Since I was skeptical about whether the Court was seriously considering using a jurisdictional ruling to dodge the constitutional issue ex ante, the oral arguments yesterday certainly did nothing to dissuade me.
Looking around, this seems to be the consensus. Had a lower court not bought the anti-injunction argument, I doubt the Court would have even asked for the question to be briefed.
Looking forward to tomorrow, Sarah Kliff’s primer is very useful.
I have a piece up at the Prospect about the obvious constitutionality of the Affordable Care Act. In particular, the “activity/inactivity” distinction cooked up by conservatives to get the ACA ruled unconstitutional 1)has no basis in the text of the Constitution or Supreme Court precedent and 2)is particularly inapplicable in the context of health care:
The first problem with the argument is the assumption that people without insurance are choosing not to participate in the market for health care. This argument might have some validity if we lived in a libertarian dystopia in which people without health insurance were left to die in the case of a medical emergency. But this is not the case. As the administration brief points out, “for decades, state and federal laws—reflecting deeply rooted societal values—have required emergency rooms to stabilize patients who arrive with an emergency condition, and common-law and ethical duties restrict a physician’s ability to terminate a patient-physician relationship.” The uninsured consumed nearly $120 billion in medical services in the last year for which there is good data (2008). People who go without medical insurance, then, are not choosing to exclude themselves from the health-care market in any meaningful sense; as the Obama administration brief reads, “[i]ndividuals without insurance actively participate in the health care market, but they pay only a fraction of the cost of the services they consume.” Not only is this free riding not some kind of constitutionally protected liberty, it represents exactly the kind of collective-action problem that the commerce clause was designed to give the federal government the ability to address.
Another point worth adding is that people making the ad hoc arguments about the unconstitutionality of the ACA have claimed that the regulation of “inactivity” is especially dangerous because it lacks a “limiting principle” — allegedly, if the government can regulate your “inactive” choice to let taxpayers pay your emergency medical care it can regulate anything. Leaving aside the fact that the argument is specious on its face, a limiting principle of course remains in place — U.S. v. Lopez. In Lopez, nothing direct economic or involving interstate markets was involved, and Congress provided no evidence that there were substantial indirect economic effects or that states were incompetent to deal with the problem. With respect to the ACA, conversely, the regulation is not merely rationally related to but essential to a broader regulatory framework that is almost universally conceded to be constitutional, and health insurance presents potential collective action problems that states would be unable to solve in light of federal action to end discriminatory insurance company practices. Upholding the ACA would do nothing to undermine the “limiting principle” actually established by the Rehnquist Court.
it turns out he’s somewhat opposed, if we can interpret “social programs led to the collapse of the British Empire” and “the British National Healthcare system is a devastating program that makes it dependent” as opposition. A couple summers ago I wrote a post here about the NHS, including notes comparing the per-capita GDP spent on health care (hint: it’s higher in the US), comparing outcome metrics (hint: better in the UK), and my own personal experience with the Health Service. All of which, charitably, is somewhat in disagreement with Santorum’s observations.
I love it when desperate politicians make shit up. Especially the line about how Thatcher lamented that the Health Service proved to be the reason that she “was never able to do what Reagan did to this country”.
Speaking of making shit up, I’m live on BBC radio within the hour. I wonder what they want?
Tonight, Politico hands Paul Ryan its award for Health Care Policymaker of the Year.
Because inside the Beltway, actually crafting useful policy that helps people is meaningless. No doubt it’s only matter of time before James Inhofe wins Environmental Policymaker of the Year and Michelle Bachmann walks home with a prize for GLBT Issues Policymaker of the Year!
…..Link fixed!
As Paul mentioned, as expected the Supreme Court will be hearing the case. Perhaps the most interesting thing is that the Court will be having a longer-than-usual argument about the severability issue alone. I think this should make clear that there is a very real chance that the Supreme Court will strike down at least part of the bill, and also that the possibility of striking down the whole bill is in play.
The stakes of this issue are huge — I believe you would have to go back to the New Deal to find a central part of the domestic agenda of a new President struck down so quickly. More thoughts on this tomorrow.
...typically valuable summary by Liptak.
The interesting thing about the lead opinion is that it was written by Laurence Silberman, a judge with impeccable conservative credentials. As Jon says, it’s a straightforward but very strong opinion, and he’s particularly good on the meaningless of the “activity/inactivity” distinction.
I strongly recommend John Sides’s post, and for that matter I also strongly recommend On Deaf Ears and the Strategic Presidency, the most essential readings about the presidency this side of Nuestadt and Skowronek.
