Notes From Babel

Archive for the ‘Health Care’ Category

Health Care, Markets, and Guaranteeing Outcomes

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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

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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.

Written by Tim Kowal

March 1, 2011 at 11:35 pm

The problem with substituting empiricism for principle

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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.

Written by Tim Kowal

February 28, 2011 at 11:46 pm

Are Thoughts “Commerce”?

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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. 

Written by Tim Kowal

February 27, 2011 at 12:14 pm

New Deal Originalism

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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.

Written by Tim Kowal

February 12, 2011 at 9:35 am

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.

Written by Tim Kowal

February 9, 2011 at 7:00 am

More on broccoli nay-saying, and American constitutionalism

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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?

Written by Tim Kowal

February 7, 2011 at 7:00 am