Health Care, Broccoli, and a Constitutional House of Cards

Reading Dalia Lithwick's write-up of yesterday's oral arguments before the Fourth Circuit Court of Appeals on the constitutionality of the Patient Protection and Affordable Care Act (PPACA, a.k.a. the federal health care reform law or ObamaCare), I was really struck by a chain of reasoning advanced by Solicitor General Neal Kumar Katyal. Lithwick reports that Katyal essentially offers up the party line that PPACA sits on well-settled constitutional ground. The aggregate effects of individual choices regarding health insurance on interstate commerce permit Congress to regulate those choices. However, he actually says much more than that.

Acting Solicitor General Neal Kumar Katyal, defending the ACA on behalf of the Obama administration, quickly tries to poke a hole in the argument that the law mandates "inactivity." "It is almost a universal feature of our existence that we do use health care," Katyal says. The activity here, he argues, "is participation in the health care market." He notes that providing health care to the uninsured costs $43 billion per year, adding $1,000 to every family's annual health care premiums.
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Katyal then dismisses the argument that a government that can force you to purchase health insurance can also force you to buy from General Motors: "You can't show up at a General Motors lot and drive away and stick the bill to your neighbor," he says. The panel appears more than persuaded. Davis talks of the need for "practical" solutions to problems of this scope.

There are two constitutional justifications for PPACA in Katyal's argument. The first is that near universal participation in the marketplace for health acre justifies Congress's efforts to legislate individual behavior that influences that market under the Commerce Clause. The second is that the public costs of providing health care to the uninsured ---both in terms of direct public expenditures and indirect costs born by other consumers of health care---justify federal actions to reduce those costs. Both imply functionally limitless power under the Commerce Clause.

Katyal's first claim is that PPACA's regulation of individual activity is constitutionally valid under the Commerce Clause due to one's probable prospective use of health care and the corresponding burdens placed on the health care system. By that logic, any individual choice that reasonably corresponds to one's prospective consumption of health care would be subject to congressional control. Individual choices about purchasing health insurance, getting an annual physical, exercising, smoking cigarettes, using a tanning bed, eating vegetables, being circumcised, or practicing safe sex all correspond to aggregate burdens placed on the health care marketplace. If the only tests of limitations of congressional power under the Commerce Clause is the presence of aggregate effects on an interstate marketplace, then there is, in practice, no limit to what Congress may regulate.

Katyal's second claim is that PPACA is constitutionally justified as an effort to control the public costs, i.e. direct public expenditures and indirect increases in prices paid by other consumers, associated with providing health care to the uninsured. This argument is a house of cards. The features of the health care system that socialize the costs of providing care to the uninsured are generally created by Congress. Congress mandates the kinds of health care benefits available through Medicare, Medicaid, CHIP, etc. and which health care services must be provided to people regardless of their ability to pay for them. The shared public costs (direct and indirect) of caring for the uninsured didn't appear out of thin air. Congress created them and structures them. By Katyal's reasoning, Congress can create its own constitutional justification for any policy it desires by creating a regulatory scheme that socializes some cost related to the desired policy goal.

Either of these result is preposterous under a constitutional system of limited and enumerated powers and dangerous to individual liberty. Each is a house of cards, claiming enormous federal powers on the foundation of precarious constitutional reasoning. Previous Supreme Court decisions permitting extensive regulatory schemes in other domains of economic activity are distinguishable by the increased scope and intimacy of personal conduct subject to federal regulation in the domain of health care. As I have written here previously:

Just because the Commerce Clause permits Thing 1 and Thing 2 does not mean that it must also permit Thing 3 as long as it falls on the same line as 1 and 2.  Requiring people to spend their money on a private good sold only by a relatively small number of government approved and regulated firms is different than taxing workers to provide a public benefit or social service. 

By random draw, the panel hearing the current pair of challenges to the PPACA in the Fourth Circuit is comprised of three Democrats, a Clinton appointee and two Obama appointees. So, it is likely that the judges will be unsympathetic to claims about the limited nature of federal power. The result in the Court of Appeals, however, is likely to be only a prelude to a ruling by the Supreme Court. 

Rick Santorum and Social Issues in the 2012 Election

Kyle Peterson's write-up of last night's GOP presidential primary debate in Greenville, SC included this summary of Rick Santorum's remarks and positions.

“I always say freedom is not the freedom from, it’s the freedom for,” Santorum said. “It’s freedom to do what you ought to do. It’s freedom to do what you’re called to do, which is a freedom — within the Western civilization — to serve God, to take care of your neighbor, to provide for your family, to live a good and just and virtuous life. That’s what freedom really is.”

I also noticed his remarks about Gov. Mtch Daniels's call for a truce on social issues until the nation is on better economic and fiscal footing:: "Anyone who thinks there should be a social truce doesn't understand what America is all about."

