After listening to all three days of Supreme Court hearings, I am prepared to announce the shocking revelation that the oral arguments have reinforced my preexisting biases concerning the constitutionality of Obamacare.
In truth, whatever idiosyncratic opinion you have of the matter, you can easily find scads of analysis online to bolster or challenge your view. I have nothing comprehensive to add to that discussion. I do have some thoughts on a few of the recurring arguments presented in the case.
One thing I think has been revealed is that brilliant lawyers and judges can make lousy economists and health policy pundits. There is a tendency, which I admit I share, to listen to the justices confidently interject with their piercing arguments and concerns and to be a bit dazzled by the argument-from-authority fallacy. That surely these robed jurists possess near mythical skills of logic and rhetoric, and are able to assimilate and master most any area of human endeavor. But like all accomplished people, including (especially!) intellectuals, their knowledge is confined and highly domain-specific. Upon reflection, some of the justices’ hypotheticals and slippery-slope analogies against the mandate were simply ridiculous.
Take the question of externality and cost-shifting; that if some people do not buy health insurance, the price goes up for everyone who does have insurance. Justice Scalia asserted that the same could be said about buying a car: “If people don’t buy cars, the price that those who do buy cars pay will have to be higher. So, you could say in order to bring the price down, you’re hurting these other people by not buying a car.” But—as if this were not obvious—where is the issue of free-loading in the car market? If I can’t afford to buy a Chevy, I don’t get to go down to the Chevy dealership and demand one for free, and there is no regulation in place that forces the dealership to provide me one and stick other Chevy owners with the tab. Also, as economist Henry (don’t call him Hank) Aaron notes at Brookings, it’s possible that more demand for a product will engender more output and therefore lower the marginal unit cost, but it also has countervailing effects that may raise the price. It’s rotten logic and even worse economics.
Another common theme in the hearings was the “unprecedented” nature of this particular form of mandate, and a lot of the justices’ time was spent looking for ways in which this power does or does not already exist. David Frum had an interesting piece today, noting that some of the major issues in this case—imposition of a welfare entitlement on the states; severability of the law’s constituent pieces—mirror very closely those discussed in Helvering v. Davis, the 1937 case that upheld the constitutionality of the original Social Security program.
I am far from granting that the mandate is unprecedented, or conceptually different from other forms of government coercion (Will Wilkinson discusses this here); but even if it is, I don’t see how that bears on the question of constitutionality. It’s quite evident by now that this sort of purchase mandate is politically unpopular, which is likely why Congress has thus far refrained from passing many laws that make people buy stuff. But just because Congress hasn’t ever taken a particular action doesn’t mean the action is not necessary and proper and therefore constitutional. And as any lawyer will tell you, novelty in the application of the Commerce Clause power has hardly EVER stopped the Court from affirming the expansion of that power. You can be angry or indifferent about that fact, but what would indeed be novel and near-unprecedented is for the Court to suddenly find a clear and articulable limit to that power.
Another issue of shabby logic: A lot of the hearing was given over to the slippery slope fallacy: “If Congress has the authority to do X, what’s to keep it from doing Y?” The SG was asked repeatedly for a “limiting principle”, or a clear line at which this claimed congressional authority ends. He had no good answer, and even seemed a bit stymied by sophomoric arguments like the broccoli canard. What’s to keep Congress from mandating broccoli purchases? For one thing, I am unaware of a nationwide broccoli insurance market complicated by the adverse selection problem, ever-rising costs of broccoli premiums, and tens of millions of Americans whose inability to afford broccoli forces a massive broccoli cost-shift onto the rest of broccoli-eating society. But, let’s assume I’ve missed something and such a broccoli economy exists. What limits Congress in the broccoli sphere is the same thing that limits Congress in areas where there is already wide consensus that it has the power to act, yet doesn’t. As Matt Steinglass notes at the Economist, Congress’s ultimate “limiting principle” is democracy! Politicans like being reelected, and to be reelected you have to do marginally popular things, and avoid doing widely unpopular, arbitrary, or odious things.
For instance, Congress’s taxation power is undisputed, and from what I can tell, completely limitless. If we allow Congress to tax at 30% what’s to keep Congress from raising everyone’s effective tax rate to 100%? Well, for one thing it would mean every elected representative who voted for it would be swiftly ushered out of office in the next election, replaced by politicians promising to overturn it. The desire to not commit career suicide implementing a policy that will not last beyond your abbreviated tenure sounds like a pretty forceful limiting principle to me.
Likewise, Congress can declare war whenever it likes. What prevents Congress from voting to invade Canada in order to appropriate all of its natural resources? (Christopher Hitchens was once asked what Thomas Jefferson would think about modern America. He said that most of all Jefferson would likely be appalled that we had not yet conquered Canada, and shocked that the young hearty men of America have so dishonorably allowed the British flag to continue flying in North America.) We don’t invade Canada because it would be extraordinarily immoral, illegal, and wasteful, and would garner precisely 0% public support. Well, ok, no more than 25% support. Fine, 40%.
Anyway, I thought Paul Clement was fantastic and a pleasure to listen to. His nimble mind surely made this a tighter ninth inning than it should have been. Still, my contrarian prediction: John Roberts writes the majority opinion upholding the mandate. If they do strike it down, all that’s left is to make Jefferson’s dream a reality, and invade and annex Canada; then we could at least use their health care system.