Notes From Babel

Where entitlements go, duties are sure to follow

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Consider this argument from Laurence Tribe’s NY Times op-ed:

The justices aren’t likely to be misled by the reasoning that prompted two of the four federal courts that have ruled on this legislation to invalidate it on the theory that Congress is entitled to regulate only economic “activity,” not “inactivity,” like the decision not to purchase insurance. This distinction is illusory. Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab. This conscious choice carries serious economic consequences for the national health care market, which makes it a proper subject for federal regulation.

Consider whether this isn’t suggesting the government can impose new obligations if only it gives you some entitlement first.  The argument goes, you are entitled to emergency-room care even if you can’t pay for it.  But, in order to pay for this novel entitlement, novel duties must be imposed—e.g., the individual mandate.

Couldn’t we say the same thing with unemployment benefits, for example?  This also is a relatively novel entitlement that costs the government a lot of money.  In order to minimize the government’s burden, it might get the bright idea to impose a novel duty.  Perhaps getting the bright idea to address the elimination of free checking accounts, the government might impose an individual mandate that every adult American maintain a minimum $10,000 balance in a checking or savings account, or to make monthly payments until that minimum is reached.  This would be justified under the same rationale Tribe advances, since many Americans float along without any financial buffer until, one day, they’re out of work and the public is made to pick up the tab.

Do we really think about duties this way?  That if the government makes an entitlement available and people natural being to depend on it, then it’s justified to impose a duty on every American to ensure the entitlement’s continued viability?  It strikes me as very bizarre thinking.

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Written by Tim Kowal

February 9, 2011 at 7:00 am

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