February 8, 2011

Professor Tribe would like you to know how nonpartisan the Supreme Court Justices are ... I mean, will be, when they decide the individual mandate question the way he would like.

The NYT has an op-ed by lawprof Larry Tribe that purports to demonstrate how obvious it supposedly is that the Supreme Court will find the health care law constitutional.
The justices aren’t likely to be misled by the reasoning that prompted two of the four federal courts that have ruled on this legislation to invalidate it on the theory that Congress is entitled to regulate only economic “activity,” not “inactivity,” like the decision not to purchase insurance. 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.
Of course, the argument Tribe likes was presented, considered, and rejected in the 2 federal court cases. It's a perfectly comprehensible argument, but that doesn't make its success in the Supreme Court a sure thing. Acting as if it does, Tribe says "it’s distressing that many assume its fate will be decided by a partisan, closely divided Supreme Court." Oh, you terrible people who fail to bow to the obviousness of one side of a constitutional argument! You compound your sins by falling prey to the upsetting belief that the Supreme Court Justices are politically partisan!
To imagine Justice Scalia would abandon that fundamental understanding of the Constitution’s necessary and proper clause because he was appointed by a Republican president is to insult both his intellect and his integrity.
That's not sarcasm. Read the whole thing. You'll see, it's not intentional sarcasm. It might be an attempt to sweet-talk Scalia into using the health-care litigation to score some political neutrality points, but it's not sarcasm. It's more: Ah! What a fine Justice, full of integrity and intellect, I will say Justice Scalia is if he decides this case my way!
Justice Anthony Kennedy, whom many unfairly caricature as the “swing vote,” deserves better as well. 
Oh! People are sooooo unfair to Justice Kennedy. I, Larry Tribe, will protect him from the scurrilous "swing vote" remarks people make.... when he decides this case my way!
Yes, his opinion in the 5-4 decision invalidating the federal ban on possession of guns near schools is frequently cited by opponents of the health care law. 
I hope they do a better job of pointing at the Lopez case than that NYT link does. Here's the right link, in case anyone cares.
But that decision in 1995 drew a bright line between commercial choices, all of which Congress has presumptive power to regulate, and conduct like gun possession that is not in itself “commercial” or “economic,” however likely it might be to set off a cascade of economic effects. 
Drew a bright line, eh? But the line, if you can call it a line, isn't about "commercial choices." That's Tribe's phrase — as he assures us the line is bright! — and what the Court said was "commercial activity" — which is why the argument about the distinction between activity and inactivity has been so important in the health care litigation. Tribe declares lines to be bright precisely at the point when he is shedding darkness. (If you think you can't shed darkness, I agree. I'm just riffing on the linguistic oddity of the lawyer's expression "bright line." Aren't easy-to-see lines usually dark — like black ink on white paper?)
The decision about how to pay for health care is a quintessentially commercial choice in itself, not merely a decision that might have economic consequences.
"Quintessentially" is such a strong word that perhaps you will not notice that it's next to the phrase that is not "economic activity."
Only a crude prediction that justices will vote based on politics rather than principle would lead anybody to imagine that Chief Justice John Roberts or Justice Samuel Alito would agree with the judges in Florida and Virginia who have ruled against the health care law.
Oh, come on. Tribe's rhetorical move has become comical at this point. It reminds me of an old-fashioned mother exerting moral pressure on a child by telling him how sure she is that he is such a good little boy that he could never do whatever it is she doesn't want him to do. Put more directly, it's an assertion of authority: I'm telling you what's right and if you don't do it, you'll be wrong. Could the Justices possibly yield to pressure like that? It's crude to think that they would, isn't it? It's an insult both their intellect and their integrity.

And yet, Larry Tribe does think it, right? That's what's behind his rhetoric. I believe. Crudely.

UPDATE: I have 2 more posts about this op-ed, one dealing with Tribe's disapproval of people who fail to take responsibility and one dealing with the meaning of "choice."

86 comments:

Pogo said...

'When I read the constitution,' Professor Tribe said, in rather a scornful tone, 'it means just what I choose it to mean — neither more nor less.'

mesquito said...

Could it be that the Political Class is worried about their President's signature achievement?

rdkraus said...

