Last night pieces by the thoughtful and knowledgeable Uwe Reinhardt, the smart and hard-working Marty Lederman, and that brilliant man of unsound methods Richard Epstein collided on my computer screen, and then held an all-night insomniac hoedown.
This is the result:
I always have a very difficult time understanding constitutional law professors...
I first focused on this when I was visiting my brother while he was at Yale Law School, following him around for a day, and heard his professor say something like:
It was not until 1978 with Monell v. Department of Social Services that the Supreme Court understood §1983".
And I thought: That's simply not true. In 1978 with Monell v. Department of Social Services (and earlier in 1961 with Monroe v. Pape) the Supreme Court changed the judicial meaning of §1983 of the Civil Rights Act of 1871. To say that in 1978 the Supreme Court "understood" the meaning of §1983 is simply to say what isn't so. Rather, in 1978 Justice Brennan said "Hey guys! Let's have a Constitutional Moment here and change the judicial meaning of §1983!", with Blackmun, Marshall, Steward, and White saying "Yep!", with Powell and Stevens saying "Well, sorta...", and with Rehnquist and Burger saying "Nope! Let's not!"
Or consider, for example, the very smart and hard-working Marty Lederman. Up until June 2012 everybody I talked to believed that in the Affordable Care Act Congress had mandated that individuals purchase health insurance, and that everything in past judicial history and doctrine since the 1937 Switch-in-Time-That-Saved-Nine told us that it had the power to do so as part of its responsibility to regulate commerce among the several states. Then in June 2012 Chief Justice John Roberts rewrote the law from the bench, stating that the power to regulate interstate commerce did not extend so far, and that what Congress had actually done was simply to tax individuals who did not acquire heath insurance. And Mary Lederman talks about how the legal academic community was "mistaken" and that John Roberts than "corrected" them:
Marty Lederman: Hobby Lobby Part III—There is no “Employer Mandate”:
Courts of appeals offered virtually the same exact mistaken reading of the ACA in the so-called “individual mandate” cases—until the Solicitor General and then the Supreme Court corrected them in the landmark Health-Care Cases (a/k/a NFIB v. Sebelius).... [Even though] §5000A... provides that an individual “shall” maintain a minimum level of health coverage, and that a “penalty” shall be imposed on any person who “fails to meet th[at] requirement”... [in spite] of this language of obligation, the Court held that... §5000A “merely imposes a tax citizens may lawfully choose to pay in lieu of buying health insurance,” 132 S. Ct. at 2597...
Now at the level of social reality and human interaction, Marty Lederman's use of language is simply bonkers. Congress intended to impose a mandate under its commerce clause power. Few if any back in 2009-10 doubted that Congress had the power to impose a mandate under its commerce clause power--if anybody had, the drafters would certainly have worded the §5000A differently. Legal academics were providing an accurate and well-settled interpretation of the meaning of §5000A under what the law then was before June 2012 when they said that it imposed a mandate allowed under the commerce clause power. They were not engaged in a "mistaken reading". And Marty Lederman does gross violence to reality when he claims that they were.
It is similarly gross violence to reality for Lederman to claim that all these legal scholars and practitioners--universally engaged in a "mistaken reading"--were "corrected" by Chief Justice John Roberts. That is not what Roberts did at all: he did not correct a mistaken reading, but rather changed the law into something different and other than it had been the minute before he started to speak.
So then how are we to read what Marty Lederman and others write?
The fact of the matter is that the rhetoric of legal scholarship often involved making plainly and obviously false claims about what the law has been in the hope that those claims will then govern what the law becomes in the future. Lawyers have been doing this ever since the days when Edward Coke decided to make false claims about what the law had been under Tudors and Plantagenets in an attempt to constrain the powers of an alien Scottish Stuart king--if not before.
All this is prologue to me tearing me hair out over Richard Epstein.
I have run into him before--I remember a panel where I was seated next to him and he said something like: "Ever since the founders wrote classical liberalism into the Constitution..." And I freaked--for, as I know well, classical liberalism as a political-economic doctrine did not exist as of the writing of the Constitution. As an intellectual doctrine, yes--it's called the Enlightenment. As a political doctrine, sorta. But as an economic doctrine? No. 1789 is about half a century too early for any claim that in economic affairs that government is best that governs least.
