Health Care, Markets, and Guaranteeing Outcomes

Here’s John Goodman on the complaint that we can’t leave health care to the market (h/t Avik Roy):

Nothing follows from the fact that there is “market failure.” To make the case for transferring decision making power to government one would have to show that the likely “government failure” would be less harmful.  In health care, that’s hard to do — particularly given the track record of government in health in the twentieth century.

Overall, the market and the government have comparative advantages in certain areas and the sphere where government has a comparative advantage would appear to be very small.

We could extend the analysis of process vs. outcomes that I discussed recently to health care.  It’s too late at night to attempt a serious treatment, but recall that the premise generally is that process-oriented fairness looks to ensure merely that we have a sufficiently fair process in place to engage in certain activities and, once we have that, outcomes are basically irrelevant.  Outcome- or substance-oriented fairness works in reverse, imposing a firm notion of what sorts of minimum outcomes are necessary in a just world, and working backwards to guarantee they are achieved.

Markets are the extreme example of a just system as determined by process:  no single person defines values or outcomes, and instead, everything is automatically determined by the imperceptible force of countless discrete choices.  I’ve also posited that mainstream Americans generally perceive justice in terms of process, noting that except in unusual circumstances, Americans are not overly bothered by the idea that someone, somewhere, might be very rich, so long as they are convinced they did not accede to those riches by unfair procedures (e.g., fraud, kickbacks, illegality, etc.).  Because mainstream Americans generally have at least a slight bias in favor of process-oriented justice, they are generally willing to tolerate a certain amount of “market failure.”

Even if I am right that mainstream Americans tend toward process-oriented fairness, however, I suspect they tend less in favor of process when it comes to health care.  They might perhaps be split, in fact, or even tend more in favor of outcome-oriented fairness.  I will mention, purely anecdotally, that several people I know who are generally conservative/libertarian have significantly more sympathy for Medicare, Medicaid, and Obamacare than their underlying pro-market ideologies might suggest.  Too many people are just not content to let the chips fall where they may when it comes to health care as they are with, say, wealth distribution.  (I think this is deeply problematic, because once we are willing to let ourselves be carried away from our fealty to process-oriented fairness with respect to one industry, there’s little to stop us from letting that thinking overcome our approach to another industry, and then another, and so on until there is no meaningful emphasis on process at all.)

I’ll take one more liberty with the process/outcome distinction and note that our nation’s biggest expenditures—health care insurance and retirement insurance—all trend more toward achieving some notion of acceptable outcomes rather than fixed processes. Military, too, is an area in which conservatives tend to break from their aversion to government and entrust the executive with lots of power.

Slippery Slopes and the Individual Mandate, Redux

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.

The problem with substituting empiricism for principle

Remember before Obamacare passed and folks like Ezra Klein were saying that if the bill didn’t pass, tens of thousands of people would die each year as a result?  Tim Carney recounts the interesting journey this argument has taken, from adamant insistence on its rightness, to the recent proclamation that “Health care doesn’t keep people healthy — even in Canada.”

One of the so-called advantages of liberalism is its emphasis on “empirical” analysis of social problems.  If nothing else, it does indeed have strategic political advantages.  Observe:  Once the model is adopted, the approach proceeds by identifying some kind of social “epidemic”—e.g., “tens of thousands will die without health insurance,” or “the middle class will collapse without unions,” that sort of thing.  Establish the question as a moral one.  Next, make vociferous arguments insisting that “the data is in” and that practical results based on rigorous empirical analysis should be favored, and that conservative, piecemeal approaches that insist on constitutional/legal consistency should be eschewed.  Remember, people will die.  And the Constitution is over a hundred years old, after all.  By this time, if you’re doing it right, you can accuse your objectors as both morally and intellectually insolvent.  Then, only later when the empirical analysis is finally demonstrated to have been full of beans, the playbook prescribes a casual acknowledgment that maybe some mistakes were made on both sides, but that we oughtn’t throw the gears of the bureaucratic regulatory machine in reverse now.  Throw in some familiar terminology like market predictability and stare decisis.  Finally, before awaiting further protestation, promptly identify yet another social epidemic calling for further empirical assessment and immediate constitutional policy overhaul.

