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Article 1 Did Not Enact Mr. Paul Ryan’s War on the New Deal

[ 30 ] April 6, 2012 |

In attempting to rebut Koppleman’s point that the argument against the ACA has striking parallels with Hammer v. Dagenhart, amidst a bunch of other howlers Althouse inadvertently reaffirms his point:

But hospitals must treat emergency patients. It really is a problem that some people use this service and fail to pay their bills. But even if you assume the Commerce Clause empowers Congress to solve that market dysfunction — patients consuming a service they can’t pay for — the individual mandate requires a purchase of insurance that covers vastly more services than these required emergency hospital visits.

It seems to me that younger, healthier individuals are being swept in to accumulate an immense fund that will be used to cover the expenses of older, sicker folks. It’s the exploitation of the young, ironically. But Koppelman doesn’t want you think precisely about what the legislation does, and who’s really being required to pay for what. He’d like to roll you up into a big ball of emotion where you visualize poor little children….

While the acknowledgement of a collective action problem is one small step for Althouse, the policy argument here is still wrong. Had Congress merely required young people to purchase catastrophic insurance, this would address the free rider problem that makes arguments that people are being “forced” to enter the healthcare market a joke. But it wouldn’t be remotely adequate to address the adverse selection problem that would result if the insurance pool for most medical services didn’t contain the young and healthy and insurance companies weren’t allowed to discriminate against pre-existing conditions. In addition, Althouse seems to have joined one of the strangest Republican ideas to have emerged from the Tea Party era, the War On the Concept of Insurance. Why do we allow people to get into car accidents “exploit” those who don’t? Why do we allow people whose houses burn down “exploit” those whose houses don’t? Except that as applied to health care this argument is even dumber because while most people’s houses don’t burn down most people get old and everybody dies. The typical young person will only end up being “exploited” by universal insurance (or Medicare) if Althouse’s allies in Congress and the Supreme Court succeed in destroying the safety net (plans that always, it’s worth nothing, exclude Althouse’s demographic from the immense pain she would happily inflict on future generations. Now that’s exploitation.)

But leaving aside the merits of these policy arguments, they’re completely misplaced as applied to a commerce clause/necessary and proper clause case. Even if we assume that Althouse is right that the mandate should be narrower given Congress objectives — which of course she isn’t — it’s beside the point. As has been well-settled (a few utterly discredited anomalies like Dagenhart aside) for nearly 200 years that “any means adapted to the end, any means which tended directly to the execution of the Constitutional powers of the Government, were in themselves Constitutional.” As Toobin recently pointed out, the majority opinion in Heart of Atlanta upholding the Civil Rights Act is also directly on point:

It may be argued that Congress could have pursued other methods to eliminate the obstructions it found in interstate commerce caused by racial discrimination. But this is a matter of policy that rests entirely with the Congress, not with the courts. How obstructions in commerce may be removed — what means are to be employed — is within the sound and exclusive discretion of the Congress. It is subject only to one caveat — that the means chosen by it must be reasonably adapted to the end permitted by the Constitution.

Althouse, in other words, seems to be smuggling a narrow tailoring requirement from fundamental rights or equal protection doctrines into a federal powers case, but this is completely inappropriate even if we ignore the fact that it’s wrong on its own terms. Congress needs only have ends that are rationally related to these means, and the ACA passes this minimal requirement at least as easily as the Civil Rights Act. Which, of course, is the point: like Dagenhart, the most prominent argument against the ACA doesn’t really have anything to do with state sovereignty; it’s a “liberty of contract” argument in a bad disguise. And (especially to people like Althouse who wouldn’t follow the libertarian premises where they logically lead and hold the Civil Rights Act and Social Security unconstitutional) it’s “liberty of contract” in the worst Dagenhart sense, meaning “the Supreme Court should randomly strike down some laws I don’t like based on really, really bad policy arguments.” For the Court to exhume Lochner like this would be outrageous.

…I agree with a commenter that Holbo’s classic Dead Right review remains the definitive analysis of the War on the Concept of Insurance.

Comments (30)

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  1. Aaron says:

    Althouse’s concession reminds me of some of the questioning by the Supreme Court in relation to the amount of insurance that Congress might require an individual to buy.