Santorum's remarks represent an unsavory orientation toward government power and a losing message for the GOP in the 2012 elections.

First of all, if you stack up a bunch of laws to criminalize marijuana or pornography, ban same-sex marriages and abortions or otherwise use the coercive power of government to enforce a particular moral vision of society, no one is "free" to do what they "ought to do." We are constrained to be a certain way and to do certain things. That is not freedom in any reasonable sense of the word.

Second, this kind of thinking is philosophically indistinguishable from that of President Obama and most of the rest of the Democratic Party. It boils down to a belief that people should not be free to choose, that we are too stupid or immoral to decide what's best for ourselves, and that we need government to step in to save us. Democrats and Santorumites may have different priorities about how to use government and what particular choices they want the government to make on our behalf, but there is no principled difference between government commanding us to buy health insurance in order to promote universal health care and government proscribing contraception, abortion, or consensual homosexual sex. Either you are for a limited government exercising a finite set of enumerated powers or not, and it is clear to me on which side Santorum falls.

Third, using the police power of the state to coerce people into acting in accordance with the principles of a particular moral tradition renders the voluntary choice to adhere to tradition meaningless. In pre-revolutionary Iran, a woman's choice to wear a hijab was a symbol of faith and a marker of dedication to a particular version of Islam amidst a sea of alternatives. After the Islamic revolution, all women were forced to wear a hijab, and what was once a clear and powerful signal of personal commitment became valueless. Traditionalism, temperance, chastity, modesty, and even faith itself have no value if they are enforced at gunpoint.

Finally, though least importantly, Santorum's message of values first everything else second is a big loser for the Republican Party. It was a big loser for him in his last U.S. Senate campaign in Pennsylvania. Bob Casey beat him 59% to 41% in 2006. Two-term incumbent senators aren't usually thrashed by 18%, especially in a moderate swing state like Pennsylvania. Bear in mind also, that election was five years ago---pre-Great Recession, pre-TARP, pre-Stimulus, pre-Bailout, pre-Health Care Reform. Everything that has changed in American politics in the intervening period suggests that a candidate needs to have a credible program to support economic growth, job creation, and reductions in public debt first and anything else second. Santorum's focus on social issues is fully out of step with most voters' priorities. People are worried about jobs, the economy, the debt, the deficit, taxes, and to a much lesser extent about civil liberties, terrorism, and the war in Afghanistan. As Gov. Haley Barbour of Mississippi (hardly a bastion of social liberalism) put it, “The main thing is to keep the main thing the main thing, and the main thing is economic growth and job creation for our people."

Sadly, and eerily, Santorum seems perfectly willing to scuttle the Republican Party's 2012 election prospects and, with it, the nation's economic and fiscal future, for the sake of his vision of political purity:

"If you look at ’06, I didn’t flinch,” Santorum said. “You stand up for what you believe in, and sometimes you lose."

Santorum is perfectly free to martyr his own political career for whatever purpose he wants. I only hope his tone deaf, big government, anti-choice message doesn't end up hurting the prospects of a serious Republican contender for the presidency.

Fightin' Texas Aggies: Alliance for Texas A&M University

A group of prominent former students of Texas A&M have started the Alliance for Texas A&M University to support the university's research mission and its academic reputation:

Our concern is the result of the extraordinary level of political intervention in our university. The latest of these interventions has resulted in the negative publicity given to proposals to fundamentally change how the research universities in Texas fulfill their educational responsibilities. These proposals are usually referred to as the “Seven Break Through Solutions.” It is our opinion that several of these proposals will do significant damage. The
seven proposals are neither new nor break through. They represent naive and, in some cases, self-serving proposals from inexperienced organizations and individuals.

We call on all members of the Aggie community to familiarize themselves with the proposals we think are damaging. We call on each of you to reach your own conclusions. If you share our views, we encourage you to express your views to the Texas A&M University System Board of Regents. We encourage you to ask the Board of Regents to end their well-known support for the seven proposals. We call on you to ask the Board of Regents to resist inappropriate political intervention and to task its university administrators to further enhance the quality of Texas A&M University while always striving to remain cost efficient.

The reaction to the break through solutions proposal at UT, the other flagship university in the dramatically different than at A&M. At UT, its Chancellor and President "have been standing up for what a Tier One university should be", said the president of its faculty senate. The Texas A&M leadership should be as vigorous as UT in seeking to preserve its status as a Tier One university.

It is our observation that individuals, including Boards of Regents, often misunderstand the fragile nature of academic prestige. It does matter what Regents say and do. An ill-advised short term decision will have long term detrimental impacts. They should be challenged to recognize and preserve the generational obligation that has caused Texas A&M to be the great university that we all love and respect.

