Ilya Somin quotes, approvingly, this bit of pseudo-reasoning from Chief Justice Roberts:
The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product,on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Every day individuals do not do an infinite number of things. In some cases they decide not to do something; in others they simply fail to do it. Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and—under the Government’s theory—empower Congress to make those decisions for him.
Only a robot can be “inactive” in the market for health care. If you were born in a hospital, or with the aid of a midwife, you have already been a consumer of health care. If you have a heart attack or a stroke or a psychotic episode, you will consume health care whether you want to or not, and settled law requires that it be provided to you even if you can’t pay.
Going without health insurance means deciding to stick the rest of us with the tab when you receive health care you can’t pay for. And that, Justice Scalia, is the difference between health insurance and broccoli.
Governor Romney - whose evil twin is now running for President - explains:
In our relief that Justice Roberts decided not to rock the boat, we shouldn’t forget that the entire case was based on nonsense.
Well, FWIW, here’s an alternative view.
I have never been a great fan of Justice Roberts (Citizens United exemplifies why), and my relief at having the ACA upheld by his vote is not likely to make me one. Nonetheless, I am forced to concede that his decision, and the questioning at oral argument that, in retrospect, presaged his ultimate rationale, has finally enabled me to see some potential merit to the activity/inactivity distinction.
At oral argument, in an exchange noted by, among others, Walter Dellinger, J. Roberts asked about the consequences of non-compliance, and the enforcement mechanism, and offered the following, somewhat cryptic comment to the response:
“The idea that the mandate is something separate from whether you want to call it a penalty or tax just doesn’t seem to make much sense,†Roberts said, over strong objections from attorney Gregory Katsas. “It’s a command. A mandate is a command. If there is nothing behind the command, it’s sort of, well what happens if you don’t file the mandate? And the answer is nothing. It seems very artificial to separate the punishment from the crime. … Why would you have a requirement that is completely toothless? You know, buy insurance or else. Or else what? Or else nothing.â€
In a circuitous way, this explains why the activity/inactivity distinction may actually have merit, despite the absence of any apparent textual support: the power to regulate commerce naturally encompasses the power to regulate activities, because offending activities may be prohibited and appropriate penalties imposed (e.g., confiscation of the offending wheat, and a wide range of lesser penalties below that). These penalties may reasonably be construed to fall within the regulation of commerce. Regulating inactivity, however, becomes problematic because appropriate penalties do not arise out of the regulation of commerce itself. In short, the imposition of a fine for not doing anything at all just doesn’t seem like a necessary and proper part of regulating commerce. Resort to the taxing power avoids that issue, particularly where, as in the ACA, the penalty/tax imposed is not so disproportionate to the need to fund the program at issue as to become a form of coercion, instead of taxation.
So, at the end of the day, the answer to the question of whether the Gov’t can force you to eat broccoli under the Commerce Clause is clear: no, it cannot. Not because the regulation of broccoli consumption is beyond the reach of the Commerce Clause, but because the regulation of commerce in broccoli does not naturally encompass a viable enforcement mechanism (e.g., imprisonment, force-feeding, deprivation of alternative foodstuffs, etc.). But the Gov’t may perfectly well encourage the consumption of broccoli by means of the taxing power, such as by subsidizing broccoli with Gov’t funds and/or taxing alternative foodstuffs in such a way as to persuade the vast majority to change their consumption habits. Those who really can’t stand broccoli remain free to be “inactive†by paying more for other foods.
Very interesting analysis.
Please don’t use the current most over-used expression: “at the end of the day.”
We also shouldn’t forget that if the economic outlook continues to degenerate, this ruling may prove to be a piece of false hope after the next round.
I’m not so sure. It’s hard to imagine the Republicans acting affirmatively to take away the popular parts of the ACA, no matter that they make Ayn Rand cry. The Court had the power to make the entire act go away, with no responsibility nor even ability to replace it with something else. The Congress could do a straight repeal, but the Republicans aren’t talking of such, because it’s politically dangerous. And the whole reason that the ACA has a Mandate is that the popular parts don’t work without a Mandate. Obama campaigned against a Mandate in ’08, because the Mandate is bad politics; I and other strong Obama supporters criticized this as being dishonest political pandering. But the Republicans have only three options:
(1) Fulminate, but accomplish no legislative response to the ACA.