You can’t stop progress.

Are Thoughts “Commerce”?

In a wonderfully titled post over at Legal Insurrection, William Jacobson worries about the implications of this passage from Mead v. Holder, upholding the Obamacare mandate:

As previous Commerce Clause cases have all involved physical activity, as opposed to mental activity, i.e. decision-making, there is little judicial guidance on whether the latter falls within Congress’s power….However, this Court finds the distinction, which Plaintiffs rely on heavily, to be of little significance. It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not “acting,” especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality.

This is dangerous reasoning.  There is a world of difference between choices and actions.  It is why, today anyway, there is still no such thing as thought-crime.  Thoughts are not legally actionable.  Intentions, until now, could not be prosecuted.  As Jacobson observes:

Our thoughts are now actions.  There literally is nothing the federal government cannot regulate provided there is even a hypothetical connection to the economy, even if the connection at most is in the future.

As I’ve written before, Obamacare advocates seem far too comfortable with dismissing legal limits and relying solely on political limits.  Historically, however, this comfort only tends to last until legislation starts moving in the opposite direction. 

New Deal Originalism

Alex Tabarrok snarks at Laurence Tribe’s attempt to justify the individual mandate by the “original” meaning of the  New Deal:

Quite so; but what Tribe forgets is that the constitution is a living document. The constitution’s meaning is not fixed by the New Deal. The constitution evolves to meet the needs of the people in the here and now. Tribe’s interpretation of the commerce clause, which may have been appropriate for the age of steel and iron, is not necessarily right for the age of genes and bytes. We are fortunate, the constitution lives.

But what I can’t figure out is the answer to this question:  Who is more resistant to amending the Constitution, liberals or conservatives?  On the one hand, liberals are more fond of social and legal change than conservatives.  On the other hand, liberals have already embraced the “living constitution” mechanism to get what they want out of the small-c constitution without actually amending the big-C Constitution.  Now that the Constitution is “more than a hundred years old,” it does get harder to defend originalist interpretation in the progressive political arena.  Much to its defenders’ dismay, it can’t stand up to political reality forever.  Those defenders would do well to propose amendments that would restore the big-C Constitution’s relevance to modernity.

It seems to me that it’s liberals who have more to gain by not amending the Constitution.

Where entitlements go, duties are sure to follow

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.

More on broccoli nay-saying, and American constitutionalism

Matt Yglesias should consider subscribing to this blog to prevent making mistakes like this one, insisting that mandating broccoli consumption is no different from subsidizing it:

Legal issues aside, I really think these efforts to scare people with the specter of unlimited government founder on the fact that any government empowered to levy excise taxes is conceptually pretty much unlimited. The government is allowed to tax everyone, and use the revenue to subsidize broccoli consumption. Now maybe you think that’s legally distinct from the idea of fining people for failure to consume broccoli. But the practical impact is identical.

No, it’s not.

But, Yglesias is not completely off base when he says:

The votes aren’t there to repeal ACA and the votes aren’t there to pass ACA, so whether or not the court strikes it down is hugely important. That’s an interesting fact about American politics in 2011, but it has implications whatsoever for the conceptual boundaries of congressional power. As ever, the best guarantee that congress won’t do something you don’t like is to win elections.

What’s happening here between the Supreme Court and Congress is something like what happened with the Court’s Free Exercise jurisprudence and Congress’s Religious Freedom and Restoration Act.  Very briefly, In 1990, the Court decided Employment Division v. Smith, which upheld an Oregon law prohibiting the use of peyote over the objection that peyote use was part of a religious rite.  The Court held that generally applicable laws received only rational basis review, and thus could survive objections based on religious freedom.  Infuriated, Congress enacted RFRA in 1993, requiring the Court to strike down laws like Oregon’s unless there was a compelling government interest.

