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Kindergarten Libertariansim, With Prof. Althouse

[ 298 ] April 2, 2012 |

Adam Litpak had a good article noting that Verrilli’s oral argument appealed to Kennedy with the freedom-enhancing qualities of the Affordable Care Act. This motivated Ann Althouse, who didn’t seem to even understand the argument, to respond like a member of their junior high school’s Ayn Rand club participating as their team’s third-stringers at the forensics meet:

“Liberty” is a high abstraction. What is it about the liberty of compulsion to buy an expensive health insurance policy that Justice Kennedy is supposed to find appealing? Just because someone loves liberty doesn’t mean they’re going to love everything you slap a “liberty” label on!

Obviously, as a complacent reactionary who benefits from the security of taxpayer-funded health insurance Althouse can’t grasp why universal health care might be freedom-enhancing, but it’s not at all complicated:

  • First of all, Althouse seems to assume that everyone who is uninsured wouldn’t want affordable insurance if they could get it, as if many people don’t have health insurance because of pre-existing conditions or because it’s not affordable for ordinary workers under the status quo.
  • Once we move past this silly assumption, it’s not difficult to see the point the SG was making.   Universal health care has freedom-enhancing properties in a lot of ways: it allows you to move, or engage in entrepreneurial activities, without losing the employer-based coverage that is the only practical means of obtaining insurance for those who aren’t poor or extremely wealthy.  Mobility, particularly in American constitutionalism, has always been a treasured liberty.  Bankruptcy is, to put it mildly, detrimental to liberty in all kinds of ways.   Beyond that, whether you want to call the security that comes from health coverage freedom-enhancing is a matter of taste, but this security is certainly more valuable to most people that the “freedom” of knowing that you can be bankrupted by an accident or unforeseen illness.
  • The even bigger problem here is that the rugged individualists who go without health insurance are not making a “choice” to be free of state constraint and state-provided benefits.  They are, in fact, making a choice to stick the taxpayers with the bill if they have a medical emergency. Even a moderately sophisticated libertarian understands that the “freedom” to free ride is no freedom at all.   Perhaps Althouse, like the judicial idol she defended so feebly,  would prefer a libertarian dystopia in which people who aren’t lucky enough to have taxpayer-funded health insurance are just left to die from accidents or treatable illnesses.   But whatever they would like the policy baseline to be, what matters both for public policy and for the question of whether the mandate is a necessary and proper part of a concededly constitutional regulatory framework is what the policy baseline under federal, state, and common law actually is.  Kennedy actually showed some signs of understanding this, one of the few bright spots to come from the three days of depressingly inept work by he and his Republican colleagues.
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Today in Green Lanternism

[ 280 ] March 31, 2012 |

Robert Wright is wondering why the Affordable Care Act wasn’t just a straightforward use of the tax power, and his analysis is of course focused on the median votes of the Senate and the leverage these conservatives had over the legislative process.

Hahaha, just kidding! When discussing the ACA, as Drew Westen has taught us, we have to consider a fantasy of politics “in which the president in the not only the most important figure, but his most powerful weapon is rhetoric” rather than actual American politics:

If the Supreme Court rules against President Obama on the constitutionality of the Affordable Care Act, there’s a sense in which he’ll deserve it. After all, there was an easy way for him to make the act impervious to this fate, and it wouldn’t have entailed a single change in how the program works.

[…]

I’ve long thought President Obama wasn’t using the bully pulpit creatively enough–particularly on the issue of taxes. As establishment Democrats said the “political climate” didn’t permit him to let the Bush tax cuts for the rich expire, he made no attempt to change the climate by using his considerable oratorical skills. (It seems to have taken Occupy Wall Street to clue him in to the fact that there’s some class resentment out there to be harnessed.)

Granted, it might have taken a bit of extra rhetorical work to sell a health care bill with the word “tax” in it. But the tax wouldn’t have applied to most voters, and, anyway, the upside would have been that the bill would seem less like coercion and more like an incentive. A bit of courage and creativity a few years ago might have prevented what could be a major policy disaster come June

Um, no.

