April 1, 2012

Do you care about Congress's limited, enumerated powers and the idea of judicially enforceable federalism?

Or do you think that's all a lot of conservative bull that we shouldn't have to pay attention to? — I ask Bob Wright, who asserts a belief in "legal realism," which I ask him to define... and help him to define:



Click "continue" to hear me defend Bush v. Gore.

110 comments:

Contrarian Catalogue said...

I think those are important points to consider, and it's pretty obvious that the individual mandate passes constitutional muster.

Insurance is a unique market. The only good analogy I can think of would be requiring vaccines during a national pandemic: anyone refusing the vaccine puts everyone else in society at risk. I don't think anyone would have a problem with this logic.

Those without insurance likewise negatively impact the welfare of those purchasing insurance by making it more expensive and harder to obtain. You can google "adverse selection" and "asymmetric information" to learn more about the market failures that insurance is subject to.

I think Scalia's "broccoli" question got a lot of flak because it ignores all this. So he was either ignorant of the facts or was knowingly constructing a fallacious argument. That is what annoys me personally. It's the kind of uninformed rhetoric you'd expect to hear on Rush Limbaugh, not from the US Supreme Court.

Congress's "limited enumerated powers" is a fine topic for discussion, but simply isn't relevant in the context a market as odd as the one for insurance.

Sam Hall said...

"Congress's "limited enumerated powers" is a fine topic for discussion, but simply isn't relevant in the context a market as odd as the one for insurance."

If that is the case, we may as well get rid of all the state governments since the Feds can do it all.

damikesc said...

Insurance is a unique market. The only good analogy I can think of would be requiring vaccines during a national pandemic: anyone refusing the vaccine puts everyone else in society at risk. I don't think anyone would have a problem with this logic.

Feds don't have the power to require those, either. That is done on the state level.

Those without insurance likewise negatively impact the welfare of those purchasing insurance by making it more expensive and harder to obtain. You can google "adverse selection" and "asymmetric information" to learn more about the market failures that insurance is subject to.

Can you provide any evidence that not paying for an ER visit impacts anybody else in a neighboring state?

I've not heard of chain ER's. Health insurance cannot be sold across state lines.

I think Scalia's "broccoli" question got a lot of flak because it ignores all this. So he was either ignorant of the facts or was knowingly constructing a fallacious argument. That is what annoys me personally. It's the kind of uninformed rhetoric you'd expect to hear on Rush Limbaugh, not from the US Supreme Court.

So, you ALSO believe there is no limit on what the government can do? If the government insists that you buy a Chevy Volt, you'd have few issues with that if you're consistent.

At all.

Congress's "limited enumerated powers" is a fine topic for discussion, but simply isn't relevant in the context a market as odd as the one for insurance.

Given that it is a market that is specifically and legally not interstate, how is it anything the government has any power over?

It's amusing watching the supporters have zero ability to actually locate a single limit on government power.

None at all.

So, is the Constitution now null and void? States had to agree to join and you advocate changing the terms?

Palladian said...

Hard to be a "contrarian" when the government forces you to buy things, isn't it?

Contrarian Catalogue said...

damisek, it's not just what happens at the ER. It's a problem that starts long before that. The market itself isn't operating efficiently (or in some cases not at all) as long as large numbers of healthy people choose not to participate in it.

No, I don't believe that there is "no limit" to what the government can do. Where did you get that from? Didn't you read where I said that health insurance constitutes a "unique market?" It's also a market that makes up a large amount of the US GDP. It's a nation-wide problem and not confined to one particular state.

And if Al-Qaeda ever released a biological weapon in the US, I think the Government would be perfectly justified in requiring use of a vaccine or other preventative measures. Or should it be left alone as long as the initial victims are all located in one particular locality?

Keystone said...

Federalism has served us well, and most recently we will see the advantage of some spendthrift states going broke (e.g., California, New York, Illinois) and others doing well because of their responsible approach to governing (e,g., Texas, North Dakota). That is far superior to what we see in southern Europe where the whole country crashes, and there is nowhere to hide.

traditionalguy said...

Watching Bob Wright reminds me of a man who does not know what he thinks, and would like for others to tell him what he thinks.

Your interractions with him expose that trait. Bob is not being intellectual so much as he is whining a demand that he interpret everyone else's ideas so he gets credit for them.

You are very kind hearted to Bob and he knows and values that.

When he asked about the secret of your blogging success, what he meant was how do you combine genuine kindness with an analytic mind and sharp memory. He can't do that.

Your answer to him was that it is easy. Which is what Mozart told Salieri

God creates a few special people with extra charm, kind hearts and superior minds...but don't tell Bob that, He is already so mad at God that. like Salieri, he declares he is an atheist.

Quayle said...
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Astro said...

Ann,
I certainly give you this: you have a hellava lot more patience talking with people like Robert Wright than I ever would. Trying to pin him down to a concrete idea looks harder than catching flies with chopsticks. And you lack the advantage of beginner's luck. (Don't know why the Karate Kid imagery popped into my head. You don't look anything like Pat Morita or Ralph Macchio.)

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

Insurance is a unique market. The only good analogy I can think of would be requiring vaccines during a national pandemic: anyone refusing the vaccine puts everyone else in society at risk. I don't think anyone would have a problem with this logic.

Those without insurance likewise negatively impact the welfare of those purchasing insurance by making it more expensive and harder to obtain.


What a complete steaming load of crap.

Insurance is extraordinary risk sharing, plain and simple.

As long as the extraordinary risks of the pool are known, the risks can be shared among the pool participants.

After all, many hands makes light work. It is volunteer, market-based socialism, nothing more.

So tell us all, then, how the non-participation of non-pool-member-A hurt that pool at all?

Paul Zrimsek said...

