The Obamacare Ruling, Part 1

So I'm about half way through the Obamacare ruling - so far, I've gotten through the Roberts opinion and the Ginsburg opinion. My thoughts on the relative merits of the cases may change when I read through the dissenters.

A couple of thoughts on what I've read so far.

First, there is a marked contrast in how much the different opinions seem to opine on the merits of the law. Here's Roberts take, at page 59 of the PDF:

The Framers created a Federal Government of limited powers, and assigned to this  Court the duty of enforcing those limits. The Court does so today. But the Court does not express any opinion on the wisdom of the Affordable Care Act.  Under the Constitution, that judgment is reserved to the people.

By contrast, Ginsburg's opinions have an irritating habit of inserting thinly disguised editorialising about her support of the laws in question as a matter of policy. From page 74 of the PDF:

To make its chosen approach work, however, Congress had to use some new tools, including a requirement that most individuals obtain private health insurance coverage. See 26 U. S. C. §5000A (2006 ed., Supp. IV) (the minimum coverage provision). As explained below, by employing these tools, Congress was able to achieve a practical, altogether reasonable, solution.

I guess she didn't get the Roberts memo about not expressing any opinions on the wisdom of the legislation.

Here's Ginsburg, dishonestly repeating one of the classic talking points of the left about healthcare, from page 70 of the PDF:

Not all U. S. residents, however, have health insurance. In 2009, approximately 50 million people were uninsured, either by choice or, more likely, because they could not afford private insurance and did not qualify for government aid.

The Census estimate was 46 million, but what's a few million between friends. And out of this number,  (by the Politifact estimate) at least 15% of those 'residents' don't have health insurance because they're illegal aliens who shouldn't be in the country in the first place. To describe their problem as being one of 'not qualifying for government aid' is deliberately disingenuous.

But what is most egregious about the Ginsburg opinion is the reliance it makes on the free-rider problem.This is an important part of her argument justifying the law under the Interstate Commerce Clause. The individual mandate is justified as being 'necessary and proper' for regulating interstate commerce. There's a long argument starting on page 70 of the pdf, which I won't reprint in full, but the gist of it is that you can't force insurers to cover people with pre-existing conditions at the same price as everyone else without the individual mandate. This is because guaranteeing that pre-existing conditions will be covered at no extra cost creates an incentive for people to wait until they get an expensive illness, and only buy insurance then. This causes huge cost-shifting in the insurance market, and threatens to make the whole thing collapse. It's a classic free-rider, or moral hazard, problem.

Ginsburg's description of this problem, as a matter of economics, is really quite good, and I don't have much to quibble about there.

But why is this a social issue? Can't the hospital just deny them treatment? That may be considered unfair, but it's a pretty damn effective solution to the free-rider problem. And here's where Ginsburg's argument comes in:

The large number of individuals without health insurance, Congress found, heavily burdens the national health-care market. See 42 U. S. C. §18091(2).  As just noted, the cost of emergency care or treatment for a serious illness generally exceeds what an individual can afford to pay on her own. Unlike markets for most products, however, the inability to pay for care does not mean that an uninsured individual will receive no care. Federal and state law, as well as professional obligations and embedded social norms, require hospitals and physicians to provide care when it is most needed, regardless of the patient’s ability to pay.

Let's reprint the key bits again, in case you missed them:

Federal and state law, as well as professional obligations and embedded social norms, require hospitals and physicians to provide care when it is most needed, regardless of the patient’s ability to pay.

Got that? Federal Law has created a free-rider problem in this market, and now it requires a solution.

Now, as a practical description of the problem, that's totally fine. It is, indeed, the root of a lot of the problems.

But as a constitutional justification for the law, this is insane.

The government wouldn't ordinarily be able to compel individuals to purchase something under the interstate commerce clause, as I read the Ginsburg opinion, unless this is 'necessary and proper' to some already constitutional purpose.

No problem! The government passes laws that create a free-rider problem. One solution (not the only solution, but who cares!) to the problem is to mandate a pool of customers to subsidise those that you've legislated to ride for free. And the existence the government-created free-rider problem is used as the constitutional basis for justifying the entire edifice.