  • There is no evidence that the bully pulpit can shift public opinion, and voluminous evidence that it cannot. Conveniently, Ezra Klein has laid this out in extensive detail in the New Yorker. Whatever Aaron Sorkin or Aaron Sorkin-influenced shows and movies have told you, politics is not a debating society.    It’s nice to think that we’d have public policy outcomes like Denmark had Michael Dukakis just thought up that clever rebuttal you wrote for him after the fact, but this isn’t actually how politics works.
  • But let’s leave that aside, and assume that Barack Obama could change public opinion on the issue.   Perhaps we may want to consider how the American legislative process actually works, and why the architects of the ACA may not have wanted to use straightforward taxing and spending.   It’s not 2 or 3 extra percent of the public you have to worry about.  It’s, you know, Evan Bayh and Ben Nelson and Blanche Lincoln and Joe Lieberman and every other conservative Democrat in the Senate who would love to use the excuse that you’re proposing the Biggest Tax Increase In Recorded Human History to vote against a bill they don’t care about and their corporate paymasters don’t want.    And using public opinion as leverage — even leaving aside the fact that the president can’t move public opinion — doesn’t work against senators who 1)aren’t running for anything again but are planning on cashing big paychecks from the kind of entrenched interests who don’t want the ACA, or 2)are running in states where the president is extremely unpopular.   I agree that this was dumb, but take it up with James Madison.
  • Let’s assume that Barack Obama could have engaged in a Game-Changing Use of the Political Capital of the Mandate and Bully Pulpit on Steroids to Throw Oily Conservative Democrats Who Are Really Secret Socialists Under the Bus to get the funding for the ACA structured as a “tax” rather than a “penalty” and still get 60 votes for it.    Why on earth would you think that this would make the bill impervious to legal challenge?    What’s to stop the Court from discovering that this particular tax is an invalid use of the federal taxing power, or that the use of the federal spending power that would inevitably be involved is too “coercive” to be constitutional?   Yes, nobody would have thought while the plan was first being formed that these arguments would be taken seriously, but then at the time nobody could have thought that the mandate would be considered unconstitutional either.

Sometimes A Devastating Defeat Is Just a Devastating Defeat

[ 141 ] March 30, 2012 |

Given the amount of pushback, I decided to make my argument about legitimacy and the ACA at much greater length. A lot of people seem to think that this particular politically controversial decision with substantial elite support will somehow be different than the many other politically controversial decision with substantial elite support the Supreme Court has made. I don’t see it:

It is true that a decision striking down the ACA would inevitably be 5-4, which many legal observers believe would decrease the legitimacy of the decision. The problem here is that evidence that the vote lineup influences public or elite support for judicial opinions is scant. Consider the most divisive Supreme Court decisions in recent history. Miranda v. Arizona was 5-4, but that’s the exception. Brown v. Board and Cooper v. Aaron—both of which the directly affected states and their representatives not only bitterly opposed but refused to implement—were of course unanimous. Engel v. Vitale—the 1962 school prayer case that generated more hate mail than any case in the Warren Court era and also had serious implantation problems—had a mild solo dissent. Roe v. Wade was 7-2. It’s substantive results—not the number of dissents—that determines the reaction to Supreme Court decisions.

One potential counter to this is that a decision striking down the ACA would be different, it would be a 5-4 decision that would break down along strict partisan lines. By showing the Court to be nakedly political, it might undermine the Court in a way that previous rulings have not. My response to that would be simple: Kelo v. New London. The fact that the opinion was written by one Republican nominee and joined by two others didn’t stop it from being fiercely criticized by Republicans and sparking a legislative reaction in many states. And this makes sense when you think about it. In essence, the argument that the partisan breakdown changes things assumes an audience sophisticated enough to be aware of recurrent ideological vote patterns on the Supreme Court but unsophisticated enough to think that the Court is nonetheless apolitical if these ideological divisions map onto 1950s party coalitions rather than 2010s party coalitions. I’m not sure how big this audience is, but I’m confident that it could comfortably fit in a single-occupancy freshman dorm room. No conservative Republicans think of John Paul Stevens or David Souter as being on their team no matter who appointed them.

This is not to say that the Court can do anything it wants and remain its standing with elites and the public. A decision completely lacking in elite or popular support might have this effect. Unfortunately, this scenario wouldn’t describe a decision striking down the ACA. Such a decision would have the strong support of the political party that controls the House of Representatives and 48 seats in the Senate, and if current polling holds up would have the support of a majority of the public as well.

I also think some people are way too optimistic about the policy that would emerge should the Court just strike down the mandate, but…well, read the whole etc.

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.

