On the other hand, "Big legal setback for Obama," say the MSM headlines today. I don't recall any "Giant legal victory for Obama" when either the Michigan or the other Virginia district court ruled in Obama's favor recently.
The legal setback I reckoned was a foregone conclusion more than a year ago (contra Josh Marshall). Now it's a political setback, and will be even more of one once the court in Pensacola finds similarly to Judge Hudson.
I don't think you ever answered the question about whether you're so keyed into (and dismissive to those who disagree with you on) this issue, at least in part, because you don't personally want to be required to purchase coverage under the law.
Seems pertinent for someone charging that personal partisanship is clouding the judgement of otherwise reasonable commentators. Is anything clouding or coloring your judgement?
If only there were a constitutionally sound and already functioning alternative wherein the federal government used its legitimate taxing authority to provide basic health insurance.
Someone should have suggested this to the president. I'm sure he'd have listened.
Sort of. You denied the implication that you are reacting personally. That's not the same as denying you don't have any direct personal stake in the outcome -- i.e., you wouldn't be required to purchase insurance that you don't currently carry under the mandate.
I don't have any personal stake either; that's what I meant by "nothing personal." And again, I said I think it's good policy, but bad law: as I understand it.
TPM today introduces another Constitutional concept, "Necessary and Proper Clause", Article 1 sec 8. For us non-lawyers, this particular phrase could be read as more or less expansive. Constitutional law is like reading the last chapter of non-fiction work without knowing what's in the first 20 chapters.
There's another law prof in the NYT complaining that the Constitution doesn't mention "activity," which is true, but just for fun I was counting up the instances of "activity" and "activities" in United States v. Lopez, one of the leading Commerce Clause cases, and lost track at about 20.
And elsewhere. What I meant was that the sentence Prof. Kerr refers to is strictly speaking not part of the court's "ruling," but rather that section of the opinion -- under Roman numeral IV -- that serves to reiterate the gist of the parties' arguments. The court's own substantive analysis begins under Roman numeral V.
A better example of the distinction occurs further on, under Roman numeral VIII, where the court addresses the severability of the mandate from the rest of the Act. Judge Hudson mentions the parties' arguments, but proceeds to ignore them both completely, and instead relies entirely on prior authority.
Tushnet appeals to what I claimed was Harry Shearer's argument:
The government's argument is that the "activity/inactivity" distinction requires too narrow a time-focus -- on the moment at which the decision to purchase or not purchase insurance is made, rather than on the lifetime consumption of health care -- or, alternatively and equivalently, that the relevant market is the healthcare market, not the insurance market.
Which seems to be a pretty piss-poor justification for propping up the insurance market...
Tushnet has an abundance of credibility in my book. Even so, if they manage to make non-participation in a market into market activity for Commerce Clause purposes, then Congress's power is de facto without limit.
Doesn't Tushnet's reasoning, if pushed far enough, indicate that health care isn't just a sui generis form of commerce... but not even commerce? The logic seems to rest on the fact that the Emergency Medical Treatment and Active Labor Act etc. etc. precludes anyone actually opting out of the market - just opting out of paying.
Maybe I'm just being thick. Riffing off Tushnet, Scott Lemieux seems to also point toward my paradox:
Perhaps if we lived in a libertarian dystopia in which people without insurance were denied access to emergency rooms, the distinction would be meaningful. But given the safety net that actually exists, refusing to buy insurance is economic activity in all most the most formal sense.
Neither this nor Tushnet's conclusion seem to follow from the Wickard analogy. The farmer was substituting his own production for market participation and that in aggregate these substitutions affected interstate commerce. The farmer chose to participate, only via different means. Tushnet and Lemieux argue the uninsured have no choice but to participate in health care, but they don't establish whether that's engaging in commerce.
"[Filburn] was never fined for not buying wheat, as the vast majority of the population didn’t buy unprocessed wheat and weren’t fined.
"It was entirely possible for Filburn to be inactive and not be fined. Most people were inactive and were not influenced by regulation. It seems rather strange to say that government was regulating inactivity when inactivity was precisely what freed someone from regulation."
I think what they really want to say is, "Health care is too goddamm important to be left to the market." A view I'm not unsympathetic with, but is rather contradictory with the "Duh, of course it's commerce" plaint.
If only there was a free source for informed opinion on issues like the constitutionality of the individual mandate!
ReplyDeleteI think Marshall needs to get out of the village for a little while.
Even Ezra Klein, who is usually pretty even-keeled, is in denial today.
ReplyDeleteOn the other hand, "Big legal setback for Obama," say the MSM headlines today. I don't recall any "Giant legal victory for Obama" when either the Michigan or the other Virginia district court ruled in Obama's favor recently.
ReplyDeleteThe legal setback I reckoned was a foregone conclusion more than a year ago (contra Josh Marshall). Now it's a political setback, and will be even more of one once the court in Pensacola finds similarly to Judge Hudson.
