Conservative Legal Scholars Disturbed by Questions Asked by Conservative Justices

Ronald Reagan, a conservative icon (despite the fact that he raised taxes and increased the national debt), selected  as his Solicitor General, Charles Fried, that is, his chief lawyer for arguing cases before the Supreme court.  Here is what Ronald Reagan’s Solicitor General had to say about the Supreme Court’s three days on the Affordable Care Act.

“There is a market for health care. It’s a coordinated market. A heavily regulated market. Is Congress creating the market in order to regulate it? It’s not creating it! The market is there! Is it forcing people into it in order to regulate them? In every five-year period, 95 percent of the population is in the health-care market. Now, it’s not 100 percent, but I’d say that’s close enough for government work. And in any one year, it’s close to 85 percent. Congress isn’t forcing people into that market to regulate them. The whole thing is just a canard that’s been invented by the tea party and Randy Barnetts of the world, and I was astonished to hear it coming out of the mouths of the people on that bench.”

According to Ronald Reagan's Solicitor General the act is constitutional and we all ought to be deeply disturbed by hearing Supreme Court justices repeating Tea Party sound bites in their questions for the current Solicitor General and opposing council.

One Question We All Need to Understand Before We Debate Health Care

Why is requiring us to purchase health insurance not the same as requiring is to buy (or worse, eat) broccoli?  In short, when we choose not to buy broccoli we are choosing not to enter the broccoli market.  When we choose not to buy health insurance, get sick and end up in an emergency room, we are choosing to free ride…because we are in the market but choosing not to pay for the goods we are consuming…and insisting everyone else pay for our consumption instead. 

This increases the costs to others (higher premiums, higher taxes, higher risk of disease spreading in public spaces, costs associated with lost days at work or unavailable hospital beds or doctor shortages).  Thus, we might still oppose the Affordable Care Act, but if we do we must do so after first understanding this central distinction to avoid deciding based on sound bites (about nasty old broccoli) designed to mislead us.

Harvard Law professor, Noah Feldman, provides a longer explanation to the central question for the Supreme Court—and for all of us—in evaluating the Affordable Care Act.

Debating Approaches to Providing Health Care
The president’s Affordable Care Act, to be taken up by the Supreme Court on Monday, was designed to address several critically important problems.  Now that the legislation is before the Supreme Court we can see that there are additional conflicts playing out in and through this fight over health care.

Ruth Marcus, from the Washington Post, reminds us that one of those problems to address was the tax burden created for the majority of American who have health care but must subsidize the health costs of those who do not…at a much higher price tag then it could cost us to provide them with health insurance in the first place.

“The most compelling sentences in the Obama administration’s brief defending the constitutionality of the health-care law come early on. “As a class,” the brief advises on page 7, “the uninsured consumed $116 billion of health care services in 2008.” On the next page, the brief drives the point home: “In 2008, people without insurance did not pay for 63 percent of their health care costs….

Yet this is a provision that the overwhelming majority — those with insurance — should support, for the simple reason that they currently end up footing the bill for much of that $116 billion. As the government’s brief notes, “Congress found that this cost-shifting increases the average premium for insured families by more than $1,000 per year.”

In other words, those worried about having to pay ever-higher premiums should be clamoring for the individual mandate, not agitating for repeal.

Indeed, for all the bristling over the mandate, it will be irrelevant to the 80 percent of non-elderly Americans who already have insurance, either through their employers, government programs or purchased on their own. The biggest real-world risk to these people would be if the court were to overturn the mandate yet allow the rest of the health-care law to remain in place, driving premiums ever upward.

Amazingly, Republicans have managed to transform the mandate from an exemplar of personal responsibility into the biggest public policy bogeyman of all time.”

At least two points worth noting here.  First, we are reminded that we (taxpayers) already pay the health care costs of the uninsured in higher premiums to support hospital subsidies.  We also pay in diminished public health (think disease spreading in schools, for instance) and in an estimated loss of $65 to $130 billion of economic activity.  Why not pay less in taxes to provide all Americans with health insurance?

Physicians for a National Health Program report on dozens of studies done by the General Accounting Office, the Congressional Budget Office, and think tanks at the state and federal level repeatedly demonstrating that the administrative savings provided by a single-payer plan would at least offset the additional costs of covering every American…in many state studies the analysis showed enormous savings to taxpayers, such as $344 billion in California over ten

The second point of note in Marcus’ column is the partisan flip flop on individual mandates.  An idea that came from the conservative Heritage Foundation and was once the Republican alternative to a single-payer plan because it was based on individual responsibility…is now, without irony or shame, routinely described by these same Republicans as socialism.  It may not be a good idea.  In fact, I agree that it is not the best idea in this case, but it is a conservative idea, and nothing at all related to socialism.  But Marcus digs deeper to point out why many refuse to see this as hypocrisy. 