Those without insurance likewise negatively impact the welfare of those purchasing insurance by making it more expensive and harder to obtain

If that's really the argument, then the insurance market is about as far from unique as you can get. You could say the same about any market in which economies of scale exist. In any case, you need more than "it's a unique market" to bring PPACA within the enumerated powers of Congress. (I say this as one who believes that it probably is constitutional, but under the Necessary and Proper Clause.)

Maguro said...

damisek, it's not just what happens at the ER. It's a problem that starts long before that. The market itself isn't operating efficiently (or in some cases not at all) as long as large numbers of healthy people choose not to participate in it.

Uh, so if healthy people choose not to partake of a product designed for sick people, that constitutes market failure and the government must step in?

Seems to me that what you call "market failure" is simply people not spending their money in the way that the government would like them to. In which case, it would hardly be a unique situation, but rather a commonplace one that we might expect to occur over and over again.

Maybe in a few years some bright bulb will discover that the market for "clean energy" is broken and we all need to buy solar panels or suffer a fine. Certainly the market for solar panels would operate more efficiently (and lucratively) if we all had to buy some.

Don't Tread 2012 said...

Ole' Bob thinks that congress should be the arbiter of what is constitutional???

I disagree. Congress needs checks too, and the founders knew this. The Supreme Court will ultimately be the arbiter. That is, as long as there are robe-wearing members that believe the constitution was written to limit the power of government. Progressives see the constitution as an impediment, and I believe Bob Wright is a progressive reluctant to admit it.

Crimso said...

The basic concept of affecting the market by not participating (so no matter what, you affect the market), if upheld, will find all sorts of ingenious new applications. You must have children. Choosing not to have children negatively affects the future of Social Security, which needs all the future contributors it can get. And you must admit, Social Security is at least as unique as insurance. Sound absurd? I should hope it does.

Writ Small said...

"Legal realism" is akin to the filibuster. The support of it entirely depends upon which side has the majority.

mesquito said...
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Pastafarian said...

You know, we'd have a much more "efficiently functioning" house insurance market if more people without houses would participate in it.

That's basically what you're asking of young people, "contrarian" -- you're asking young people who choose not to purchase health insurance, because it's a bad bet for them since they're rarely sick, to participate and carry the weight of older people for whom it's a better bet (as long as their premiums are artificially low, because of the forced participation of people without many medical bills).

It's just like forcing people who don't own homes to purchase house insurance, so that the premiums on home owners will be lower.

The idea that we should make an exception and abandon the notion of a limited government is vile. The idea that our betters should pretend that the constitution that limits government no longer exists is treasonous.

This "unique market" meme is laughable on its face. The left has glommed onto insurance as their last best hope to implement socialism. You don't give a fuck about markets. If you did, you'd oppose all insurance, and let people pay for their medical care as needed. Then you'd see markets at work. Medical costs would plummet.

You know what else is unique? Food. You want people to starve? We need to force participation in a new food insurance program.

cubanbob said...

Contrarian that is ridiculous argument. No one is obligated to purchase something to lower the overall cost for someone else. Using your logic why stop at health insurance? Why not life insurance, we all eventually die and should not leave creditors to eat a loss or leave relatives without resources. Why not disability insurance, can anyone guarantee they won't be disabled? Or long term care policies, if you get old enough can you guarantee you won't need care? Why not mandate that everyone paybin to a retirement annuity so you won't be a burden on others in your old age? Or a medical annuity for your old age? Or home owners insurance and wind and flood insurance? Can you gurantee that your home won't be flooded or otherwise destroyed and having you become a burden on others? Or liability insurance sufficent enough to cover any reasonable damage you may inflict? The list of hazards and perils that you can inflict on others is rather extensive, so why not mandate responsibility for every act that you might incurr? Next you will argue that anyone who could potentially drive ought to mandated to lower auto insurance rates. There is nothing unique about health insurance and whatever uniqueness there is, is due to government policies not to the innate nature of health insurance.

I know its hard for a liberal to understand but the constitution wasn't written by collectivists. It's charter of negative rights and enumerated powers and on the whole has served us well for several centuries. If your desire is to turn the constitution in to a charter of positive rights then make the case for it and get enough people behind it to call for constitutional convention.

As for your vaccine example, it isn't a stretch to equate mandatory vaccination as a necessary and proper act of national defense in war time.

As for enumerated powers and judicially enforced federalism only a wannabe tyrant who assumes his will and only his will be the only view point would propose removing all restraints on government power. Remember the power you wish to grant the government will be someday held by those you disagree with.

Paddy O said...

Insurance is not a unique market and thus it is relevant in the context of Congress's "limited enumerated powers".

There. I made the equivalent substantial response.

That's precisely why this is before the Supreme Court and attempting to negate the perspective of a justice as being outside the bounds of rational consideration is intellectualizing personal opinion not providing an actual discussion.

Saying health insurance is unique because you say it is unique, even with provided analogies, does not actually make it unique. Anything then could thus be declared similarly unique (which is the gist of the justices response as far as I could tell).

Everything actually is in fact unique or it would be the same as something else. For instance, car insurance is unique because we all have to have transportation so the government could then insist everyone buy a certain kind of car so as to limit both cost of repair and potential injury.

So, the uniqueness argument is precisely not helpful because that then becomes a trigger to end any limit of government altogether. Say its unique, and government can control it?

I think that's precisely why the Constitution gives specific powers to specific branches in specific ways. It's a limiting document precisely because everyone thinks what they want to do, the power they want to use, the goal they want to achieve is the unique one that deserves special consideration. Power then is grabbed in every direction as more and more unique things become justification for total control.

Paul Zrimsek said...

The legal issue aside, anyone familiar with political economy has to enjoy a good ironic laugh at the idea of a major government intervention in the economy being justified by the inherent evil of cost-shifting.

mesquito said...