(2) Repeal the ACA, cleanly, with no replacement, and thereby take away the parts people like.
(3) Replace the ACA with something meaningless and inadequate (lowest-common-denominator unreliable insurance sold across state lines and malpractice caps already shown to have no useful effects on medical costs or access are the main Republican “ideas” mentioned). Like (2), this means taking away the parts of the ACA people like.
(4) Replace the ACA with its doppelganger, and so vote to impose a Mandate.
(5) Enact Single Payer, or Single Provider.
(6) Repeal only the Mandate, even though the rest of the ACA means such a move would inevitably eventually destroy our healthcare system, as insurers can only afford to cover people with pre-existing conditions are community-rated prices if the whole community signs up for insurance. This would be breathtakingly cynical and dishonest.
Of those possibilities, (1) is good politics; (6) is conceivably good politics, but would represent new depths of Evil even for these people; (2-4) are bad politics, and bad policy; and (5) was listed as a joke, because although it’s a sensible policy response it’s not within the realms of possible Republican responses. I see (1) as being the most likely option. I expect a lot of loud noises carefully calculated to have no significant impact.
I see another option. They could replace the mandate with an alternative that makes their base happy, but leave the rest of the ACA (mostly) intact, combined with minor cosmetic changes to pretend they fixed some things.
What would that alternative be?
Cranky
For example, the German model. German health care law require that you have health insurance, but you aren’t actually penalized for not having coverage. However, the moment you seek healthcare, you have to retroactively make the payments that you missed out on, but will also benefit from health insurance as if you had it all along.
There are a number of other schemes (limited open enrollment periods, delayed benefits or penalties for late enrollment, such as Medicare Part B). Ezra Klein probably has discussed all of them at one time or another. 🙂
I would heartily support enacting Germany’s health care law as the US law tomorrow (although I’m not sure it would still be shorter after all those special-purpose German words were translated into English). But that would not satisfy the “acceptable to the Tea Party faction” half of your requirement.
Cranky
Personally, I wouldn’t want to enact Germany’s health care law. (Especially not the private insurance part, which not only has all the downsides of American health insurance, but also has adverse effects on the public insurance part.) It really has too many 19th century relics still buried in it. Trust me. I have relatives in Germany [1]. 🙂
What I was referring to was only the “mandate” equivalent, which would provide tea partiers the illusion that they are not actually following a mandate, even though in the end it turns out to be pretty much the same, economically.
P.S.: What I personally would prefer is a better-funded version of the NHS, which, as I can say from personal experience, is all kinds of awesome. I can’t really emphasize enough how nice it is to deal with a healthcare system where doctors, nurses, and midwives are pretty much only concerned with keeping and making you well, not with how you’re going to pay for it. It’s difficult to explain how good it is for patient and doctor alike not to have to worry about billing until you’ve personally experienced it.
[1] Admittedly, part of the reason why they keep complaining about German healthcare is that they’ve never had to deal with the American system.
Okay, I’m sorry to sound like a broken record, but Katja, how is the German system an insurance system v. a healthcare system? (And it sounds quite acceptable to me, either way.) I could see how in terms of German society, it pools risk I guess, but it sounds like there is no real risk for individuals. Just a question of when you are going to pay your taxes. So a) I wish we had that, and maybe we will now, and b) why do we keep calling it “insurance?” And why am I having trouble grasping this concept? (haha, don’t answer that all at once, folks) If the entire population is going to be on the hook for something, can you call that insurance, or is it just a system then?
NCG,
that’s probably partly sloppy wording on my part, but mostly I was just mirroring German terminology. It’s called “Krankenversicherung” there, which (literally) means “health insurance”. It’s also not technically a tax, since you pay your contribution to non-profit sickness funds, not the “Finanzamt” (the German equivalent of the IRS). Still, why is it called insurance? Historical reasons, I guess. For the NHS, you pay “National Insurance”, too, which actually is a payroll tax.
