Computer Decides That The 4th Circuit Will Decide In Favor Of Individual Mandate

In other news, a computer’s random selection of judges — two Obama appointees and a Clinton appointee — has pretty much guaranteed that the 4th circuit court will say that the individual mandate is constitutional. (Our judiciary is now so partisan that we arguably don’t need a trial once we know who the judges are, at least on major partisan issues.)

Ezra comments:

Of course, the courts aren’t supposed to care about the opportunistic wiggles of elected politicians. Which is why, when the campaign to redefine the individual mandate as unconstitutional began, conservative legal scholars laughed it off. “There is a less than 1 percent chance that the courts will invalidate the individual mandate,” said former Anthony Kennedy clerk Orin Kerr. But both sides were substantially underestimating the partisanship of the judiciary on a big, polarizing issue like this one. In the short term, that might be bad for the health-care law. In the long term, it’s bad for the judiciary, which looks less and less insulated from politics, and for the stability of future legislation, as the unexpected success of this campaign is going to lead to many more like it.

SCOTUSblog has a summary of the judge’s questioning of the lawyers, which is worth reading.1 A sample:

Circuit Judge Diana Gribbon Motz was persistent, but ultimately unsuccessful, in trying to get Liberty University law school dean Matthew D. Staver to say just what “activity” means in talking about Congress’s power to regulate the Nation’s commerce, including the health care part of commerce. Staver tried to make the notion clearer, saying that it was “something you could see, touch,” or “something tangible.” People who don’t want to buy health insurance, he argued, are engaged only in “idleness,” and that is something beyond Congress’s reach.

But Motz shot back that, when Daniel Webster spent four days arguing a case on commerce regulation before the Supreme Court, he never once mentioned “activity” as a crucial factor, and the Constitution itself does not mention the word, so, she kept asking, just what is it? “We’re trying to get you to give us some help,” the judge said, “with this distinction you think is so important.”

Circuit Judge Andre M. Davis wondered if “a mental process” is “activity,” obviously implying that a person’s specific choice not to buy insurance might be something Congress could regulate, even if “activity” were a necessary predicate. And, Davis asked, “You talked about ‘inactivity.’ Where in the cases do you find that?” Circuit Judge James A. Wynn, Jr., asked where the word “tangible” was in the Commerce Clause as a check on congressional power — and, of course, the word is not there. “Are you describing a ‘commodity clause,’ instead of a commerce clause?” Wynn also asked Staver.

(Staver, by the way, eventually argues that the critical activity/inactivity constitutional requirement is not actually stated in the Constitution, but is “implicit,” an idea that conservatives would sneer at if it came from a liberal, and vice versa. I’m listening to the audio of the oral argument as I write this; the argument over what exactly is “activity” is pretty entertaining.)2

The issue will (probably) eventually be decided in the Supreme Court, where the presence of unreliable conservative Kennedy means there’s actual doubt about how this issue will be decided.3

Beverly Mann argues that the real swing vote is Scalia. I don’t think Scalia’s a “swing vote,” per se, in that if Scalia votes to uphold the mandate then the vote will probably be 7 to 2 or 8 to 1 to uphold the mandate.

Scalia’s in a messy situation; he’s as partisan as any judge, and no doubt he’d like to hand a major defeat to the Democrats. But probably he’d also like to avoid the obvious hypocrisy of voting against his own past rulings (or inventing a new standard to distinguish this case from precedent). My guess is that Scalia will only be tempted to vote against the mandate if he can join a majority to strike down the mandate. Without the inducement of that partisan victory, why would Scalia embarrass himself?

That’s why I expect that the Court, when it decides, will either vote 5-4 to overturn the mandate, or vote 7-2 or even 8-1 that the mandate is constitutional.4

What I don’t expect is that the decision Scalia makes (as opposed to the rationalization for that decision) will have anything to do with the legal merits of the case. There’s an old-fashioned idea that there should be something other than partisanship going into how the Court decides major partisan issues. I haven’t believed that since Bush v Gore, but if you’re interested in the substantial arguments for the mandate’s constitutionality, I recommend this article by Andrew Koppelman.

  1. Oren Kerr’s post title sums it up amusingly: “Fourth Circuit Judges Baffled by the Proposed Activity/Inactivity Distinction.” []
  2. I’m annoyed that I can’t just cut and paste the text of the oral arguments. How long will it take before we routinely use computers to create full transcripts of oral arguments and put them on the internet on the same day? []
  3. Doesn’t the $1.8 million we spend annually paying the other eight judges seem like a waste? []
  4. Of course, I’ll probably be proven wrong. Court predictors usually are. But for the record, if the vote does turn out to be 8-1 to support the mandate, I predict the one vote against it will be Thomas. []
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45 Responses to Computer Decides That The 4th Circuit Will Decide In Favor Of Individual Mandate

  1. 1
    Sebastian H says:

    The essential argument for the mandate’s constitutionality in its current form is “we’ve been violating the commerce clause for decades, why should we care about it now”. Which is kind of lame in general, but I’ll admit that IS the current state of jurisprudence. (And it is also what Kerr meant when he said that it wouldn’t get struck down. He didn’t mean that it wasn’t unconstitutional in some obvious reading comprehension sense, he meant that considering the current state of the commerce clause [where interstate commerce = anything the federal government wants to have a regulatory scheme on] the ruling wouldn’t go against it).

  2. 2
    Ampersand says:

    The essential argument for the mandate’s constitutionality in its current form is “we’ve been violating the [insert relevant section of the Constitution here] for decades, why should we care about it now”.

    The neat thing about this non-argument is, you can use it to preemptively dismiss any legal argument that relies on precedent.

    But do you really think that precedent should be meaningless in our legal system?

  3. 3
    MisterMephisto says:

    Exactly.