    If the issue truly is that mandates are unconstitutional, the question becomes irrelevant – Congress cannot impose a mandate whether it’s for “catastrophic only” or “comprehensive” health insurance.

    If, on the other hand, you are conceding that Congress should (or does) have the power to require the purchase of catastrophic health insurance coverage, then the discussion shifts from “This is unconstitutional” to “This is bad policy” or “I disagree with where Congress drew the line”. But it’s Congress’s prerogative to make those policy calls, not the Supreme Court’s.

    • Scott Lemieux says:

      This also came up when I debated a guy from the Heritage Foundation at Albany Law. I also said something to the effect then that I didn’t understand what these inept policy arguments had to do with the constitutionality of the statute.

      • Murc says:

        To be fair, the Court itself has a long and storied history of injecting policy arguments into debates about constitutionality. That makes it slightly harder to complain about other people following their lead.

  2. Uncle Kvetch says:

    In addition, Althouse seems to have joined one of the strangest Republican ideas to have emerged from the Tea Party era, the War On the Concept of Insurance. Why do we allow people to get into car accidents “exploit” those who don’t? Why do we allow people whose houses burn down “exploit” those whose houses don’t?

    My gob was well and truly smacked when I first encountered this from the friendly neighborhood trolls at this very blog.

    OTOH, there’s nothing at all surprising in seeing Althouse serve as a transmitter for the stupidest wingnut troll talking points.

    • timb says:

      Swim in the pool and get wet…

      and stupid.

      Should be her epitaph.

      Her minions descended on Charlie Pierce’s blog sometime ago and spent the entire time asking how anyone could disagree with a distinguished law professor.

      With all due respect to Paul, I am unaware of anything which requires a law professor to possess clarity. Hell, some of them didn’t even take the bar (although I’m betting that’s a small proportion).

    • howard says:

      so everyone is supposed to save up, individually, for the possibility of a health-care crisis, which would have the added benefit of completely destroying the consumer-based economy, since other than those whose net worth exceeds $5M or so, none of us can possibly save enough money for a medical crisis without otherwise living on poverty-level incomes.

      it’s really amazing how short-sighted the right-wing morons are.

    • Murc says:

      Some of these people seem to think that all insurance is like health savings accounts; that you get benefits out of it proportional to what you paid in.

      (And that’s a CHARITABLE interpretation.)

      • mark f says:

        After my wife gave birth to our baby we got a statement of benefits from the insurance company. The cost of the two nights in the hospital and everything involved came out to around $6500, of which we owed a $10 copay.

        When my wife’s stepfather was treated for hepatitis and eventually needed a liver transplant, the insurance company paid out something like $500,000 in the course of his care.

        I can’t believe that anyone who has received such a statement for a birth, or a transplant, or chemotherapy, or a broken leg, believes that they have a special individula account with thousands and even hundreds of thousands of dollars set aside somewhere.

        Then again, people often surprise me with their oblivousness.

        • Uncle Kvetch says:

          I can’t believe that anyone who has received such a statement for a birth, or a transplant, or chemotherapy, or a broken leg, believes that they have a special individula account with thousands and even hundreds of thousands of dollars set aside somewhere.

          Believe.

          I asked one of the “YOU ARE NOT MY FUCKING PROBLEM” trolls how he could have health insurance in good conscience…inevitably it meant that he was either a moocher himself, or abetting other people’s mooching off him. His response: “I PAY for my insurance.”

  3. TT says:

    For the Court to exhume Lochner like this would be outrageous.

    Outrageous yes, but given that a decision striking down the ACA in its entirety will be greeted by (their) half of the electorate with unrestrained joy, I think it’s eminently reasonable to assume that the conservatives on the Supreme Court would a) suffer no damage to their reputations or legitimacy whatsoever, as discussed here previously, and b) gladly tailor a future decision with respect to, say, private individual SS accounts any old way they like, regardless of what their opinion on the ACA declares.

  4. timb says:

    This is an excellent post, Scott.

  5. Teaching Constitutional Law must be much easier when you don’t have to know anything about prior decisions and the test for unconstitutionality is “Stuff I Don’t Like”.

    • howard says:

      actually, based on the questioning we saw, being a supreme court justice doesn’t require you to know anything about past decisions and the test for unconstitutionality is “stuff i don’t like!”