"Did you listen to the oral arguments?"

"Um.........no."

"Well, they were very exciting."

"Well, I consider myself a legal realist."

"What's a 'legal realist'"?

"I have no clue, but I get knowing murmers of agreement from my friends when I say that. I think it has two meaning, descriptive and proscriptive. I don't have a fucking clue about either."

"Okay. You concede we need a Supreme Court."

"Yeah. When conflict arises we need a place to argue about the law and stuff like that."

"I see. When you say 'the law' do you include the Constitution in addition to statutes?"

"This sounds like a trick question."

"Maybe for a civics student at Caprock Community College in Ardmore, Oklahoma. At any rate, a basic principle of judicial review that the actions of the government must comport with the Constitution. I'm sure you weren't one of the ones squealing and hollering as the various elements of the 'war on terror' legislation (bipartisan!) moved up through the federal courts, were you?"

"Oh gosh. I don't remember. So what you're saying, then, is that it's the Supreme Court, and not Nancy Pelosi, who gets to decide what is and isn't constitutional?"

"Uh, yeah. It's all really elementary, but you look like someone just told you your wife is a communist agent."

"Well, I actually hadn't thought about this stuff until just now. I'm really way out my depth. I don't have a clue about any of this. I am totally ignorant in this area.....That Bush v Gore case, that was pretty bad, huh?"

Quayle said...

...is a unique market...

Every product's price is calculated to cover the fixed costs associated with that product.

The price of your iPad covers both the materials and labor to make your device, but also covers a part of the cost of the plant, and the CEO's travel bill, and the HQ office.

Wouldn't it be wonderful if every market could help lower the cost of the products by forcing uninterested people to help pay for the fixed costs, without having to take a product.

Just force them to chip in money, even if they don't want or need the product.

After all, their non-purchase of an iPad is making your iPad more expensive.

Pastafarian said...

By the way, Bob Wright is clearly a very intelligent, well-educated man.

How does it come to pass that such a man says things like (paraphrasing) 'Well, I suppose there's still some point to having a Supreme Court' and 'hey, maybe we can just make Congress the ultimate arbiter of what's legal and what's not?'

He sounds like my 8 year old daughter watching a hockey game and suggesting "Hey, why doesn't Zetterburg just pick up the puck with his hand and stuff it into the other team's net?"

Althouse, it seemed to me as though you were just being nice, by passing on multiple opportunities to eviscerate him and make him look even more foolish. It was as if you felt sorry for him and you were taking it easy on him.

Don't Tread 2012 said...

Paddy O

Its unique in as far as its the most far-reaching opportunity for progressives to exercise power.

If you can control people's care, then you can control anything that 'affects' their health.

They don't give a rip about 'cost', its about power.

Contrarian Catalogue said...

As long as the extraordinary risks of the pool are known, the risks can be shared among the pool participants.

After all, many hands makes light work. It is volunteer, market-based socialism, nothing more.

So tell us all, then, how the non-participation of non-pool-member-A hurt that pool at all?


Unfortunately, the risk of the insurance pool is skewed by virtue of something called "adverse selection." Basically, everyone knows more about their current health status than the insurance company. And since unhealthy people are more likely to seek insurance coverage, the insurer has to charge more or lower benefits. As a result, healthy people in the market drop out. That in turn leaves a higher concentration of unhealthy people and forces the insurer to raise prices or lower benefits once more. And the spiral continues all over again.

And as for this falling outside the realm of interstate commerce, I have a question. Which state does Aflac sell insurance in?

Quayle said...
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Henry said...

Does Robert Wright not know that Ann Althouse wrote about Bush v. Gore? That is embarrassing in and of itself. He should have recused himself.

That's like getting into a conversation with Stephen Hawking and referring him to Mickey Kaus's position on black holes.

Quayle said...

That in turn leaves a higher concentration of unhealthy people and forces the insurer to raise prices or lower benefits once more. And the spiral continues all over again.

And so who loses here?

What you're saying is basically that socialism doesn't and can never work because eventually nobody will share burdens.

That's all you're saying.

Ah, but, see, what is really going on is pretty clear.

The problem here doesn't have anything to do with insurance, does it.

And this is the game of the left.

This isn't about insurance, this is about paying for people's healthcare - even 'risks' as ordinary as birth control and anti-biotics, and WOOPS - now that the government is doing that the prices are rising, right?

So the government is being pinched between its own budget and its promises to pay for healthcare.

And the left is trying to cover the whole mess with the fog of insurance talk.

Don't Tread 2012 said...

"And since unhealthy people are more likely to seek insurance coverage, the insurer has to charge more or lower benefits."

This assertion is flimsy at best.

Maybe what you meant to say was, 'unhealthy people are more likely to seek care'.

I don't think there is this huge group of unhealthy people out there trying to get coverage. You either have coverage through your employer, or you self-insure, or you use the emergency room or health clinic and pay out-of-pocket.

Then, you are either healthy, or not, and if you are healthy, you by definition do not require care. If you are unhealthy, then you necessarily seek the specific care needed for a given problem.

Unhealthy people do not require the same types or amounts of care.

Thats the thing about this whole 'debate', the bullshit assertions and constructs of the likes of Elizabeth Warren that are held as gospel but really bear more careful study.

Henry said...

Contrarian Catalogue wrote Congress's "limited enumerated powers" is a fine topic for discussion, but simply isn't relevant in the context a market as odd as the one for insurance.

That must be Admendment 9 and 3/4 -- that magical codicil to the constitution where Congress gets authority over intrastate weirdness.

Pastafarian said...

Contrarian, I see your point. We had precisely the same problem with the equally unique market of buggy-whips.

Some stupid son-of-a-bitch came up with the internal combustion engine, and as a result, people stopped participating in the market for buggy-whips. And then it became a boutique product and its per-piece price skyrocketed.