Then came City of Boerne v. Flores, a 1997 case filed under RFRA based on San Antonion’s denial of a permit request to expand a church located in a historic district.  The Court held the RFRA was unconstitutional, since section 5 of the Fourteenth Amendment only grants Congress procedural or remedial authority, not a substantive authority to define the contours of the First Amendment.  Because, the Court held, RFRA was essentially a direct challenge to the Court’s holding in Employment Division v. Smith, its constitutionality could not be supported under section 5 of the Fourteenth Amendment.

Justice O’Connor, in her dissenting opinion, disagreed with Justice Kennedy’s majority opinion that focused on whether Congress had a legitimate source of power in enacting RFRA.  Instead, she focused, like Yglesias does, on the political dialog that occurs between Congress and the Court:

If the Court were to correct the misinterpretation of the Free Exercise Clause set forth in Smith, it would simultaneously put our First Amendment jurisprudence back on course and allay the legitimate concerns of a majority in Congress who believed that Smith improperly restricted religious liberty. We would then be in a position to review RFRA in light of a proper interpretation of the Free Exercise Clause.

. . . .

Congress, no less than this Court, is called upon to consider the requirements of the Constitution and to act in accordance with its dictates. But when it enacts legislation in furtherance of its delegated powers, Congress must make its judgments consistent with this Court’s exposition of the Constitution and with the limits placed on its legislative authority by provisions such as the Fourteenth Amendment.

What O’Connor seems to suggest in her dissent is that there should be a back-and-forth between Congress and the Court:  Congress can check the Court; the Court can check Congress, all in light of new legislation and experience.  It’s an interesting theory with must to be said for and against it.  I’ll make just one point for the present:  If the Congress, no less than the Court, is authorized to determine the limits of its own power, is it possible any longer to say there are any fixed limits to its power?  Is it possible to maintain any longer a distinction between a constitutional and a parliamentary system?  If, as Yglesias says, the only check on power is “to win elections,” is there any meaningful counter-majoritarian function left in our political system?

The Mandate, Semantics and Rhetoric

Ezra Klein argues the fight over the individual mandate is largely semantic:  the individual mandate could have been packaged as a tax deduction, and no one debates the constitutionality of tax deductions.  The fact that we aren’t crowing about the mortgage deduction credit, say, like we are the individual mandate suggests we really aren’t appalled by the deprivation of liberty.  After all, Klein says, “This is not a country built upon semantics.”

There’s plenty wrong with this argument.  First, it’s not semantics.  It matters whether a law merely encourages a market participant to choose one transaction over another, or whether it seeks to force citizens into the market in the first place.  Subsidizing economic choices is problematic enough.  But ultimately, the status quo from the government’s point of view is that economic activity is occurring, taxes are collected automatically, and the government prodding occurs ex post.  With a mandate, however, the status quo is changed.  From the government’s point of view, no economic activity is occurring.  To make it occur, the government has to issue a penalty ex ante.

To put it another way, there might be no difference between a punishment approach and a reward approach if you assume the person is going to comply with the mechanism. But the reward approach never requires you to engage in a separate transaction with the government—other than the transaction in which you receive a benefit (i.e., the deduction).  The punishment approach, on the other hand, requires you to engage in a separate, and very undesirable transaction with the government: writing a big check. And if you refuse to participate in that undesirable forced transaction, things get worse from there.

Second,what does Klein mean when he says “this is not a country built on semantics”? Who is he referring to?  Certainly not politicians—certainly not, for example, the President.  As Peter Suderman reminds, candidate Obama campaigned against the mandate, suggesting it would be akin to trying “to solve homelessness by mandating everybody buy a house.”  As we know, Obama later vociferously argued the mandate is “essential” to the federal health care package.  If it’s semantics, why the change of heart?  Did he not mean what he said before, or not mean what he said later?  Is it instead all a production for our benefit?

But that wasn’t the end of the conceptual packaging and re-packaging of the mandate.  Suderman goes on:

It’s not the only instance in which the president has tried to have it both ways on the mandate. In September, 2009, Obama was asked whether he believed the individual mandate constituted a tax. His response was unequivocal: “I absolutely reject that notion.”  Worried that the public would perceive the mandate as a tax anyway, the law was scrubbed of any mention of the mandate being a tax before it was signed into law.