Just finished reading this over at the NYT and was surprised at how insulting and dishonest it was (surprised at Tribe, not the Times).

I like this:

Even if the interstate commerce clause did not suffice to uphold mandatory insurance, the even broader power of Congress to impose taxes would surely do so



Well, maybe, except, of course, they sold this as a not being a tax and presented it as not a tax and have said a million times it's not a tax (except in Court where they needed some desperate argument to prevail, where they said, hey we can do this, it's a tax).

Con men. Gotta con.

I've said before, the distressing thing is that four Justices will surely think this is just dandy, meaning they think the Fed's can tell us to buy or do anything they can justify - and there's always some do-gooder "reason" for every facist idea they have.

Comrade X said...

like there's any doubt which way RBG, The Kragan and Soto will vote.

Robert Burnham said...

People on the left support the Constitution only when it permits (or: can be stretched to permit) their favored policy goals.

The idea that the Constitution sets limits on what the federal government can do is both baffling and a source of genuine anger for them.

rhhardin said...

Not buying insurance isn't inactivity, nor is it activity.

The question is whether not buying insurance falls under a random penumbra or not.

That comes under whether the court wants to advance or retard current federal powers.

The latter might be called returning to the Constitution.

Tribe wants to pretend the argument goes otherwise.

Almost Ali said...

The child-like Larry Tribe is telling the Roberts'-5 to go socialist and support Obamacare - because Larry knows it's right. Never mind that Obamacare was slapped together willy-nilly by partisan hacks, and then signed into law by a man of absolutely no legal or administrative distinction - a jive turkey who much prefers weekly house parties and tooling around in Air-Force-One, than doing right by the American people.

(Cafe repost/edited)

shoutingthomas said...

OK, so my question is: How much are Supreme Court justices affected by political pressure and their own political viewpoints?

Althouse seems to have carefully avoided taking sides in this issue, although her barbs aimed at Tribe might cause one to think she's opposed to the individual mandate.

Lifelong appointment is supposed to shield justices from petty political considerations. Does it?

Mick said...

Tribe is himself a partisan political hack, and is obviously doing the bidding of his favorite student, the Usurper Obama. So what makes his obviously wrong opinion any different.
He did define natural born Citizen correctly though at Res. 511 hearings, and KNEW that the Usurper is ineligible when he said that natural born Citizens are "born w/ in the TERRITORY and ALLEGIANCE of a nation". He is participating in the treason of this government.
"Constitutional expert" indeed.

Scott M said...

I haven't read the entire article yet, but does he, anywhere, touch on where Congressional power will stop if inactivity is deemed open to regulation? No mention of Vinson's use of the President's own words regarding being forced to purchase things like food and housing?

mythusmage said...

Mr Tribe's major failing is that he assumes that everybody, even the young, reason as he does. Either that, or he has learned to read minds.

Young people do foolish things because they are foolish. Refusing to purchase health insurance is a foolish thing not because the young expect to profit off others when they get ill, they don't expect to get ill in the first place. More accurately, they can contemplate falling ill, it's the possibility of becoming deathly ill that evades their attention. A 20 year old can admit to the possibility of calamity, it just doesn't make a real impression upon him.

I get medical assurance because I'm on disability. Even so there are treatments unavailable to me because I don't have the money. Had I an independent income I would be sure to pay for catastrophic insurance, while paying cash for standard care. But then again I'm 56 (going on 57), So I can be presumed to have some smarts.

That's what Mr. Tribe misses, the fact that the young don't have the great good sense God gave an old tom cat. The young make errors because they are not yet mature enough to act sensibly. Tribe misses this to his peril, and to his discomfort.

PaulV said...

Tribe is bitterly clinging to his belief that he is an ubermensch brianiac who deserve to be a Supreme Court Justice so that his glory can be reflected on his minions.

Gahrie said...

Someone needs to ask Tribe these questions:

1) If the government has the right to make us buy health insurance...what are the limits of government power?

2) If the "necessary and proper" clause and the commerce clause mean what Tribe thinks they mean, why did our Founders talk about limited government of expressed powers?

Scott M said...

On the fanboi side of things, this man appears to sully the name of one of the PC's classic gaming titles.

