Tribe's Economic Incoherence
John has said enough about the constitutional holes in Tribe's flimsy argument, and Adam has highlighted the contempt Tribe has for judges who disagree with him. Tribe thinks of himself as the dean of American constitutional lawyers, which thus adds a strong and cloying ex cathedra tone to his voice. But it is hard to speak with authority when you don’t quite get the economics of the situation correct. Here is the nub of the issue. One key feature of ObamaCare, like other health care programs, is that it wishes to give two huge set of subsidies, one to persons with preexisting conditions and the other to older people. Subsidies can never come for free. Someone has to be taxed to pay for them.
The challenge is to find out whom. Tribe makes the assumption that the only persons who can pay for the subsidy are other individuals with better health. But there is another alternative which is to go out of general revenues, so that no person is singled out for expenses that others of the citizenry are not forced to bear. Using the general tax revenues would tie the level of subsidy to wealth in ways that the individual mandate do not, for that figure does not depend on the “economic ability” to pay. It just depends on the amount of the penalty that Congress imposes, regardless of ability to pay. The political risk of this result is that it is easier for majorities to vote subsidies if some subset of the population has to bear the burden. Wholly on legal process grounds the mandate should be regarded as suspect.
Unhappy with his first argument, Tribe then raises the second, which is that folks who do not pay will free ride the system. But he cannot have it both ways, as I have argued elsewhere. If you demand the subsidy, then it is the subsidized party that gets the free ride, not the party who is forced into the system. Market rates would prevent that particular injustice from happening.
It is not clear how much his economic incoherence matters. But it surely cannot help the argument. The inactivity/activity distinction is in the cases, and it hits a raw nerve because it asks the question if you can force people to insure others just for living, why not ask them to do anything else under the sun? To my mind there should also be a substantive due process argument here, because I would not regard this form of legislation as appropriate even if done by the states which are not bound by any constitutional doctrine of enumerated powers.
So the constitutional issue is in play. No one thinks that it is a foregone conclusion. But what is clear is that Tribe is too complacent in his own views of “justice,” and it appears most everything else.
- Comment (11)
- · Quote
- · UnfollowFollow (1)
Comments :
Nov '10
Re: Tribe's Economic Incoherence
Richard Epstein: Subsidies can never come for free. Someone has to be taxed to pay for them.
The challenge is to find out whom.
That would be the "forgotten man.”
William Graham Sumner’s (1840-1910) The Forgotten Man and Other Essays (1876):
"The type and formula of most schemes of philanthropy or humanitarianism is this: A and B put their heads together to decide what C shall be made to do for D. The radical vice of all these schemes, from a sociological point of view, is that C is not allowed a voice in the matter, and his position, character, and interests, as well as the ultimate effects on society through C's interests, are entirely overlooked. I call C the Forgotten Man."
Re: Tribe's Economic Incoherence
Great post. What substantive due process arguments are you thinking of (in your penultimate paragraph)? I've argued elsewhere that opponents of Obamacare should use the Griswold/Roe line of cases re: "autonomy" and "privacy" with respect to medical decisions (at least one of the lawsuits does make that argument). Is that what you mean - or are we talking about reviving the Lochner era of liberty of contract (a long shot, but a fellow can dream....)?
Edited on Feb 9, 2011 at 9:22amRe: Tribe's Economic Incoherence
Richard, this is undoubtedly an ignorant question, but I ask to be enlightened. Those raised on the living Constitution seem to believe that it is endlessly elastic and can -- and should -- accommodate whatever goal seems paramount at the time. And we all know that a determined judge can write around whatever facts and rulings he's been given to get to that goal if he wants.
Here's the question: How much real attention do you think some of these activist judges actually pay to the actual argument laid out by, say, Judge Vinson? Or is it just like Larry Tribe, where they pay attention only to get around? I just wonder what effect truly constitutional arguments have on the deliberations. So often it seems to me that fashion is the more relevant indicator.
Sep '10
Re: Tribe's Economic Incoherence
Once the penumbra began to emanate, it was only a matter of time before it began to gesticulate, then walk upright, then grunt and groan. Now -- thanks to Lawrence Tribe -- it can talk. One question, though. If a right began life as a penumbra, then could a fetus be a person?
Food for thought for Liberals.
