February 8, 2011

I have to take a 3rd shot at Larry Tribe's op-ed: That big word "choice."

Here's my first shot and here's my second shot at Larry Tribe's op-ed purporting to say why the Supreme Court will come down in favor of the constitutionality of the individual mandate to buy health insurance. I didn't set out to write one post after another about the op-ed, but I must go on to talk about his use of the word "choice" — which is monumentally important in the discussion of abortion rights. Tribe's op-ed has nothing to say about abortion. I wonder if he would have written it differently if abortion had crossed his mind, but I can't believe that a constitutional law professor would overlook the abortion-related significance of the word "choice."

Tribe's op-ed, as I wrote in the first post, rests very heavily on misrepresenting the Supreme Court's commerce power doctrine as referring to "commercial choices." In fact, the cases refer to "commercial activities," and a switch from "activity" to "choice" is immensely important in the health care litigation, in which opponents stress that the failure to buy insurance is inactivity, not activity, and therefore beyond even the broadest interpretations the Supreme Court has ever given to the Commerce Clause.

Tribe attempted to skew opinion by substituting "choice" for "activity," and I have called him on that. But I need to go further, because someone who uses words to get things done needs to be kept honest not only about shifting from one word to another, but also about changing the meaning of the same word from case to case. Let's look at how Tribe talked about "choice" and health insurance and then see how that squares with what "choice" is supposed to mean in the abortion context.

In today's op-ed, Tribe wrote:
Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab. This conscious choice carries serious economic consequences for the national health care market, which makes it a proper subject for federal regulation.
You can see that Tribe has given a very broad definition to the notion of choice. People bumble along, doing what they want, aware of the chance of an undesirable outcome, vaguely expecting to take advantage of an out that isn't very nice. That's a choice. It is something real and specific that the individual has done. Society can, as a group, based on our idea of the good, say to that person: We are now going to require you to take responsibility at that early decision point of yours. So Tribe says.

Now, apply that to abortion. If we take a similarly broad view of choice, we could say — as anti-abortion advocates do — that women who know they may be fertile have a choice when they go ahead and have sexual intercourse with a man. They can refrain from having sex, but if they go forward, they know that if they need emergency-room care get that they can’t pay for get pregnant, the public will pick up the tab they can get an abortion.

Of course, the Supreme Court case law does not present the woman's right to choose in terms of taking responsibility at that early point. It says:
These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.
The choice that matters is an elaborate process of high-level reflection that occurs after the woman becomes pregnant — that is, when it's too late to take the precautions that the majority might have liked her to take so that she would not show up with the demand for something it wants to prevent.

I realize there are many distinctions that can be made between health insurance and abortion, but there is so much sophistry around the word "choice" that I think it's important to concentrate on what choice means and how it matters in the law. It seems to me that society, acting through a legislature, may have a preference about when an individual should be required to make a choice, and that the individual, valuing autonomy, may want a broader range of choice than the majority would like to permit. When we think about government power and individual autonomy, how consistent must we be about what "choice" means?

101 comments:

Scott M said...

Excellent post, AA.

TosaGuy said...
This comment has been removed by the author.
TosaGuy said...

I feel semi-smart today.

On 29 Jan 2011 I commented with regard to the commerce clause and health insurance.

"If that is the case, then I guess all the female folks clammering about keeping Gov't hands off their bodies probably shouldn't support this interpretation of the Commerce Clause."

rdkraus said...

Made me laugh out loud.

Bet your great fun in class (really).

But you're not going to be popular with this sort of thing.

Sigivald said...

"Keep your laws off my body, except when you're mandating that I do things about it for my own good!" is a much less catchy slogan.

I don't really care about abortion much one way or another, but I do wish people who hold it as very nearly a sacrament wouldn't pretend they're somehow against government passing laws about their bodies in general.

I've seen too many pro-choice people complain that government should ban various foods to buy that patent bullshit.

(That said, there probably ARE people of a more libertarian bent who really do want the State to refrain from all such laws, and they are being perfectly consistent.

On the other hand, people like that tend to be more broad in their demands for a government-free zone than just their bodies.)

Joe said...

Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab.

The assumption that someone who doesn't buy insurance intends to take a free ride is absurd--with all insurances, you make a calculation of risk.

Furthermore, anyone who buys insurance and has expenses that exceed their premiums are, by Tribe's definition, getting a "free ride."

(In the last half of the 90s, I carried no health insurance and paid everything out-of-pocket. Even with a CAT scan, x-rays, several ER visits for stitches and a child birth, I spent less than if I'd had an insurance policy, especially if it had a large deductable.)

rdkraus said...

Yiiiii

I made a your / you're mistake.

Hope my kids, the grammar police, don't see that.

Smilin' Jack said...

MRIs have demonstrated that all choices involve some neurological activity in the brain. Therefore making choices about health insurance is clearly the kind of commercial activity the Founders had in mind when they wrote the Commerce Clause.

Hee...I should have been a constitutional lawyer.

AllenS said...
This comment has been removed by the author.
AllenS said...

Why don't you invite Tribe to do a boggingtv thing, and then you could kick his ass in real time?

1jpb said...

"They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab."

I'm assuming that Althouse has completely misinterpreted the meaning of this.

Tribe is saying that the tax payers (public) of WI will pickup the tab. He's not thinking broadly. He's talking about Althouse.


Tribe was clearly referring to an old post where Althouse said that it made sense for her to choose to marry someone (who becomes ill, but has no insurance) so that her husband could benefit from her government funded health care.

Some (like me) would call this fraud, but not Althouse. For her, this isn't even a choice. It's "inactivity." So taxpayers should STFU and pay for Althouse's recommended inactivity (aka fraud).