    And it cuts both ways -

    At one point, the essential argument for slavery was that the term “People” (as in “We the People”) didn’t mean black people because, according to precedent set up to that time, blacks weren’t considered people in the legal sense.

    In other words: legalists have been bending and stretching the wording of the Constitution from day one, for good and ill, so I’m not really sure why it’s considered so shocking that it’s happening now with this particular portion of the Constitution.

  4. 4
    David Schraub says:

    I also think folks are conceding way too much here. Textually speaking, Congress has the authority to regulate interstate commerce. Health care is a massive, interstate commercial market. PPACA is a regulation of that market; the individual mandate is a critical part of Congress’ regulatory schema in the field. From a purely textualist standpoint, there is nothing in the ISC clause that supports it not encompassing PPACA. As Northwestern Law Professor Steven Lubet put it, the argument that the individual mandate exceeds the power of the federal government is basically: “(1) There must be some limit on federal power; (2) I can’t think of another one; and therefore, (3) the limit must preclude the individual mandate.”

    Indeed, the limits on the commerce clause are properly placed on whether the regulated endeavor is commercial (which, of course, participation in health care markets clearly is). That has the advantage of being supported by precedent (Lopez, Morrison); it also has the advantage of being linked to the actual constitutional text, which does mention “commerce” and doesn’t mention “activity”.

  5. 5
    Sebastian H says:

    “The neat thing about this non-argument is, you can use it to preemptively dismiss any legal argument that relies on precedent. ”

    I’m not sure what you mean by this. The argument is effective only when the precedent gets ridiculously tortured, as with the interstate commerce clause. The current state of the precedent is that it doesn’t have to be interstate, and it doesn’t have to be commerce (i.e. growing corn and wheat for *personal use* can be restricted or outlawed by Congress, see Wickard). Not every clause in the Constitution has been tortured to that extent, so your transformation with
    “insert relevant section of the Constitution here” isn’t actually relevant.

    And I’m not sure what your appeal to precedent is supposed to do. Are we supposed to think that you are ok with sodomy laws being Constitutional because the Court ruled so in Bowers v. Hardwick? That Lawrence v. Texas shouldn’t have happened because it reversed a directly on point Supreme Court decision?

    Like all human methods, precedent sometimes gets you good decisions, and sometimes it gets you obviously bad ones. And in law, most of the obviously bad ones are done because someone wants to get around the Constitution.

    Yes the commerce clause is pretty much a dead letter nowadays. I’m not going to celebrate the destruction of its last little shreds of existence just because Congress enacted health care reform in a way that unnecessarily attacked it. (Because any of a number of methods could have been used to which wouldn’t have implicated it, up to and including providing Medicare at cost [or for free if you want to go that far] to anyone who couldn’t get private health care).

  6. 6
    Ampersand says:

    Of course I don’t think that precedent is always correct. But you have to make an actual argument, not just sneer at the idea of precedent, which is all you actually did in the comment I responded to.

    If I agreed with you that the ACA destroyed (or was merely in conflict with) the commerce clause, then I’d be against the ACA. But I think you’re wrong about that. And you haven’t actually made a single argument in this thread explaining why you think the ACA is unconstitutional.

  7. 7
    Charles S says:

    I’m curious why anyone thinks that the individual mandate in the ACA goes any farther than the Federal requirement that intrastate truckers maintain insurance. We have been punishing people for specific forms of inactivity in relation a larger commercial activity for quite a while. Yes, one can choose not to be a trucker, and one can’t choose not to ever interact with the medical system (well, one can, and Christian Scientists and the Amish get an exemption from the individual requirement for that reason, but basically no one does, and we don’t want to encourage people to try), but that doesn’t change the nature of the regulation.

    When one ends up interacting with the medical system, one will have to pay for treatment. How one pays for treatment is pretty obviously commerce even under a limited (modern) view of the meaning of commerce (I’m really looking forward to the originalists Thomas and Scalia finding an excuse to ignore the late 18th c meaning of ‘commerce’), and is therefore regulatable. Requiring people to have significantly prepaid for medical treatment (via insurance) before they have to pay is still regulating how people pay for medical treatment. This puts it in a substantially different category than (say) requiring people to eat more broccoli in the hopes that this will cause them to use less medical treatment.

    (The above is basically my version of the argument put forward by the government in the oral argument).

  8. 8
    Robert says:

    Charles, do you think the government should have the power to assess the potential earning power of people, say when they graduate from high school, and then require them to work in jobs that achieve that level of economic success?

    Amp, as one example, is a pretty bright guy. I won’t go into his vocational history here, privacy and all that, but I know its broad outlines. There’s no doubt in my mind that he could hold down any entry- or mid-level corporate position out there with ease; HR rep, cost accountant, office manager, something of that level. Those jobs pay $40, $50, $60k a year. Could Congress, citing the Commerce clause and its control over the economic choices of citizens, require that Amp not “waste” his 30s and 40s pursuing artistic dreams, and instead hie himself to a corporate office somewhere and earn what he was capable of earning (and pay taxes on same)?

    After all, his individual choice to be an artist deprived the state of hundreds of thousands of dollars in tax revenue. The keep-body-and-soul-together jobs he’s worked in the interim hardly compare.

    Now obviously, the involuntary servitude clause forbids actually *requiring* him to hold down such a job; the government clearly cannot dictate that you do one thing or another. But having established, through some objective, rational, means-tested process, his basic potential, they could certainly assess tax penalties if he failed to meet his economic duty to the state.

    If you think that would be an outrageous violation of Amp’s right to make economic choices that affect his own life – even though those choices have significant effects on the other people in the polity – then how come it’s not an outrageous violation of my right to make economic choices by requiring me to structure my economic life the way the government wants me to?

  9. 9
    Charles S says:

    Robert,

    I think there is a sufficient difference between regulating how people pay for health care and regulating what form of employment people seek that we can draw a line between the two.

