Limit this, Jack!

Mickey Kaus Columnist
Font Size:

So you have limiting principles in that basket! On the latest Left Coast/Right Coast podcast Jennifer Rubin and I searched for the fabled “limiting principle” that would restrain Congress from going berserk if it could impose an individual mandate to purchase health insurance.  I had some thoughts. Now that I’ve read more I have more thoughts–though they’re all tentative, as well as a bit late:

1. It sounds creepy for the government to be able to make you buy things. The distinction between banning an action and actually mandating doesn’t seem meaningless, as some lawyers charge. But the main argument of Obamacare’s opponents concedes that states can mandate insurance purchases. The opponents are only arguing for a limit on the federal government. So we’re arguably not talking about some basic individual liberty to not purchase stuff (though some individual-rights enthusiasts are also pushing that claim).

2. It’s in a way more respectful of personal autonomy for the government to make you buy something than for the government to tax you and buy it for you. In the one case you choose which of the various competing products to buy. In the other, the government chooses–with your money. In the former case, it’s as if the government required that you send your kids to some school–a mandate (!), though one typically imposed by states–but then gave you a voucher so you could pick and choose which school to patronize. Such “choice” schemes are usually favored by conservatives, for good reasons. **

3. The federal government can draft you and send you off to die in a foreign war! I know that’s  under another constitutional provision, but jeez, let’s not get that excited about Blue Cross. In pure individual vs. state terms, I’d say the Obamacare mandate is significantly less onerous than either the gotta-go-to-school mandate or the ability of the state to compel testimony as long as it’s not self-incriminating. (They can make you tell them what’s inside your head! How creepy is that?) I’d put it roughly on a par with jury duty–i.e. a pain in the ass.

4.As Prof. Amar and others note, the Constitution doesn’t ban elected officials from doing stupid things, even extremely stupid things. What’s supposed to stop them from doing those things, at least from doing them more than once, is democracy itself. In the arguments of Obamacare opponents, this point is sometimes forgotten. (Prof. Kopel asks if the government could ban eating hamburgers. Why couldn’t it? It would be stupid. So don’t vote for the people who propose it.)

5. You want limiting principles? Fair enough. We have a written Constitution that pointedly refuses to give the federal government total (“plenary”) power. The document’s words need to mean something. But it seems to me there is a cascade of potential limiting principles, starting with the most obvious.

a) It’s Commerce! The Commerce Clause authorizes the federal government to regulate interstate commerce. Buying health insurance is commerce. It’s interstate. Case closed. The limiting principle is the word “commerce.”  The federal government couldn’t, under this clause, require you to slap your spouse, or give your spouse a massage, or stack the dishes neatly. Those aren’t “commerce.” There are limits. The government can require you to buy something that’s normally bought and sold on a nationwide basis. Even broccoli. (See point 3, on stupidity, above).

b) It’s a tax! Obama didn’t want to call the mandate a “tax,” for political reasons. But it’s a tax. It raises revenue. It will raise revenue even though, as Lawrence O’Donnell is fond of pointing out, the consequences of not paying are even less than the consequences for paying a normal, indisputably taxy tax. When the government wants to create a penalty, it knows how to do it: “a required payment of say, $10,000 that has a scienter requirement and increases with each month that an individual remains uninsured,” for example. Striking down this milquetoasty tax because politicians wanted to dissemble about it amounts to a juvenile judicial scam–ruling out the obvious, permissable goal on the grounds of “Nyah, nyah, you called it something else.” It’s bad enough when Paul Krugman does this! ***

c) It’s guaranteed to all: The key point here was made by Heritage Foundation’s Stuart Butler, in a quote highlighted by E.J. Dionne:

“If a man is struck down by a heart attack in the street,” Butler said, “Americans will care for him whether or not he has insurance. If we find that he has spent his money on other things rather than insurance, we may be angry but we will not deny him services — even if that means more prudent citizens end up paying the tab. A mandate on individuals recognizes this implicit contract.”