Nov '10
Re: Tribe's Economic Incoherence
I believe it’s an exception when a judge uses legal reasoning to come to a decision in a case. The norm is to decide the result first and then look for a way to justify it. Lawyering would be too easy if judges always followed the law. Gosh, within a certain range, you could almost predict the outcome of a case.
We know this is absolutely true because when a judge breaks with the pack and actually does use legal reasoning and common sense to decide a case, as Judge Roger Vinson has down, look how upset it makes some people. They didn’t want the Constitution to be upheld, they wanted a certain result. In their mind a judge that fails to deliver the result they want is a bad judge.
It’s not wrong to want a certain result. But if the judge’s reasoning is sound an honest person admits it was a mistake to want that result.
Edited on Feb 9, 2011 at 12:05pmRe: Tribe's Economic Incoherence
I don't know. I think there are a lot of close cases at the appellate level, and, when political ramifications aren't involved, there is a great deal of intellectual integrity on the bench. But at the federal appellate level, especially the Supreme Court, politics probably enters in more often than not. But I've heard judges talk before on things that influence them in a decision, e.g. Justice Scalia talked about how much oral arguments can influence. If those things actually matter, the judges are not always engaging in results-oriented jurisprudence. I suspect, however, that originalists/conservatives are more likely than their counterparts (living Constitution types) to apply strict legal reasoning apart from the political ramifications of the decision.
Edited on Feb 9, 2011 at 12:15pmOct '10
Re: Tribe's Economic Incoherence
Pseudodionysius: Once the penumbra began to emanate, it was only a matter of time before it began to gesticulate, then walk upright, then grunt and groan. Now -- thanks to Lawrence Tribe -- it can talk. One question, though. If a right began life as a penumbra, then could a fetus be a person?
Food for thought for Liberals. · Feb 9 at 10:52am
No, a photon.
Oct '10
Re: Tribe's Economic Incoherence
What thinks me strange in all of this discussion about Obamacare is that a fundamental change in the federal distribution of power is occurring, with the shift from an industry regulated entirely by the States to one regulated by the central government, and nobody seems to be talking about that. Why aren't the States challenging this usurpation of their authority over insurance regulation?
Re: Tribe's Economic Incoherence
The answer in this case is that the privacy interests and the contract interests are closely entwined. Thus recall that the particular issue in Griswold was with respect to the sale of contraceptives in Connecticut. That is easily a contract issue, where the burden is put on the state to explain why this transaction cannot go through, at which point the preferences of the Catholic Church cannot bind. They can preach and instruct to their membership but they have no similar hold on the rest of us. In the larger world you have to show that the completed transaction between A and B poses a threat to the interests, not the sensibilities of C. Contracts to kill or main third persons; contracts in restraint of trade meet that standard. Offense to the behavior of others does not, if only because if allowed in one case would result in a world in which no one could do anything.
The reason we got into knots was that the opinion of Justice Douglas in Griswold tried to straddle a line: make strong autonomy claims on some issues without opening up the economic issues. Hence privacy was governed by different rules. But the correct approach is to avoid the ad hoc narrowing of categories, and to adhere to the general line that is applicable to all voluntary transactions.
Edited on Feb 9, 2011 at 3:49pmRe: Tribe's Economic Incoherence
The dangers of fashion are of course serious, but there is no side in the constitutional debate that has a monopoly on the question. The current debate over the Commerce Clause is surreal because everyone has to assume that Wickard v. Filburn is correct when constitutionally it is far off the originalist reservation . So at this point there are really hard questions that all parties must answer, starting with whether nearly 70 years after the case, do we try to get back to the original position which had held (tolerably) firm as late as 1935. The question of how to deal with, to build on, or to reject mistake is one of the hardest issues for all sides to face. Overturn Wickard and the Affordable Care Act is history. Keep it, and we get arcane distinctions that have no role to play in any of the original debates.
Edited on Feb 9, 2011 at 4:10pmJul '10
Re: Tribe's Economic Incoherence
Pseudodionysius: Once the penumbra began to emanate, it was only a matter of time before it began to gesticulate, then walk upright, then grunt and groan. Now -- thanks to Lawrence Tribe -- it can talk. One question, though. If a right began life as a penumbra, then could a fetus be a person?
Food for thought for Liberals. · Feb 9 at 10:52am
Emanate? Everyone knows penumbra adumbrate.
(Which is scarier, that I have emitted this existentialist clap trap, or that it passes the spell check?)