For the record, this post was pre-meade. And, Meade has said that he's always had his own privately paid for insurance. Not to mention that he's probably getting ready to go on the government's tit, aka Medicare. So, Meadehouse was not a health care charity (given by Althouse, but paid for by the public: aka inactivity) situation for Althouse.

Trooper York said...

You know when you don't like what someone has to say and you are losing the argument it isn't really cool to attack someone and their spouse in such very personal terms.

I mean it is not like the blogger lady is the ex-governor of Alaska or something.

Comrade X said...

Individuals who abort children they can afford have made a choice to take a free ride on the Social Security system.

Trooper York said...

The are plenty of better reasons to mock Meadhouse than the status of their healthcare insurance which is really none of our business.

I mean you could do five or six posts on their haircuts alone.

Not to mention those goofy pizza's Meade is always making.

Trooper York said...

I just think we don't have to jump to being so personal right off the bat.

Unless we are attacking AlphaLiberal. Then it is ok.

Thank you
Your Pal
Trooper.

nonapod said...

I can never follow the circumlocutious arguments frequently used in constitutional law discussions. I'm so dumb I don't even understand what compulsory health insurance has to do with the regulating interstate commerce.

Trooper York said...

"I'm so dumb I don't even understand what compulsory health insurance has to do with the regulating interstate commerce."

It doesn't have anything to do with it. It is just the latest bullshit that the libs have come up with to control our lifes. Soon they will say what food you can eat because they think the commerce clause should regulate your bowels.

J.C. said...

Generally excellent post, but you're succumbing to the framing of word "choice" re: abortion that's not universally agreed on.

For many (most?) pro-lifers (and even most people in the middle), abortion is not *solely* about "choice", because that "choice" is balanced against *potential* homicide (the fetus, which may or may not at some specific point be considered a Person in a Kantian sense).

No one who's pro-life and against ObamaCare is "against healthcare choices" in the sense that's being used in the article; they're against, in their view, killing babies/fetuses/persons.

Not a contradiction.

1jpb said...

Trooper,

I know nothing about Althouse or Meade other than what they've written here. So, presumably it's ok to read, remember, and recall what they've written.

And, I do think that it's relevant to know that Althouse has now suggested that certain health care scams, such as as the scheme she'd previously endorsed, are "inactivity," where the public should STFU and pick up the tab for the schemers.

ricpic said...

Article III, section 2, on the powers of the Federal Judiciary:

In all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party the Supreme Court shall have original jurisdiction. In all other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Translation: Congress has the final say on the constitutionality or unconstitutionality of every law (with very limited exceptions) it passes, including Obamacare. That it palms off that responsibilty on to the Supreme Court doesn't mean that the Court has the final word. A return to constitutional governance would severely impinge the power of 9 unelected judges to rule over us.

Michael said...

If we follow Tribe's logic, aren't people who work at jobs that are low-paying enough to avoid Federal income tax "free riding" on the rest of us with regard to things like national defense, which are only financed by Federal taxes? Some people choose to try to become Broadway actors or writers or artists and don't make enough money waiting tables to contribute to the defense department, but they still benefit by being defended.
Following Tribe's line of argument, these people could be forced to take higher-paying jobs, even if they dislike the work, to avoid this horrible free riding. Maybe the government could decide which education and employment choices a person would be allowed to make. After all, if we prevent young healthy people from gambling on not having health insurance, shouldn't we also prevent them from making the far more destructive choices of going into music, sports, acting or graduate study in the humanities? We should get experts to determine the optimal number of individuals in those fields and then award them to for those individuals scientifically selected at being best for them. If you leave people free to make their own choices, they might not choose the right things. Far better to plan everything for them. After all, it's inconceivable that any young, healthy individual would in any circumstances be better off skipping health insurance payments in order to pay rent, car payments, tuition or utility bills.

Trooper York said...

You are certainly welcome to your opinion but I thought it was a little personal is all. Usually we wait till about the 170 comment before we go there.

cf said...

This reminds me that just after Obama signed his health care bill in March, NPR issued orders to stop using the phrase "pro-choice" on abortion stories.

I commented at the time on their ombudsman site: "Good timing, NPR. With your DC overseers seizing power over all of our health care, "Pro-choice" suddenly has become a very inconvenient phrase for you progressives, hasn't it?"

It is still inconvenient, and I hope they continue to squirm.

Brian said...

"At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."

"Ah, sweet mystery of life..."

Jim O said...

. . . and I'm so dumb I can't understand why forbidding interstate commerce in health care insurance i.e, requiring that it be intra-state commerce, constitutes the "regulation" of interstate commerce. But I took only two semesters of Con law.

1jpb said...

"Usually we wait till about the 170 comment before we go there."

You're right, but I though that we were already at "about 170 comments." I assumed that we could combine the three threads, since they're all based on the same Tribe piece. Guess not.

My bad.

MayBee said...

Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab.

Couldn't we say this about people who refuse to get jobs? People who don't get jobs make a choice to take a free ride on the welfare/unemployment benefit system. They know if they need to eat, the public will pick up the tab.

Maybe we should make employment mandatory.

caseym54 said...

One might also question the word "insurance" when it comes to medical care. For the most part what is offered is "pre-paid discount medical care" and the insurance component is a tiny fraction of the cost.

In fact, the reform bill pretty much outlaws actual insurance, where you pay out-of-pocket for the expected and insure against the unexpected.

My perfect insurance policy would offer a $20K deductible combined with the preferred provider discount on the routine services and drugs at 100% copay. But that, too would be illegal since the Act assumes that I'm a deadbeat.

I think it's the latter that annoys me more than the mandate.

Richard Dolan said...

It's interesting that "choice" is "monumentally important" in the constitutional debate even though it is never used in this context in the Constitution. "Choice" and "choose" show up there in, e.g., the 12th and 14th Amendments dealing with the "choosing" of federal officials.