In fact, as far as I know, the first occurrence of "that government is best that governs least" come in 1837 with John O'Sullivan's United States Magazine and Democratic Review. And do note that "least" is here problematic, for O'Sullivan was also a big booster of and apparently the coiner of the phrase "Manifest Destiny" as well. From O'Sullivan it apparently went to Ralph Waldo Emerson's Politics: "The less government we have, the better." And from Emerson it went to Henry David Thoreau's Civil Disobedience--although note that Thoreau does not endorse Epstein's "night watchman" state but goes all the way to full frontal left anarchist libertarian: "That government is best which governs not at all."
But at the panel I had lots of other fish to fry.
And so I never found out whether Epstein really believed that those who wrote the Constitution had minds soaked through with doctrines that would not be developed for half a century--certainly nobody who reads Book V of Adam Smith's Inquiry into the Nature and Causes of the Wealth of Nations would classify Adam Smith as an economic "classical liberal"--and that the Constitution embodied Spencer's Social Statics. I never learned whether this was just another example, like Lederman and Coke, of knowingly and deliberately making false assertions about the past in the hope that those doctrines will become true about the law in the future. (I am told by sources who know that the same issues arose during John Yoo's tenure case--that the reviews came back from the historians saying: "What is this? This isn't history! This is wrong!" And the lawyers replied: "Legal history isn't supposed to be true of what was, it is supposed to be a rhetorical move in a game to decide what will be.")/p>
So, with all that to establish that I do not know what Richard Epstein--or, indeed, pretty any constitutional law professors; I really wish they would stop--mean by what they write, I proceed to substance:
Richard Epstein says:
Richard Epstein (November 18, 2013): Obamacare’s Death Spiral :
We need to kill Obamacare and avoid a single-payer system at all costs...
Why? Because of:
Obamacare’s moral blindness... coercive and corrosive effects... the extraordinary claims for government domination over individual rights comes front and center when the President... bar[s] ordinary folks from acquiring coverage in the voluntary market, in order to force them to seek coverage they don’t want...
As an elimination of individual liberty:
Obamacare is that bad, even if the minimum wage law is not...
"The Obamacare fiasco," Epstein says, is so bad that it:
now flunks Justice Holmes’ extreme rational basis test in the 1905 decision of Lochner v. New York [because]... "a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.”...
Thus in order to defeat ObamaCare we need to resurrect and apply:
the oft-discredited doctrine of substantive due process...
And we need to have:
a serious reconsideration of the constitutional issues... the constitutional challenges raised in... NFIB... were over issues of Congressional power, not of individual rights. Chief Justice Roberts walked an implausible line when he held that Congress did not have the power to enact the legislation under its commerce power, but could do so under its power to tax and spend for the general welfare of the United States. From the outset, no one took seriously the view that the individual mandate posed any threat to the individual liberty protected under the Due Process Clause of the Fifth Amendment....
And it was at this point that I found myself going: "But... but... but... but..."
But it was only the summer of 2009 that future Republican standard-bearer Mitt Romney was praising the individual mandate as an example of personal responsibility required for ordered liberty. Rather than an infringement on liberty, it was its essential prerequisite: a conservative Republican responsibility principle, for you were going to need medical care at some time in your life, and not to require that those who are going to use treatment resources bear some financial responsibility is to succumb to the moochers and freeloaders.
But it was only the summer of 2009 that Republican health-care policy intellectuals--having not yet gotten the memo--were still talking about how a system of mandatory purchase of insurance on exchanges was essential in order to make the health-care insurance market work, was the proper form of regulation for a free market-based health-care finance and insurance system, and was the conservative policy approach. Failure to impose such a mandate, they argued, led inevitably to some form of single-payer command-and-control destructive of individual liberty, or led to a system in which the moochers and freeloaders who did not contribute according to their ability exploited the rest of us.
But the point of conservative regulation is to provide the minimal governmental underpinnings for the market to work. And--or so the smart sophisticated conservative argument went only five years ago--the individual mandate is not just a way of imposing a (perhaps regressive) tax to fund health care and a way to reward insurance companies but also the minimal governmental underpinnings for the health-insurance market to work.
Does Epstein not recognize this? He seems to have no problem with government definition and enforcement of property rights. He seems to have no problem with government enforcement of contract terms. If he has a problem with government standardization of contract terms, it's not at the forefront of his complaints about the modern world. Isn't the individual mandate analogous? And only six years ago the overwhelming intellectual current surrounding the individual mandate was that it was a conservative policy: a focus on duties rather than rights, on responsibility, and the equivalent of the famous "night watchman"...