As to whether it’s acceptable, I think it’s better than the American system (at least pre-PPACA, we’ll see what the future holds). But then, the healthcare/insurance systems of most developed countries beat America’s [1]. However, in comparison with other more modern healthcare/insurance systems around the world (rest of western Europe, Australia), it’s fairly middling, though it has some really nice perks, such as some of the lowest waiting times in the developed world (including ERs). The biggest problem is the dual public/private insurance system, which harkens back to Bismarck’s times. The German public healthcare system (not only insurance, but also healthcare delivery) also depends on a pretty large non-profit sector, which would also be difficult to adopt.
[1] Assuming you’re not a multi-millionaire.
Krankenversicherung is usually translated as “health insurance” but of course that’s not its literal translation: its roots are “Kranken” (sickness, ailment) and “Versicherung” (insurance, making certain)
In my conception that’s either (4) or (6) - either it’s the Mandate all over again, or it’s sabotage of our healthcare system. Now, they could perhaps accomplish (4) while pretending to have done (6), relying on their proven ability to convince a huge proportion of Americans that We Have Always Been At War With Eastasia. But that would be a tough line to follow.
Oh, and moved by Katya’s response to reread my own darn comment, I see that the text “only three options” persisted uncorrected from when I started writing the comment, before in the process I realized I could think of three others. But unless she’s got a darn good answer to Cranky’s question I won’t acknowledge the existence of a seventh of my three options.
Katja, thanks for the reply! I think I understand a little better now what my issue is. I keep forgetting that for some people (not you, obviously … ; >), there is no basic social contract underlying society, or as I like to call it, civilization. So for those people, having a healthcare system seems like a human rights violation, which confuses me. And then the concept of insurance, which overlaps with civilization. I feel better now.
Where I had doubts about the Commerce Clause was the long-standing prohibition against selling health insurance across state lines. This suggested to me that each state is a separate insurance market. The purpose of the prohibition was to prevent a race to the bottom by having The Substandard Corporation of America setting up shop in South Dakota and selling policies that fail to cover basic benefits to every part of the country.
But as was discussed on this website long ago, the mandate was structured as a tax from the beginning; it was the aversion of the legislative and executive branches to describe it thus that led to so much confusion, which will become political fodder from now to November.
BTW: The Founding Father Alexander Hamilton would have had no problem with the SCOTUS decisions giving the central government power over the states. Teabaggers, take notice.
It’s so funny isn’t it. We love Roberts today even though he’s a horrible jurist and buttressed his opinion with this nonsense. He’s an idiot. He’s a hero. I’m glad he did what he did. I still hate him.
Mark is wrong. Roberts is rocking the boat, and pretty damn hard. Mark is distracted by Robert’s policy hand, which indeed did very little harm, except in some benighted Confederate states which might not expand Medicaid. While distracting the audience by upholding the ACA, Roberts’ legal hand is merrily changing the Constitution in the way he did it. Roberts has set up the precedent bank for some serious states rights arguments in future cases. He has also conned some people into thinking that he might be something other than a wingnut politico. Not so. Roberts is a wingnut politico, but a far smoother one than, say, Nino Scalia.
Roberts performing illusions and stage magic with the law? Say it ain’t so. Next you’ll tell me that the court wasn’t just calling balls and strikes when deciding Citizens United.
Full text here at Huffpo.
On activity and inactivity. CJ Roberts, page 27, asserts a plain falsehood:
Ginsburg nails this in the liberal dissent, page 19:
I suppose US citizens should be grateful for Roberts’ contortions to maintain most of ACA (to protect the Court’s endangered standing) and throw enough compensating bones to the GOP base and the Federalist Society (the Commerce Clause interpretation and crippling the Medicaid expansion). But it leaves him stranded between two more coherent visions of the Constitution.
Why? a clue in his only citation of an amicus brief - that of the insurers (p.17).