“In part, hostility to the mandate reflects a broader uneasiness with perceived big government encroachment…

But opposition to the mandate also stems from the public’s failure to understand — or, alternatively, the administration’s failure to communicate — basic facts. For example, Kaiser found that when people were told that most Americans “would automatically satisfy the requirement because they already have coverage through their employers,” favorability toward the mandate nearly doubled, to 61 percent.

Favorable attitudes rose to nearly half when people were told that without the mandate, insurance companies would still be allowed to deny coverage to those who are sick; that without the mandate people would wait until they were sick to purchase insurance, driving up premium costs; or that those unable to afford coverage are exempt.”

While recent debates about contraceptives and forced vaginal examinations make it very difficult to claim only one party is pushing big government…this concern should not be taken lightly by elites on either side.  This is a perennial question, however, since voters routinely say (demand) they want smaller government at the same time that they say they want more government services like police and fire protection, trash pick up and prisons, better schools, fewer potholes, and a stronger national defense. 

Nor should the calculated effort to misinform Americans about health care, revealed in the Kaiser data, be overlooked by either side.  Even if it works on this one issue, and that is never certain, what deeper damage is being done to the preconditions needed for democratic deliberation, since that is, ultimately, the foundational mechanism we need to function properly if we are to productively address any conflicts we face.

And finally, will those who frequently criticize the Supreme Court for legislating from the bench call on it now to defer to the more democratic branch (see this conflict as not ripe)?  Or has the orginalist the call for judicial restraint actually been just a misleading way of expressing dissatisfaction with particular court decisions, and not really opposition to court action in general, as we saw in the response to Bush v Gore? 

I have no doubt that there are many good reasons to oppose the particular court decisions usually attacked as judicial activism, but I would welcome the candor that would come with just saying we support or oppose a decision for these reasons, in place of pretending it is the nature of the institution or interpreting the Constitution that offends you, because the former debate is more likely to strengthen democracy and the latter is not.

Not about politics
It may not be accurate, but it feels like men and women develop friendships differently.  Neither my wife nor I grew up in Akron, but she has had a best friend here for years and I envy that about them both. They talk often and intensively, on the phone and in person.  It could be me; I may not get it.  Maybe it is likely that it is just me.  But my best friends take time to develop and it is not talking time or phone time, but present-and-active time. Doin’ stuff time.  It is time we spend shooting hoops, playing volleyball or golf, drinking beer, watching the Buckeyes, or puzzling through how to deal with water in our basements. 

To even write this is to violate my own pattern and feels unlike me, but I am writing because the guy I call to watch games, to play ball, to get a beer…it looks like he is leaving town.  Suddenly I am feeling the downside of leaving my home town to live in China, Hungary, Seattle, Amherst and now Akron. There is no fall back plan, at least not today.  My wife is out of town for a few days and there is no one I can call to watch March Madness.   That’s not right.  Also likely my own fault; maybe I just do not know how to make friends.  Why is it that I seem to need to spend thousands of hours just doing shit with a friend to become close, to trust and care? 

The guy leaving town is smart and a great athlete.  He is funny and, what I like best, is that he is relaxed and serious, intense without being an arrogant know-it-all prick.  I cannot speak for him, and I am happy for his new opportunities, but I always look forward to hanging out with him because it is both easy and not a waste of time.  Him leaving sucks, but what is really hitting me is the void left in my life.  Sure, I can call this or that guy, but it would feel weird, be unusual, and as a result I watched Ohio State beat Syracuse on my own tonight. 

In high school we had a group and we were inseparable.  In college, the same.  Then in Beijing, and Xian, and Seattle for graduate school.  We did exciting shit together, and a lot of dull stuff too.  That was what we built our relationship on.  My rootlessness has meant I have met many different types of people, been a member of many different types of communities, experienced and learned things I could not have imagined in high school, but it has also meant that relationships have atrophied when I move on.  As Neil Young put it…

One of these days,
I'm gonna sit down and write a long letter
To all the good friends I've known
And I'm gonna try And thank them all for the good times together.
Though so apart we've grown.

Official Discretion and the Rule of Law
In Florida last week, a 26 year old neighborhood watch captain shot and killed 17 year old Trayvon Martin.  Because the shooter told police that he shot in self-defense, the police chose not to arrest him. 

Officers have the discretion to arrest or not.  But it seems to me that in this case, a claim of self-defense is best seen as a legal argument for a jury to evaluate in a courtroom.  The evidence we already have and that no one disputes...a dead teenager that the shooter admits killing...warrants an arrest to ensure that a jury will have the opportunity to evaluate the self-defense claim. 

We may look back later on the decision not to arrest the shooter as just poor judgment.  Or perhaps--once we learn more about the disputants, the officers involved, and the department's track record--an abuse of discretion that undermines respect for authority and the rule of law...and makes it dangerous to grow up black in America.