Different notions of "choice" are involved in understanding key words favored by the Constitutional framers -- mostly "free exercise," "the freedom of ..." and like expressions -- that necessarily involve a right to choose among alternatives. Part of that is the usual 'freedom to vs. freedom from' stuff, but it's not just that.

Ann's critique of Tribe's choice of "choice" is historical -- the SCOTUS hasn't talked about the Commerce Clause in those terms, but that critique leaves off the word that Tribe would probably respond with: "yet". It's also true that the SCOTUS' prior decisions never draw a sharp line between "activity" and "inactivity." Instead, the reality is that the prior cases all involved "activity" of some sort (although growing wheat for personal consumption is very close to the line of "economic inactivity", since it does not involve direct participation in market transactions -- quite the opposite in fact). Whether a line should be drawn at "inactivity" has never been squarely posed before.

The real thrust of Ann's critique is the claim that "Tribe attempted to skew opinion by substituting 'choice' for 'activity'". That seems true enough but it doesn't say much. Tribe clearly knows what he is doing, but the constitutional issue is as much policy/politics as it is an analysis of constitutional text and history. And everyone expects that the SCOTUS decision will be impacted by political factors, even if they are never acknowledged in the decision. Tribe wants to push opinion, and is offering a clever argument to do so. Randy Barnett did the same thing, and Ann does it every day. OK.

Ann ends with a distinction between "choice" understood as "something real and specific that the individual has done," versus "choice" as "an elaborate process of high-level reflection." There's less there than meets the eye, I think. The necessity to choose is an aspect of every moment of life; there is no sharp line between Anne's two examples. Actions have consequences, and we have a choice in how to deal with them too. Sometimes the choice is to do nothing. It's still a choice.

Another example Ann doesn't discuss is common in economic literature -- tax expenditures, resulting from a decision not to tax a certain transaction, etc. Since a power over commerce is what is at stake, it might make sense to look at how "choice" is used in that context too. But that's a different discussion, and this comment is already too long.

TMink said...

"but I must go on to talk about his use of the word "choice" — which is monumentally important in the discussion of abortion rights."

Only if you completely ignore the innocent side of the transaction, the ones with no choice.

Trey

Alex said...

Ankur & J really make me wish blogger had an ignore feature.

AJ Lynch said...

Comrade X said:

"Individuals who abort children they can afford have made a choice to take a free ride on the Social Security system."

That is some very clever out-of-the box thinking!

Lem said...

When we think about government power and individual autonomy, how consistent must we be about what "choice" means?

Consistency... reminds me of this post.

There good arguments both ways about whether corporations ought to be covered by the First Amendment. But it is harder to say that some corporations have First Amendment rights and others do not.


There good arguments both ways about whether economic inactivity ought to be covered under the Supremes commerce power doctrine. But it is harder to say that some activities (like choosing an abortion) have Constitutional protections and others (like choosing not to buy insurance) do not.

I love it when the left trips itself up like this.

Brian said...

Every constitutional right (except some criminal procedural and substantive protections) is a "choice"; one can choose to bear arms or not, choose to speak out or not, etc. This is, of course, a "no duh" point.

But it's worth saying, because it makes more clear that "choice" entered the lexicon because it sounds better than the more precise and honest formulation: The right to abortion.

We should get rid, not of choice, but of "choice."

rhhardin said...

opponents stress that the failure to buy insurance is inactivity, not activity, and therefore beyond even the broadest interpretations the Supreme Court has ever given to the Commerce Clause.

But it's not inactivity, a word which has now lost its moorings.

The opponents ought to be saying that it's stretching the previous cases a lot to find that it falls under them, stretching them apparently to infinity.

Which ought to have been the argument about the previous cases, which do stretch to infinity.

Scrutineer said...
This comment has been removed by the author.
Almost Ali said...

I don't even understand what compulsory health insurance has to do with the regulating interstate commerce.

Nothing. Unless there's even the remotest chance that you in your state - and me in my state - breathe the same air.

DADvocate said...

We all know the only choice that laefties support is the choice to have an abortion. They don't believe in the choice to select the school you child attends, hire whom you want, associate with whom you want, drive the kind of car you want, buy chicken sandwiches where you want, etc.

chickelit said...

Tribe: For the system to work, all individuals — healthy and sick, risk-prone and risk-averse — must participate to the extent of their economic ability.

Why didn't he just say:
From each according to his ability, to each according to his need.
I guess that would have struck the wrong chord.

I still think this is all about avenging Stanley Anne Dunham.

I'd like to see an analysis of what her ability to pay was during all those years she opted out of health insurance.

chickelit said...

wv = "winger"

(better winger than whinger)

AuthorSkeptics said...

Give the professor a break, Ann. Tribe's as subject to the "use it or lose it" principle as anyone.
You can hardly expect clarity and coherence in the writing of a law professor like Tribe who's relied on students to write his books and articles for him for the past several decades -- as we've documented at length on our blog. Glenn Reynolds didn't call Tribe the "Anti-Kingsfield" for nothing!
See: http://authorskeptics.blogspot.com

Lem said...

Is rh minting a new clause to the US Constitution?

The Infinity Clause.

Scrutineer said...

...there is so much sophistry around the word "choice" that I think it's important to concentrate on what choice means and how it matters in the law.

Why should we use "choice" in such an artificially narrow way? We don't refer to:

The right to choose to speak
The right to choose to exercise religion
The right to choose to assemble
The right to choose to petition the government
The right to choose to keep and bear arms
The right to choose a jury trial
The right to choose not to incriminate oneself
etc., etc.

Virtually every right involves choice. Advocates use "choice" to refer exclusively to abortion rights because it frames the issue in a politically useful way (sophistry!). It's a rhetorical dodge, and I don't understand how someone can uncritically employ this bit of agitprop while writing post after post about the need to use clear and honest language.

Rabel said...

"Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab."

