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Tuesday, April 03, 2012

Chief Justice Strangelove or: How I Learned to Stop Worrying and Love HHS v. Florida

According to a Gallup poll taken in February -- before Justice Kennedy had a chance to terrify Jeffrey Toobin -- 72% of Americans thought the individual mandate was unconstitutional, including a majority of Democrats (56%).  Despite this, only 47% wanted the law to be repealed; 44% opposed repeal.  Why such a bizarre split?  

My conjecture is that most folks believe we need some form of health care reform.  Most folks do not want to be left in a world where they can't get insurance at an affordable rate if they lose their job and have a preexisting condition.  But the individual mandate seems like a significant infringement on one's liberty.  Should the government have the right to force you to buy something from a private seller, even if you don't want to?  (As Mickey Kaus puts it: "It sounds creepy for the government to be able to make you buy things.")  Not only that, it uses government power to support individual market players -- it's forced capitalism.  I actually think the broccoli example is too benign -- who fears the all-powerful broccoli industry?  A better example would be, say, security: what if the government forced you to buy private home protection for your house from one of a set of individual security companies?  That's more ominous than broccoli.  And it'd be justifiable --  the costs of providing police and fire protection would drop (perhaps significantly) if everyone had ADT.  

Of course, to constitutional law scholars, this is a confused argument, because the law is being challenged on Commerce Clause grounds, not liberty interests.  States have the right to force you to buy car insurance; why shouldn't the federal government have a similar power?  The whole "limiting principle" -- or lack thereof -- is irrelevant to the states' economic power.  So if states wanted to make you buy health care, or broccoli, or private security, that'd be fine even if the ACA is unconstitutional.  I'm not sure that gibes with what the average American would think on this -- they likely would object to the forced purchase, no matter what governmental body was doing it.

Nevertheless, the principle that the (federal) government cannot force people to buy products from private companies is not necessarily a conservative one.  It may, in fact, protect us against instances of crony capitalism and special interest abuse.  There was at one time a progressive critique of the current bill for failing to provide a public option for market participants to fall back on.  A bill that offered the choice between buying your own insurance or being enrolled in the government's health insurance plan would clearly be constitutional (probably even to Randy Barnett).

My colleagues Tim Greaney and John Ammann provide a strong case for the mandate, based on the need to account for the costs of those who would otherwise fail to insure themselves.  And I agree that, considering where we are at this particular moment, the individual mandate -- when paired with the other reforms, particularly for preexisting conditions -- is better than the status quo ante.  As the president said yesterday, "this is not an abstract argument.  People’s lives are affected by the lack of availability of health care, the inaffordability of health care, their inability to get health care because of preexisting conditions."  Moreover, I also agree that the law should be constitutional -- Mickey Kaus, among others, has offered an array of plausible possibilities for upholding the law. But there is something to the populist notion that forcing a private purchase is incompatible with liberty.  If that is in fact the ruling, there may be some very progressive applications for it down the road.

Posted by Matt Bodie on April 3, 2012 at 11:47 AM in Constitutional thoughts, Current Affairs | Permalink


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The whole "limiting principle" -- or lack thereof -- is irrelevant to the states' economic power.

This is like CJ Roberts saying the problem with Lochner was that it limited state police power. Federal police power also was affected.

Prof. Barnett etc. says that mandated purchase (actually coverage and if you don't make enough money, nothing happens to you when you don't have even that) changes the position of government and citizens. The specter of people being slaves to the government doesn't disappear when states are involved no less than 9A rights do when states violate your unenumerated privacy rights.

The broccoli analogy is off for many reasons, including that this isn't some sort of monopoly measure that supports one specific insurance policy (ditto the "GM" car analogy). We already get health care coverage in various cases and few wants to give it up. The problem is they don't actually want to pay for it. I'm healthy now, after all. The coverage is general. You go to the emergency room, for instance. Not a specific emergency room with special insurance coverage available or something. As with the "coverage" vs. "purchase" (and there not for millions of people), there continues to be a basic misunderstanding.

Posted by: Joe | Apr 3, 2012 12:34:12 PM

And, yes, "federal police power." Not "unlimited" police power. Police power in specific areas.

Posted by: Joe | Apr 3, 2012 12:35:03 PM

Why won't a ruling here just end being like Bush v. Gore, good for this case only? Waldman suggests so:

"If the Court's conservatives do strike down the ACA, the reasoning they'll use to do so is irrelevant. That's the whole point of having a Court like this one: it's all about the outcome. Let's recall the most revealing line in the Bush v. Gore decision: "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities." In other words, don't even think about ever trying to use this case as precedent for anything, because we don't even believe what we're saying."

at http://prospect.org/article/fruitless-search-supreme-courts-rationale

Posted by: This case only | Apr 16, 2012 11:11:05 AM

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