One thing I should add is that — while public opinion is something that quantitative methods are especially well-positioned to evaluate — I would never say that a behavioral social science study is the God’s truth. I definitely think that careful case studies that show what seems to be the general trends of the data not applying are important. The impossibility of definitively testing historical counterfactuals and isolating causal relationships makes even the best studies potentially limited. But one reason I believe Edwards is correct is that he not only has the data to support his hypotheses, he has a much more convincing theory than the Cult of the Bully Pulpit people. Most importantly, people who believe in the power of messaging to achieve short term results have never dealt convincingly with the fact that 1)most people don’t pay attention to presidential rhetoric, and 2)the people that do are generally high-information voters with strongly entrenched partisan and ideological commitments. Arguments in favor of the power of the bully pulpit, conversely, in my experience tend to involve pundit’s fallacies, unconvincing ad hoc explanations for obviously disconfirming cases, and other signs of a bad argument.
I haven’t read the Canes-Wrone book, but for similar reasons I find the idea that the appropriation process is an exception to the general rule very plausible. Whether it’s actually rhetoric or messaging per se doing the work I don’t know — perhaps she has convincing data on this point — but certainly a president can be expected to have more leverage in a context where legislation has to be passed. With something like the ACA (or Social Security privatization or whatever), the president’s leverage is inherently constrained by the fact that Congress can just walk away from the table.
Which, speaking of theory and counterfactuals concerning the ACA, is the heart of the issue. The next person who can explain what leverage — via messaging or anything else — that Obama had over Evan Bayh, a greasy conservative not running in a state where Obama isn’t especially popular anyway and beholden to corporate interests for his future career, will be the first. The Green Lantern position seems to be that it’s massive failure of available powers that Bayh, Nelson, Lincoln, Lieberman et al couldn’t be made to support a much more progressive bill. My position (which is ironically sometime portrayed as Democratic apologism) is that it’s increasingly amazing in retrospect that Reid and Obama got these people to vote for anything.
On the monetary side are even worse than ours.
In a bit of black comedy, on the other side of the page, Ross Douthat argues that the Obama administration did not pivot quickly enough to austerity. Really. In its way, you have to admire this bit of hackwork:
Finally, instead of pivoting from the Recovery Act to deficits and entitlement reform, the Democratic majority spent all of its post-stimulus political capital trying to push both a costly new health care entitlement and a cap-and-trade bill through Congress. Both policies were advertised, intermittently, as deficit reduction, but neither came close to addressing the real long-term drivers of the nation’s debt.
So, on the one hand, the ACA is “costly.” On the other hand, he doesn’t actually dispute that it would control health care costs, but apparently it is “costly” because it wouldn’t, in itself, reduce the long-term structural deficit problems it would be crazy to focus on in the midst of horrible unemployment. Hacktacular!
It’s a bit of an upset, but good to see the 6CA panel do the right thing. It should be noted that while both majority opinions do an excellent job of attacking the bad commerce clause arguments underlying the challenge to the ACA, James Graham’s dissent does a good job of self-refutation. Consider this passage:
Here, Congress’s exercise of power intrudes on both the States and the people. It brings an end to state experimentation and overrides the expressed legislative will of several states that have guaranteed to their citizens the freedom to choose not to purchase health insurance. The mandate forces law-abiding individuals to purchase a product – an expensive product, no less – and thereby invades the realm of an individual’s financial planning decisions. (“Neither here nor in Wickard had the Court declared that Congress may use a relatively trivial impact on commerce as an excuse for broad general regulation of state or private activities.”). In the absence of the mandate, individuals have the right to decide how to finance medical expenses. The mandate extinguishes that right.
Graham starts off with policy arguments that are irrelevant — the fact that the ACA “brings an end to [some] state experimentation and overrides the expressed legislative will of several states” means nothing in itself, since all kinds of valid federal legislation does so, and the stuff about state legislatures suggests that Graham stopped reading the Constitution before he got to Article VI. But the real key is the last sentences, which suggest that what’s at issue here is not really federalism but a desire to return to a radical Lochner-era liberty of contract — a state mandate, after all, would also “invade the realm of an individual’s financial planning decisions” and “extinguishes the right to decide how to finance medical expenses.” And at this point, the whole shaky edifice collapses, because in fact Lochner hasn’t been good law for many decades, and as Graham concedes the federal government could clear create a more centralized and government-controlled system than the ACA does, opening up the frightening possibility that the U.S. could cover more people for less money like every other major liberal democracy.
The quality of the opinions arguing against the constitutionality of the ACA we’ve seen so far have been remarkably bad, but in part that’s because the argument itself is inherently weak. The only coherent argument against the ACA requires reading quasi-libertarianism into the Constitution, a long-discredited project that has vanishingly tiny amounts of political support.
Over the past couple of years four people I’ve had some sort of relationship with were diagnosed with pancreatic cancer, so I’ve gotten to know more than I ever wanted to know about this especially terrible disease. It’s estimated that about 43,000 Americans will be diagnosed with pancreatic cancer this year, and around 38,000 will die from it. The most common form of the illness remains almost incurable, with a five-year survival rate of less than 5%. Only 20% of cases are diagnosed soon enough to allow for anything other than palliative treatment; this “lucky” minority undergo a grueling operation (the so-called Whipple procedure) that produces a median increase in life expectancy of about a year. Pancreatic cancer is usually a disease of old age: the average age at diagnosis is 73, and America’s aging population has seen a steady increase in its incidence, to the point where it is now the fourth-leading cause of cancer death. (For similar demographic reasons it is beginning to become much more common in the developing world).