      • Murc says:

        In an ideal world, your typical Supreme Court justice would have a well-developed and consistent rubric built around their preferred constitutional policy outcomes, which they’d explain fully and with copious examples (as well as their opinions on the constitutionality of existing decisions) to the Senate while they’re being confirmed.

        Also, we’d all have ponies.

  6. DrDick says:

    This whole argument also elides the fact that, while the current funds budget is used to pay for the expenses of those who need them now, the healthy young people are not paying for the current sicker, older people, but for themselves when they are older and/or sicker. That is how insurance rates are calculated. You figure out how much an average person will consume over a lifetime and them amortize it out over the average term that they will be paying for insurance. That current costs for having insurance less now. This whole we healthy young folks are paying for you sick old farts is completely false and drives me up the wall.

    • Ian says:

      I’d go the other way. The young do pay for the old, and the young know as they age that the next generation will be paying for them. Conservatives don’t think we should show respect for our elders?

  7. Murc says:

    especially to people like Althouse who wouldn’t follow the libertarian premises where they logically lead and hold the Civil Rights Act and Social Security unconstitutional

    You’re being very kind to Althouse and her fellow travelers here.

    I think they genuinely do hold that the CRA and Social Security are unconstitutional. They just don’t say so because those beliefs are beyond the pale in the circles they run in… for now. This of course leads to a certain amount of incoherence in their stated views.

    I have a tiny soupcon of sympathy for that, because I do it myself. Since we’re talking about healthcare, I believe we ought to operate in a fully nationalized system. But when I talk to people who immediately regard anyone voicing that opinion as someone not to be taken seriously, I instead speak about single-payer or swiss-style systems.

  8. Davis X. Machina says:

    …one of the strangest Republican ideas to have emerged from the Tea Party era, the War On the Concept of Insurance.

    The war on insurance was adumbrated in John Holbo’s essay-review of Frum’s Dead Right. The constant exposure to risk, the daily demonstration that your well-being, maybe even your survival, is contingent on your betters, is designed to induce ‘a permanent conformist crouch’.

    The thing that makes capitalism good, apparently, is not that it generates wealth more efficiently than other known economic engines. No, the thing that makes capitalism good is that, by forcing people to live precarious lives, it causes them to live in fear of losing everything and therefore to adopt – as fearful people will – a cowed and subservient posture: in a word, they behave ‘conservatively’. Of course, crouching to protect themselves and their loved ones from the eternal lash of risk precisely won’t preserve these workers from risk. But the point isn’t to induce a society-wide conformist crouch by way of making the workers safe and happy. The point is to induce a society-wide conformist crouch. Period. A solid foundaton is hereby laid for a desirable social order.

  9. Joe says:

    People make exceptions for things they are comfortable with even if the result makes a mess of some united principled whole. Then, when this is done in some context they don’t like, they get all confused and upset.

    Basic things like fire departments amount to mandated insurance and we saw that when the story was in the news about the guy whose house burnt down when he didn’t pay up. There are federal examples there too. But, some insist there is some sort of difference there.

    I personally don’t see it and neither does most Western countries. American exceptionalism!

  10. David M. Nieporent says:

    You can keep trying to claim that Dagenhart was a “liberty of contract”/SDP case, but it wasn’t. It was a federalism case. The same court that was striking down a federal attempt to regulate child labor had upheld state child labor laws. It was the federal government’s involvement, not the banning of child labor, that the Court was addressing.

    • Scott Lemieux says:

      You can keep trying to claim that Dagenhart was a “liberty of contract”/SDP case, but it wasn’t. It was a federalism case.

      Yes, yes, I understand — and have said — that it was nominally a federalism case. The problem is that it doesn’t make any sense as a federalism case, because 1)the laws in question were purely regulations of shipments of goods in interstate commerce, and 2)the Supreme Court had upheld the same type of regulations in other cases where they found the regulations more congenial. It wasn’t really about federalism, in other words.

      • Anonymous says:

        It can’t be strictly a “federalism” case. The court limited federal power, but the reasoning was based on a fundamental limit on the purpose of federal power, not the limits of federal power. The exact same means used to stop child labor (stopping the interstate flow of goods) was an approved use of federal power in prior and subsequent cases.

        In other words, the federal/state balance of power was the framework for the court’s decision, but it didn’t matter for the decision.

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