Aren't these largely two different groups of people? If I have 8k or so available for annual health insurance wouldn't I be expect to be billed for ER care?

Bruce Hayden said...

It was fairly shrewd of Tribe to try to change the terms of the debate here. His problem though, I would suggest, is that the people he needs to listen to him, won't, and may already have digested the activity/inactivity distinction. So, in the end, he will probably just preach to the choir, which will all be surprised when the Supreme Court sticks with the activity/inactivity distinction, and doesn't even address his attempt to change the wording and terms of the debate.

Why would they ignore Tribe? I would suggest because there will be two choices before the Supreme Court - either accept that there are no practical limits on the Commerce Clause (and that the cases finding such were mistaken), or that there are limits on the Clause, and the activity/inactivity distinction is one of them. If the three liberal women on the Court were the majority, I would expect the Court to buy into the unlimited power argument. But they aren't, and so I expect that that theory is going to lose.

We shall see.

The Ghost said...

Many people choose to pay for their healthcare out of pocket. They are NOT freeriding.
Given that we already pay for freeriders within the current healthcare payment systems means that moving those freeriders into the chosen/mandated/coherced (insurance) payment system will not in any way lower the total costs but will simply adjust where those freerider costs are accounted for.
Health care costs are driven by third party payments systems and lack of true cost-benefit choices made by consumers which would promote efficiency and free market pressures.

Original Mike said...

"My perfect insurance policy would offer a $20K deductible combined with the preferred provider discount on the routine services and drugs at 100% copay. But that, too would be illegal since the Act assumes that I'm a deadbeat.

I think it's the latter that annoys me more than the mandate."


It outrages me. And it gives lie to their "somebody shows up at the ER..." argument.

Iapetus said...

Why stop at mandates for health care? By the same logic, why not require everyone to buy flood and fire insurance, personal protection insurance, and armed insurrection insurance so that people don't get a "free ride" on basic government services like fire and police or Coast Guard and National Guard if there are Katrina-like disasters, home robberies and assaults, 9/11-like attacks, or revolutions? It's OK to blur the difference between state and federal responsibilities because the US Constitution is so archaic and so hard for our generation to understand.

chickelit said...

Many people choose to pay for their healthcare out of pocket. They are NOT freeriding.

Yes. High deductable plans for example like I have. I haven't heard any news on this for awhile. Does anyone here (Bruce Hayden) have any updates?

Will such plans be phased out?

The Ghost said...

Anyone who has had to pay for a hospital stay out of pocket will appreciate the price inflation that occurs when someone else is paying for it.
My experience is that cash paying patients see a significant discount off the "listed" price of an insurance patient.
I've seen discounts of up to 50% for significant work.

A.Worthing said...

good stuff, ann. i mean to the point that i borrowed a major thought for myself when i wrote my own post tearing it apart, here.

http://patterico.com/2011/02/08/tribalism-the-supreme-court-will-agree-with-me-larry-tribe-because-they-are-non-partisan-like-me/

and toward the end, i pull in roe v. wade.

MayBee said...

What of states who choose to provide insurance (like MediCal) that does not pay doctors and hospitals enough to cover their costs? The rest of us have to pick up the tab.

Andrew_M_Garland said...

Consider this situation. The doorbell rings. Mother Theresa stands there holding a pistol. She explains tht the poor and sick need care, it is the right thing to do, and you are going to help. Hand over $100, or $1000 if your house is large, or she will shoot you in the leg.

Mother Theresa has a strong desire to help others. Does that give her the right to threaten or harm you to get your help?

I say no. There is no end to the good that Mother Theresa will want to do if we allow her a gun. There is no limit to the the cost that she would extract. Further, politicians are far from saints, and are willing to use such authority to gain power, rather than to focus on charity.

Government is so inefficient that socialized systems are going broke, even though they have guns.

The moral case for Universal Healthcare rests on the natural desire in most people to be charitable. But, the cost is unlimited, the complexity to obscure that cost is unlimited, and it grants detailed, intrusive, and unlimited power to the state to "do good".

C.S. Lewis:  Of all tyrannies, a tyranny exercised for the good of its victims may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busybodies.
  The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end, for they do so with the approval of their own conscience.

EasyOpinions

Bruce Hayden said...

Reading Tribe's piece, it is almost like he hasn't bothered to read the two District Court opinions that struck down the Individual Mandate.

For example, he blithely states that if it wouldn't work under the Commerce Clause, there is always the taxing power. But he never bothers to refute Judge Vinson's point that Congress had the choice whether to impose a tax under the Taxing power, or a penalty under the Commerce Clause, and intentionally chose the later.

Sure, Congress could go back and change the individual mandate to a tax, but, with the Republicans controlling the House, that is a non-starter. But will the Supreme Court figure that if the penalty isn't ok under the Commerce Clause, that they will just switch it to another power granting clause? Even if that means rewriting some of the law?

Not surprisingly, Tribe also misquotes U.S. v. Lee, 455 U.S. 252 (1982) on Social Security, after being so kind as to provide a link to it. For example: "When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees. Congress drew a line in 1402(g), exempting the self-employed Amish but not all persons working for an Amish employer. The tax imposed on employers to support the social security system must be uniformly applicable to all, except as Congress provides explicitly otherwise. 12" Where FN 12 states that "We note that here the statute compels contributions to the system by way of taxes; it does not compel anyone to accept benefits. Indeed, it would be possible for an Amish member, upon qualifying for social security benefits, to receive and pass them along to an Amish fund having parallel objectives. It is not for us to speculate whether this would ease or mitigate the perceived sin of participation."

Yes, folks, that is the U.S. Supreme Court decision that Tribe uses to argue that Congress should have the power to regulate inactivity under the Commerce Clause - an opinion that specifically refers to voluntary activity, and a provision based on the Taxing power, and not on regulating Interstate Commerce.

wv: excrack - reminds me of one of the more controversial contributors here.

