy talk.

  5. c u n d gulag says:

    I’ll believe we’ve gone over the slipper slope, and government is really overstepping its bounds, when we have “The Broccoli Rebellion.”

    It’s a great country, isn’t it, where 5 people who have jobs for life, free medical care forever, other great lifetime benefits, and fabulous pensions, can strike a blow for “Freedom” and “Liberty” against a growing mass of citizens who have none of those things, or fewer and fewer every year.

    Patriots, that’s what they are – all of “The Gang of Five!”

  6. Manju says:

    Since The Krug makes an appearance here, Sully linked to this interesting slippery slope:

    Imagine that our current recession goes on, or even takes a turn for the worse. As John Maynard Keynes argued, in a time of economic anxiety and uncertainty, individuals will invariably act in a way that secures their own personal welfare, but which is disastrous to the overall economy: They will sit on their money and refuse to spend it. The bulk of Keynesian economics was to figure out how to get people back to spending their money on stuff, i.e., to increase the aggregate consumer demand….[W]hat if the president had a new super-Keynesian tool—a Congress that had been granted unlimited power to regulate economic activity and/or economic decisions? Under these circumstances, in the midst of a deepening and intractable depression, there would be a temptation to create a legislative solution that would be quite simple in principle. According to an index of their income, people would be mandated to purchase a certain amount of consumer goods. If they fell below this amount, they would then be compelled to pay the government a penalty.

    http://american.com/archive/2012/march/more-than-just-broccoli-the-real-slippery-slope-of-obamacares-must-buy-provision

    • rea says:

      I think we’re all coming to appreciate Manju for the relatively high class of nonsense he produces, in contrast to his no-named counterparts. Also, Manju sometimes displays a sense of humor about himself.

    • Scott T. says:

      An administration could accomplish the same thing with a tax deduction for consumer spending. E.g., set an Eisenhower-era tax rate (~90%) on the wealthy (and lower rates in lower tiers) and then offer deductions for consumer spending (I.e., if you don’t “spend” to avoid taxes own those spent dollars, you pay the “penalty” of the tax). We have had tax rates that high in the past and deductions for voluntary spending (see: mortgage interest deduction), none of which have been challenged successfully legally. What’s the difference? If they wanted to do this, they could already do it legally.

  7. BradP says:

    This is the most ludicrous argument I have ever seen.

    Congress – the Congress of 20% approval rates and 90% reelection rates, the proving grounds of the most prolific and well-paid lobbyists in the country, the US frickin CONGRESS – is properly limited by the threat of being voted out of office?

    I cannot believe you would call the Slippery Slope argument “unserious” and then you would favorably quote this joke:

    But they won’t. Because you could vote them out of office. They have the power to do all sorts of ridiculous things that they won’t do because you’d vote them out of office.

    They seriously want to take away your citizenship if you are the child of immigrants or if were to get in the way of investigating and detaining you on terrorism charges.

    Why WOrry? We can vote them out!

    Good God. I think I’ve regressed.

    • Anderson says:

      Well, Brad, maybe you should take that up with Hamilton and Madison, and the Framers in general.

      I had kinda thought that 2006, 2008, and 2010 were good examples of the electoral check.

      • BradP says:

        I had kinda thought that 2006, 2008, and 2010 were good examples of the electoral check.

        http://www.opensecrets.org/bigpicture/reelect.php

        House Re-election Rates:
        2006 – 94%
        2008 – 94%
        2010 – 85%

        Senate Re-election Rates:
        2006 – 79%
        2008 – 83%
        2010 – 84%

        And even if that is an example of electoral check, it only goes to show out ineffective a check electoral rollover is.

        • Anderson says:

          Looks pretty effective to me.

          • BradP says:

            Ok then. What policy trends have been reversed?

            • Scott Lemieux says:

              I hate to tell you, Brad, but it’s harder to pass legislation here than in pretty much any other liberal democracy. The re-election rates would be relevant if we had a parliamentary system.

              • BradP says:

                I hate to tell you, Brad, but it’s harder to pass legislation here than in pretty much any other liberal democracy. The re-election rates would be relevant if we had a parliamentary system.

                Sure, but how does that help your “electoral check” argument?