If only we could have forced everyone to purchase them, then I wouldn't have to pay so much for mine. And the Ajax Buggy-whip company does, I assure you, participate in interstate commerce.

What do you think, contrarian? Shouldn't everyone be forced to purchase buggy-whips?

mtrobertsattorney said...

Ann, I think your question to Wright (Why would a legal realist ("Judges are simply politicians in black robes making political judgments")even think a Supreme Court is necessary?) went right over his head.

If that is all Supreme Court Justices are, why would anyone, especially a democracy, give nine unelected politicians supreme authority over the constitution?

Contrarian Catalogue said...

No one is obligated to purchase something to lower the overall cost for someone else.

The difference is that your "act of god" examples don't suffer the same information asymmetries as health insurance does. Nobody really knows how likely they are to be hit by a tornado or a flood. And as for life insurance, we're all going to die some day. That's what makes it a very profitable business.

Anyway, who said I was a liberal? Even a very conservative economist would agree that these issues are a real problem. Now whether they would favor a particular policy to address it is a different story.

All I'm doing is making the argument for why the individual mandate is constitutional. It's not really a liberal or conservative thing.

mesquito said...

I'm sure Bob Wright is knowledgeable and conversant is some sort of subject. I mean, he's a writer and everything.

But I swear, after listening to him in a dozen or so of these bloggingheads I feel no closer to knowing what that subject might be.

Contrarian Catalogue said...

Paddy O, if the ACA is an "opportunity for progressives to exercise power" then why is it so similar to what Republican's proposed during the 90s? Why is Paul Ryan trying to turn Medicare into something that sounds awfully like the ACA?

Bender said...

I cannot believe this.

Someone who makes as much sense as a pothead whose brain is totally fried from smoking too much weed starts off with some totally nonsensical comment, and everyone just jumps in to try to respond to such maroon inanities.

This is one of those times where you just shake your head and ignore it.

Don't Tread 2012 said...

"Paddy O, if the ACA is an "opportunity for progressives to exercise power" then why is it so similar to what Republican's proposed during the 90s? Why is Paul Ryan trying to turn Medicare into something that sounds awfully like the ACA?"

Its not. I don't think you know a fraction of the crap that's in the 'ACA'. Much of it has nothing to do with 'care'. Don't try to pull that BS here. Go yell squirrel elsewhere.

Contrarian Catalogue said...

Quayle, I don't think insurance is about socialism. As I understand it, it's about eliminating risk. Most people are risk averse and (for a price) can hedge against it by means of insurance. It's socialism to avoid risk?

Fen said...

Bob Wright: "Congress is the arbiter of what is constitutional"

OMG.

This is not even a fair fight. Why is he on blogging heads? What does he bring to the table? Ignorant lazy cynical partisanship?

Ann, you should have tied half your brain behind your back like Rush does.

AJ Lynch said...

Life insurance is a very profitable business because everyone dies? I thought it was profitable because insurers could charge premiums based on reliable acturial data and add a little for their profit.

Health care and health insurance is not as lucrative because the govt keeps butting in and mandating that companies cover, for free, the latest thing that the politicians demand they add to their covered services. IOW, the govt forces private businesses to alter their contracts with individuals just because the govt can.

I find that dangerous and troubling. If you are a conservative, you should too.

Contrarian Catalogue said...

As for Pastafarian's buggy whips, there's a difference between demand for a product merely falling vs. the market simply not functioning. In the case of insurance (or pollution for example) the government does have the ability to correct what the market can't accomplish on its own. Isn't that one of the reasons we have a government?

lewsar said...

Even a very conservative economist would agree that these issues are a real problem.

the fact that an issue is a problem does not empower the federal government to do anything about it. there are defined limits on the power of the federal government that don't evaporate because some group finds those limits to be inconvenient.

Troubled Voter said...

I missed the point where she pointed out Scalia's often convenient view of Federalism, which is pretty much politically motivated depending on the facts of a case.

But that would be to point out somebody (with whom she agrees) being cynical.

this blog is nearing it's break with reality.

Also she knows that Bush v Gore is a cynical decision. Otherwise every states election regime would be in violation of the EPC because every country has different standards. "Listen to yourself!"

machine said...

Former Solicitor General Charles Fried is among those who are “concerned”: If the court were to invalidate the healthcare law, “It would be more problematic than Bush v. Gore,” Fried said..."It would be plainly at odds with precedent, and plainly in conflict with what several of the justices have said before.”

Judicial Activism, again.

bagoh20 said...

Why don't they ask ME to be on Blogging Heads to debate Althouse? I'm not real bright either, and I don't know much about the law or the Supreme Court.

Does that gig pay anything? I'd probably have to get some degree I
don't have, but if Bob has it, I'm sure I can get that by the end of the week.

Don't Tread 2012 said...

"In the case of insurance (or pollution for example) the government does have the ability to correct what the market can't accomplish on its own. Isn't that one of the reasons we have a government?"

No. NO!!!

Ability does not justify action. Unless, the goal is to limit freedom. I think thats what you mean, maybe unintentionally...I really don't get why you, apparently, and many others think government is the be-all and end-all. To believe that is to believe that government is apparently without flaw.

But I get politicians and their desire to keep the gravy train on the tracks. No self-interest there, at all. Its all for our own good, of course.

EDH said...

Do you care about Congress's limited, enumerated powers and the idea of judicially enforceable federalism?

Yes


I bet you say that to all the boys.

Kind of reminds me of what may be the very first video Blogginheads. Watch the introduction.

You Took the Words Right Out of My Mouth

On a hot summer night.
Would you offer your throat to the wolf with the red roses?
Will he offer me his mouth?
Yes
Will he offer me his teeth?
Yes
Wlll he offer me his jaws?
Yes
Will he offer me his hunger?
Yes
Again. Will he offer me his hunger?
Yes
And will he starve without me?
Yes
And does he love me?
Yes
Yes
On a hot summer night.
Would you offer your throat to the wolf with the red roses?
Yes
I bet you say that to all the boys.

pm317 said...

