The Bounds of Swinishness, At Last

The brawl over HHS’s rule requiring religious employers to cover contraception has yet to be resolved, and the fate of ObamaCare’s “individual mandate” is awaiting the Supreme Court’s verdict in June. Here is another thing those two abominations have in common: they have run into trouble because the country, and hopefully the Court, is waking up to the realization that the difference between government benefits and gutter politics has become dangerously elusive.

Contraception: Putting aside the sheer absurdity of contraception as “preventive health care,” a requirement to cover a minor, routine, predictable expense isn’t “insurance” at all; it’s a simple wealth transfer from one set of insureds to another. It is hard to see why government should require this of any insurer or employer. In the end, the government response is: “We do this sort of thing 100 times a day. Get used to it.”  It’s jaw-dropping, though, to see that attitude carry forward into territory that the government and its lawyers know to be constitutionally (and politically) sensitive. Between policy fetishes and palpable constitutional concerns, it’s no contest: let’s claw for every inch.

(It’s entirely possible, and maybe likely, that the administration is clinging to the contraception bauble not for its own sake but as a first step to requiring insurers and employers, including religious employers, to cover abortion as just another “preventive” health service. But that renders its position more cynical, not less so.)

Mandate: We need the young and healthy to buy health insurance, urges the government in defense of the mandate, because they might show up in emergency rooms or with very expensive illnesses, the costs of which will then have to be paid by someone else. This, too, is a cynical falsehood. It might make sense (and to my mind, it would at least arguably be constitutional) to require the young and healthy to purchase some minimum coverage for catastrophic events. But that is not what the so-called Patient Protection and Affordable Care Act does; it is what the act prohibits. What it requires is Cadillac insurance for all, including the young and healthy—not for fear that they will enter the health care market but for fear that they won’t, and for the purpose of forking the proceeds over to someone else. Messrs. Clement and Carvin both seized on that point in oral argument, and got real traction. Though perhaps, “someone else” isn’t entirely fair: the young who are the targets of the individual mandate are also bound to be disproportionate consumer-beneficiaries of “free” contraception. The government’s lawyers failed to make that excellent point in oral argument, but I’ll give it to them. For free.

Government policies of this sort presuppose two things: (1) voters are too inattentive (or perhaps too craven and stupid) to realize what’s going on; (2) constitutional injunctions are blunt instruments—far too blunt to catch up with our fine filigree work here. Ordinarily, all this is true. Push too hard, though: people start paying attention, and the Constitution begins to bite. There are limits, after all; and those limits are what the present commotion is about.

Reader Discussion

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on March 28, 2012 at 04:23:17 am

This ranks with Flag burning and English as the official language.

Although, court proceedings and lawyers might be understood better if they went to English.

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Eric Hodgdon
on March 28, 2012 at 11:49:17 am

With respect to the mandate, how do you deal with the following argument in favor of the mandate? Most people, whether liberal, conservative, or libertarian, ascribe a certain amount of informed decision-making to individual actors when considering policies in the abstract. For example, conservatives and liberatarians in particular would say that in a true free market, people who choose not to insure themselves know they are taking on the risk of having to pay for their own healthcare out of their own pocket, and they should be allowed to do so (no restraint on their liberty). However, given how our current system actually works, the knowledge we must ascribe to them in such an academic exercise is that they are consciously choosing to steal healthcare benefits from others. It is not as if they are attempting to pay for healthcare themselves because they know they will not have to and most of them have no intent to ever do so. To analagize to a different market, if someone were to go to the grocery store and take whatever food they want without paying for it, we would write a law prohibiting them from doing so (in fact, we have such laws against stealing). What would happen if we didn't have those laws? Answer: the grocery store would have to raise prices for everyone else who shopped at the store to cover the cost of those thieves. The individual mandate portion of the ACA could arguably be presented, not as a mandate, but as a prohibition against stealing healthcare.

This is a slightly different presentation than I have heard from the government so far, which focuses instead on the idea that everyone will need healthcare eventually so healthcare is a "special" market. Presenting the argument in this manner doesn't make healthcare any more "special" than any other market. And it would severely undercut, for example, the questions of Kennedy and Scalia when they asked whether the government could force people to buy broccoli because the answer would be ... not only YES! But, in fact, the government ALREADY forces people to buy broccoli (and all of their own food). Stealing is against the law. We do this so that an individual who refuses to pay for his own food cannot unfairly pass that cost on to the public.


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jack terry
on March 28, 2012 at 23:02:33 pm

Hi Jack...I mean hello Jack.

I do not find the argument that you describe persuasive, primarily on factual grounds. I don't think that young people refrain from buying health insurance because they make a conscious effort to steal healthcare services from others. I think that the vast majority forego insurance for the simple reason that they think they will not need it and it is therefore an unnecessary expense. Likewise, I disagree that the purpose of the mandate is to keep people from stealing healthcare services by arranging transfers of wealth in their favor. The purpose of the mandate is to get relatively healthy people who are unlikely to use healthcare services to pony up for the benefit of those that do. The purpose of the mandate is not to prevent a subsidy favoring young healthy people, it is to require those same people to subsidize others.