Don't believe me? Listen to Ginsburg's description of why it would be absurd to suggest that the government might be able to create a mandate for eating broccoli:

Consider the chain of inferences the Court would have to accept to conclude that a vegetable-purchase mandate was likely to have a substantial effect on the health-care costs borne by lithe Americans. The Court would have to believe that individuals forced to buy vegetables would then eat them (instead of throwing or giving them away), would prepare the vegetables in a healthy way (steamed or raw, not deep-fried), would cut back on unhealthy foods, and would not allow other factors (such as lack of exercise or little sleep) to trump the improved diet.  Such “pil[ing of] inference upon inference” is just what the Court re­fused to do in Lopez and Morrison. 

I don't know whether this argument is presented as deliberately misleading bull#$%^, or just very sloppy thinking. This is what the government would have to do to justify a broccoli mandate under the guise of it reducing healthcare costs.

But suppose that a government wanted you to eat broccoli. Justice Ginsburg has created a far simpler method for them to justify it! Just pass a 'Broccoli Human Rights Act of 2014', requiring that no person shall be denied broccoli by any supermarket or store based on their inability to pay, provided that they can prove that they are sufficiently hungry. There's a real problem - some people go hungry. Broccoli is a good solution to that problem. Presto! Our starving poor now have access to broccoli.

But we've now created a terrible free-rider problem. Broccoli-sellers have started to lose tons of money. One might characterise the problem as being that 'Federal and State Law, as well as professional and social obligations to not let people starve to death, require stores to provide broccoli when it is most needed, regardless of the customer's ability to pay'. One solution to this is the Affordable Broccoli Food Act of 2020, with it's Broccoli Individual Mandate component.

And this is exactly the same logic that Ginsburg found so compelling above. She'd pass it here. She'd pass it there. She'd pass that legislation anywhere.

So what are the other limits on the likely existence of the Broccoli mandate under the Ginsburg reasoning?

Other provisions of the Constitution also check congressional overreaching. A mandate to purchase a particular product would be unconstitutional if, for example, the edict impermissibly abridged the freedom of speech, interfered with the free exercise of religion, or infringed on a liberty interest protected by the Due Process Clause. 

At last we've gotten an honest argument. Legislation justified under the interstate Commerce clause will be struck down if it's explicitly prohibited elsewhere.

You can tell me this is a good way of running a government. But don't tell me that this is still a Federal government of enumerated powers. Everything that is not prohibited is permitted.

Fortunately, this is not the current law of the land on the Interstate Commerce clause. (The law was upheld under the taxing authority, which I might get to in part 2). Unfortunately I fear that Justice Ginsburg will prove spot on in one assessment in particular, though:

THE CHIEF JUSTICE’s crabbed reading of the Commerce Clause harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who labor to sustain it.  See,  e.g., Railroad Retirement Bd. v.  Alton R. Co., 295 U. S. 330, 362, 368 (1935) (invalidating compulsory retirement and pension plan for employees of carriers subject to the Inter­state Commerce Act; Court found law related essentially “to the social welfare of the worker, and therefore remote from any regulation of commerce as such”).  It is a reading that should not have staying power. 

Absolutely.

For one reason, because the vast majority of interstate commerce clause decisions they've made in the past have gone in this direction. 'Regulating Interstate Commerce' includes banning marijuana that's grown in one state and sold within the state, regulating swimming pools (which are pretty darn hard to transport across state lines once they're in the ground), and stopping a farmer growing too much wheat on his own property for his own farm use.

The only rule I can glean from their precedents before now is 'If it affects a price of something, somewhere, somehow, it's interstate commerce.' Now the court has said that, in theory, it won't keep going in this direction, even though it didn't have the stones to overturn the law in the end.

But let's get back to the quote itself. The other half of the problem is that a good chunk of the Court thinks that it is appropriate to put in an important and widely-read opinion that it feels that New Deal legislation was 'efforts to regulate the national economy in the interest of those who labor to sustain it'.

Just under half the court think that this is what constitutes being non-partisan, and they usually manage to find a swing voter from among the rest, I suspect her assessment will prove entirely correct.