In other words, if society, through its elected government, has undertaken a commitment to provide Good X to everyone, then it can reasonably require everyone to buy Good X (or insurance that provides Good X) in advance–in order to ensure fairness and efficient allocation of X.****  You may not like this principle, it may be a lousy principle (I disagree)– but it’s still a principle, and a limiting principle, because there are only so many (in fact, precious few*****) goods that society and Congress will agree to provide to everyone. Ah, but that’s “bootstrapping,” you say–Congress, by guaranteeing X to everyone, is creating this prerequisite for the extension of it’s own commerce power. So it is. So what? It’s still a limiting principle because the legislature cannot and will not bootstrap in this manner without limit.  …******

d) Constitutional Equality: I think there’s finally a more abstract, constructed argument Justices could persuasively cobble together from the notion of formal equality inherent in the Constitution’s structure (and brought most clearly to the surface in the “one man, one vote” line of cases). There’s a reason, after all, why we give people with heart attacks health care but don’t give broccoliless people broccoli. ****** They’re individuals and under the constitutional principle of equality they have as much right to live as anyone else. But without this particular good–medical attention when needed–every individual will suffer a harm that is immutable and extinguishing.  Death, in other words. Just as similar judge-identified factors (immutability, invidiousness) once marked legislative classifications for “strict scrutiny” under the Equal Protection clause, these three factors–the universality, immutability and extinguishing quality of not having medical care–can identify it as a good suitable for both government provision and government mandate. Again, you may not like the limiting principle, but it is a principle and it limits. It’s the sort of principle Supreme Court justices pull out from under their robes all the time. (I admit it would be hard to use this principle protect the requirement that individuals buy coverage for non-vital services, like plastic surgery. Try (a), (b), and (c).)

P.S.: I support Obamacare, mess that it is. I don’t think either the judges or the lawyers who say it’s unconstitutional are simply trying to get rid of it, using the Commerce Clause as a pretext. I think they’re sincerely worried about the Commerce Clause! That doesn’t mean that Charles Krauthammer and others aren’t right when they suspect a decision striking down Obamacare on the basis of some untested hothouse Volokhism would galvanize the left, in the long run, the way Roe v. Wade galvanized the pro-life movement. Anti-democratic decisions tend to piss people off! Suspicions of judicial partisanship confirmed in Bush v. Gore, would be reconfirmed for many.

If it were a simple case of principle vs. institutional PR, it would be hard to urge Chief Justice Roberts and Justice Kennedy to choose the PR. But it’s not. There are plenty of persuasive and workable principles on Obama’s side. At least give Prof. Barnett’s theories time to flourish or dwindle, outside the federalist hothouse, in the soil of legal debate. If Barnett’s opponents were cocooned before, they aren’t anymore! Surely the Court can find a way to delay a final decision before it abruptly closes off effective debate, Roe style. The mandate can always be struck down later.

Unless what the Court really cares about is stopping Obamacare …


**– They also seem way more effective, at reaching everyone, than schemes that tax you and then give you a huge tax break if you do sign up.  They’re easier to understand, and they don’t make you file (and think about) your taxes to be incentivized.

***– Statutes do what they do, not what they say they do. Judging them by the latter rather than the former is in fact a tired old activist-judge trick. For example, judges (mainly but not entirely liberals) have long struck down laws they claim don’t bear a “rational” relationship to their stated purpose, ignoring that they bear a completely rational relationship to the (perhaps unstated) purpose of doing exactly what it is they actually do. This point was forcefully made in a famous Yale Law Review note by Robert F. Nagel. …

****– I don’t think it will do to severely penalize people by charging them extra if they don’t insure themselves and then have to use emergency services. If the extra financial penalty is small, it won’t deter people from delaying the purchase. If it’s big, some people will avoid it by avoiding medical services when they need it and that will prove to be a huge mistake (i.e. they’ll die).

*****–Burial fits the bill. If you die, the government will bury you, somewhere. Under this principle Congress could make you buy burial insurance. Is that a big deal?

******– If I remember my Con Law, right, at least one other bootstrap-like constitutional doctrine has been accepted by the Supreme Court: the idea that you get a “property” right when you have an “expectation” of continuing to get a government benefit. Well, Congress controls those expectations, so it can in theory eliminate the right any time it wants to. But that doesn’t make the doctrine meaningless. It says that if Congress does something–like create an entitlement, or grant tenure–consequences flow. Congress won’t want to stop doing those things, so there are limits to how often it will extinguish a “property” right.

*******–Don’t say, “What about food stamps?”  If you blow through your food stamps, we won’t give you more food stamps. But if you blow through your entire income, and your health insurance, and have a heart attack we will still pay to revive you.

Mickey Kaus