Beyond that there are many independent objections to the mandate. One of the most glaring is illustrated by the contaceptive dust-up: just what are the limits of "healthcare" subject to the mandate? Chiropractic...aroma therapy...naturopathy...MRIs to satisfy curiosity rather than direct diagnosis and therapy... a new once-a-day pill that cost $8.00 per day, rather than a three times-a-day medicine with similar efficacy that costs $0.75 a day...experimental care? mandating seems a little premature when no one is certain exactly what the mandate covers. Beyond that all mandates are at their base the use of government force, and government usually resorts to force in non-defense matters in one circumstance: when its policies are so poorly thought out that they cannot be carried by public acceptance of their benefits.

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on March 30, 2012 at 11:06:06 am

Yes, you have to be careful when greeting me, especially in airports. Thank you for taking the time to respond. It's a very interesting debate.

I understand your factual disagreement, though I'm not sure I agree entirely. I suspect young people's decision not to obtain health insurance is more often due to simple apathy or even ignorance of the need for it, not because they think they won't need it. Even for those young people who are not ignorant on the issue, I think the reasoning explicitly encompasses something like "what's the worst that could happen anyway? If something really bad happens it's not like they aren't going to treat me and if it ruins my credit I won't care because in that case my credit will be the least of my worries (relative to my health!)."

In other words, their calculus explicitly acknowledges that the cost-benefit analysis is skewed because there is virtually no risk in foregoing it (at least in their minds). They may believe that they are unlikely to need healthcare insurance, but they also are aware that it doesn't matter if they don't get it - a combination which virtually guarantees they won't get it.

I find your second point more persuasive, particularly with respect to the one-a-day vs. 3-a-day pill (though not the contraception example as much). I don't know how the ACA defines what should be included - is it an open "industry practice" standard (meaning insurance and medical industries) so that challenges will be made on a case by case basis or or does it defer to whatever insurance policy you purchase or does it try to actually explicitly define what's included with a list or something? I don't know.

While I disagree on some points above, I am skeptical of government mandates for some of the reasons you cite and am unsure of this law. I would rather see Medicare/medicaid nationalized, not so much out of progressive ideals (though I believe some gov't social safety nets are a good thing), but because, as I think you've pointed out in other posts, it's a way to get back to a point where we can reallign incentives so that states aren't tripping over themselves to get federal money.

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jack terry
on March 30, 2012 at 11:10:19 am

I guess I was addressing two people (Mr. Greve and z9z99) in my last post above but made it sound like I was only talking to one. Sorry about that.

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jack terry
on September 24, 2012 at 09:00:01 am

What I am defending — and feel stnolgry about — is his constitutional right to a fair trial and due process NES ..I certainly wasn't addressing you with my comment. You are an attorney, I expect you to see it from an educated legal perspective that I obviously do not have. I respect that perspective, but don't necessarily totally agree with you and here is why I don't.. There was no due process here whatsoever for the victim.. Mr. Zimmerman clearly KILLED Trayvon Martin. He was set free within hours after the killing and never charged. This case was effectively over with until the parents of Trayvon Martin got help from Black Community leaders and took their grievances against the Sanford PD public. Had they not done that Mr. Zimmerman would still be out their cruising his gated community. According to the public record of events and the lead detective who recommended that manslaughter charges be filed, Mr. Zimmerman should have been charged and gone before a judge for bail and at the very least been subjected to a Grand Jury investigation, I can think of no reason that Mr.Zimmerman wasn't arrested on that evening. I can think of no reason why the facts were not reviewed and sent to the grand jury for examination, and then I found out his daddy was a former Supreme Court Justice for the State of Va, which was more than a big HMMMMM. To my mind there is no doubt that Mr. Zimmerman should be arrested now. And I agree, George Zimmermann is entitled to due process and he should have his day in court and judgment by a jury of his peers, which is one whole hell of a lot more than Trayvon Martin got. But as a citizen I am entitled to form an opinion according to the evidence that has been presented. My opinion is that George Zimmerman profiled Trayvon Martin, when Martin attempted to get away from Zimmerman, Zimmerman left his vehicle and gave chase. Trayvon Martin is dead. . People are angry, I'm angry, I have a grandson near the age of Trayvon and I would never have allowed anyone to sweep his death under the rug and that is exactly what law enforcement did until black legislators and community leaders took it to streets. If that's what it takes to get justice for Trayvon, I welcome Jesse Jackson, Al Sharpton the Congressional Black caucus or whoever else can bring this to a court of law, a place where it wasn't headed just a few weeks ago. The stand your ground law should be repealed. And I'm not an opponent of handguns or carrying a concealed weapon, I'm just in favor of laws that don't make it so easy for one person to kill another. Other than that. Peace friend!

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Obamacaid Revisited

In the pending Obamacare litigation, the plaintiff-states argue that Title II of the Affordable Care Act (“Obamacaid”) unconstitutionally “coerces” them to participate in a grand expansion of Medicaid. I’ve argued here and there that the plaintiffs will and should lose that argument. A terrific amicus brief by Vanderbilt Law School professor James Blumstein makes a powerful case on the other side. Ultimately, Jim’s brief doesn’t fully persuade me. But it comes very, very close on account of its recognition that Obamacaid’s crucial problem has to do with the bilateral risk of opportunistic defection from a pre-existing, quasi-contractual relation (Medicaid), not with some “economic coercion” story about federalism’s “balance” and the poor, pitiful states and their faithful public servants. (For ConLaw dorks: the key cases are Pennhurst and Printz, not South Dakota v. Dole or Steward Machine.) I hope to explain sometime next week; today, a few additional remarks on economic coercion. Read more