Well done, gentlemen.

My own discussions of the "Breakthrough Solutions" can be found: here, here, here, and here.

No Free Markets?

A local progressive blog, Left of Aggieland, has a post up on Ha-Joon Chang's new book, 23 Things They Don't Tell You About Capitalism:

We have been told that markets need to be free. We have been told that if government interferes with it creates inefficiencies. We have been told that we must be “free to choose.” Except that there is one thing. “The free market doesn’t exist.” Ha-Joon Chang makes this assertion as the first of the twenty-three things that they don’t tell you about capitalism. His argument is that every market has basic rules and regulations that it is govern by, and that the only reason that people think that a market is free is because those rules and regulations have become so accepted that they are no essentially invisible. Chang makes the case that “how ‘free’ a market is cannot be objectively defined. It is a political definition.” When free market fundamentalist argue that government intervention into the market is political motivated, they themselves also have political motivations.

One of the examples that Chang cites to illustrate his point is the ban on child labor. Opponents of the of the 1819 Cotton Factories Regulation act which banned employment of children under the age of 9 was opposed by free market proponents, but today even the most ardent free market proponents would not advocate repealing child labor laws. Chang states that “if the same market can be perceived to have varying degrees of freedom by different people, there is really no objective way to determine how free that market is…If some markets look free, it is only because we so totally accept the regulations that are propping them up that they become invisible.”

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I would go further than Chang, and say that the only way in which a market can be free is through government regulation. This is because supporters of free market fundamentalism rely on simplistic models of how markets work. In order for a so-called free market to operate it must have a perfect competition, perfect information, no barriers, equal access, and no monopolies. But, it is often the case that these factors can only be maintained through government regulation. The fact is that free market fundamentalist care less about the freedom of the market and more about the freedom of business over the freedom of the consumer.

I like Left of Aggieland a lot. It has some great original reporting on local elections and good analysis of state and local politics. This is just silly, though.

Depending on how you define your terms, a completely free market is practically nonexistent in the historical record. Likewise, it would be difficult to define the term "free market" in some absolute sense so that we could firmly demarcate the "free" and the "unfree." However, it is relatively easy to conceptualize market freedom in relative terms and to think of this economy as more or less free than some other economy. Venezuela is less free economically than Egypt which is less free than Italy which is less free than the United States.

More importantly, though, neither the absence of a firm categorical definition of market freedom nor the absence of complete market freedom in any case justify government regulation of economic activity in any particular instance or indict general arguments in favor of more freedom.

To see this, apply the same line of reasoning to personal liberties:

We have been told that people have rights. We have been told that men and women have the right to "life, liberty, and the pursuit of happiness." We have been told that a free society is critical for political, economic, and personal development. Except for just one thing. There really is no such things as a free society. All societies regulate personal behavior in some ways, and the only reason you think your society is free is because the rules and regulations that govern our behavior have become so accepted that they are functionally invisible. No one argues against or even thinks about laws banning murder, limiting the speed at which cars may be driven, requiring adults to wear pants in restaurants, or preventing pornographic movies to be shown in public places. There is no way to objectively determine "how free" a society is, it is merely a political definition; that is, personal rights are merely an illusion that reflects  a political processes that "decide" to protect this or that right.


I would go so far as to say that free societies depend on government limitation on freedom to protect personal safety and public morality. This is because supporters of personal freedom rely on simplistic assumptions about human behavior. In order for personal freedom to peaceably exist with an orderly society, you must have benign human nature, social harmony, and universal goodwill. But, it is often the case that these factors can only be maintained through government regulation. The fact is that personal liberty fundamentalists care less abut the public good and the general welfare than about their freedom to do whatever they please.

Nothing in these two paragraphs is less true than Left of Aggieland's comments. There is no completely free society, and we would be hard pressed to develop a comprehensive definition of "free society" in the first place. Yet, we can tell the difference between societies that have more or less respect for basic civil liberties. We know that Iran is less free than Turkey which is less free than France which is less free than the United States. Moreover, the absence of natural metrics or clear definition of personal freedom or individual liberty don't justify restrictions on free speech, free association, or a free press. For example, the existence of laws banning selling pornography to minors does not automatically condone other laws to protect public morality such as laws banning "obscene" books from public libraries. Likewise, the existence of laws that prevent businesses from hiring small children does not automatically justify the entire edifice of modern labor law.

The crux of the matter is that economic and civil liberties are both often subject to social regulation through political processes. Reasonable regulations to preserve public good and limit negative externalities in the marketplace are fine in principle. Likewise, reasonable regulation of personal freedom to preserve the peace and public decency are fine in principle. The argument is not (generally) about whether any regulation should be allowed but whether a particular regulation on personal or economic freedom is socially useful.

A Little Something for Life on the Tenure Clock