Time to get the Romneycare meme going for 2012.
I don't think you ever answered the question about whether you're so keyed into (and dismissive to those who disagree with you on) this issue, at least in part, because you don't personally want to be required to purchase coverage under the law.
ReplyDeleteSeems pertinent for someone charging that personal partisanship is clouding the judgement of otherwise reasonable commentators. Is anything clouding or coloring your judgement?
Yes I did.
ReplyDeleteIf only there were a constitutionally sound and already functioning alternative wherein the federal government used its legitimate taxing authority to provide basic health insurance.
ReplyDeleteSomeone should have suggested this to the president. I'm sure he'd have listened.
Yes I did.
ReplyDeleteSort of. You denied the implication that you are reacting personally. That's not the same as denying you don't have any direct personal stake in the outcome -- i.e., you wouldn't be required to purchase insurance that you don't currently carry under the mandate.
I don't have any personal stake either; that's what I meant by "nothing personal." And again, I said I think it's good policy, but bad law: as I understand it.
ReplyDeleteTPM today introduces another Constitutional concept, "Necessary and Proper Clause", Article 1 sec 8. For us non-lawyers, this particular phrase could be read as more or less expansive. Constitutional law is like reading the last chapter of non-fiction work without knowing what's in the first 20 chapters.
ReplyDeleteTPM: The key portion of the ruling reads ...
ReplyDeleteExcept that isn't part of the ruling. It's Prof. Kerr that's in error, or so it would appear.
There's another law prof in the NYT complaining that the Constitution doesn't mention "activity," which is true, but just for fun I was counting up the instances of "activity" and "activities" in United States v. Lopez, one of the leading Commerce Clause cases, and lost track at about 20.
ReplyDelete(There are 48, including in the footnotes, in the main opinion alone.)
ReplyDeleteNot trying to be an a.. but, "Necessary and Proper Clause, page 18 in the PDF.
ReplyDeleteAnd elsewhere. What I meant was that the sentence Prof. Kerr refers to is strictly speaking not part of the court's "ruling," but rather that section of the opinion -- under Roman numeral IV -- that serves to reiterate the gist of the parties' arguments. The court's own substantive analysis begins under Roman numeral V.
ReplyDeleteA better example of the distinction occurs further on, under Roman numeral VIII, where the court addresses the severability of the mandate from the rest of the Act. Judge Hudson mentions the parties' arguments, but proceeds to ignore them both completely, and instead relies entirely on prior authority.
Tushnet appeals to what I claimed was Harry Shearer's argument:
ReplyDeleteThe government's argument is that the "activity/inactivity" distinction requires too narrow a time-focus -- on the moment at which the decision to purchase or not purchase insurance is made, rather than on the lifetime consumption of health care -- or, alternatively and equivalently, that the relevant market is the healthcare market, not the insurance market.
Which seems to be a pretty piss-poor justification for propping up the insurance market...
Tushnet has an abundance of credibility in my book. Even so, if they manage to make non-participation in a market into market activity for Commerce Clause purposes, then Congress's power is de facto without limit.
ReplyDeleteAnd Jack Balkin is trying to keep the tax power argument alive.
ReplyDeleteDoesn't Tushnet's reasoning, if pushed far enough, indicate that health care isn't just a sui generis form of commerce... but not even commerce? The logic seems to rest on the fact that the Emergency Medical Treatment and Active Labor Act etc. etc. precludes anyone actually opting out of the market - just opting out of paying.
ReplyDeleteCan't you ask easy questions? (Have to get back to you because it's not clear to me what use Prof. Tushnet is making of Wickard v. Filburn ...)
ReplyDeleteMaybe I'm just being thick. Riffing off Tushnet, Scott Lemieux seems to also point toward my paradox:
ReplyDeletePerhaps if we lived in a libertarian dystopia in which people without insurance were denied access to emergency rooms, the distinction would be meaningful. But given the safety net that actually exists, refusing to buy insurance is economic activity in all most the most formal sense.
Neither this nor Tushnet's conclusion seem to follow from the Wickard analogy. The farmer was substituting his own production for market participation and that in aggregate these substitutions affected interstate commerce. The farmer chose to participate, only via different means. Tushnet and Lemieux argue the uninsured have no choice but to participate in health care, but they don't establish whether that's engaging in commerce.
A Brad Potts, at LGM:
ReplyDelete"[Filburn] was never fined for not buying wheat, as the vast majority of the population didn’t buy unprocessed wheat and weren’t fined.
"It was entirely possible for Filburn to be inactive and not be fined. Most people were inactive and were not influenced by regulation. It seems rather strange to say that government was regulating inactivity when inactivity was precisely what freed someone from regulation."
What he said.
I think what they really want to say is, "Health care is too goddamm important to be left to the market." A view I'm not unsympathetic with, but is rather contradictory with the "Duh, of course it's commerce" plaint.
ReplyDelete