                • Scott Lemieux says:

                  The electoral check works along with any number of institutional checks. Federal power would be severely limited without any judicial review.

        • timb says:

          No way those numbers include people who retire because they are going to be killed. Ask Evan Bayh

          • Seitz says:

            Exactly. That’s the first obvious conclusion, and there’s no mention of the methodology that disproves that. Guess what the re-election percentage is of Congressmen and Senators who don’t run? Something tells me it’s right around zero. But that wouldn’t play so well into Brad’s nice little fantasy. So, Brad, care to comment on the fact that the data you’re using is bullshit?

            • BradP says:

              Are you telling me that you are not aware of the insanely high incumbent reelection rate in congress, especially the House?

              http://en.wikipedia.org/wiki/Congressional_stagnation_in_the_United_States

              Check out figure 1 on this paper.

              Here‘s a 2004 article from The Economist talking about the problem. It’s headline is “Pyongyang on the Potomac?”

              • Seitz says:

                Then why post misleading data? There’s a difference between high re-election rates for incumbents and the rates at which incumbents return to (the same) office. You either don’t understand this difference, or you deliberately posted misleading data. Either way, it doesn’t particularly reflect well on you.

                • BradP says:

                  Just cut it out.

                  The data I linked to was not misleading. It portrayed the precise information it said it did, and opensecrets is a reputable website.

                  Besides, making the numbers include those who decide not to run again drops the rate by 5% or so, and I would bet the vast majority of those not running again are doing so because they didn’t want to, not because they wouldn’t get re-elected.

                  None of your nitpicks will change the uncontroversial fact that incumbents have distinct and strong systematic advantages that make “We can just vote them out” positions completely untenable.

            • BradP says:

              I have a comment with links awaiting moderation. Hopefully it will go through.

    • (the other) Davis says:

      Congress – the Congress of 20% approval rates and 90% reelection rates…

      Voters think everyone but their own representative is terrible.

      …the proving grounds of the most prolific and well-paid lobbyists in the country, the US frickin CONGRESS – is properly limited by the threat of being voted out of office?

      And that’s the rub of our system — if a majority of voters are foolish enough to vote these people into office, then we all have to live with the idiotic policy choices they make. While the Constitution helps ensure the continuation of our political system, it does little to curb its abuse.

      • PSP says:

        Not always. My congressman is an utterly nuts social conservative in a blue state. How I wish he would get voted out of office.

    • patrick II says:

      I don’t see the point to your argument. Congress isn’t democratic enough and doesn’t turnover enough — and your response is to put the decision in the hands of the non-elected, lifetime appoint Supreme Court, to five guys with lifetime appointments and free medical care “respond” to the needs of the people?

  8. Njorl says:

    The Constitution is a practical document,. it’s designed to work.

    Some people see that as a problem.

    • R Johnston says:

      That’s a nice pithy summation of the issue. Two thumbs up!

    • Holden Pattern says:

      The question is for whom the Constitution can be made to work. I think we’re seeing the answer to that even as we type.

      ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’
      ‘The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.’

  9. BradP says:

    Why? When people choose not to buy broccoli, they don’t make broccoli unavailable to those who want it. But when people don’t buy health insurance until they get sick — which is what happens in the absence of a mandate — the resulting worsening of the risk pool makes insurance more expensive, and often unaffordable, for those who remain. As a result, unregulated health insurance basically doesn’t work, and never has.

    And this is just as terrible.

    Notice:

    He says first: “When people choose not to buy broccoli, they don’t make broccoli unavailable to those who want it.” He then goes on and changes the goal posts a bit: “the resulting worsening of the risk pool makes insurance more expensive, and often unaffordable”

    This is a rather mischeivious little shift, as I’m sure as an economist he knows that, were large portions of the population to not by broccoli, the supply would eventually dwindle and costs would rise.

    That is why the finding a limitation is so important. The more you probe into the economy, the more you realize that it is one big ball of subjective values competing to be fulfilled. None are isolated, every decision or not decision I make has some slight effect on you, and if everyone made that decision it would likely have a great effect on you.

    • DrDick says:

      The Congress has already passed health insurance mandates and the President signed them into law, and nobody protested in 1790, 1792, & 1798 and the court did not overturn them for 222 years. What makes this any different?