Fred4Pres said...

What did Tribe say about Thomas?

Tibore said...

"And yet, Larry Tribe does think it, right? That's what's behind his rhetoric. I believe. Crudely."

There's something else at play there, I believe: Narcisstic self-validation. I.e. "I'm putting my opinions out there as indisputable fact, and surely the readership and Justices will see the obvious veracity of my arguments. I state publicly what's right because I am right".

It's perfectly keeping in line with the "Daily Affirmations" mindset: "I'm Good Enough, I'm Smart Enough, and Doggone It, People Like Me!". He's not seeking to convince anyone (if he had, it wouldn't have been in the echo chamber known as the NYTimes). He's simply seeking to highlight his personal opinion on the matter and characterize it as obviously correct. Doesn't get any more narcisstic or self-validating than that.

traditionalguy said...

To a Dem the economic activity category means "everything that can be governed". All other activity is included therein because it requires money at times to live and all fiat money originates from the Dems who create it. The SCOTUS also spends fiat money. Therefore it can be governed by the Dems under the commerce clause too.

jimbino said...

I would like the esteemed Prof Tribe to explain to me how I, an American citizen living overseas and subject to Amerikan taxes on my worldwide income no matter from where derived, can possibly be a "free rider," since neither Medicare, into which I have paid into since 1965, nor Obamacare, which purports either to cost me a fortune or penalize me, will be available to me AT ALL where I make my home here in Brazil.

Pogo said...

When "inactivity" is "activity", and "unconstitutional" becomes "constitutional law", we have reached a Thucydidean crisis, in which words have lost their meaning.

It is a dangerous and Orwellian time, where cowardice is bravery, slavery is freedom, and two plus two equals five.

Quayle said...

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

So, does Tribe also argue that the federal government has the power to control every business on the same grounds that if the business goes into bankruptcy, the government will suffer lost income taxes from the creditors. Its preposterous.

And what Tribe also misses is that it isn't necessarily the federal government that picks up the tab. It could be the county or state government, or if the federal government does pay, perhaps it is because they have overstepped their bounds in a previous act and are now wrongfully involved in local hospitals.

Hoosier Daddy said...

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.

Whoa, full stop. Wasn't one of the major talking points in favor of universal health care was that a sudden illness or injury would cause the un-insured financial ruin? How can this be if the public is alreadt paying the tab?

virgil xenophon said...

It's always a one-way street with the left..
"Constitutional reverse gear? WHAT reverse gear? Surely you jest?" For Tribe and his minions on the left adjustments to the Constitution ratchet only one way--leftward, toward ever greater federal powers. The possibility that the constitutional gears can be made to work to ratchet back previous expansions is to think the unthinkable to such people.

Lincolntf said...

Does the Commerce Clause cover Tribe's mind?
Talk about inactivity.

Martha said...

Shouting Thomas said:
"OK, so my question is: How much are Supreme Court justices affected by political pressure and their own political
viewpoints.........
Lifelong appointment is supposed to shield justices from petty political considerations. Does it?"

Justice Kennedy visited USC Law School last week and during that visit he taught two 1L Con Law classes.

Toward the end of one of his lectures he took questions.
One student asked whether the justices paid attention to the news media when making their decisions.

Kennedy answered no. “Courts make decisions with
political consequences, but contrary to popular belief, we
don’t make them in a political way. In my office, I have a
window facing the lawn and I see the protestors with their
signs and I never know what side they’re on,” he said,
eliciting laughter.

The Justices will ignore Professor Tribe's wishful op-ed.

Scott M said...

Does the Commerce Clause cover Tribe's mind?
Talk about inactivity.


What's with you and the high-quality quips recently? Change your coffee?

Big Mike said...

Could the Justices possibly yield to pressure like that? It's crude to think that they would, isn't it? It's an insult both their intellect and their integrity.

And yet, Larry Tribe does think it, right? That's what's behind his rhetoric. I believe. Crudely
.

Well, Tribe knows a bunch of them personally, doesn't he?

Henry said...

Tribe gets the essential facts wrong. From the article: "But [new provisions in the law] would be undermined if healthy or risk-prone individuals could opt out of insurance, which could lead to unacceptably high premiums for those remaining in the pool. For the system to work, all individuals — healthy and sick, risk-prone and risk-averse — must participate to the extent of their economic ability."