    Would you be fine with the state of Colorado placing those requirements (the employment rules you describe) on you, or do you think it is something other than the limited nature of the commerce clause that restricts the Federal government from imposing such a regime? Indeed, as you say, you should have some “right to make economic choices,” a right which is presumably protected from interference from state and local governments as well, but also a right which is routinely violated, perhaps because it is not actually enumerated in the US or any state constitutions (that I know of).

    Do you think the Federal intrastate trucking insurance requirement is unconstitutional?

  10. 10
    David Schraub says:

    @8: The question appears to be (since we agree actually forcing people to take certain jobs violates the 13A) “could the government establish a regressive tax structure geared at punishing people for taking certain low-income jobs”. And the answer to that question is “duh, of course they could”. It would be insanely stupid and mean-spirited, but it would rather obviously be within Congress’ taxation power (same as they can pass a progressive income tax now).

    There are lots of insanely stupid thing the federal government could do that the Constitution doesn’t ban. We could declare war on Sweden, and nuke them into oblivion. That’s obviously constitutional. We could abolish the system of federal currency. No constitutional problem. We could require that all interstate commerce be transported by steamship or zeppelin. No problem there either.

    We haven’t done those things because they’d be immensely stupid. The political system is part of our set of checks and balances as well. I think it was the great constitutional theorist John Hart Ely who noted that our constitutional theory ought only concentrate on blocking abuses of power government can not be trusted to avoid on its own. If we extend the field to bar abuses of power that government wouldn’t do anyway, we’ll be left without a functioning system.

  11. 11
    Robert says:

    I think there is a sufficient difference between regulating how people pay for health care and regulating what form of employment people seek that we can draw a line between the two.

    OK. What’s the principle that tells us what that line is? “One of these seems over-much” isn’t a principle; I think both of these seem overmuch.

    Can the Federal government require people to go to college? Grad school? (Not should they, can they.)

    It’s easy for me to draw a bright line, but the bright line I’d draw is waaay back of where we’ve already “progressed” so my line isn’t material here. What’s your line?

    Would you be fine with the state of Colorado placing those requirements (the employment rules you describe) on you, or do you think it is something other than the limited nature of the commerce clause that restricts the Federal government from imposing such a regime?

    No, because the Colorado Constitution includes an expansive clause concerning economic liberty:

    All persons have certain natural, essential and inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; of acquiring, possessing and protecting property; and of seeking and obtaining their safety and happiness.

    So we’d be forbidden to pass such a law; acquiring property includes working for a living and the state can’t fiddle with that. It’s been a while but I think we’ve actually had professional licensing things constrained by that clause, they can’t make it too difficult without running into trouble.

    *I* think the Federal government is prohibited from creating such a regime because the Federal government isn’t specifically granted the authority to regulate people’s employment – or their health care, for that matter – and the tenth amendment isn’t a dead letter. YMMV on that one. :)

    As for Federal trucking insurance – for interstate travel, no, that’s perfectly Constitutional. For intrastate travel, that seems unconstitutional – the states should control purely internal codes. On the other hand, the Federal-built roads could arguably be construed as being interstate in nature even if one particular trip takes place entirely within a state, so maybe – but I’d definitely argue that a truck operating only on state and county roads doesn’t fall under Congress’ ambit if no state borders are crossed. My Biloxi-Greenville trucking line is none of Congress’ business, my Biloxi-Memphis line definitely is.

  12. 12
    Robert says:

    So Charles thinks a regressive tax penalty to punish people who could get better jobs but don’t would be obviously unconstitutional, and David thinks such a penalty is obviously constitutional even if stupid…ok, let’s you and him fight. Let me know how it comes out.

  13. 13
    RonF says:

    I’m curious why anyone thinks that the individual mandate in the ACA goes any farther than the Federal requirement that intrastate truckers maintain insurance. … Yes, one can choose not to be a trucker, and one can’t choose not to ever interact with the medical system (well, one can, and Christian Scientists and the Amish get an exemption from the individual requirement for that reason, but basically no one does, and we don’t want to encourage people to try), but that doesn’t change the nature of the regulation.

    What kind of insurance are truckers required to buy? If it’s the same as what I’m required to buy for my car by the State of Illinois, what they’re required to buy is liability insurance – they are required to be able to pay for damages that they may cause people due to the operation of their vehicle. But they are not required to pay for collision insurance – insurance that ensures you can fix your car if it is damaged in a collision.

    What’s going on with the ACA is that you’re being required to buy insurance for your own benefit, not the benefit of others. That’s a difference, and a significant one.

    And yes – you can choose not to be a trucker. You can choose not to buy a car, and there are a great many urban dwellers who don’t own a vehicle and are thus not required to buy car or truck insurance. But the Feds are saying “You have a body – thus, we can force you to buy health insurance”. There’s quite a difference there. They’re not telling those city dwellers that they have to buy public transport tickets just because they know that they have to be getting around somehow.

  14. 14
    Sebastian H says:

    “Of course I don’t think that precedent is always correct. But you have to make an actual argument, not just sneer at the idea of precedent, which is all you actually did in the comment I responded to.”

    I didn’t sneer at the idea of precedent. I sneered at the idea of the current state of interstate commerce clause precedent. I sneer at it because it very obviously is unfaithful to the actual Constitution. The clause in question gives Congress the power to “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”. The current state of interstate commerce clause precedent is such that it ignores the words “among the several states” entirely, and only barely requires that it be commerce (growing food, for personal use, not to be sold, on your own property can be limited by the federal government because doing so could effect the market price in some ridiculously small way). That precedent is pretty sneer-worthy.

    But as crassly and obviously ridiculous as that precedent is, at least it was outlawing an action, not inaction. It said “You may not grow wheat except under out scheme.” It did not say “It is illegal for you to NOT to grow wheat when we tell you too”.