Legitimacy and the ACA

[ 221 ] March 30, 2012 |

Jon Cohn has a good post about a subject that’s on a lot of minds given the hostile reception the ACA received at the Supreme Court this week:  judicial legitimacy.  It’s worth unpacking the different things this might mean.   Certainly, from the standpoint of my personal normative evaluation, I agree with Jon that a decision striking down the ACA would not be legitimate.  If you’re going to strike down the centerpiece legislation of an incumbent administration, you’d better have better arguments than were on display over the last three days.  (I especially like the point that “if the justices strike down the Affordable Care Act, they would be stopping Congress and the President from achieving a constitutional goal via constitutional means just because they didn’t use constitutional phrasing to describe it.”)

Another element of the question, however, is whether a decision striking down the ACA would significantly effect the legitimacy of the Court among the general public.   My guess is that it would not.   Certainly, I doubt that the 5-4 margin would matter, and nor do I think the fact that the ideological fault lines of the court now map precisely onto partisan divides means much.    I think Sandy Levinson is fundamentally right here:

So, when the five Republican conservatives decide how to vote, will they genuinely have to worry about a significant “backlash” against the Court in the country at large? The answer is almost definitely not. After all, the Republican base would praise the decision as “just what the Constitution means.” Another percentage would say something like “I ‘m not sure I agree with the decision, but, hey, I’m not a lawyer, and we hire the Supreme Court to tell us what the Constitution means, and even if they sometimes make mistakes, the country is blessed to have such an institution, and we should all accept its conclusion and move on.” Even partisan Democrats are likely only to fulminate, but how many will say, “You know, I think that Oliver Wendell Holmes and Mark Tushnet have gotten it right, and we should simply eliminate the very power of judicial review, at least with regard to any federal legislation. After all, we can always vote the congressional scoundrels out, but we don’t have that possibility with the politicians in robes who constitute the Supreme Court”?

Really, striking down the ACA isn’t even testing the far reaches of the Court’s power. The Court would have substantial support in Congress and, at least as of now, would appear to have the support of the majority of the public. I wish it weren’t so, but I don’t think the Court would face any significant loss of public legitimacy should they strike down the ACA.

The Hidden Libertarianism of the Challenge to the ACA

[ 81 ] March 29, 2012 |

I have some thoughts at CIF about why the challengers to the ACA simultaneously argue that the mandate isn’t a regulation of interstate commerce and is so essential to a concededly constitutionalism regulation of interstate commerce that it can’t be severed:

Why would Clement advance this self-refuting argument? It tells us two things. First of all, there is a hidden libertarian agenda behind the modest-seeming argument that the mandate and only the mandate is unconstitutional. It’s no coincidence that one of the prime movers behind the constitutional challenge to the ACA – the esteemed Georgetown Law professor, Randy Barnett – is a radical libertarian who considers most of the modern regulatory state unconstitutional. The argument against the mandate is, at bottom, a libertarian one – comparable to pre-New Deal arguments that minimum wage laws and federal pensions are unconstitutional. It is necessary to conceal this to have any chance of getting five votes at the court, but the severance argument gives away the show.

There are also political reasons for opponents of the ACA to argue that the mandate cannot be severed from the rest of the statute. American political institutions, with their high number of veto points, very strongly privilege the status quo. Striking down the whole ACA would revert us to the status quo ante, in which the privileged interests favored by Republicans would make major changes to the American healthcare system nearly impossible.

Just striking down the mandate while leaving provisions such as the ban on discrimination based on pre-existing conditions, however, would create a status quo in which insurance companies would be desperate for change because they would be faced with a vicious circle in which healthy people fled the system, leading to ever-higher costs for everyone else. Nobody can predict what kind of fix Congress would create – it would depend on subsequent elections – but the challengers of the ACA could be faced with only a half-win or even a Pyrrhic victory. So, they would prefer that the act be struck down in its entirety.

The argument is really Lochner in disguise, which can also be seen in the recycled Glenn Beck Scalia and Alito favored us with throughout the oral argument.

One more point is that I would be cautious about excessive optimism should the mandate and only the mandate be struck down.   Barring an unusual Democratic landslide or huge transformations in American politics the fix would be far more likely to be a half-assed, weaker, less equitable version of the ACA than single-payer.   But the outcome would almost certainly be better than if the bill was struck down in its entirety.