Excellent response from Ann on the Independent thinking versus trusting the experts segment. You hit the nail on the head about the liberal mindset.

bagoh20 said...

"Former Solicitor General Charles Fried is among those who are “concerned”..."

Is he one of those smart law generals like the one we saw last week, because I wouldn't ask someone like that for directions to the 7 Eleven.

Contrarian Catalogue said...

Now I'm not arguing here that the ACA is a good idea. All I'm doing is explaining WHY the individual mandate is constitutional under the commerce clause as it is both a) national and interstate in scope and b) unique enough such that it doesn't create a precedent that can be used to require everyone to buy broccoli.

bagoh20 said...

"Do you care about Congress's limited, enumerated powers and the idea of judicially enforceable federalism?"

I think the fact that he didn't follow the court last week answers that pretty well.

It was a big fucking deal. Even Biden knew that. I think it was the first and last time Biden got something right.

d-day said...

Bob Wright thinks that Ann Althouse and Mickey Kaus are conservatives.

My goodness.

bagoh20 said...

The only thing unique about health insurance is it's the only market they want to destroy with this bill at this moment in time.

The next bill will be argued as valid because of the precedent of this unique situation. And on and on.

"Remember, you're unique, just like everyone else."

NotquiteunBuckley said...

I care about Katy Perry, the greatest artist of my generation.

edutcher said...

Wright looked as if he wanted to be anywhere else when the whole subject arose.

It's one thing when your side's turned out to be dead wrong, but quite another when they're condemned all around as stupid.

As for Federalism, you just look at him and the whole idea bores him to tears because, Heaven knows, the New Ruling Class knows what's best for the slaves. I mean, it's just in way of Glorious World Socialist Revolution.

PS "Welcome to my trap", she purred invitingly, "I've been setting them for over 25 years".

All you need is Ann in her black leather corset, garters, and sheer black hose and even Double-Aught-What's-His-Face wouldn't have a prayer.

bagoh20 said...

"I ask Bob Wright, who asserts a belief in "legal realism," which I ask him to define... and help him to define:"

Help him? You were arguing with yourself, because he had no idea what to say about it. You didn't fool me. I saw your lips moving when he was talking. Can you drink a glass of water while doing it? That's the gold standard.

ed said...

"Insurance is a unique market. The only good analogy I can think of would be requiring vaccines during a national pandemic: anyone refusing the vaccine puts everyone else in society at risk. I don't think anyone would have a problem with this logic." - Contrarian Catalogue

1. Utterly wrong. Insurance is NOT a unique market. It is a market which, amazingly enough, is a market and thus like every other market; it is a market. Therefore market = market = market = market. Trying to make people accept your false assumption that insurance is a unique market does not make it so unless you're willing to expound in extremely painful detail how insurance is a unique market.

2. Your metaphors are complete suckage.

3. Either the US Constitution must be adhered to or it is a useless rag worthy of burning and discarding. Either we have the First Amendment or we do not. Either we have the Second Amendment or we do not. Either Article 10 applies or it does not.

There is NO severability in the Constitution. There are no clauses that say "you don't really have to follow all of this dreck, pick and choose whatever the fuck you want".

If Congress doesn't have to abide by the Constitution and if SCOTUS can twist the Constitution to mean anything, then it means nothing and Congress has any damn power it wants.

CWJ said...

Contrarian Catalogue

A half dozen or so comments later and I'm still waiting for you to answer dameskc's original point that insurance is Not interstate commerce and that therefore the Federal government has no jurisdiction to begin with. Until you do than all your unique market cr*p and adverse selection nonsense (at the same time Obamacare denies insurance companies the ability to protect themselves against it) is just so much hot air.

machine said...

"Former Solicitor General Charles Fried is among those who are “concerned”..."

Is he one of those smart law generals like the one we saw last week, because I wouldn't ask someone like that for directions to the 7 Eleven.

Nope...Solicitor General for the Reagan administration and legal adviser to the Federalist Society...

Paddy O said...

Paddy O, if the ACA is an "opportunity for progressives to exercise power" then why is it so similar to what Republican's proposed during the 90s?

Contrarian Catalogue, I didn't say what you put in quotes so I'm not sure why you addressed that question to me.

I actually think that some really do believe it a helpful cause, rather than a grab for power. The issue at hand, for me, is whether our Constitution allows this method to pursue a particular answer. It's an important question because our Founders, I believe, were aware how a separation of powers and a limited government ultimately prevent more harm. Good causes can lead to bad situations because good hearted people can be used by duplicitous leaders.

How much this is similar to previous attempts really isn't the issue at hand. There are a lot of different ways to address health care issues, and of course they will share similarities. The question is how a particular bit of legislation is particularly different and if those differences can fit into the framework of our Constitution.

It's also not an issue whether Republicans have sought power as well. The Republicans of the 90s proved themselves to indeed be duplicitous in many case. That's the whole message of the Tea Party--those folks don't trust politicians to be our caretakers so push back against assumptions of power.

Ultimately, "because I say so" and "its sort of like that other thing" aren't good Constitutional arguments. Though, it would fit right in at the argument clinic.

Dust Bunny Queen said...

there's a difference between demand for a product merely falling vs. the market simply not functioning. In the case of insurance (or pollution for example) the government does have the ability to correct what the market can't accomplish on its own. Isn't that one of the reasons we have a government

NO it is not the reason for government to MAKE us buy products.

Paddy O said...

All I'm doing is explaining WHY the individual mandate is constitutional under the commerce clause as it is both a) national and interstate in scope and b) unique enough such that it doesn't create a precedent that can be used to require everyone to buy broccoli.