Recently I looked at the data from a couple of major academic medical centers who specialize in the Whipple procedure, and I was struck by, among other things, how many of these surgeries are done on patients in their 80s. The ethics and economics — or perhaps the economic ethics — of performing this surgery on very elderly patients in particular are troubling. For all patients, the median survival after the Whipple procedure is about 18 to 24 months (for patients who don’t receive the surgery because their cancer is too advanced it is around six to ten months). But these medians are age-adjusted rather than absolute. In other words, median survival is measured relative to the overall mortality rate in the patients’ age cohort. Since an 85-year-old man without pancreatic cancer has about a 50% chance of dying over the next five years, to say that the five-year survival rate for 85-year-olds undergoing the surgery is 20% means that 90% of these patients will be dead within five years. (And this is assuming that the mortality rate from the surgery and its aftermath will not be higher among the very elderly than among patients in general, which seems like a very optimistic assumption).
How much do these treatments cost? The standard treatment protocol includes post-surgery chemotherapy, and sometimes radiation treatment as well. Re-hospitalization is very common as most patients will suffer a recurrence of the disease within a year or two. In sum, treatment costs can easily exceed six figures. Indeed treatment costs are often high even in the context of the large majority of cases in which surgery is not an option: palliative chemotherapy regimens that have some value in lessening suffering but that generally extend life by no more than a few weeks can cost thousands of dollars a month.
All this raises difficult issues. On the one hand, any time anyone raises the question of whether the cost of keeping very sick people alive for a year or two longer via extremely expensive treatments should be socialized, someone is sure to start shouting about “death panels” and the like. On the other, it’s not as if there are easy answers to the dilemmas these situations raise. After all, a small minority of people live for several years, and on rare occasions even a decade or more, after undergoing the Whipple surgery. Furthermore even if purely palliative treatments are quite expensive, we’re (still) a rich country. As a society should we be less willing to spend money on lessening the suffering of the dying than we are on, for example, building yet more big beautiful bombs? Furthermore some of the money spent on pancreatic cancer ends up funding clinical trials, which at least hold out hope for developing better treatments.
Of course another issue is why these treatments, whether potentially curative or merely palliative, are so expensive. What do rich nations with more just and efficient health care systems than our own, i.e., all of them, do when confronted with the dilemmas that diseases like pancreatic cancer engender? (I have no idea).
In the end we can’t pay for everything, but our current health care “system” pays or doesn’t pay for things in ways that have little apparent relation to justice, efficiency, or any other value beyond the continuing enrichment of those who benefit from the present state of affairs.
Bobo engages in his trademark style of argument, focusing on abstractions and ignoring evidence about whether or not markets actually work for a given problem. Cohn does a good job pointing out the problems, and I think the most important one is near the end — the comparison with other countries. Brooks asserts that “there is no dispositive empirical proof about which method is best.” But the policies of virtually every other country in the world give us the chance to compare a relatively “free market” in health care to more state-oriented approaches, and the evidence is unambiguous. The “free market” delivers coverage to many fewer people for more money, and usually far more money. Although Brooks likes portraying debates between an imaginary ‘Burke” and “Rousseau” while casting himself in the former position, in this case it’s Brooks who’s ignoring all the empirical evidence to cling to his abstract beliefs about the benefits of markets. And he does this despite the fact that — between the inelasticity of demand, lack of informed consumers, and strong incentives insurers have to deny coverage to vulnerable groups — there’s no good reason to expect health care markets to work even in theory.
Joe Nocera’s pleas to accept the Ryan plan as a conversation-starter notwithstanding, there’s no conversation less in need of starting than the conversation about how to reduce Social Security and Medicare benefits. It’s hard to think of another topic Beltway pundits are more likely to talk about. Nor can you contribute to the conversation with a worthless plan.
Let’s also be clear who started this. It is true that there’s an enormous amount of waste in the American system, and the example of virtually every other liberal democracy indicates that we could cover more people for less money by reducing or eliminating the role of private insurers. But, of course, even the cost reductions in the ACA — which were modest because of the need to buy off stakeholders created by the Madisonian system — were deemed by the GOP in 2010 as getting the government into your Medicare. The “leave Ryan alooooone!” argument is a plea for unilateral disarmament…against people who are ideologically opposed to the New Deal/Great Society social contract and aren’t honest. I’ll pass, thanks.
Paul Campos, Above the Law 2011 Lawyer of the Year
Erik Loomis, HNN Cliopatria 2011 Best Series of Posts