    The individual mandate, as currently formed, does that. (I’m not arguing that the whole health care act is unconstitutional). It says that failing to buy insurance, if you are a living citizen of the United States, is an illegal act which is punished by a fine to be exercised by the IRS on your tax return. This is especially annoying to people who care about the commerce clause at all, because it was totally unnecessary. Congress could have easily gotten the same result by making it a tax with a tax credit instead of making a tax penalty. Doing so would not have dramatically expanded the already too-expansive commerce clause.

  15. 15
    David Schraub says:

    @14: I think it is pretty evident that PPACA is also constitutional under Congress’ taxation powers (I think it was silly not to explicitly hinge the constitutionality of the law on that power, but SCOTUS precedent — properly, in my view — only requires that the law actually be constitutional, not that it be constitutional for the particular reasons Congress announces it to be so).

    As to this “ignoring the text” argument, I don’t follow it. The early 19th century meaning of “commerce” was exceptionally broad — in Gibbons v. Ogden, it was defined as all “intercourse”, which, as Jack Balkin documents (Jack Balkin, Commerce, 109 Mich. L. Rev. 1 (2010)) was understood to include interactions and interchanges of all varieties (not just economic). The ISC clause is best understood, in this view, as enabling Congress to resolve collective action problems amongst the states where the activities or behavior in one state creates spillovers in another. That’s the entire purpose behind the individual mandate — it solves a collective action problem which otherwise would wreck any sort of national health insurance proposal.

    Refraining from buying health insurance is obviously “commercial” — or at least, has effects on interstate commerce that Congress can clearly regulate — in this (and several far more restrictive) definitions. But even if one believes that refraining to buy health insurance is “noncommercial”, Congress can still regulate at as something incidental to its beyond-arguable authority to regulate health insurance markets. This was Professor Koppelman’s mail-robbery example. Article I, Section 8, Clause 7 of the Constitution gives Congress the authority “To establish Post Offices and post Roads”. Textually, there is nothing in this that allows it to regulate mail robbery. Forbidding mail robbery is not establishing a post office or a post road, it is very clearly a distinct proposition. But it also is clearly something that can be related as incidental to Congress’ authority to establish post offices — the regulatory schema Congress is putting together (e.g., the postal system) would not work if it wasn’t permitted to forbid mail robbery. The individual mandate is the same thing — it is something necessary for Congress to instantiate its regulatory agenda over an arena it clearly has authority to regulate over. Cf. McCulloch (Congress has the authority to choose the means by which it pursues its granted powers).

    Which returns us to Professor Lubet’s formulation. The objection to the individual mandate isn’t a constitutional one, in the sense that it has a link to the text of the constitution or any widely accepted normative constitutional principle predating 2008. Rather, the misgivings are that this sort of regulation is something we don’t want Congress to be doing, hence it must be constitutionally proscribed (somehow), even though the supposed hook (the activity/inactivity distinction) has no constitutional history and no textual warrant backing it up (cleanly distinguishing it from actual commerce clause limits recently promulgated by the courts, such as those in Lopez and Morrison, which asked if Congress was regulating a commercial arena in the first place). In other words, a policy objection masquerading as a constitutional one. It’s totally fine to have policy objections to things, of course, but those are political questions, which are to be (and were) resolved at the ballot box in 2008 (and can be resolved differently should Republicans gain sufficient votes to reverse the policy).

  16. 16
    MisterMephisto says:

    RonF said:

    What’s going on with the ACA is that you’re being required to buy insurance for your own benefit, not the benefit of others. That’s a difference, and a significant one.

    And, yet, you’re not being required to buy insurance for your own benefit. The government isn’t requiring that you use the insurance – only that you have it.

    Contrary to your rather myopic view of the government’s goals, you are being required to buy insurance for the benefit of others in this case.

    Just as liability insurance benefits other drivers when your bad driving deprives them of life, liberty, and/or a car, the ACA is a liability insurance that benefits the medical providers that are ethically and legally bound to help you, even if you don’t have the money now and didn’t want to buy insurance earlier.

    This liability insurance protects them and their other patients from your bad choices and makes sure that those medical professionals stay employed and available for everyone else to utilize when they need medical care, too.

  17. 17
    Ampersand says:

    Ron wrote:

    What’s going on with the ACA is that you’re being required to buy insurance for your own benefit, not the benefit of others. That’s a difference, and a significant one.

    1) Where in the Constitution does it say, or imply, that is a constitutionally significant difference?

    2) Actually, you’re being made to buy insurance (or to pay a tax penalty) so that you don’t have the ability to free-ride on all your fellow citizens, not just for your own benefit.

    But the Feds are saying “You have a body – thus, we can force you to buy health insurance”. There’s quite a difference there.

    Again, where in the constitution does it say this difference is constitutionally significant?

    [Cross-posted with MisterMephisto]

  18. 18
    Ampersand says:

    This is especially annoying to people who care about the commerce clause at all, because it was totally unnecessary. Congress could have easily gotten the same result by making it a tax with a tax credit instead of making a tax penalty. Doing so would not have dramatically expanded the already too-expansive commerce clause.

    If the Democrats had settled on some other scheme, then Republicans would have made up some other argument for why the commerce clause is unconstitutional, and conservative judges would have rubber-stamped that argument as well.

    The ruling saying the ACA is unconstitutional relied on the importance of the inaction/action distinction. Can you show me where the action/inaction distinction appears in the constitution? Quote the passage to me. Or show me the line of precedents in which the action/inaction distinction is set out.

    Of course, you can’t do that — because it’s not in the constitution, and it doesn’t exist in precedent. It’s just something Republicans made up out of nothing. So why should I believe that if Congress had gone with a tax credit instead, Republicans wouldn’t have just made something else up out of nothing?

    The individual mandate is a Republican idea, and one that leading Republican politicians favored before the 2008 election. At those levels, the objections to it are based on partisan logic, not on sincere principal, and the partisan logic driving the “it’s unconstitutional!” claim would not have been altered even slightly by changing the tax penalty to a tax credit.