But the law DOES allow people to opt out, at very minimal cost.

Tribe's entire argument in favor of the mandate is built on quicksand.

He continues:

The court unanimously recognized in 1982 that it would be “difficult, if not impossible” to maintain the financial soundness of a Social Security system from which people could opt out.

By the healthcare law's own provisions, it doesn't meet this test. If I could opt out of my double-digit Social Security tax for a penalty of 3% I'd do it in a heartbeat. If I could opt out of self-employment tax based on religiousconscience I'd send in the form. I'm an iconoclast.

If the Supreme Court takes Tribe seriously they will say that the healthcare law is unconstitutional because it allows people to opt out.

I will add that it is frankly bizarre for Lawrence Tribe to criticize any legal argument as "a political objection in legal garb." Go crawl back to your lounge, sophist.

virgil xenophon said...

And Tribe is setting up those on the Court who would vote to invalidate Obamacare to charges of "rank politics." Tribes NYT art. advances the view that ANY half-way "objective" and "accurate" reading of the Constitution will AUTOMATICALLY, uphold Obamacare--that "reason" and "logic" alone dictate there can be ONLY ONE POSSIBLE CONCLUSION, i.e., Tribe's. And therefore ANY OTHER conclusion can ONLY be explained by base and loathsome "politics."

Calypso Facto said...

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

How, exactly, does the PUBLIC pick up this tab? These unreimbursed visits are spread to the other customers of the hospital, like shoplifting costs are spread to the a store's paying customers. Does the fact that shoplifters impose a social cost mean that government should centralize retail sales and everyone should be taxed to provide funds for essential items like food and clothing that might otherwise be stolen?

Fen said...

"Individuals who don’t purchase firearms they can afford have made a choice to take a free ride."

/fixed

Fen said...

Your federally mandated PT sessions begin tomorrow, 4am. I'll be leading a 10 mile hike, followed by a 3-mile run.

Those who fail to exercise will be fined and/or imprisioned.

Henry said...

@Calypso Factor -- Excellent point. This is one of the stupider arguments in favor of healthcare reform. It attempts to turn an efficiency question into a moral and legal argument.

I think the reason it seems to appealing to the left is because the idea of the "public pick[ing] up the tab" is a feature, not a bug.

virgil xenophon said...

I didn't see Henry before I posted, but agree that the descriptive appellation "sophist" is appropriate in Tribe's case--ALL a matter of whose political/ideological ox is being gored.

And if it DOES come down to one vote, will not this fact just serve to underscore the UNDEMOCRATIC dangers of a political system where a single person, APPOINTED FOR LIFE TENURE, and "interpreting" a document written by men no longer living, may, all by himself, and based upon his own personal predilections, transform the Republic into an Imperium?

Original Mike said...

"The decision about how to pay for health care is a quintessentially commercial choice in itself"

While we're talking about choice Professor Tribe, let's talk about how this bill eliminates choice by mandating a one-size-fits-all benefits package.

MadisonMan said...

In my line or work, such a thing is called a Wishcast. Wishcasts usually involve more snow than actually falls.

I didn't read the article, but did Professor Tribe mention the World Champion Green Bay Packers?

Quayle said...

And I guess the federal government can interfere with every private contract on the grounds that if you get into a dispute you may need a court to sort it out, and the government will have to pay for that. (Goodness knows your filing fees don't cover anywhere near the costs.)

PaulV said...

Gahrie, spot on.
The Necessary and Proper clause is a statement that it is necessary and proper to limit the power of government. Why else would all the restrictions of the power of government, resevation of rights to the states and the People and having three branches of government be in the Constitution?
It was written to restrict the power of statists like Tribe.
WV: heine. I am sick of Tribe showing us his heine.

lemondog said...

Well, Tribe knows a bunch of them personally, doesn't he?


Notable students

Kathleen Sullivan
Barack Obama
John G. Roberts
Elena Kagan

NotYourTypicalNewYorker said...

Tribe is vying for the next open slot on the Supreme Court.

WV: hushan

That's what Tribe said.