The right-wing dissent is worth reading for its systematic disregard of the interests of the sick; only insurers and to a lesser extent their policy-holders are of any interest.
But they do write this:
But while Ginsburg refers deservedly to a post by Sarah Kliff at Wonkblog, the reactionaries use but fail to cite my pioneering broccoli research here.
James,
The dissent is also worth reading in that removes the last vestiges of the mask disguising Kennedy and Crew as right-wing political hacks. Which is not to say the mask wasn’t already in tatters.
Of course one day … the failure of some to eat broccoli may be found to deprive them of a newly discovered cancer=fighting chemical which only that food contains, producing health-care costs that are a burden on the rest of us
Hmmm… Hasn’t recent research suggested cancer-fighting properties in cannabis? Marijuana Mandate, anyone?
“…and settled law requires that it be provided to you even if you can’t pay.’
Well, we’ll just have to change that. Laws can be un-settled, too. I’m pretty sure you could get one of the two major parties to come out for it.
I’m glad the ACA was upheld, but I still don’t think it is the same thing to force someone to buy health insurance as it is to force them to pay for health care. One is an essential service for which, in a still semi-decent society like ours, Mark is right, we all are responsible.
Whereas, insurance is a needless money-suck that we ought to have just got rid of. (If a system is like Medicare, with a tiny overhead, I can go ahead and squint and just see it as a healthcare system. I admit at some level there’s a gray area.) But keeping alive these hydraheaded monstrosity insurers doesn’t to me quite fall squarely within the Commerce Clause. I’m just not sure what I think of it, exactly. And maybe I’m glad I don’t have to be.
Well, sure, a lot of people would prefer Single Payer or even Single Provider. I’m one of them. But, my gawd, the fight we’ve just had over the last four years to enact and protect Bob Dole’s 1995 plan, a plan that leaves in place the Insurance Company middlemen, and that doesn’t even have a Public Option or a Medicare Expansion … do you really think getting rid of the insurers is feasible in the short-to-medium term?
Also, the ACA means that the federal government gets a lot more power over the shape of private insurance. In Germany and Switzerland this has made for a system where the insurers are much less free to be evil, and to extract huge sums. We’ll see whether we can accomplish the same here.
I agree with you for the most part. What I was trying to say, very unclearly, is that I don’t think of insurers as providing anything of real productive value. They seem more like a protection racket to me. Thus, one could argue that they are not part of “commerce” at all.
But, as you say, it is moot now, and substantively I am very glad, b/c politically you’re completely right. Not far right, just right! hahaha.
Once you require insurance companies to provide coverage to everyone at the same price regardless of the risk they entail, no, they don’t provide any value. Pricing risk is the entire purpose of an insurance company. With the PPACA we are starting to make the ethical choice (a correct one in my opinion) that people’s access to health care shouldn’t be restricted by risk.
So hopefully this is the beginning of the end for the insurance companies although, as Katja points out, just because the end has begun doesn’t mean it’s going to finish anytime soon.
J. Michael, you wrote “Pricing risk is the entire purpose of an insurance company.” That’s clearly true. But “pricing risk differentially, based on cohort subgroups” is a technique the insurance companies use to develop differential rates, not their purpose. They would still be fulfilling their purpose by spreading *all* the risk equally over *all* the policyholders.
There is another purpose to insurance companies: by acting as a purchasing pool, they have the bargaining power to get discounted medical services from in-network providers, at least in urban areas where competition is possible. Someone has to stop the providers from setting their own prices.
But, yeah, mostly the insurers constitute a 30% tax on all medical care.
I did not mean to imply that actuaries are not skillful or valuable in themselves, it is the overall industry with which I have an attitude problem. No doubt because of my own adventures in the individual “market.” (I’m bitter. ; >)
Having said that, I’m not sure I see much evidence of actual competition, but, that could just mean no one was competing for *me.* So whether or not it is hard to be an actuary is not something I could speak to, come to think of it. I wonder if the ACA will actually lead to more competition as I think it was supposed to. Practically speaking though, I can’t imagine anyone would want to get caught out making conservative guesses on next year’s outlays, so, prices probably won’t drop from that. Plus there are the myriad ways to squeeze the system. Anyway, I guess things might get interesting.