  19. 19
    Myca says:

    Contrary to your rather myopic view of the government’s goals, you are being required to buy insurance for the benefit of others in this case.

    Right.

    Here’s the problem, Ron:

    At some point, we decided that we don’t want people just dying in the streets, or for 10-year-old girls to be unable to walk for life through no fault of their own. Except for people like Robert, ‘treating only the rich kids’ is considered morally bankrupt. Legally, Emergency Rooms aren’t allowed to just turn people away.

    So we basically have a form of universal health care already … it’s just that it doesn’t apply to medication or preventative care or long-term care or anything.

    As it stands, if you’re in an accident, and you lack medical insurance, and you’re taken to an emergency room and are unable to pay, my taxes pay for you. In that situation, requiring people to carry insurance for the care we’re already guaranteeing doesn’t seem unreasonable.

    Put another way … there’s a big unfunded mandate (treat people), and Obama had to come up with funding. Because he’s a fool who believe it’s possible to negotiate with liars and hypocrites, he used a Republican idea as a gesture of reconciliation. Several, actually.

    Were it up to me, of course, I wouldn’t have bothered, because Republicans will call anything they happen to stumble across ‘unconstitutional socialism,’ and you can’t have an honest discussion with dishonest actors. But, then, I’m in favor of single-payer, government-run health care, like they have in the hellish cess-pit of France.

    —Myca

  20. 20
    Robert says:

    If the Democrats had settled on some other scheme, then Republicans would have made up some other argument for why the commerce clause is unconstitutional, and conservative judges would have rubber-stamped that argument as well.

    No. There are schemes that the Republicans would have had real or invented objections too, but the specific proposal: a tax credit for purchasing insurance accompanied with a universal tax increase to pay for the credit, with no outright mandate but a large economic incentive that most rational people would follow, is clearly Constitutional and no court challenge could have been effectively mounted.

    The reason that the administration didn’t do it that way, even though that approach is manifestly and clearly Constitutional, is that it would have been a gross violation of Obama’s (dumb) campaign promise not to raise taxes on anyone but “the rich”.

  21. 21
    Robert says:

    2) Actually, you’re being made to buy insurance (or to pay a tax penalty) so that you don’t have the ability to free-ride on all your fellow citizens, not just for your own benefit.

    If free-riding on your fellow citizens is objectionable, then why are there subsidies for many people in the legislation? I stop working and start living by the overpass, you’ll make RonF pay more (sucker!) and let me pay nothing.

    It’s obvious that free-riding is not in and of itself objectionable to the authors of the legislation.

  22. 22
    Ampersand says:

    Robert, the question was about those who have to buy insurance or pay a tax penalty; those are people who can afford to pay, and it’s objectionable for them to free-ride. Those Americans who are too poor to afford it are exempt from the tax penalty, and the legislation has no objection to those folks free-riding.

    Although many of the people who get subsidies under the AMA are still paying; they’re just paying less. So that’s not free-riding.

    For that matter, the vast majority of Americans, whatever their economic status, have their health care subsidized by the government in one way or another. The business tax exemption for health care is a huge subsidy, for example. But we don’t commonly call that free-riding.

  23. 23
    Robert says:

    Robert, the question was about those who have to buy insurance or pay a tax penalty; those are people who can afford to pay, and it’s objectionable for them to free-ride.

    Except that most of those people would reject this characterization, and would say instead that they are paying their own medical bills without engaging in the legalized gambling that is insurance.

    There are people who can afford to play one particular economic game, but choose not to; you call that free-riding. If free-riding is your concern, then eliminate the provisions of the rules that allow those people to get “free” care if their plans to self-pay fall through, and leave the rest of us to our liberty.

  24. 24
    Ampersand says:

    Regarding “most of those people,” where do you get that statistic from?

  25. 25
    Ampersand says:

    Incidently, I agree with you that Obama’s anti-tax pledge was stupid and he should break it. (He’s already broken it somewhat with the ACA, but he should break it even more.)

    But I don’t agree with you that Republicans, who aren’t lacking either cunning or creativity, would have been unable to come up with a facile constitutional argument against the ACA without the mandate. Remember, before recent months, even right-wing legal scholars thought that the argument against the mandate had no shot in court. The entire argument against the individual mandate is made-up bullshit, and not the only bullshit Republicans would possibly have been able to make up. People who say that Bush v Gore is a good, non-partisan decision can convince themselves that absolutely anything is reasonable.

  26. 26
    Robert says:

    Regarding “most of those people,” where do you get that statistic from?

    The anecdotal evidence. I know lots of people without health insurance who could afford it (and some who don’t have it and can’t afford it). The first group are generally making an informed choice. I am.

    And I don’t think the ACA’s drafters want me to make a different choice because they’re profoundly concerned that I’ll either go without leukemia care and die, or that I’ll show up at the ER as “Raoul Wallenberg” and get free care. No, they want me to stop making the choice that denies their thieving friends in the insurance industry my premium, because delivering my premium is part of the corrupt bargain they’ve made in which the thieving insurance industry promises to stop screwing a certain group of people, in return for the delivery of a bunch of new premiums from people who previously rejected the thieving insurance industry.

  27. 27
    David Schraub says:

    @26: I imagine the real motivation behind PPACA’s drafter is a suspicion that your “live free or die” bravado will yield to the temptress siren of the hospital if you ever do get Leukemia. At which point taxpayers are footing the bill.

  28. 28
    chingona says:

    No, they want me to stop making the choice that denies their thieving friends in the insurance industry my premium, because delivering my premium is part of the corrupt bargain they’ve made in which the thieving insurance industry promises to stop screwing a certain group of people, in return for the delivery of a bunch of new premiums from people who previously rejected the thieving insurance industry.