You Are The Sucker, Forgetting Bush v. Gore Exists Edition

[ 213 ] March 29, 2012 |

Even if the ACA narrowly survives, David Frum is in for a rude awakening:

Even though the Solicitor General reportedly choked today, that doesn’t change the fact that the conservatives on the Court have spent most of their intellectual lives railing against judicial activism.

Well, this is technically true; conservatives on the court (and much more so off the court) do spend a lot of time railing against “judicial activism.” What the conservatives on the Court absolutely don’t do is oppose “judicial activism” in practice. And in this case, Scalia is virtually certain to vote to strike the law down.

One thing that the oral arguments in this case should accomplish is to make clear that when the Academy of the Overrated opens Scalia will get in on the first ballot. The performance of both Scalia and Alito throughout the oral arguments was an embarrassment — a succession of cranky and ignorant right-wing policy pronouncements and irrelevant hypotheticals with no pretense of engaging with the case law. Scalia’s attempt to invent a category of legislation that could be “necessary” but not “proper” — apparently because there might be alternative legislation that would be closer to the policy preferences Scalia got from listening to a third-rate winger talk show — was particularly special. If the Court wants to overrule McCulloch v. Maryland it really should do so explicitly…

UPDATE:  “On Tuesday, [Scalia] pursued the absurd “broccoli” analogy to the point where he sounded like a micro-rated evening-drive talk-show host from a dust-clotted station in southern Oklahoma.”

ACA Argument Postmortem

[ 97 ] March 28, 2012 |

After going back and forth for a year I ended up being somewhat more pessimistic than a lot of liberal observers before the argument, so I perhaps wasn’t as shaken as they were. (I agree with Jon Cohn did the oral argument did not at all make it clear that Kennedy will vote to strike the ACA, although it made clear that he was seriously entertaining the possibility.) So I’m about where I was — it comes down to Kennedy, and I don’t see how anyone can claim to know what he’ll do. But I do think that some pundits, especially on the political side, misunderstood the role precedent will play in the case:

First of all, I think (particularly among political writers) there’s an important misunderstanding. Even if we concede that the ACA is unquestionably constitutional under the Court’s precedents—something that I don’t think is strictly accurate, although they strongly point in that direction—it’s important to remember that the Supreme Court is not bound by its own precedents. Lower courts are, and for that reason some of the District Court opinions striking down the ACA were embarrassingly feeble. But the Supreme Court does not violate any legal practice by limiting or overruling its own precedents. The law allows enough discretion for the Court to use its powers unwisely in this case, and it might. It is true that even if it is legally permitted to do so, the Supreme Court is very reluctant to overrule major precedents. Even after four decades of Republican-dominated Supreme Courts, the major precedents of the Warren and early Burger Courts remain good law. There is no question in my mind that if the argument being made against the ACA required the Supreme Court to overrule Wickard v. Filburn and return the country to a pre-New Deal conception of the Commerce Clause, it would not do so. But the genius of the argument concocted by the ACA’s opponents is that it does not require the Court to explicitly overrule any existing precedent. I think that the distinction between “activity” and “inactivity” is utterly nonsensical as applied to the healthcare market, and Steven Breyer did a good job of explaining why at yesterday’s oral argument. But it provides a way for the Court to strike down this particular bill without threatening the fundamental structure of the New Deal.

So nothing prevents the Court from striking the law if they want to, and a majority might want to. Hopefully Kennedy will step back from the brink.

Meanwhile, if you want to get into the weeds of the oral arguments, I probably don’t need to tell you this but Lithwick has been brilliant (day one, day two.)

So We Agree!

[ 124 ] March 28, 2012 |

Paul Clement is so good that he started his argument today with a devastating rebuttal of his own argument that the mandate is unconstitutional:

If the individual mandate is unconstitutional, then the rest of the Act cannot stand. As Congress found and the Federal Government concedes, the community-rating and guaranteed-issue provisions of the Act cannot stand without the individual mandate. Congress found that the individual mandate was essential to their operation.

And not only can guaranteed-issue and community-rating not stand, not operate in the manner that Congress intended, they would actually counteract Congress’s basic goal of providing patient protection but also affordable care.

Absolutely correct! In other words, the mandate is a necessary and proper part of a regulatory framework all parties concede is constitutional, and hence should be upheld. I’m glad we’ve reached a consensus here.

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.

ACA Oral Arguments: Day 1 Recap

[ 19 ] March 27, 2012 |

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.

Nobody “Chooses” Not to Participate in the Health Care Market

[ 22 ] January 9, 2012 |

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.

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