Trooper York said...

I for one would like to know what MadisonMan Phd thinks about this.

chickelit said...

Trooper York said...
I for one would like to know what MadisonMan Phd thinks about this.

I think his head may still be pounding from that Packer party.

Bruce Hayden said...

Tribe also says: "This distinction is illusory. Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab. This conscious choice carries serious economic consequences for the national health care market, which makes it a proper subject for federal regulation."

This after citing a case (U.S. v. Lee) that involves a portion of the public (the Amish) that typically opts out of the health care system without free-riding.

And here is where he tried to make the transition between activity/inactivity and choice. If the debate were about choice, as he posits it, then there are no practical limits to the power granted under the Commerce Clause.

This reframing of the question also tries to skip over the debate on Necessary and Proper, because this reframing would put the Individual Mandate within the direct ambit of the Commerce Clause. His reframing of the debate would eliminate this as a concern. But, if it did, then why have a Necessary and Proper Clause in the first place?

Trooper York said...

"I think his head may still be pounding from that Packer party."


Jeez, I hope he is ok because that is very dangerous for an egghead. Just sayn'

1jpb said...

I'm waiting for Palladian MFA to sketch Althouse shooting at Tribe three times.

Or, is that too violent.

Trooper York said...

It's tough to be both a cheese head and an egg head. Just sayn'

PaulV said...

Pro abortion choice
Pro school choice
Pro insurance choice
Pro gun choice
Pro job choice
Whatever.
It seems that peanut butter & jelly is a sexist who think that only wives should qualify for spouse's insurance plan. Perhaps dropping the concept of tax subsidy or geeting insurance with the job is his concern.

chickelit said...

Trooper York said...
It's tough to be both a cheese head and an egg head. Just sayn'


Cheese soufflé?

Quayle said...

So, in other words, as a matter of my privacy I have the right to choose to not purchase health insurance even when I know I might get sick.

Timon said...

I think the abortion angle could have been this:

women can choose to keep the baby because they know if they have it, society (or the rejected father) will pick up the tab for its education, food, and healthcare if she cannot. Therefore, the gov't can mandate her abortion.

Hoosier Daddy said...

It outrages me. And it gives lie to their "somebody shows up at the ER..." argument.

The problem with the ER argument is that even people with insurance have a nasty habit of showing up to the ER for what amounts to routine care despite the preponderance of 'doc in the box' shops all over nowadays.

Rich said...

I don't like the health care law, for reasons about which I have bloviated previously.

Nonetheless I believe there is a material abortion-versus-health-insurance distinction in the context of the "choice" theory as it relates to the activity/inactivity dichotomy.

I think it is a fair proposition that everyone will at some point require medical care, which will have to be paid for. Deciding how one will pay for it (or not) is a choice, but it is a choice forced by the nature of things. Given that you will definitely incur health care expenses, the choice of how those expenses are to be satisfied seems to me to be "activity" or at least close to it. You are not opting out of incurring medical expenses, which if possible would be more akin to inactivity in my view. You're deciding (actively, I think) how you are going to pay for them. So I think, tentatively anyway, that the health care bill is a crappy idea which probably squeaks through as a constitutional proposition.

OTOH it is not a foregone conclusion that everyone will become pregnant. If one remains celibate then one will never become pregnant, barring the unfortunate circumstances when engaging in sex is not a matter of personal choice.

The analogy I see arises if one supposes the government mandated everyone buying prophylactics. That is an expense which could be avoided entirely -- as a matter of choice. Health care, not so much. Needing health care is a given for everyone. Being faced with a situation where abortion would be a consideration is not.

All the foregoing are tentative thoughts. I think I would be pretty easily persuaded otherwise. Just haven't figured out how.

Hoosier Daddy said...

Why stop at mandates for health care? By the same logic, why not require everyone to buy flood and fire insurance, personal protection insurance, and armed insurrection insurance...

Actually the bank which really is the owner of your home until you pay them the money they loaned you, will mandate that you carry homeowner's insurance. That's because if during the period of loan repayment, your house burns down, their financial interest is protected. Once its paid off, you're free to cancel your coverage and throw caution to the wind ;-)

MayBee said...

I think it is a fair proposition that everyone will at some point require medical care, which will have to be paid for. Deciding how one will pay for it (or not) is a choice, but it is a choice forced by the nature of things

Is that true? Everyone?

Milwaukee said...

Well done, Ann. Thank you. The aborted baby has no choice. Being aborted is a bit of a game-ender, wouldn't you say?

Those who forgo health insurance may be making a poor decision, but it is an economic decision: for what premiums cost, and what I might need, is it worth the risk. Not everybody carries an umbrella. Not having health insurance is risky, but getting out of bed and venturing out into the wide world is risky, and not all risks are covered. Here's a news flash: some people, with health insurance, get sick and die, and the health insurance doesn't keep them alive. "No Health Insurance" is not a cause of death. Accidents, bad genes, toxic air and water, bad diet and lack of exercise or too much exercise cause death. Some people drink and smoke and live long lives. Some don't. But the left wants to have it both ways. Do you really think that if even if health insurance was "affordable", there aren't some people who wouldn't rather use that money for something else?

Rather like the guy in Kentucky who didn't pay the $75 for fire insurance outside of the city and then said "I never thought they would let my house burn." I carry health insurance. But I am sympathetic to those who can't afford it, less so to those who choose not to. Then, when the hospital says, we can re-attach your fingers. This one will cost $10K, that one $15K and the third $35K. Which ones do you want to keep? They have to save your life, they don't have to re-attach your fingers.

1jpb said...

I think Tribe is making the point that illegal immigrants are the real winners w/ HCR.

They're excluded from the mandate, but they'll still be able to "inactively" have the public pick up their medical bills at the ER.

Rich said...

