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Tuesday, April 24, 2012

Constitutionality and political workability

Ronald Dworkin has an essay in the New York Review of Books arguing for the constitutionality of the individual mandate and ACA generally (H/T: Harold Pollack). Pollack flags the key paragraph, in which Dworkin twice makes the point that the final version of ACA--Private insurance, no discrimination, and the individual mandate--was the only solution that was politically possible or workable in the current legislative environment.

Many ACA opponents (including my friend and colleague Elizabeth Foley) insist repeatedly that the mandate is unconstitutional, but it would be perfectly fine (as a constitutional matter) to impose Medicare for everyone. But single payer was not  politically viable, not only because of the keep-government-out-of-my-Medicare folks, but also because of the business interests of the insurance industry. So Congress came up with something that was politically possible, that achieves the same result while imposing no greater burden on any individual and not (at least on any of the arguments actually made in court) infringing on any constitutional liberty.

The question is how that political reality should cut in the constitutional analysis. Dworkin's point (which is something that had been circling around) is that invalidating the individual mandate is to say that, under the Constitution, Congress lacks the basic affirmative power to handle modern situations. The point of McCulloch and rational-basis review is that the courts should defer to Congress on choice of means, that Congress can best determine the best or most appropriate way to address a problem that is within its legislative authority. It seems to me that one of the factors Congress should be able to consider, and to which courts should defer, is the political landscape and what can be enacted given preferences of the public and the members of Congress.

Posted by Howard Wasserman on April 24, 2012 at 10:42 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


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It sounds like Jimbino was an enterprising male baby able to direct his own birth process and even self-separate from his umbilical cord, a self-proclaimed libertarian birth, growing up to say:

"Obamacare was invented to transfer wealth from young, single, enterprising men to indolent breeding women ...."

I wonder what Jimbino is planning for Mother's Day.

Posted by: Shag from Brookline | Apr 24, 2012 3:28:25 PM

Jimbino - what do you think should happen to an enterprising young man with his own small business and no health insurance who ends up drawing the short end of the stick and getting diagnosed with cancer? Take up a collection plate for his surgeries, chemo and radiation? Highly expensive health events can happen to anyone. If insurance isn't mandated, I - a "... breeding woman" (and law prof) subsidize the health care needed by your go-it-alone dude. It is a fallacy to think there aren't transfers now. Doesn't it make more sense (rhetorical question Jimbino - your views are clear) to encourage people to get preventative care - facilitated by having insurance - rather than use the emergency room (at taxpayers' expense) when things have gotten serious and more expensive to treat?

Posted by: anon | Apr 24, 2012 3:22:59 PM

Jimbino: Out of curiosity, were you an unassisted home birth, born in the woods, or born in the back seat of a car? Because if the answer is "born in a hospital," it sounds like you were an indolent young man leeching off of others for your health care costs, at least at that stage of your life.

Posted by: Joe (not that one) | Apr 24, 2012 2:56:59 PM

Dworkin and others rely on the assertion that "everybody at some time will need health care."

Well, that's true of the Amish, of course, but they are exempted from Obamacare.

That's true of Amerikan expatriates as well, whether temporary residents or visitors to foreign countries, but they are NOT exempted from Obamacare, and Medicare, Medicaid, Obamacare and USSA emergency treatment are NOT available to them.

It's true of folks who rely on alternative medicine, as well, but they are not exempted from Obamacare, which will NOT pay for lots of their treatment.

Obamacare was invented to transfer wealth from young, single, enterprising men to indolent breeding women and to support the Pharma and Insurance monopolies. It has nothing to do with providing health care, any more than our Food Insurance provides us with food.

Posted by: Jimbino | Apr 24, 2012 2:10:57 PM

I think this post makes a good point and what is 'necessary and proper' is (under McCulloch, which does not interpret "necessary" in a strictly literal way that some might) partially a matter of what is possible given the overall political, economic and social reality of the day.

Of course, certain means are not "proper" at any rate. So, we are left debating just how different various methods are. But, particularly unless we move past the rational basis review of CC, it does seem proper to take into consideration the basic reality of the situation, including what is possible given the period we live in.

Posted by: Joe | Apr 24, 2012 12:37:19 PM

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