But in defending the law in court, his administration absolutely accepted the notion that the president had once absolutely rejected. In July, 2010, The New York Times reported that the White House had come to believe that the idea that the mandate constituted a tax was “a linchpin of their legal case in defense of the health care overhaul and its individual mandate.”

In a district court case last week ruling Obamacare unconstitutional, Judge Roger Vinson said the packaging does matter for purposes of determining the Congress’s power to enact such unprecedented legislation:

Congress should not be permitted to secure and cast politically difficult votes on controversial legislation by deliberately calling something one thing, after which the defenders of that legislation take an “Alice-in-Wonderland” tack and argue in court that Congress really meant something else entirely.

So obviously, Klein is wrong: Obama doesn’t think the packaging of the mandate is merely semantics, and neither, apparently, do Americans.  Judge Vinson certainly doesn’t—he’s stakes what is quite possibly the most important decision of his career on it.

Despite all this, Jack Balkin, concurring with Klein, writes:  “The assault on the individual mandate is really an assault on the public duty to assist other Americans in need, and in particular, an assault on the legal obligation to pay taxes to contribute to the general welfare. The assault on the health care bill is not a defense of liberty. It is a defense of selfishness.”  This is a sophomoric oversimplification, most likely arising out of a deep frustration with a central legislature that, by design (for better or worse), moves slowly and clumsily, and pores endlessly over conceptual, legal, and rhetorical devices.  It is understandable that those who want to see the “big changes” get made would get frustrated with those of us who fear we’re moving too rashly.  Still, Balkin’s sentiment is a shameful thing to write about one’s countrymen.

Another District Court Rules Obamacare Unconstitutional

Lots of write-ups today on Judge Roger Vinson’s opinion out of the federal district court in Pensacola, Florida striking down the individual mandate and, due to a lack of a severability clause, the entirety of Obamacare.  I don’t plan on adding anything to the analysis, but I would like to note a couple of my favorite passages I’ve read so far:

It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place.

I note that in 2008, then-Senator Obama supported a health care reform proposal that did not include an individual mandate because he was at that time strongly opposed to the idea, stating that, ‘If a mandate was the solution, we can try that to solve homelessness by mandating everybody to buy a house.’

Judge Vinson also cites to the excellent Reason video on the Commerce Clause, featuring Erwin Chemerinsky and John Eastman:

For example, in the course of defending the Constitutionality of the individual mandate, and responding to the same concerns identified above, often-cited law professor and dean of the University of California Irvine School of Law Erwin Chemerinsky has opined that although “what people choose to eat well might be regarded as a personal liberty” (and thus unregulable), “Congress could use its commerce power to require people to buy cars.” See ReasonTV, Wheat, Weed, and Obamacare: How the Commerce Clause Made Congress All-Powerful, August 25, 2010, available at: http://reason.tv/video/show/wheat-weed-and-obamacare-how-t.

Finally, the decision also takes the Broccoli Objection seriously:

[T]here are lots of markets — especially if defined broadly enough — that people cannot “opt out” of. For example, everyone must participate in the food market. Instead of attempting to control wheat supply by regulating the acreage and amount of wheat a farmer could grow as in Wickard, under this logic, Congress could more directly raise too low wheat prices merely by increasing demand through mandating that every adult purchase and consume wheat bread daily, rationalized on the grounds that because everyone must participate in the market for food, non-consumers of wheat bread adversely affect prices in the wheat market. Or, as was discussed during oral argument, Congress could require that people buy and consume broccoli at regular intervals, not only because the required purchases will positively impact interstate commerce, but also because people who eat healthier tend to be healthier, and are thus more productive and put less of a strain on the health care system. Similarly, because virtually no one can be divorced from the transportation market, Congress could require that everyone above a certain income threshold buy a General Motors automobile — now partially government-owned — because those who do not buy GM cars (or those who buy foreign cars) are adversely impacting commerce and a taxpayer-subsidized business….