Hoosier Daddy said...

The young make errors because they are not yet mature enough to act sensibly. Tribe misses this to his peril, and to his discomfort.

I don’t think Tribe misses it at all. In fact, it is a central tenent of modern liberalism that most people are unable to properly take care of themselves therefore it is falls to the State to ensure that they are properly taken care of and do not cause an undue burden on society.

Ann Althouse said...

"What did Tribe say about Thomas?"

Thomas is permitted to vote against the health care law, without deserving the "partisan" epithet, because of his consistent rejection of the post-New Deal doctrine: "[Thomas] alone has publicly and repeatedly stressed his principled disagreement with the whole line of post-1937 cases that interpret Congress’s commerce power broadly."

george said...

It is pretty clear the Supreme Court thinks us a nation of men and not of laws. When the average guy in the street starts thinking the same way they will regret what they have wrought.

Tribe and his ilk are so taken with their own cleverness that they do not see where their antics will inevitable lead... even as we watch people take to the streets of Cairo.

PaulV said...

Other members may find Thomas persuasive. As Tribe knows he is intelligent.

Roger J. said...

As noted by several commenters, Mr Tribe's driving ambition seems to be appointed as a SCOTUS justice--alas, he has failed in his quest--no no surprise that he publishes his brief on the NYT op ed page.

With respect to SCOTUS and politics--I was taught some 50 years ago the old chestnut that the supreme court reads election returns. dont really know how true that is, but I think it does have some face validity.

Interesting times ahead.

Scott M said...

Interesting times ahead.

Honestly, I'm to the point where I'd prefer them over and done with.

Shanna said...

Refusing to purchase health insurance is a foolish thing not because the young expect to profit off others when they get ill, they don't expect to get ill in the first place.

This is true but I don’t think it’s always foolish. The likelihood of a 20something getting really sick is low. If you are just talking about a year or so, it’s probably not a great risk at all. In fact, when the option is paying 200-500 a month to retain health insurance when you are maybe unemployed, versus rolling the dice, mostly people have made a fairly rational decision.

Most of young people's health insurance goes to pay for older folks health care. And their SSN taxes go to pay for older folks as well. Ditto medicare taxes.

Roger J. said...

Scott M--I suspect November of next year will make the times a lot less interesting.

lemondog said...

Roberts on Commerce Clause:

"Starting with McCulloch v. Maryland, Chief Justice John Marshall gave a very broad and expansive reading to the powers of the Federal Government and explained generally that if the ends be legitimate, then any means chosen to achieve them are within the power of the Federal Government, and cases interpreting that, throughout the years, have come down. Certainly, by the time Lopez was decided, many of us had learned in law school that it was just sort of a formality to say that interstate commerce was affected and that cases weren't going to be thrown out that way. Lopez certainly breathed new life into the Commerce Clause.

"I think it remains to be seen, in subsequent decisions, how rigorous a showing, and in many cases, it is just a showing. It's not a question of an abstract fact, does this affect interstate commerce or not, but has this body, the Congress, demonstrated the impact on interstate commerce that drove them to legislate? That's a very important factor. It wasn't present in Lopez at all. I think the members of Congress had heard the same thing I had heard in law school, that this is unimportant — and they hadn't gone through the process of establishing a record in that case."[15]

Comrade X said...

That's what's behind his rhetoric. I believe. Crudely.

As Not Your Typical NYer noted, Tribe is signaling he would be just as reliable a left wing vote as RBG and the Obama picks.

Someone needs to explain to him he's too old to waste an appointment on.

MayBee said...

Is Tribe still working for the White House/DOJ? He was last year and I don't remember hearing he'd stepped down.

lemondog said...

Do Supreme Courts justices hold grudges?

Tribe on Sotomayor

How about appeals Judge Sonia
Sotomayor? "Bluntly put," Tribe said, "she's not nearly as smart as she seems to think she is, and her reputation for being something of a bully could well make her liberal impulses backfire and simply add to the fire power of the" conservative wing of the court.

PaulV said...

So Tribe opposes Commom Cause's efforts to lynch Thomas, but is unsure about Kennedy, Scalia, Roberts and Alito?