Curiously that's what you're not doing. You're not explaining WHY, you're asserting that it is such, then using your assertion as the basis of your logic.

If I reject your premise that it is actually unique, or national and interstate in scope, then I'm, following your method, apparently also explaining WHY you are wrong.

Force of opinion doesn't count much, unless you are a Supreme Court justice.

d-day said...

Do it again, Ann! Kick his ass!

CWJ said...

Machine @8:02

Appeal to authority fallacy. So everyone else should shut up because someone with whom you suppose they should agree because of a relationship to a past administration has concerns. Otherwise if you have a point to make then make it.

mtrobertsattorney said...

I think C. Catalogue could escape the charge of sophistry if he argued that, by virtue of an emanation from a penumbra, there is a "Unique Problem Clause" in the Constitution that says, in effect, that "Provided Congress is acting to solve a unique problem, no other clause in this Constitution can used to nullify or otherwise interfere with Congress's action."

This is by far his best argument.

Maguro said...

Nope...Solicitor General for the Reagan administration and legal adviser to the Federalist Society...

And Obama supporter. You forgot that one.

Obama supporter supports Obama policies, film at 11!

*Yawn*

AJ Lynch said...

Can someone tell me if the word "unique" is even in the Constitution?

Pianoman said...

Haven't read the comments here yet, but I look forward to more discussions like this one. Bob is at his best when he's not casually slinging accusations at conservatives, and the Professor is at her best when she allows Bob to get his ideas out without interrupting him. (Seriously Prof - you need to break yourself of that habit. It might work on your students, but it interrupts the discussion flow and also seems to agitate Mr. Wright.)

One other message for Bob: I would say that, in general, the conservative commenters here don't hate YOU, they hate your IDEAS.

As Lewis Black would say: BIG. F*CK. DIFFERENCE.

Contrarian Catalogue said...

CWJ, just ask yourself the question, which state is it that Aflac sells insurance in?

Contrarian Catalogue said...

AJ Lynch, I don't know if the constitution uses the word "unique." But it's not about the fact that the health insurance market is unique. It's about the reasons WHY it's unique and why it's not the same as the market for cars or broccoli.

bagoh20 said...
This comment has been removed by the author.
bagoh20 said...

After listening to the entire thing, Ann has kicked my opinion of her from high to higher.

I don't admire a lot of people among the chattering class, but a few have had a great influence on me, and Althouse is starting to be one.

There is nothing particularly desirable about earning my intellectual respect, but it is hard to do, and it requires a unique approach that is rare.

She is teaching me to stop and think, and to discard some things that are not helpful in finding the truth or passing it on once I do.

I don't agree with all her opinions, which is always the case with the rare others I respect in this same way, but I have to listen to them, and I have to make sure I truly disagree. It takes work, patience, and willingness. The fact that I really want to explore their arguments is how I know I respect them. There is a good chance that they are right and I am wrong, and I know that either way, I will learn something in the process. Either I change my mind, or I know better why I think what I do.

Shorter: Thanks Ann.

Alex said...

So why does Ann continue on with Bob Wright? Is he some respected member of the internet MSM that she is obligated to converse with him? Is she obligated to pay homage to these lightweights?

Alex said...

Contrarian - then hold a Constitutional Convention and form a new republic because the current one obviously doesn't suit you.

Ignorance is Bliss said...

there's a difference between demand for a product merely falling vs. the market simply not functioning. In the case of insurance (or pollution for example) the government does have the ability to correct what the market can't accomplish on its own.

Yes, the health insurance industry does suffer from market failure due to information asymmetry. Is it possible for the government to fix that problem? Maybe, but I doubt it. Does the ACA fix the problem? No. It does not even attempt to.

That's because market failure describes a misallocation of resources, due to some people paying less for their insurance than their risk should require, while others pay more.

But misallocation of resouces ( in a market sense ) is a key feature of the ACA. Community rating, and the limit on premium adjustment factors for age, both insure that people are not paying what their risk should require.

The free markets had a problem due to information asymmetry. The ACA makes it worse by requiring the insurance companies to ignore most of the relevant information that they could have.

Note that none of that has any bearing on the Constitutionality of the ACA.

Alex said...

Contrarian's argument is that real life is too messy and we shouldn't bother with a 200+ year old document to guide us.

bagoh20 said...

"It's about the reasons WHY it's unique and why it's not the same as the market for cars or broccoli."

I suspect this argument is like the one where it was not a tax and then it is.

Later we will be told that insurance market is in fact just like cars and broccoli, when the need for that argument arises.

The left, through the courts, has done this kind of slippery slope move for so long and so often that the right just doesn't want to risk compromising in any way. The left simply can't be trusted to be honest about this stuff.

Obama himself expressed it perfectly when he described how it would take 10 - 15 years to get where they want to go. They don't even believe the arguments they are making.

Alex said...

It does seem these days that saying out loud that you are an originalist pegs you as a some right-wing Neanderthal.

Alex said...

Basically the argument being made is that health care is SO SPECIAL and thus we need to abrogate the Constitution, because fuck it's SO SPECIAL.

Alex said...

I wonder how many Americans even give a fuck about this Constitutional Republic. Remember Ben Franklin said we have a republic, if we can keep it. Apparently not.

Ken said...

Ann,

You stopped the video at the best part! I watched the next few minutes of the video on bloggingheads and loved the way you took Wright apart due to his appeal to authority and emotion, rather than understanding the facts of the case and understanding what was actually decided.

Well done.

G Joubert said...

Government sponsored health care for one and all is not sustainable. Call it whatever you want. Obamacare. Single payer. Socialized medicine. Whatever. The proverbial dog that won't hunt. Everywhere it's ever been attampted or ever been tried.

Chef Mojo said...

