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Friday, June 29, 2012

Comments on ACA post-mortems

A couple of comments on other people's commentary on the ACA decision:

1) At CoOp, Joseph Blocher is "genuinely confused" by Chief Justice Roberts's explanation for why his Commerce analysis was necessary. I discussed what I believe to be his syllogism on this, although I doubt its merit. I previously raised the issue of how this plays out, as with ACA, when Congress enacts legislation pursuant to several powers. Joe raises the opposite concern: Suppose Congress enacts legislation explicitly relying on only one power and the administration defends on that power alone. Can the Court decide that the law "reads more naturally" as grounded in a power on which Congress never relied and analyze that power (as a necessary part of the decision and thus part of the holding) before discussing the power on which Congress actually relied? That would create a truly strange way of understanding congressional power and the scope of judicial review. It is also ironic given Republican instence at the start of this Congress that all laws include explicit reference to the power source behind the law. Can courts now ignore (or supplement) what Congress says?

2) At Balkinization, Joey Fishkin (who predicted the result a couple of weeks ago) call the decision a "massive victory for liberalism" because ACA will now be implemented and soon will become part of the fabric of the social compact. People will become accustomed to having health care or its option or to paying the minimal tax knowing that health care and health insurance will be available when (not if) they need it.

I want to flag one of Fishkin's points: "The glib libertarian vision of young men (and it is always young men) free to go without health insurance (and freeload if they get sick, of course) will gradually lose its grip on the public consciousness." This is an interesting point, both in the rhetoric (which he accurately describes) and in the demographics. Are otherwise-healthy 25-year-old women more likely than similarly situated men to have and use health insurance because of gynecological needs? And how does (or did) that gender disparity play in the overall legal and scholarly debates?

Posted by Howard Wasserman on June 29, 2012 at 11:10 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


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Hi. Thanks for flagging this particular side point from my post. I had in mind something much like what Sarah says above. I absolutely think the reason this libertarian argument invariably features a young male is because those are the people we imagine -- falsely -- as invulnerable and not ordinarily in need of health care or of the state. In reality, we are all vulnerable. Any of us could be hit by a car and become a quadriplegic tomorrow (as Justice Ginsburg notes with a citation to a very powerful NYT op-ed by Andrea Louise Campbell to that effect. As Martha Fineman argues, our essential human vulnerability ought to shape our understanding of the kind of state we need.

Libertarian arguments about many things, but particularly their arguments about health insurance, rely on denying this basic fact about the human condition. Libertarians ask us to imagine a person unencumbered by needs and vulnerabilities, a guy who can take care of himself. Then they ask: how can you force this this guy to buy insurance? He doesn't want it. He'll take the risk.

Of course that doesn't work, because when he takes the risk, we all take the risk; in fact if he crashes his motorcycle on the freeway without a helmet and needs brain surgery, we'll all pay for it, one way or another. The only question is whether he'll pay premiums beforehand to cover that risk, or whether he'll just straight-up freeload.

And yes, it's totally non-coincidental to talk about a young man here because that's the only kind of person who can play this role in this story, in our culture. The old, children, women of all ages -- together, that's most of the population -- are perceived as more vulnerable.

Posted by: Joey Fishkin | Jul 1, 2012 1:55:15 AM


This also should be true of the Spending Clause discussion, which is similarly being described as a 7-2 vote, even though only Breyer and Kagan joined this part of the opinion.

Posted by: Howard Wasserman | Jun 30, 2012 6:32:50 PM

With all the chatter about whether Roberts jumped ship at the last minute to join the moderates, none of the four dissenters joined any part of Robert's opinions. So it is he alone writing about the commerce clause. Commentators are assuming he has the votes of the four radical right justices for his commerce clause discussion, but, he doesn't so far. The only parts of his opinion that are for the Court are the opening part I, part II on the Anti-Injunction Act and part III-C joined by Ginsburg, Breyer, Sotomayor and Kagan.

Why the Scalia group did not follow the normal procedure of joining the principal opinion for the parts they accepted is not clear. But it is surely not unintentional. Perhaps, if he abondoned them at the 11th hour, they decided to let them out to dry.

Posted by: Mike Zimmer | Jun 30, 2012 6:03:57 PM

We're still commenting over at Health Law Professor's Blog and probably will be for quite a while!

Here's the general link


and here's my comment


Posted by: Jennifer Bard | Jun 30, 2012 3:37:31 PM

Howard, I assumed the healthy young *man* was appointed to that role in the debate both because young men are perceived to be less risk averse than young women (and so more likely to decline affordable employer-sponsored coverage; more likely to elect to go without coverage) and because, in general, and I think for the reason you indicate, young men do consume less medical care than young women, so those young men are particularly good risks to have in the risk pool.

Interestingly, young women may actually be a little less likely than young men to have coverage (see page 2 of this Commonwealth Fund report[data is from 2004]: www.commonwealthfund.org/usr_doc/1020_Patchias_women_hlt_coverage_affordability_gap.pdf), but this differential appears to be caused by women having greater difficulty accessing affordable insurance, and doesn't seem to due to women affirmatively refusing coverage, say by declining to pay to participate in affordable, employer-sponsored health plans.

Posted by: Melissa Luttrell | Jun 29, 2012 2:09:15 PM

I interpret Fishkin as saying that the collective libertarian imagination of "the individual" is deeply flawed--it's always young, white, male, and healthy rather than to be making a specific point about gendered health care needs. That said, MOST women in this county still give birth at some point in their lives. Biology being what it is, those births must necessarily happen at an age where the woman is (presumed to be in our "ideal" imaginations) generally young and healthy and free of age-related illness. That is to say, the female counterpart of the carefree young man taking his chances is someone who will more likely than not have at least one very specific, very expensive encounter with the health care system in her carefree healthy youth. (Nevermind, of course, that the carefree young man who decides to "take his chances" is at least 50% responsible for the fact that his female counterpart will be incurring a serious medical expense).

That is, I take Fishkin to be saying (and I agree with him) that the libertarian notion of the radically free individual making his own choices in the world is deeply flawed and doesn't withstand even minimal scrutiny, despite it's obviously strong hold on the collective American identity.

Posted by: Sarah | Jun 29, 2012 12:40:30 PM

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