Roger J. said...

no one is as smart as Larry Tribe--just ask him--

PaulV said...

Roger J,
I think Tribe avoided the idea that SCOTUS followed election returns because of the 2010 election returns.

MayBee said...

OK, I see he stepped down in Nov:

Laurence Tribe will return to Harvard in January after serving as the Justice Department’s “senior counselor for access to justice” since March, according to the New York Times blog The Caucus and a Harvard Law School press release.

Tribe told the Times he was talking about his medical situation to avoid speculation that he was leaving due to a leaked memo advising President Obama that Sonia Sotomayor was “not as smart as she seems to think she is.” The memo, written before Sotomayor was nominated to the U.S. Supreme Court, backed Elena Kagan for her ability to persuade “a bunch of prima donnas to see things her way.”

Leigh said...

Tribe's argument is illusory. The free rider problem he describes is caused by a law passed mandating all people entering emergency rooms must be seen regardless of ability to pay. So the free rider problem is created by the government who then attempts to force people to purchase insurance, except if they cannot afford it, in which case, same problem.

Ann Althouse said...

"Tribe is vying for the next open slot on the Supreme Court."

No, he isn't. There are at least 4 reasons why there's no way that's going to happen and he knows it.


Reason #1: He's 70 years old.

No need to go further.

submandave said...

"commercial choices, ... which Congress has presumptive power to regulate"

This is the most horrifying clause for me in the entire piece. Ann, being plugged in to the "law world," is it really a common presumption that Congress has the power to regulate any and all commercial choices?

Without pain there is no pleasure; without limits on use of the Commerce Clause, there is no Constitution.

Paul Zrimsek said...

Heh: "The constitution's meaning is not fixed by the New Deal. The constitution evolves to meet the needs of the people in the here and now. Tribe's interpretation of the commerce clause, which may have been appropriate for the age of steel and iron, is not necessarily right for the age of genes and bytes. We are fortunate, the constitution lives."

tarpon said...

Why doesn't Tribe tell us his political proclivities? As if no one knows.

Can Constitutional arguments get more stupid?

Andy said...

In fairness to Tribe, I will say that I take the opposite argument--that is, I refuse to accept any other conclusion by the Supreme Court other than Obamacare is blatantly unconstitutional. And at the very least, the mandate. If they are somehow able to find the law constitutional, I will blame political considerations for the ruling.

And I will poste haste work on giving up my American citizenship, because if Obamacare is constitutional, I will have been utterly, completely wrong about what it means to be an American and will no longer wish to remain so.

Wylie E. Coyote said...

Can we stop lending creedence to this simplitic and sophmoric "arguement" that a person's decsion NOT to engage in an activity imposes "costs" on you or "society"....

By that rationale, ANY activity or inactivity in human life can be regulated by the government - this makes the government one of unlimited and not enumerated powers. Which if of course the Statists goal but should cause person who is rational to take great pause.

And of course, the simple solution to "social costs" is simply to stop having society pay them. If we don't want to pay for another's health costs, then end socialized medicine. Make everyone carry their own weight, or be carried voluntarily by a friend, family member or charity. That way no one pays for another's medical costs unless they choose to do so.

Simple answer, is it not?

Much better then destroying the concept of Unalienable Individual Rights and a government of Limited, Enumerated powers!

Kansas City said...

This is brilliant analysis by Ann. It is exactly what Tribe is doing, insulting the justices by complimenting them only if they agree entirely with him.

What he is actually saying is that if the justices disagree with me, then they are political hacks.

Pastafarian said...

I can't wait to see what convoluted logic is used to defend the constitutionality of the waivers that King Obama has bestowed to favored unions and corporations, allowing them to skirt around the law.

I wonder under what penumbra they'll find the president's power to allow certain favored people to break the law.

Thalo said...

Now, now, Professor Althouse, why can't a bright line be also a dark line?

rvastar said...


Tribe's argument is illusory. The free rider problem he describes is caused by a law passed mandating all people entering emergency rooms must be seen regardless of ability to pay.


Bingo, Leigh! This is the point that everybody misses. Tribe and other Leftists set up this "otherwise we're stuck with the tab" straw man, neglecting to mention the fact that nothing in the Constitution mandates any such activity by the Federal govt!