@ Contrarian:

Aflac is licensed to sell insurance in all 50 states. Meaning, Aflac requires the permission, in the form of a license to sell insurance in each individual state. The state creates the terms for licensure, and they differ from state to state. If I have an Aflac insurance policy in Virginia, and I move to California, the terms of that policy will change to reflect the licensing requirements in California.

Aflac is not, therefore, engaging in interstate commerce, but is engaging with each state as a separate entity. Aflac cannot sell Virginia conditioned insurance in California and vice versa. If the federal government was the entity issuing the license, you might have an interstate commerce argument.

gadfly said...

Contrarian Catalogue:

Insurance is a unique market. The only good analogy I can think of would be requiring vaccines during a national pandemic: anyone refusing the vaccine puts everyone else in society at risk. I don't think anyone would have a problem with this logic.

So we suddenly have a short memory about the last pandemic declared by the WHO. That would be the 2009 swine flu (misnamed H1N1) pandemic that was not.

Congress appropriated $7.65 billion for vaccines to be used for a flu strain that resulted in less deaths than normal influenza outbreaks. As if we don't have problems with our own government, we now have UN bureaucrats spending taxpayer money without having properly assessing cost to risk trade-offs.

David said...

Why be so hard on Bob Wright?

He is actually trying to understand what Althouse is saying. It's hard for him because he's been in the bubble and therefore unexposed to well crafted contrary thinking. The bubbletrons are good at destroying straw men but not actual fleshy women with brains. But Bob is actually curious. And he has good manners. He has not had to think rigorously about these issues, but he's not incapable of such thinking. In a real sense, his education (I bet he was taught largely by bubbletrons) did not prepare him for an Althouse (or a Scalia.) Bob is too polite and too fair minded to simply defend himself by some personal attack. There is hope for him.

CWJ said...

Contrarian @8:59

Snide is not an argument and Chef Mojo replied as well as I could have. You really need a small dose of humility before you choose to write about that of which you have little knowlege.

Allan said...

@mesquito

"But I swear, after listening to him in a dozen or so of these bloggingheads I feel no closer to knowing what that subject might be."

He seems to know something about the history of Compuserve
which
after listening to him many times
is the only factual information
I ever learned from him.

Rusty said...

What did people do before modern heal insurance?

Titus said...

insufferable

AJ Lynch said...

Yes Titus- you are.

Fen said...

Why be so hard on Bob Wright?

Because he's a Little Eichmann.

If he would prefer civility, he should disassociate himself from those that call us teabaggers, bitter clingrs, Taliban nazis, etc.

Seriously, he's indicative of why the liberals were caught off guard by SCOTUS. Cocooned in an echo chamber, incapable of independent thought. Reflexive responses of "fire can't melt steel" and "Bush Lied Troops Died!".

Fuck him.

Cornroaster said...

"The only good analogy I can think of would be requiring vaccines during a national pandemic: anyone refusing the vaccine puts everyone else in society at risk."

Actually, the person refusing the vaccine might be putting their own self at risk - if they are exposed to the pandemic. However, if they are able to isolate themself for the life of the pandemic, they might not be putting themself - or anyone else - at risk at all. Even if they catch the pathogen, they would only be putting themself and others who had not been vaccinated. If the great majority of people had been vaccinated, they would not be at risk. And if an individual person feels they would be sufficiently isolated from the pathogen, they might actually be placing themself in greater jeopardy by taking the vaccine if it has some lethal side effects on some of those who take it. Sorry, but your analogy has some holes in it.

Carl Vero said...

From flabby brain and flabby behind (Charles P. Pierce, Esq.) to flabby brain and skinny behind (Bob Wright). Our dear Professor should consider taking on someone worthy of her skills, lest she be known as a beacon among bacon.

Chip Ahoy said...

Education is a completely totally utterly hopelessly unique market and it is such an important function of society that that even if you do not have kids and do not participate directly in education yourself, having been raised by lemurs on Madagascar, that you are still necessarily born participating in the education market automatically because it is deemed unseemly to have everybody running around uneducated unable to read the road signs and business signs and menus and so forth, and business-wise it is uncompetitive. And stupid. Duh. 'Nuf said. QED.

In my utopia all medical things are free. Everything. Even emergency things like picking your silly ass off a disastrous rock-climbing misadventure. Everything is fixed as best as possible and off you go. Helicopter, ambulance, hospital, everything. In that scenario, the utopia of my visualization, inspired by Star Trek, everybody is self-actualized. That is why they are getting in so much trouble all the time with their skateboards and their BMX bikes and their base jumping and so forth. And the doctors and the nurses and the emergency people who are doing all the fixing up are self-actualized too. Everybody wins.

The cost is you don't get to smoke or binge too often or have salt in public, the wrong fats, and never too much bad carbs.

How long must I wait for everybody to see the beauty in this higher level of being? It is society that provides all of the needs of the individual, All of them. Providing a place for food and clothing and for shelter to exist is one thing, but assuring that individuals are fed and clothed and housed is another. Is a society truly civilized if those base needs are not just available but assured? No! It is not civilized, not completely civilized. All of this talk of who pays for what is absurd when the currency itself springs from the same source so we're talking about which eddy or which whirlpool of swirling currency is tapped to channel a portion of the flow this way instead of that, education and medical care, or for armaments and other sinister project. So my utopia must wait for the rest of you to catch up, and the timeline of Star Trek seems to indicate I'll die first so it does little good for me to get worked up about all you being so thick about this.

Jason said...

How many states does aflac sell in? The same amount of states that cast electoral votes, silly person. That is, 50 separate markets, plus DC. Their agents are licensed by the states, not by the federal government. As it should be.

Danno said...