MayBee said:

"Is that true? Everyone?"

I suppose it is conceivable that someone could be born, live their entire life without even once getting sick or injured or requiring medical attention, and die when struck by lightning such that the only attention they receive would be by the coroner. Seems unlikely, and does not strike me as a matter of choice.

Well, wait, there's the Christian Scientists. This requires some more thought, I guess.

chickelit said...

1jbp said...
I think Tribe is making the point that illegal immigrants are the real winners w/ HCR.

If so why why doesn't he come out and say it? Screw propriety.

Akiva said...

Amazing point. But I think there's another argument here. We as a society don't REQUIRE people to make these level of life decision and calculation.

Today (or maybe it was as of yesterday) you had the choice not to choose. You didn't have to think and plan about your health care next year or your pregnancy status next week.

You were able to live today, like a fool if you wished.

Are we removing the freedom to be a fool? Are we requiring our citizens maintain the intelligence to plan and choose, and forcing them to do so?

Yes we are.

I write this as an ex-patriot outside the US where I have no such choice. I will receive health care, I will be taxed for it, and I will only get those services and medicines the technocrats have decided are appropriate and within the right price range. I will get the level of service offered and funded. I have NO choice where I am living at the moment.

The US used to be about choice. Past tense.

TMink said...

"Will such plans be phased out?"

But of course! No health savings accounts or even flexible spending accounts after 2014.

Change.

Trey

Methadras said...

At this point, Con Law profs are the equivalent of tax prepares and CPA's. You will get a different result from each on the same subject.

Fred said...

You expect Larry Tribe to be honest?

Bahh! Bahh! Heh!!! Heh!!! Bahh!!

Leftists are reject principle -- they are dogmatically "pragmatic" and they reject being bound by tradition -- as part of their judicial / political philosophy. Being unprincipled stands at the core of their political economy and ethical system.

Fred said...

Tribe is the very poster boy of outcome based law.

His intuition tells him what result he would prefer.

And then his "arguments" are all a cram down making excuses and pulling principles out of his dark body cavities.

mockmook said...

Joe said:

Furthermore, anyone who buys insurance and has expenses that exceed their premiums are, by Tribe's definition, getting a "free ride."


I don't know if that is true.

But, What about someone with a pre-existing condition who can now get "insurance" to cover that condition.

Aren't they getting a "free ride"?

lucid said...

Beautifully thought and said, all three posts. A pleasure to read, some of the the finest thinking to be found on the blogs.

lucid said...

Just think about the terrible, commerce-affecting choices we are making when we choose to not eat broccoli. Clearly the government should be regulating those kinds of choices also.

And what about when we choose to purchase a car from a company that is not owned by the government? Shouldn't the government have legislate how we make choices in that area as well?

Or how about when we do business with a company that is not headed by a friend of the president? Seems like that choice is sure to influence interstate commerce.

murgatroyd666 said...

If the Commerce Clause allows Congress to regulate "choice," then I have a couple of questions ...

Assume four companies, A, B, C, and D, provide a legal product in a legal manner, and that their prices are comparable.

* Under the CC, does Congress have the power to mandate that the public buy that product only from company D?

An example: It's been claimed that under the concepts used to justify ObamaCare, Congress would have the power to compel a citizen to buy broccoli ... or to buy a GM car. Would it then also have the power to prohibit a citizen from buying a Ford?

* Does Congress have the power to levy a tax on people who buy the product from company B to the tune of ten times the cost of the product, but not tax people who buy it from companies A, C, and D?

If I buy a Ford and my next-door neighbor buys a Chevy, could Congress hit me with $200,000 in additional tax but leave my neighbor untaxed?

Really, I'm curious about this "choice" business, and what's allowed and not allowed in its name.

Alex said...

this is tyranny pure and simple. we have to fight it. organize a sit-in.

roesch-voltaire said...

Trooper I agree with you on holding back the attack. But as I called the Pack by three points, I think that I will call this argument for Tribe considering that he has experience arguing before the Court vs the professor who has none.

Speakup said...

Gloria Steinem:
The authority of any governing institution must stop at its citizen's skin.

---

Libs need to make up their minds how they're going to act, does the government not have the right to decide whether you have the right to choose what happens to your body or does the government have the right to decide whats best for the government and that includes your body.

Our Constitution can't go both ways.

dave in boca said...

@TosaGuy

Go RedMen...! U are REALLY REALLY smart, mah man.

"If that is the case, then I guess all the female folks clammering about keeping Gov't hands off their bodies probably shouldn't support this interpretation of the Commerce Clause."

You are prescient and GO PACK GO...!

DREAM Together said...

This post is based on a fundamental misunderstanding. The right to choose whether to have an abortion is based on an entirely different principle than the right to decline health care that is being sought by opponents of the health insurance mandate.

The argument made by opponents is that the federal government's authority under the commerce clause does not extend to the choice not to purchase health care. Mr. Tribe and many others point out that this choice is an economic one, that its regulation is necessary to achieve other constitutional purposes, and therefor Congress is within its to authority for the same reason that many such laws have been upheld in the past.

By contrast, the constitutional right to an abortion is not premised on the federal government's lack of authority under the commerce clause. Congress surely has the power to regulate medical procedures such as abortion. But Congress's ability to restrict abortions is nevertheless protected by a limitation on that power, which is the right to privacy.

So, in both cases, Congress has the power under the commerce and necessary and proper clauses to regulate individual choices, but in the case of abortion that power is checked by a countervailing constitutional principle, and in the case of health insurance, no such countervailing principle exists.

Speakup said...

"The right to be let alone is the underlying principle of the Constitution's Bill of Rights."
Erwin Griswold - (Dean, Harvard Law School - 1960)

"The makers of our Constitution sought to protect Americans.... They conferred, as against the government, the right to be let alone -- the most comprehensive of rights and the right most valued by civilized men."
-- Supreme Court Justice Louis Brandeis - Dissent, Olmstead v. U.S. (1928)

How is making up Constitutional powers beyond those enumerated made valid from flowery word-smithy?