    I, too, would have preferred a single-payer system. ;-)

  29. 29
    Charles S says:

    I think Robert’s description is a fair description of the motives of the right wing Dems who forced us to have no option besides the insurance companies, but is not actually an accurate description of the reason for a mandate in an insurance based universal health care payment system.

    Few people can actually self-fund the expense of a med-evac helicopter ride and simultaneous emergency brain and chest surgery, an experience that any of us might someday have the misfortune to have (but far greater fortune than being left to die in a situation where such treatment would be warranted). Almost everyone who thinks they are self funding their health care is merely betting that they don’t turn up the unlucky card and wake up confused and on a morphine drip and owing a hospital a half million dollars.

    Even if you are fool enough want the right to die of untreated leukemia because you can’t self-fund the treatment, you don’t get to choose to die in the wreck on the highway rather than being rescued.

    I suppose putting up a $2 million escrow account ought to be an acceptable alternative to carrying health insurance. If you have $2 million set aside for health care costs, I will accept that you truly are self-insured, and that you ought not need to pay the no insurance penalty.

  30. 30
    Robert says:

    No need for an escrow account; state insurance requirements for drivers can be waived for people who post a bond. It’s net worth that matters, not cash on hand.

  31. 31
    Charles S says:

    Yeah, I was going to say bond, but then I realized I didn’t know enough about the structure of surety bonds, and looking around it looked like surety bonds were functionally more insurance-like than escrow-like, so I doubted you could get someone to bond your potential health care expenses. If there is actually a market in potential health care expense surety bonds, I stand corrected.

  32. 32
    Robert says:

    If there is actually a market in potential health care expense surety bonds, I stand corrected.

    To tell you the truth, I don’t really know either. I know that there’s a market for the car insurance bonds, so I’d wager that there’s gotta be market-makers for more lucrative (because larger) health surety bonds.

  33. 33
    mythago says:

    Our judiciary is now so partisan that we arguably don’t need a trial once we know who the judges are, at least on major partisan issues

    Yes, that’s why it was easy to predict a Reagan-appointed Federal judge – a guy who was strongly disliked by gay groups – would overturn Prop 8. Oh, wait a minute.

    (It’s true that there is a lot of partisanship in the Federal judiciary; it’s not true that you can look at whether a Democrat or a Republican appointed a given judge and easily predict the vote.)

    Re the Commerce Clause, “we’ve been fucking up for decades” is the basis of a lot of modern pro-business labor law, so.

    Robert @26: the “informed choice” your friends are making is to rely on the safety net if their bet goes wrong. The ER has to take them; they don’t actually need to worry that if they are hit by a bus, they better start searching the couch cushions or the doctors are going to let them bleed to death.

    I’m also not sure that choice is quite as informed as you think – given the amount of “gosh, they DO that?!?!?!” reactions I get from people when I tell them about the latest insurance-company fuckery one of my colleagues is dealing with.

  34. 34
    Robert says:

    Mythago, if you want to change the law to add a means-test for free treatment at the ER, that would be perfectly fine with me. I have no objection to allowing evolution to operate; if Rich Dick is too cheap to buy health insurance and doesn’t maintain the liquid wealth to allow him to pay his bill at the ER, then let the dumb shit bleed out.

    Less inhumanely, just bill the son of a bitch if he can pay for it. I don’t think the ER should be allowed to take your primary residence. They can damn sure take your car, clothes, jewelry, stocks, retirement funds, computers, CD collection, and other vendable chattels, though.

    Is there seriously a problem with rich people showing up at the ER and getting free treatment and then never paying for it? I’m not all that rich, and when we showed up at the ER, we got reamed in the ass with a whacking great bill for a BS level of service. Which we paid, and we haven’t darkened their door again.

    I’m also not sure that choice is quite as informed as you think – given the amount of “gosh, they DO that?!?!?!” reactions I get from people when I tell them about the latest insurance-company fuckery one of my colleagues is dealing with.

    That would seem to be an argument that we ARE making an informed choice. Insurance companies are ripoff artists and we understand that. I don’t want my health to be in the hands of ripoff artists. So I avoid insurance companies…except you guys are trying to require me to use them.

  35. 35
    Charles S says:

    Robert,

    You’d be okay with being refused necessary life saving ER care merely because you don’t actually have half a million dollars in cash readily available? Or are you so smart that you always carry that half million on your person so that if you ever (god forbid) end up needing a med-evac to a hospital, followed by 10 hours of simultaneous brain and chest surgery, followed by several weeks in intensive care, followed by a year of rehab, followed by a life-time of permanent disability payments, the first responders will know that you are rich enough to pay in full for what you are about to receive? Or do you just assume you are lucky enough that you won’t ever have that happen to you?

  36. 36
    Robert says:

    Like I said, bill me. I’m pretty sure they can run a credit check before they get into the sixth digit of expenses. I’m the one who isn’t running with insurance; let me bear the hazard.

  37. 37
    mythago says:

    Robert @34: Whatever the law might or should be is beside the point. Your friends’ “informed choice” is made in reliance on the awareness that, if the shit really hit the fan, they could get life-saving emergency care if they had to. So their informed choice is not really whether to get that care or not, but how – and whether – they will end up paying for that care. They are not, in fact, saying “Okay, if I don’t pay now, this may mean that if I get hit by a bus that the paramedics will let me bleed to death.”

    You paid your ER bill, but many people can’t or won’t, which means those costs get passed on to others.

    If you don’t think your health care is in the hands of ripoff artists now, you’ve never dealt with a hospital billing department, by the way.

  38. 38
    Robert says:

    If liberal do-goodiness has set up perverse incentives, and it has, then you cannot go around blaming people for behaving rationally in the face of those incentives. The fix for the people’s wrong behavior is not to try to straitjacket them and prevent them from acting rationally; it’s to change the perverse incentives.