So the free rider problem is created by the government...


Exactly!!! The Constitutionally valid answer is NOT to force Americans to purchase health insurance. The Constitutionally valid answer is for the Federal govt TO GET OUT OF THE HEALTH CARE BUSINESS!!!

You don't like picking up the tab, Tribe? THEN STOP DOING IT!!!

Lance said...

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

This is mostly false. It's true that hospitals and clinics are required to provide emergency care to everyone, including those that can't pay for it, but that doesn't automatically absolve the patient of their debts. They will continue to owe payment until (a) they actually pay it, (b) they declare bankruptcy, or (c) the hospital/clinic decides to write it off as charitable work. That last doesn't happen if the administrator thinks the patient has the means to pay up.

Fen said...

Laurence Tribe will return to Harvard in January after serving as the Justice Department’s “senior counselor for access to justice” since March

Ah, so Tribe is behind the Justice Dept's decision to not prosecute hate-crimes if the perps are black.

Figures.

Original Mike said...

"This is mostly false. It's true that hospitals and clinics are required to provide emergency care to everyone, including those that can't pay for it, but that doesn't automatically absolve the patient of their debts."

Good point.

Salamantis said...

Lawrence Tribe uses the phrase 'bright line' to subliminally invoke the dreaded spectre of rejected-for-the-Supreme-Court Robert Bork, who also famously employed it.

JohnH said...

Many people who do not have health insurance pay out of pocket for medical services. I believe that I have seen studies of this issue that show that while hospitals do lose a good deal of money to indigents, they are paid for most of the services they render.
I myself did not have insurance when I was in grad shool. Looked at getting insurance when my wife and I were planning our first child. The cost of a year of insurance was about the same as the cost of paying for the birth, so we went without. Too risky, I know

Ignorance is Bliss said...

jimbino said...

I would like the esteemed Prof Tribe to explain to me how I... can possibly be a "free rider," since neither Medicare... nor Obamacare... will be available to me AT ALL where I make my home here in Brazil.

I hear that the spa industry is lobbying hard to insure that Brazilians are covered under Obamacare, so there is that.

Jonathan Lanctot said...

This is a gripe I've had for a long time during this debate, and it comes up again in the quote:
"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."

Who enables this behavior? Who protects this choice? The government! It's illegal not to treat someone because they can't pay. Is it any wonder why people walk away from those expenses when the government explicitly protects people when they steal services?

Yes, yes; it's cruel not to treat the guy dying in the ER, but it seems that everyone agrees that a huge portion of the "unpaid" costs in healthcare are because people simply walk away after getting their services. Why aren't we focused on getting that fixed--a direct burden on the system which none seem to dispute--rather than extending the unintended consequences of federal regulation to untold heights?

Pierre said...

The Left had better hope the mandate is found unconstitutional. Otherwise, I think we'll witness the equivalent of a 21st century Dred Scott decision and its political consequences.

Victor Erimita said...

Even if the interstate commerce clause did not suffice to uphold mandatory insurance, the even broader power of Congress to impose taxes would surely do so.

Seems to me I remember that the Dems had to characterize the mandatory insurance provisions as not being a tax, because taxes cannot be enacted through the "reconciliation" process they used to pass this thing. Anyone know if that is true?

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.

But the public doesn't have to pick up the tab. The public chooses to pick uip the tab. This is another of Tribe's sleights of hand. You must buy my product, because if you don't I'll buy it for you, and you will have thereby forced my hand. Buy my product or I'll shoot this dog. And it will be your fault. Hogwash.

You know, I have sufficient faith in the intellect and integrity of Justices Sotomayor, Kagan, Ginsberg and Breyer that they will see through this flimsy argument and vote in a nonpolitical way, declaring the mandatory provisions unconstitutional.

Daniel in Brookline said...

The idea -- that Congress can require all Americans to purchase something, merely for the privilege of being in America and being alive -- is repugnant. I'm reminded of the porcelain figurines Prussian Jews were forced to buy under Frederick II.

This point was made with remarkable clarity in 2008, with the argument that, by similar logic, we could solve the homelessness problem by requiring everyone to buy a house. (I don't need to provide a citation for that, do I?)

cheers,
DiB

mark buehner said...