        • ihatebabycorn says:

          Oh my god, did you notice that they labeled the Harvard law prof’s statements “mostly true” because he said the first Congress was “packed with framers” and PolitiFact disagrees that 20 framers equals “packed”? The actual substance of everything else he said about past mandates was 100% true, but PolitiFact throws that in there and calls the whole thing “mostly true.”

        • BradP says:

          The two health care acts had some pretty blatant commercial contingencies there.

          The militia one mandated possession and not purchase. That is an admittedly weak difference, but if you want to argue that a health insurance mandate is constitutionally equal to a mandate compelling all white men to own a gun, then go for it.

          • DrDick says:

            And the difference is exactly what? Do you know any reliable way to own a gun other than buy it or inherit it? they are being forced to purchase something, exactly as now.

      • joe from Lowell says:

        Just like Kelo, btw. State legislatures full of people who voted to ratify the Constitution, voted to ratify the Bill of Rights, voted for laws allowing the eminent domain power to be used to take land for the purpose of economic development, when that land wouldn’t be used by or available to the general public, or owned by the government.

        And yet, economic development takings are clearly against the intent of the Framers, because Clarence Thomas said so.

    • AAB says:

      Your last paragraph is the entire basis for Wickard v. Filburn, which was decided 70 frickin’ years ago. This fight has already been had, and we’ve already reached resolution. You guys lost that fight 70 years ago, and we’ve been functioning perfectly fine as a society since.

      If the Supreme Court has an issue with it, they should be honest and just overrule Wickard. And while they’re at it, they’ll need to overturn Raich too. If we can’t have health care because the slippery slope will never end, we should at least get some pot to ease our last days.

    • Kurzleg says:

      Does everyone need broccoli? No.

      Does everyone need health insurance? Yes.

      • R Johnston says:

        More importantly: do people who don’t have health insurance impose health insurance costs on people who do have health insurance? Yes.

        Not having health insurance is being a burden on others and forcing them to pay for your health care on inefficient emergency bases, and that’s a perfectly fine thing for the government to regulate even in the minds of sociopathic pieces of shit who don’t care about the public and individual health consequences of having multitudes of uninsured.

        Of course maybe the Court will solve that problem by declaring it unconstitutional to require emergency rooms to treat the uninsured. Then we’ll just be left with the terrible health consequences and secondary consequences of a lack of insurance rather than having the uninsured being a direct financial burden.

      • Seitz says:

        The distinction, of course, is that broccoli, insomuch as it relates to health care, is the treatment. Congress couldn’t and wouldn’t pass a broccoli mandate much the same way as they couldn’t and wouldn’t pass a law that says “everyone needs to undergo radiation and chemotherapy, whether you have cancer or not”. Your doctor prescribing a certain treatment is not commerce. But paying for that treatment certainly is.

        • BradP says:

          Your doctor prescribing a certain treatment is not commerce.

          It takes a rather remarkable definition of commerce to say that not buying health insurance is commerce, but a nationally certified and insured doctor practicing his trade in exchange for payment is not.

          Congress couldn’t and wouldn’t pass a broccoli mandate much the same way as they couldn’t and wouldn’t pass a law that says “everyone needs to undergo radiation and chemotherapy, whether you have cancer or not”.

          Or a law requiring women to have ultrasounds?

          Or decades of laws making criminals out of certain drug users?

          Or protect us from the evil of margarine by placing taxes on it and banning the use of yellow dye in it?

          American history is littered with legislations that attempted to prescribe acceptable and unacceptable “treatments”, and most are pushed by some degree of an ulterior motive.

  10. sleepyirv says:

    Bah, Thomas and the gang KNOW they’re the only ones guarding against the barbarians at the gate. They knows what America needs best and like any responsible parent knows when to force the kids to eat their broccoli, so to speak.

    To believe the Constitution expected things to work without the Court’s interference is to ignore the message the Framers wrote in invisible ink on the document.

  11. Anderson says:

    For once, Anon is correct: the 5 Republicans *can* strike down the law for bogus reasons, and it *does* suck to be us.

  12. c u n d gulag says:

    ZzzzzzzzzzZZZZZZZZZzzzzzzzzz…

    Troll away, dear heart – ALONE!

  13. efgoldman says:

    $$$

  14. efgoldman says:

    $$.$

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