  39. 39
    Ampersand says:

    …then you cannot go around blaming people for behaving rationally in the face of those incentives.

    Why not? Because something is economically rational behavior doesn’t mean that it’s not an immoral choice; it was economically rational for DC to use their greater economic power to negotiate ownership of “Superman” away from its creators, but that doesn’t make me wrong for criticizing the moral aspects of their behavior. Nor is it an either/or choice; I can simultaneously criticize bad behavior and criticize laws that create structural incentives to behave badly.

    The fix for the people’s wrong behavior is not to try to straitjacket them and prevent them from acting rationally; it’s to change the perverse incentives.

    For example, by changing the law to provide them with an incentive for buying health insurance.

  40. 40
    Robert says:

    For example, by changing the law to provide them with an incentive for buying health insurance.

    “Well, we fucked up the world with the unintended consequences of requiring people (in this case, hospitals) to behave stupidly. How can we fix this? Clearly, admitting the original decision was a mistake is a non-starter. I’ve got it! We’ll require SOME MORE people to behave stupidly! There’s no possible downside!”

  41. 41
    mythago says:

    Robert @40: I’m sorry, you’ll have to translate that from the strawman for me. It might be easier if you take off the Liberal Amp Handpuppet first.

    Because it sounds like what you’re saying is that it’s impossible to weigh the pros and cons of a decision; if any decision has any problelms, and liberals like it, throw it overboard. Which is odd, because in an earlier decision about welfare assistance you did seem to grasp the problem of admitting fraudsters in order not to miss the truly needy vs. preventing fraud and risking shutting the door on the eligible.

    So in weighing the costs of no-credit-check-first ER vs. some people racking up bills they can’t afford, many people may try to deal with the latter problem (by requiring health insurance or a payment) rather than the former (pay cash, show insurance or die in the street like the lousy debtor you are).

    In any case, you misunderstood me @38. I’m not blaming your friends for relying on the fact that they can receive emergency care. I’m just noting that the informed choice they are making is not really to forego health care, or even emergency care; it’s an informed choice to risk that they may be liable for a lot of heath-care services charged at a noninsured’s rate. Which is fine, unless your friends are also making an informed choice to hide their assets and/or file for bankruptcy as soon as the bills come in.

  42. 42
    Robert says:

    I’m sorry, you’ll have to translate that from the strawman for me.

    OK. When you use the force of law to require people to behave stupidly, you create opportunities for other people – those not so constrained, at least at the moment – to behave intelligently and to take advantage of the people laboring under the Dumb Tax. Amp is quite right that we can still morally judge these latter people, but public policy is not about assessing the relative morality of various forms of behavior, it is about attempting to reach the best feasible outcomes.

    I believe it is an exceptionally bad idea to attempt to fix the problems created by one well-meaning but fatally flawed rule, by implementing more well-meaning but fatally flawed rules. As a general principle, attempting to control people’s behavior through direct requirements in legislation is one of the least effective ways of modifying that behavior. Incentives and social norms do a far better job. As an example, consider the current state of charitable giving in the United States, where we provide tax breaks to people who contribute money or gifts in kind, and greatly valorize via social praise, media attention, and popularity those who makes such contributions. As a result of this system of carrot and carrot, charitable giving is very high, and even forms of charitable giving (like donating time) which do not have direct financial incentives are extremely widespread.

    Now imagine that we abolish those tax breaks and stop caring about people’s philanthropy and adapt a social mindset that volunteer workers are suckers – but pass a law that requires everyone to give 10% of their income and 10% of their time to good causes. Under which system do you think we get more giving?

    Sometimes there are no options but to directly require certain behavior (or more commonly, to directly forbid certain behavior). We probably can’t significantly cut down on murder by giving tax breaks for non-murderers. Paying for health care does not seem, on first examination, to be such a category of behavior.

    Bringing this back to the ER:

    Right now you can get ER care, no matter who you are or what your circumstances, just by showing up. This is the direct result of legislation. Prior to the legislation, ERs could turn people away on a whim. They did not often do so; doctors and nurses and hospital managers and owners tend to be humanitarians, and humanitarians tend to go to great lengths to help people. The ERs were free to use their private judgment, to say “hey, Mr. Burns, you’re very rich and we know you’re very rich, so we’re going to ask you to pay cash at the counter.” They could say “hey, Mr. Jones, you’ve been here eleven times for trivial complaints that could easily wait until tomorrow when you could go see your GP, so we’re going to ask you to go away and leave the bed space clear for people suffering from something more than a hangnail.”

    This discretion had both positive and negative aspects. The negative aspects were that prejudice or discrimination could very easily rear their ugly heads; everyone knows the story about the black physician who worked out how to do blood transfusions but died of blood loss because he was turned away from white hospital ERs. (The story isn’t true, but the phenomenon was quite real.) On the flip side, the ability to discriminate in a positive fashion (sending people not in need of ER care back to their family doctor, billing the wealthy at cost) produced a social norm wherein the emergency room was for *emergencies*. I was a boy back in the day when ERs did not have to admit all comers, and the couple of times we were there, we were surrounded by people having an urgent health problem. Go today and it’s full of, let us say, a crowd whose medical problems are less impressively immediate.

    The ER law requires ERs to behave stupidly; to forego discrimination and judgment both for good and for ill, and as an entirely predictable result, the ER has become a disaster for its intended functions. People with slightly urgent but minor conditions are charged thousands of dollars to compensate for the people who are outright abusers of the system; outright abusers and gamers of the system have become legion. The system bleeds money and does not produce a great deal of health in return.

    People in my position – who can afford to cover most of their health care needs out of pocket and as a result decline to participate in an inefficient and often criminal insurance industry – are not the cause of the problems in the ER. But it is we who are being called “free riders” and blamed for the problems of the ER system. I submit that people like me are not the problem, and that laws punishing us for making intelligent economic decisions about resource allocation are unlikely to produce a better outcome for a system whose fundamental problems correlate strongly to bad resource allocation.