Its not, inferring federal government can regulate that which is not specifically mentioned, is wrong and adverse to the entire intent of the document.

Proper and necessary cannot include anything that may be termed personal choice unless of course government can send the police to take you to the Dr. in handcuffs because you missed an appointment.

You can't use two different intents, one that forces government out of a personal choice and another that allows authority to regulate personal choices.

Bruce Hayden said...

The argument made by opponents is that the federal government's authority under the commerce clause does not extend to the choice not to purchase health care. Mr. Tribe and many others point out that this choice is an economic one, that its regulation is necessary to achieve other constitutional purposes, and therefor Congress is within its to authority for the same reason that many such laws have been upheld in the past.

By that analysis, all decisions are, essentially, economic, because they have some impact on the economy, and, therefore, there is nothing that cannot be justified under the Commerce Clause (which we know to be false).

And, yes, you are buying into Tribe's switch from activity/inactivity to choices, which was the topic here. But, by ignoring the activity/inactivity dichotomy, as discussed by two Federal Judges to far, you are begging or avoiding the question raised by those judges, as did Tribe.

By contrast, the constitutional right to an abortion is not premised on the federal government's lack of authority under the commerce clause. Congress surely has the power to regulate medical procedures such as abortion. But Congress's ability to restrict abortions is nevertheless protected by a limitation on that power, which is the right to privacy
.

Ok, I give up. Why wouldn't the right to not participate in the health care system, or the health insurance market, also be protected by the right to privacy? The government is, essentially, mandating participation in those markets, even if it contravenes the religious and/or moral beliefs of those being forced to participate.

Indeed, I would suggest that the right to refuse to participate is even more essential to ordered liberty than the right to kill one's unborn child. After all, the Declaration of Independence was premised on the fact that men "are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness". Both liberty and the pursuit of happiness are directly affected by the government forcing citizens to participate in certain activities.

So, in both cases, Congress has the power under the commerce and necessary and proper clauses to regulate individual choices, but in the case of abortion that power is checked by a countervailing constitutional principle, and in the case of health insurance, no such countervailing principle exists.

Again, as with Tribe, you assume several things that have been rejected by the last two judges who have ruled on this subject. One is that the necessary and proper clause essentially allows anything that Congress wishes it do enable. Thus, as noted above, by tying some action or another to the Commerce Clause, pretty much any law or power by the government can be justified by boot-strapping it with the necessary and proper clause.

But, as with Tribe, you failed to even address this subject, but rather, blithely skipped over it, assuming that it was irrelevant.

Mark said...

Tribe ignores two points about people not carrying the amount of insurance required by Obamacare. First, he already admitted that this group will pay more in insurance than they will need. That is why the insurance companies need them. Second, this group is not the poor. It is made up of people who are making enough money that they do not qualify for aid under Obamacare. They would be paying hundreds each month in insurance premiums. That would cover a lot of emergency room bills.

You have not mentioned Tribe's assertion that the government's power to tax covers Obamacare. Can the federal government really tax someone for not buying a commercial product?

jcradin said...

I appreciate your narrow focus on government power versus individual liberty. I did share your position, during the 2008 primamry season I much favored Candidate Obama's position of voluntary health insurance vs Candidate Clinton's postion of mandatory participation. However the issue we as a nation are struggling to resolve is whether medical treatment is ever a right. Now states require hospitals which get public funds to treat all who enter an emergency room. Emergency Services must treat and transport to hsopitals accident victims without verifying their ability to pay for those medical services. Again public funds sometimes cover those costs. Your narrow focus is entirely besides the major question we face, and does nothing to address this major public policy issue. Leave those who cannot prove ability to pay (insurance or a large bank account) to die by the roadside, or provide medical care to all as needed and cobble together adhoc, ineffcient systems to pay for that care. The answer that those who can afford insurance either by tax or penalty must support our health care system is the most equitable solution I have seen. Please followup your current column with other alternatives, I really would like to see a better alternative.

John said...

It's important to distinguish "choice" from "activity" like this.

Two more bits about Dr. Tribe's hypothetical about someone who can afford health insurance but tries to free-ride using the ER:

(1) If this would-be free rider can afford health insurance, then he probably won't be a free rider. He'll get a bill for services from the hospital that he will be expected to pay. His wages could be garnished, he could lose his credit rating, and so on.

(2) By making it law that insurance cover pre-existing conditions, the PPACA has made it more likely that folk try to free ride, as they can wait until they need care to pay merely a premium rather than a full ER bill (assuming they are willing to attempt to avoid the tax penalties in the law).

jcradin said...

John from the statistics I have seen, and personal involvement in the finance industry, approximately 50% of personal bankruptcies are a result of medical bills, which do not get paid. I know people in the collection business, it is a long, messy, and inefficeint way for health care service providers to cover their costs. Your second comment, I apologise if I do not understand. Before the current law, newborn infants with medical issues were often declaerd to have "pre-existing conditions" and denied their parents insurance coverage. The current law does nto allow anyone who can afford insurance to forego it without paying a penalty, that is the way people are prevented from gaming the system as you suggest. As I said, please someone give us a better policy, which is also politically viable.

Biography said...

Tribe says "This conscious choice carries serious economic consequences for the national health care market, which makes it a proper subject for federal regulation."

Logical extension: Tax people on profits they might have earned, hold them responsible for things they might have said, and prosecute them for crimes they might commit.

JAL said...

So the implication is that anyone without insurance is a free loader.

It's a poor sign when the liberals think of others as irresponsible proloteriats (who need to be led).

The lefties are so good at collecting and giving away others' money it doesn't occur to them that many people outside their bubble really are responsible.