Epstein continues his offensive against the individual mandate as a crushing infringement of liberty:
Individuals... have grounds to attack a statute... [with such] coercive and corrosive effects... government domination over individual rights... [bars] ordinary folks from acquiring coverage in the voluntary market, in order to force them to seek coverage they don’t want...
What is this extraordinary infringement on individual liberty, this "domination", this "corrosion", this "coercion". Epstein gives one and only one example:
treating maternity care for men as an essential minimum benefit--in a nonfunctional government market that serves none of their personal needs...
That is it.
That is what Richard Epstein regards as the unforgivable corrosive coercion destruction of liberty: the requirement that insurance companies charge the same amount for their comprehensive plans--which must include maternity care, which men do not use--for plans sold to men as for plans sold to women.
Maybe Richard Epstein thinks that there are other mandates imposed in the ACA that are also unforgivable corrosive coercion destructions of liberty. But if there are he does not think they are worth mentioning. He thinks this one is.
I confess it had never struck me that gender health insurance cost parity--requiring insurance companies to charge the same amount for policies for males as for females--was a "coercive and corrosive... government domination" that deeply infringed upon my individual rights. I didn't think of it at all. And if I had thought about it, I would have thought about it as largely analogous to requiring that the minimum essential benefits for any insurance policy I purchase include coverage should I wind up in a cardiac ward with a blocked artery. I, you see, have inherited my father's cholesterol metabolism: he (and I) could subsist entirely on a diet of red meat and blue cheese without our cholesterol spiking into what the cardiologists currently say is the high-risk zone. From our perspective, something else is overwhelmingly likely to kill us long before our arteries get clogged and blocked enough to do so. If the entire population consisted of people like us, it would probably still be more cost-effective to limit cardiac treatment to a baby aspirin a day rather than provide the current per capita cardiac treatment infrastructure--we would have better health if that money were spent somewhere else in the medical care system. But is my individual liberty greatly infringed because I cannot buy a cardiac care-light policy in which the money is diverted to provide better coverage for other things (no, right hip, this is not the time for you to talk; no, left sciatic nerve, this is not the time for you to talk either) that I would be likely to actually use rather than to cardiac care that I have only an epsilon chance of using?
No. I do not think so.
So am I weird? Does Richard Epstein understand better than I do when and how my individual liberty is greatly damaged and infringed?
No. I do not think so.
Is the difference between my having an epsilon chance of needing expensive cardiac care and a zero chance of my needing a hysterectomy enough to make me hysterical at the infringement of individual liberty involved in the government's requiring including me in the community-rated pool of people for whom hysterectomy is part of covered minimum essential benefits?
No. I do not think that is enough to make me hysterical.
And my confidence is reinforced by Uwe Reinhardt, who writes in The Real Health Care 'War' on the Young:
A common theme among critics of Obamacare has been that it basically is a war on... young... men... Chris Conover... John Goodman... Avik Roy.... Now, one certainly can have misgivings over community rating on actuarial grounds.... But the authors cited above do not base their case on purely technical, economic grounds. Language such as 'the greatest generational theft in world history' or 'a war on the bros' is meant to generate moral outrage.
A case in point is the gender neutrality.... Before the Affordable Care Act, premiums for women in the younger age groups in the individual and small-group market were as much as 70 percent higher than those of men of similar age because women bear children.... Imposing gender-neutral community rating on such a market inevitably leads to some economic transfer from men to women.... Among many Americans and most Europeans and Asians--men included--this mandated gender neutrality is noncontroversial. Perhaps it is thought of as a small token of gratitude for the extraordinary contribution to humanity women make in this regard. Besides, there is growing scientific evidence that the physical and intellectual development of humans into adulthood is strongly influenced by their experience and nutrition in utero and during early childhood. Thus, a nation does not even have to be particularly humane, but merely smart, to grant women of child-bearing age easy access to the best maternal and child care attainable, including good nutrition. It is a solid economic investment with high social returns over generations.
Yet as I have noted previously, many other Americans seem to view children more in the nature of lovable human pets--that is, more in the nature of a private good than a precious social resource...
Is what is really going on, at bottom, that at some deep level Richard Epstein thinks that girls have cooties? That there is something unmanly, and a great insult to him, for society not too sharply distinguish him from those who do the bulk of the work of our reproduction? That community rating across genders somehow leads to the ritual pollution of Richard Epstein by LADYPARTS?
What do you think? Can you think of a way for me to avoid reaching such a conclusion?