Among the many good things accomplished by ACA the one that is most heartening for the long run is just getting the fedral government into the practice of controling health insurance companies. The standard practices of the insurance industry has gone so off the rails it has turned from absurd to obscene.
When people have time to recall all of the abuses they lived with that are now illegal and to see that they can demand further improvment from elected representatives they may just tumble to the realization that a whole lot of their money could be better spent if there only was a single payer plan. Just maybe.
There’s not actually a rule that Constitutional interpretation must make sense under economic analysis. There are lots of situations in which government power to remove something entirely does not imply the power to tinker with the particular implementation. In short, the reasoning is analogous to the aphorism that the greater power does not imply the lesser power.
How to implement the anti-economics rules in other contexts is intellectually opaque. There’s substantial risk that unpleasant funny business is waiting in the wings. But the individual right to bear arms turned out not to mean that much in other contexts (the felon-in-possession crime is has been upheld against every facial challenge, AFAIK)
Because one was active in the airline industry 10 years ago does not mean they are still and forever active in the airline industry. Because one gets stitches on the knee when he was 11 years old, does not mean at 22, having not been to the hospital since, he is still active in the health care market.
Constitutionally, can a citizen sign a binding pledge never to accept health treatment unless he personally hands over cash in advance? Maybe have it tattooed on his chest, so if he is brought to an emergency room unconscious and with no wallet the triage nurse is free to have him thrown into the alley or straight into the dumpster?
Cranky
Even in that case: What if he’s brought in with Ebola? “Not consuming health care” is pure fantasy.
Oh, there’s a simple response the Conservatives will love: we can repurpose EMTs exactly the same way Ray Bradbury repurposed “Firemen”. You represent a threat to public health, one you haven’t already handled through paying for medical care, and thereby a threat to the public fisc? The EMT will take care of society’s medical/fiscal problem … permanently. For bonus Conservative points we can through in Bradbury’s “Firemen”, too.
Note the figures in Justice Ginsburg’s opinion: 90% of those without health insurance will use health care within 5 years. Yes, at 22 everyone’s immortal, and a fantastic sex machine to boot. But don’t worry, Eddie: you’ll grow up.
Going without health insurance doesn’t “stick the rest of us with the tab”. Those with means who forgo insurance can be sent a bill, and will overall end up paying more than those who took advantage of tax subsidized employer provided insurance. The uninsured who are poor do stick the rest of us with a bill, but the mandate doesn’t apply to them, because they are poor. We are all also stuck with the tab for the assorted wasteful Obongocare mandates, like “free” mammograms.
1) You’ve either got an extraordinary and oddly focused typing problem, or you’ve decided you want to appear wildly racist. I’m guessing the latter.
2) You seem to be unfamiliar with the idea that heavily subsidizing preventative care and a healthy lifestyle will greatly increase the quality and the duration of life, and is likely to save on medical expenses in the short term. To be sure, helping people to live longer and better just delays their eventual and likely expensive demise, and letting them die in the streets would be cheaper still. Nonetheless, some of us see long and healthy lives, accompanied by lower medical expenses for most of those lives, as being worthwhile goals.
Much of the now subsidized preventative care is wasteful (e.g. “free” mammograms), or else things consumers would have paid for anyway, and none of it or the mandate has anything to do with anyone “dying in the streets”.
Preventive care is not a cost driver and unlikely to be. It’s hard to estimate what the costs will be once the PPACA is fully in effect, but Germany, which has very comprehensive preventive care coverage (including free mammograms), spends about 4% of its healthcare costs on preventive care (which includes elderly patients, which should generally be covered by Medicare in America). You can have a LOT of mammograms (average cost of $100) for the cost of two births, and the average American woman will have about two children in her life (average cost of $10,000 apiece, not counting prenatal care).