That's why there are payment plans one can work out. And do.

Richard Dolan said...

Interesting discussion in this thread. What it comes down to is that the key argument against ObamaCare is that, in order to uphold the individual mandate, the Commerce Clause (with or without the Necessary and Proper Clause) has to be read as giving Congress unlimited power over the economy, broadly construed. Lopez doesn't make sense on that reading, but it fits with Raich. The larger problem is that it construes the Constitution to achieve a result (unlimited federal power) that all of the Framers rejected as their intent.

Ann's distinction between "choice" and "activity" is tangential to that. Instead, it relates to how a limit (or lack thereof) to Congressional power under the Commerce Clause (again, with or with the N & P Clause) can be reconciled with prior decisions, as well as Constitutional text and history. That is important, probably not "monumentally important," but mostly relates to how a decision will be explained after it is reached.

Whatever decision the SCOTUS ultimately delivers, you know already that the majority will claim that its result was compelled by prior decisions, etc.; and the dissent will say the same thing as to its conclusions. Neither will be particularly accurate or candid on that score.

ramblers said...

Here's another angle I'd like to mention.

In the context of the rules requiring insurers to cover pre-existing conditions, and to not price based on risk, not buying health insurance ISN'T a decision to free-ride. It is a decision not to subsidize other people's health care.

If you're a low risk person, your premium prices will be inflated well beyond your expected cost. So it makes sound financial sense to save your own money and self-insure. No free-riding involved.

jcradin said...

From some of the comments I guess I am not making my point clearly, and I apologize for that. Medical emergencies, either in a hospital emergency room or "on the street" do not allow time to determine who can pay for medical care either by insurance or with personal asseets. If some level of health care is a right to all members of our society, than in fariness all should contribute to the total cost of that level of health care. The amount of each contribution has to be determined some way. Just as the amount we each pay for the expense of national defense, education subsidies, etc. is determiend. If health care is not a right than we are choosing to let people die for a lack of that care. Right now society requires thru state law that emergency services and hospitals to provide medical care in emergencies. Formerly all taxpayers paid thru state subsidies for any system shortfall. The former system of subsidy, and attempted legal collection of individual medical debt is recognized by most of us as grossly ineffcient and unfair. The former regualtilons allowing insurance companies to decide on a cost basis who gets insurance and who doesn't is obviously grossly unfair at times and effectivly often shifts the cost burden to the state and than to the taxpayer. The new system atempts to more directly and fairly distribute those aggregate costs and assure each of use what the majority of us think is a right, some level of medical care. I hope there is a better way, but so far no one seems to have one. As a society with a representative government we give up the individual right to decide which rights we will all have. Society does that as a whole. We give up the individual right to decide which costs for those rights we as individuals will pay for, as well as which governement programs we will individually support and pay for. I cannot choose to not pay for farm subsidy costs but choose to pay for education subsidies. There are only two issues to debate: is health care a right, if it is than what is the most efficient, effective, cost controlling way to pay for that right. Any other issues are either not germane to the health care debate or minor to this debate.

Milwaukee said...

You are way ahead of me. I'm not willing to accede to health care being a "right". If anything is a "right", then when you have it and I don't, the state may take it from you to give to me. Provide emergency services? Yes. But head colds are not emergencies. I have heard of a hospital in Colorado which paid to have a uniformed, off-duty policeman in the waiting room. Cut way down on illegals waiting for "emergency" health care.

Why do bad things happen to good people? They just do, and we can't prevent it. That's another discussion. We can not protect everybody from everything. Giving "emergency" care is one thing, giving routine care is another. You want to be a grown up? Pay for your health care.

Yes, national defense is a shared expense. But one reason our schools are producing such poorly indicated masses is because they are socialized, and free from competition. The Post office isn't much better, and Amtrack regularly has financial problems.

If food is a right, then when I have and you don't, you can take my food from me.

Mike said...

I was just about to post a comment on your first Tribe post about how the abortion issue ties into the ObamaCare litigation, but you beat me to it. I think it would be positively delicious if some clever lawyer argued that substantive due process in general, and the right to privacy in particular, prevents the government from requiring its citizens to purchase health insurance. After all, if the right to privacy can form the basis for a woman's right to choose not to continue a pregnancy, then surely it can form the basis for an individual's right to choose not to buy health insurance, no? It makes me smile when I think of RBG, Sotomayor, etc. squirming while they try to work their way around that one (though it would doubtless cause some difficulty for Scalia et al. as well).

Incidentally, did anybody else read the Tribe piece as basically one long supplication? "Barack, old buddy, old pal, puh-LEEEEEZE appoint me to the next opening on SCOTUS!" Pathetic.

John said...

just a short question here...I keep hearing the retort about 'freeloaders' expecting 'others' to pick up the tab when they get ill. Right? That's one of the central arguments being kicked around here, yes?

Who says the public has to pick up the tab?

No one has a constitution right - IMHO - to free medical care.

My family went years without insurance, by choice. I was an independent contractor (a computer programmer) with 16+ years of prior experience working in the Insurance Industy. I knew the actuarial odds as well as, or better than, anyone.

Even with my wife having M.S., kids, et al, we made the 'choice' to self pay - because it was cheaper by far.

And yeah, you would not believe the discounts you can get from your local GP or hospital if you offer to pay cash...

Freedom includes having to live with the consequences of your choices. If you choose to go without Insurance then you may end up having to ask strangers to help pay for your spouse's chemotherapy...that's life.

When I 'chose' to go without Insurance, I accepted the responsability of that choice.

Don't bloody well call me a 'Free Rider'.

For every health care service we received, we paid for.

phlebotomist said...

I didn’t and don’t suspect Hillary of faking health problems to avoid testifying, and I almost wrote about those accusations. However, Althouse is still right, and Parker’s indignation is laughable.
phlebotomy training in CO