Notes From Babel

Slippery Slopes and the Individual Mandate, Redux

with 2 comments

Andrew Sullivan shares another link from Andrew Koppelman explaining why, under his definition of the term, there is no “slippery slope” problem with the Individual Mandate:

Frederick Schauer … showed over 25 years ago that any slippery slope argument depends on a prediction that doing the right thing in the instant case will in fact increase the likelihood of doing the wrong thing in the danger case. If there is in fact no danger, then the fact that there logically could be has no weight. For instance, the federal taxing power theoretically empowers the government to tax incomes at 100%, thereby wrecking the economy. But there’s no slippery slope, because there is no incentive to do this, so it won’t happen.

I responded to Koppelman’s argument previously, but since he’s still peddling the argument, I suppose I ought to continue opposing it.  The first problem is Koppelman’s bold and unsubstantiated minor implied premise that “there is in fact no danger” that Congress would ever mandate the eating of broccoli.  There is no meaningful comparison between this present political unlikelihood, and the practical impossibility that Congress would ever impose a 100% income tax.

More importantly, the income tax amendment is not limited in the way the Commerce Clause is.  A better comparison would be to a modified, hypothetical income tax amendment that limited Congress’s power to lay and collect taxes on income “at the maximum rate of 10 percent gross income,” for instance.  When Congress passes a law imposing an income tax of 11%, objectors would insist that allowing Congress to violate the 10% Constitutional upper threshold might ultimately lead Congress to impose a 100% income tax.  Koppelman, then, would dismiss these objections, citing the unlikelihood of Congress ever imposing a 100% tax, stating “If the Supreme Court is going to invent new limits on the legislature, it should do so in a way that has a real chance of preventing actual abuses. Otherwise it is hamstringing the legislature for no good reason.”

But Koppelman would be ignoring the reason the hypothetical Constitutional income tax amendment sets the 10% upper limit.  It is not, as Koppelman implicitly suggests, because 11% is necessarily the magic number that would break the back of the nation.  Instead, it is because that magic number presumably is somewhere beyond 10%, and, more to the point, because Congress needs some defined limits on its power such that it doesn’t exceed that back-breaking, democracy-demolishing limit when a temporary surge of political will inevitably occurs.  To suggest, then, that the courts ought not “hamstring” Congress’s discretion is not just an academic critique of slippery slope argumentation; it’s an argument for unqualified legislative supremacy.

And we’re still not done.  Consider this quote from Austin Frakt, also shared by Sullivan:

The government isn’t holding back from mandating broccoli consumption because there is no legislative precedent regulating an “inactivity.” It’s held back because there’s simply no incentive to mandate broccoli eating. If there were, Congress would have already considered it, or ought to. In that case, one need not appeal to a slippery slope, though one certainly could. That is, it’s superfluous.

Imagine it’s 1942, and you’re arguing before the Supreme Court on behalf of the U.S. government that Secretary of Agriculture Wickard is constitutionally authorized to restrict farmer Filburn’s purely private economic activity of growing wheat for his own family’s consumption.  When the Court asks whether this drastic expansion of the Commerce Clause could lead to other purely private activity, such as whether or not to buy health insurance, you respond:

“The government isn’t holding back from mandating purchasing health insurance because there is no legislative precedent regulating private economic choices.  It’s held back because there’s simply no incentive to mandate purchasing health insurance. If there were, Congress would have already considered it, or ought to. In that case, one need not appeal to a slippery slope, though one certainly could. That is, it’s superfluous.”

The fallacy that Koppelman and Frakt commit, then, is assuming what Congress may or may not have an “incentive” to do.  Jurists and commentators in the 1940s could hardly have dreamed the scope and power of the contemporary federal government and its regulatory arm.  It is either a failure of imagination, or disingenuous, to suggest there’s nothing bad that could happen by radically expanding Congress’s authority to regulate all private economic choices, even to the level of whether to make a choice in the first event.

Finally, slippery slope arguments are really an appeal to the Golden Rule:  “Do not distort the law to do this thing that I find repugnant, even if you do not find it repugnant; for if you do it, the distorted law may later be made to work a thing that even you find repugnant.”  It’s an appeal to common decency:  “Distorting the law for political objectives is bad.  Don’t you see?  Here, trying putting the shoe on the other foot.”  The slippery slope, then, is something of a gentle, academic reminder to those who may have momentarily lost sight of that rule.  If your response is then to stick out your chest and say, “nah, nothing bad’s gonna happen to me; I’ll go ahead and have my own way,” then we’ve taken the gentlemanly art of persuasion as far as it has means to go.

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Written by Tim Kowal

March 1, 2011 at 11:35 pm

2 Responses

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  1. I think I might have mentioned this in the comments on your previous response, but I think the flaw in Andrew Koppelman et al’s reasoning is, unsurprisingly, short time horizons.

    They look at the current political climate and deem it ridiculous that eating broccoli would be mandated. We look at the history of the expansion of federal power and activity, and say maybe not today, but maybe or probably in 10 or 20 years.

    Fear and Loathing in Georgetown

    March 2, 2011 at 5:04 am

    • FLG,

      That’s right. I might as well have described it that way, but that was my point by alluding to the regulation of farmers privately consuming their own product. It took some time, but we did eventually use that basic precedent to require the consumption of products. The Individual Mandate is conceptually more approximate to requiring consumption of certain foods than it is to Wickard, so really we are looking at seeing the political plausibility of a Broccoli Mandate much sooner than that.

      Tim Kowal

      March 2, 2011 at 9:58 am


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