When did I force a hospital to take care of me even if I don't have insurance? Govment passed that law. Kind of an odd thing for government to force business to provide a service for free and then scold consumers for not buying it. Lets try that in the automotive industry- GM must provide cars for every American regardless of ability to pay... but these free riding Americans must pay the government a penalty if they don't buy a GM car. Little different portrait than Tribe is drawing eh?

flenser 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.

Here's a wacky idea - what if "the public" (by which Tribe really means the government) simply stopped doing that? Problem solved, without the government taking over another big chunk of the economy. All those darn free riders Tribe is so upset about will then have to "purchase insurance they can afford".

Of course getting people to "purchase insurance they can afford" was never the point of Obamacare. The point is to charge some people more money for what they currently get in order to give "public" healthcare to some other people. But Tribe can't even be bothered to honestly argue his case so he concocts this phony outrage about rich freeloaders.

orbicularioculi said...

Professor Althouse, again showing both common sense and an understanding of the law, "kicks Larry Tribe's butt".

When Lawrence Tribe and Alan Dershowitz reviewed the original Roe v Wade decision they both excoriated THAT decision as not Constitutional but went along with it.

I have no time for Constitutional Law professors who use the Constitution as toilet paper when they decide they know best.

Coketown said...

@Victor: The decision to call them "penalties" instead of "taxes" was a political calculation to make the legislation easier to swallow. Reconciliation can be used to pass tax legislation--which is what Republicans did in 2001. However, the legislation must operate in a budget window of 10 years (which is why the Republican tax cuts had to be renewed this year), so maybe that's why the distinction between tax and penalty is important.

mark buehner said...

I think it was more a political decision- to protect Obama's promise not to raise taxes. They painted themselves into a corner by adamantly and repeatedly stressing that it was NOT a tax. To go back after it passed and claim it of course, WAS a tax is something the courts are taking a dim view of.

Scott M said...

To go back after it passed and claim it of course, WAS a tax is something the courts are taking a dim view of.

It would also lend undo credence to the "these guys are fucking clown shoes" argument visa vi their competence.

A.W. said...

btw, similar thoughts 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 on akhil amar's cruddy little op-ed here:

http://patterico.com/2011/02/07/akhil-amar-refusing-to-let-congress-force-people-to-buy-healthcare-is-like-refusing-to-let-congress-ban-slavery/

You would think it would be too stupid to compare judge vinson to roger taney in dredd scott. akhil amar proves to be exactly that stupid.

DWilliams said...

I read this with a good deal of sadness, and I wonder how long we have before this Republic, like Rome, has its Marius and Sulla. I don't really see an argument here, just more passion and anger, and this from lawyers.

After you have dispensed with the Professor Tribes of the world, overturn United States. v. Kahriger as the product of communists, denounce Gibbons v. Ogden and McCulloch v. Maryland as poorly decided revisionism written by someone who didn't understand the clear meaning of the words in the Constitution at the time of its adoption, and in general refine law interpretation to its core essence, I very much fear that the law will not be necessary in this country anymore.

dave in boca said...

Tribe is such a condescending oaf that this overweening ass believes that he can cajole much brighter men than he is to buy into his "invisible constitution" crap based on Justice Douglas's 'penumbra' gimcrackery and a lot of hooey that Burger and before him Warren allowed to infect the real WRITTEN constitution with.

Only the NYT is pretentious enough to believe that allowing an ass like Tribe to bray on its Op-Ed page will help the cause of keeping the disastrous ObamaCare fiasco "legal."

Kev said...

I know this thread is old now, but I had to respond to this:

If we don't want to pay for another's health costs, then end socialized medicine. Make everyone carry their own weight, or be carried voluntarily by a friend, family member or charity. That way no one pays for another's medical costs unless they choose to do so.

I couldn't agree more. I've long said that the government should not be the avenue of first resort for someone in crisis; it should be at most #4, after the three entities listed above (with "church" possibly subbing for "charity").

And if someone has gotten to the point where they've alienated their friends, family and church out of their lives to the point where none of those entities would help them, perhaps they need to take a long, hard look at what they might be doing wrong in their lives.