As I said here, it may be politically unlikely now that Congress would require every American to eat more broccoli.  But given the administrative demands and practical goals of the new healthcare regime, such a mandate would be downright prudent.  It waits only for liberal political will to surge again.  This is why we write this stuff down in a Constitution, and why we pay judges to take it seriously.

The Individual Mandate and the Broccoli Objection

I’ve only been half paying attention, but it seems there’s been a lot talk deriding slippery slope arguments generally, and the “broccoli” argument with respect to the Individual Mandate specifically.  Andrew Koppelman argues that, to present a true slippery slope, there has to be an actual likelihood of “slipping”:

The Broccoli Objection, as I will call it, rests on a simple mistake: treating a slippery slope argument as a logical one, when in fact it is an empirical one.

This basic point was made long ago in Frederick Schauer’s classic article, Slippery Slopes, 99 Harv. L. Rev. 361 (1985). Schauer showed that any slippery slope argument depends on a prediction that the instant case will in fact increase the likelihood of 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.

Similarly with the Broccoli Objection. The fear rests on one real problem: there are lots of private producers, including many in agriculture, who want to use the coercive power of the federal government to transfer funds from your pockets into theirs. But the last thing they want to do is impose duties on individuals, because then the individuals will know that they’ve been burdened. There are too many other ways to get special favors in a less visible way.

So Congress is never going to force you to eat your broccoli.

In other words, Koppelman argues the “Broccoli Objection,” as he calls it, is just not slippery enough to be a slippery slope.  I’m not convinced.  First, Koppelman is not coming toe-to-toe with the nature of the objection.  The “slippery” element of a slippery slope argument is not a function of likelihood, but rather of the availability of non-arbitrary distinctions.  If there is no principled distinction between allowing the government to do something we like and doing something we don’t like, we ought to be skeptical.  Slippery slope argument are thus helpful as extrapolation exercises because they help us see what might be coming around the bend if we keep pushing ahead on political rather than legal principles.

But Koppelman isn’t troubled by this because, as he explains, it’s just not likely we’d ever reach the bottom of the slope.  Again, I’m not convinced.  The federal government might not try to force broccoli on us now, but it’s not conceptually inapposite to a centralized healthcare regime.  Precisely the contrary, in fact.  Thus, the Individual Mandate is not like the income tax amendment since, as Koppelman admits, a 100% income tax would “wreck[] the economy.”  It’s not merely practically unlikely, then—it’s practically impossible.  A broccoli mandate, on the other hand, is currently merely politically improbable.  Given the administrative demands and practical goals of the new healthcare regime, however, it would be downright prudent if all Americans gorged on broccoli.  Moreover, American’s reluctance toward government involvement in healthcare seems to be slowly waning.  Thus, it’s hard to take Koppelman seriously that the political likelihood of something like a “broccoli mandate” couldn’t tack sharply northward in the not very distant future.

Incidentally, it’s also not true that, as Koppelman suggests, the federal government could take all your money just by calling it a tax.  At some point, the government’s going to come up against the takings clause.  And this is the case for nearly every government power—every grant of Congressional power runs up against some other power held by the executive or the judiciary.  But that’s not so with the modifications we’re proposing on the Commerce Clause.  Folks like Koppelman suggest that Congress doesn’t need any checks because the real sinister things it might do are unlikely to happen right away.

As for the practical aspect of a broccoli mandate,  Koppelman seems to suggest that however you describe the Broccoli Objection, it’s not persuasive because it’s just not realistic the government would ever do something as detestable as force people to eat broccoli.  Here we see that Koppelman’s actually after a much bigger prize than winning the Individual Mandate argument, because once we’ve bought into Koppelman’s premise when talking about governmental action, we’ve substituted pragmatic limits for constitutional limits.  He even says as much at the end of his post:  “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.”  This is unsettling for those of us still convinced there are certain things the government can’t do not just because we can throw the bums out, but because we already wrote them down.  One starts to think God was on to something when he put his “thou shalt nots” on stone tablets.