What drives healthcare costs (aside from inefficiencies in our system, which work as multipliers) are chronic and particularly expensive illnesses. About 20% of all people account for 80% of all healthcare costs.
In any event, the primary goal of preventive care (and of really any functioning healthcare system) is to keep and make people well, not to make actuarial penny-pinchers happy. Preventive care costs serve as a disincentive for low income people to get preventive care, so in the interest of removing that barrier, the law removes copays.
Joe Romm has an interesting argument here that the basis of the decision (taxing power good, commerce clause bad) makes a simple carbon tax more likely and a complicated cap-and-trade scheme less so.
Somewhat offtopic: is the outcome in Raich consistent with the reasoning in the quoted excerpt?
So, NCG’s question above inspired me to look at the meaning of “insurance” and its German translation “Versicherung” more closely. As it turns out, even though dictionaries will tell you that these two words are literal translations of each other, they have different connotations and even meanings in English and German.
You get a first clue by looking at their respective Wikipedia pages. The English Wikipedia page for insurance says that “[i]nsurance is defined as the equitable transfer of the risk of a loss, from one entity to another, in exchange for payment.” The German Wikipedia page already differs in its title, which is “Versicherung (Kollektiv)”. “Kollektiv”, as one may suspect, does indeed mean “collective”, and the page goes on to describe insurance in the German sense as the “basic principle of the collective assumption of risk” and lays out a risk pooling scheme where the insured pay premiums into a shared pot and receive payment in the event of a loss.
As it turns out, this difference in definition actually has historical and cultural reasons. The oldest form of insurance known in Europe is marine insurance, where seafaring merchants try to mitigate the risk associated with the loss of a ship. Germany’s trade (and in fact much of that of Northern Europe), until the end of the 16th century, was dominated by the Hanseatic League, and the preferred form of insurance that the League engaged in was apparently the so-called “Partenreederei” (ship partnerships), where ownership in a ship was split between a multitude of merchants (one extreme documented case has a lost ship belonging to no less than 62 merchants). Thus, if a ship was lost, only a comparatively small financial loss was incurred by each participating merchant. While the Hanseatic League also knew of bottomry as an insurance mechanism, records of their meetings (so-called recesses) seem to indicate that it was disfavored, likely because of the possibility of fraud. It is only after the decline of the League in the late 16th century that other forms of marine insurance gained ground in Germany, imported from abroad. (I note that in this context, Antonio in the Merchant of Venice provides us with a good example of the dangers of overestimating your capacity for self-insurance, a lesson that still matters in today’s health insurance market, even if it does not cost you a pound of flesh close to your heart.)
A concurrent development during the late years of the Hansa was the creation of the so-called fire guilds (“Brandgilden”) in Northern Germany, some of which still exist. They were basically co-op fire insurances where groups of building owners pooled money to be able to reimburse those who lost their buildings to fires (cooperatives have been fairly important throughout German history, especially in rural areas, and it’s no coincidence that Germans originally developed the idea of a credit union; coop banks still account for about a quarter of the German banking sector). Following cooperative insurance was public law insurance against fire, first in the cities of Hamburg and Magdeburg. Private insurers came to the game fairly late.
But even nowadays that insurance in Germany is mostly administrated by private insurers (except for most health and other social insurances), insurance still seems to be defined as a form of risk pooling. However, conceptually German insurances are differentiated by whether premiums are assessed based on the “principle of solidarity”, where everybody pays income-based premiums (such as health insurance or unemployment insurance), or based on the “principle of equivalence”, where everybody pays according to their risk and their desired level of protection (such as car insurance).
This also finally tells me why some of my German acquaintances seem thoroughly confused by some of the questions in the PPACA debate (for example, they don’t even seem to get why young, healthy people shouldn’t pay the same premiums as old people — when you think of health insurance as a risk pooling system amortized over your entire life, the idea of paying different premiums based on age does not make much sense — the idea, after all, is to even out the financial burden as much as possible).
(I’m not sure if that’s of much interest to anybody else, but I found the historical context fascinating.)