  43. 43
    Ampersand says:

    Prior to the legislation, ERs could turn people away on a whim. They did not often do so; doctors and nurses and hospital managers and owners tend to be humanitarians, and humanitarians tend to go to great lengths to help people.

    EMTALA — the Emergency Medical Treatment and Active Labor Act — was created in response to a huge jump in “patient dumping” by hospitals following the Reagan-era cuts to Medicaid. Studies showed that patients — overwhelmingly non-white and unemployed — needlessly died because instead of being given immediate treatment, they were found to be without insurance and sent in an ambulance to another hospital.

    Here’s a couple of real-life examples from the intro to an academic study on patient-dumping:

    A man with a knife wedged against his spine was transferred from an emergency department because he did not have insurance. The transferring hospital refused to remove the knife unless he paid $1,000 cash in advance of treatment.

    A woman mistakenly identified as uninsured was turned away from two private hospitals during the early stages of giving birth—even though fetal monitoring indicated fetal distress. By the time the patient reached the county hospital, her child died.

    When you imply that patient-dumping isn’t a real problem, you’re mistaken. Patient-dumping is what the free market does; private hospitals, being profit-seeking entities, would be acting irrationally if they didn’t dump their uninsured patients.

    However, I should acknowledge that EMTALA, which is poorly written (the legislation didn’t include adequate enforcement, among other problems) and toothlessly enforced, hasn’t fixed the problem. Particularly in recent years, with medical costs shooting up, patient-dumping has increased. You might say that’s proof that government never works, so why even bother trying; I’d say that’s proof that we need universal health care, so that the incentive for hospitals to commit patient dumping will be reduced.

    They could say “hey, Mr. Jones, you’ve been here eleven times for trivial complaints that could easily wait until tomorrow when you could go see your GP, so we’re going to ask you to go away and leave the bed space clear for people suffering from something more than a hangnail.”

    EMTALA only applies to “a condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in placing the individual’s health [or the health of an unborn child] in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of bodily organs.”

    Hospitals have just as much right to ignore hangnails after EMTALA that they did pre-EMTALA. There is absolutely no law that prevents hospitals from refusing to treat hangnails.

  44. 44
    mythago says:

    Robert, you’re making the exact errors you accuse Amp of: failing to look objectively at the incentives and drawbacks of particular options, instead relying on emotional arguments that don’t even rise to the level of anecdata, apparently because you perceive all this as some kind of nefarious personal attack. I guess in your script, I’m now supposed to wring my hands liberal-ly and cry that you want poor people to die in the streets, but you know what? I’m just unpleasant enough that I’d rather drive a truck through the holes in your logic.

    In the first place, “should we or should we not abolish EMTALA” is a false dilemma. The issues are a) whether or not the government has the right to require you to either maintain health insurance or pay some kind of penalty (which in theory, represents making up the costs of your not carrying health insurance) and b) even if it has the right to require this, whether it’s a good idea for it to do so. If the answer is no, then we have to look at some other solution, and if the only thing you can think of is abolishing EMTALA, then I kinda have to wonder if you aren’t simply using the issue as a personal soapbox.

    And you offer an unfalsifiable and frankly laughable back-in-my-day-chocolate-bars-cost-a-nickel kind of argument that makes me wonder if you’ve been in an ER recently. Or, really, since the couple of times you were there as a boy, using your infallible Diagnose-O-Vision to tell who was there for a heart attack as opposed to a hangnail. Because I gotta tell you, I’ve been to the ER rather more than I’d like as an adult, and I didn’t notice anybody coming in for hangnails.

    (The Diagnose-O-Vision, being perfect in hindsight, also can’t fathom that whether a medical conditions is or isn’t an emergency is something that the patient cannot always diagnose. If you are an overweight middle-aged man with a history of coronary disease, and at 3 am you wake up with squeezing chest pains and trouble breathing, any doctor who didn’t get her license out of a Crackerjack box will tell you to get your ass to the ER. But if the ER docs determine that you had some bizarre gastric event instead of a heart attack, does that mean you shouldn’t have gone to the ER because it turned out to be nothing? That you’re Mr. Jones and his hangnail because in hindsight you didn’t even need a doctor?)

    I don’t suppose there’s much to be said for the idea that it’s “stupid” to require an emergency room to actually treat patients who need medical care, other than to note that the alternative to “stupid” is “evil”. EMTALA didn’t come about because one bad doctor made the entire caring profession look bad.

    In your rage to defend yourself against the charge of “free rider”, you’re ignoring the problem that people who are “free riders” generally are such because they can’t afford medical care. I would submit that the number of people strolling into the ER thinking “Score, I can sit in a shitty plastic chair for six hours with screaming kids and contagious people next to me just so I can get my wart looked at for free” is pretty small, compared to the number of people who genuinely need emergency care who can’t afford it plus the number of people who wouldn’t be in the ER in the first place, if they’d been able to get a non-emergency doctor to help them before their problem got worse. That is what the mandatory-insurance provision is designed to address, and you can certainly debate whether that’s a good or even effective way to do so; but when you go on about how ERs used to be shining models of efficiency before liberals let the lazy, selfish unwashed in the doors, that’s a rant, not an argument. And an irrelevant one besides.

    (As a note, I do find it interesting that you can pay for “most” of your health care out of pocket. What, you were intending to free-ride the rest?)

  45. 45
    Ampersand says:

    Incidentally, EMTALA didn’t create a free-rider problem. Before EMTALA, uninsured patients were transferred to public hospitals, and the public hospitals — funded by taxes — cared for them. So with or without EMTALA, there are people getting medical care they can’t pay for. (And that’s also true with or without the ACA, of course.)

    The problem is, transfers to support profit margins make people more likely to die; that’s the problem EMTALA was intended to address.