A one-size-fits-all federal mandate is clearly not just buying catastrophic healthcare coverage. If they truly wanted to persuade everyone to but health insurance, they would leave it to the markets to offer a great variety of policies and options for insuring. Not everyone wants first-dollar coverage on wellness care, birth control and a bunch of other things that shouldn't be insured.

cubanbob said...

Contrarian Catalogue said...
Now I'm not arguing here that the ACA is a good idea. All I'm doing is explaining WHY the individual mandate is constitutional under the commerce clause as it is both a) national and interstate in scope and b) unique enough such that it doesn't create a precedent that can be used to require everyone to buy broccoli.

4/1/12 7:32 PM

But ultimately it does. The board set up the ACA has the power to set rates, mandate coverages and prohibits risk determination. Where is the board limited from setting lifetime caps on coverage, co-pays and compensation to the providers? The uniqueness is artificial, created by the government for all carriers. So unlike a given state where if the requirements are too strenuous that carrier that marker under the ACA the carrier can only leave by insolvency or ceasing to be a health insurance carrier. No one has mentioned whether the board has the obligation to insure the carriers earn a reasonable rate of return like utilities. At some point in this scheme to float Medicare and Medicaid on the backs of the privately insured and thus keep the true cost of the government's books the carriers will collapse. All the ACA really does is attempt to layoff the government's obligations long enough (it hopes) until the crest of the boomers pass on, but it won't. There is a projected shortage of over 160,000 doctors in the next 15 years so being mandated to eat your broccoli will be necessary to keep you healthy enough as to not consume as much in medical care. Your position on the constitutionality of the mandate isn't just based on a wildly expanded concept of commerce but on the infamous Kelo decision that it is permissible for government to take private property if the property is not being used in a way that would yield the highest amount of tax revenue. In the end that is also what the mandate comes down to, the mirror, to lower the cost of health care to the government at the expense of private parties.

Jason said...

In the case of insurance (or pollution for example) the government does have the ability to correct what the market can't accomplish on its own. Isn't that one of the reasons we have a government?

NUTS!!!!!!

No, dipshit. That is not and never has been why we have a federal government. The states can do it, and they do, within the limits of their own state constitutions.

Further... just because something like adverse selection is a problem in all 50 states doesn't make it a fricking federal issue. All 50 states have issues with licensing restaurants. That doesn't mean we need to create a fucking buraucracy in Washington to do it. Then you just have the SAME PROBLEMS but a less responsive government.

What in the world does the 10th Amendment mean to you? Don't you think it might be in there for a reason?

damikesc said...

Machine, yes Obama supporter Fried is pro Obamacare. This is news?

And Contrarian I noticed you had no answer for insurance being intrastate only.

rhhardin said...

Unique has a figurative sense that includes "more unique" and "less unique," that legal minds don't mind using to get the argument started.

Rusty said...

Chip Ahoy
Ya see, Chip. It's more like the Alliance and the Brown Coats. The Brown Coats want nothing to do with the Alliance. Plus the Alliance gave us the Rievers. Everybody hates the Reivers.

Rusty said...

I meant 'health' sometimes a private education is overrated too.

To answer my own question.
Before the advent of modern health insurance-post WW2 people formed associations. Both for health reasons and to take care of the the elderly. This how such organizations as the Elks and The Moose came to be. Some insurance companies started out as mutual assurance associations.
So instead of having a federal entity inserting itself even deeper in our health affairs, lets strip it back. back far enough so that even state regulations are more or less uniform and allow insurance companies to cross state lines to compete for customers.
Don't get me started on dr. liability insurance.

PackerBronco said...

If as some here claim that insurance is a unique market and within congress's purview to mandate, then my question would be: "Is there a limit to the degree of that insurance mandate?"

For example, can the government have so much power over your health insurance decision that it can mandate you purchase insurance that covers acupuncture and yoga classes and liposuction?

Can the government have so much power over your health insurance decision that it can mandate the number of pregnancies your insurance will cover you for (imagine our president saying: "at some point you've had enough children.")

And where within this obamination of law, is there any limiting principle on THAT?

PackerBronco said...

Contrarian Catalogue said...
Now I'm not arguing here that the ACA is a good idea. All I'm doing is explaining WHY the individual mandate is constitutional under the commerce clause as it is both a) national and interstate in scope and b) unique enough such that it doesn't create a precedent that can be used to require everyone to buy broccoli.

Can it require you to purchase an insurance policy that covers the cost of broccoli?

I believe the answer to that is at the discretion of the HHS secretary.

In other words: yes it can.

Matthew said...

"I think Scalia's "broccoli" question got a lot of flak because it ignores all this. So he was either ignorant of the facts or was knowingly constructing a fallacious argument. That is what annoys me personally. It's the kind of uninformed rhetoric you'd expect to hear on Rush Limbaugh, not from the US Supreme Court."

-- So you don't think health care costs would be cheaper if everyone ate their vegetables and exercised regularly?

What level of government mandate are you willing to accept because health is unique? If it can make you do X (buy insurance) for reason Z (lower healthcare costs), why can't it make you buy Y (eat your vegetables) for the same reason Z?

It's actually a very good question.

Dante said...

Love the continuation of the blog. It took you a minute to describe that if the judges are to interpret law, that they also have to interpret the highest law of the land.

It took another minute to explain why the supreme court was right in Bush v. Gore, though I'm certain Wright has spent much more time on Bush v. Gore than that minute. In fact, I'm guessing he spent hours on it.

That having been said, please help me to understand why the supreme court is expected to have a split decision on Obama Care, and that the liberals of the court are expected to vote in favor of it! Can the law actually be liberal or conservative, I mean the denotative meaning of the words?

That's Wright's strongest argument. But, I think it is largely an argument that has been made by leftist judges. I don't know it, but I feel it in my bones. Now if only I could find someone who can help me to understand this better. Who knows, maybe I'll feel like Wright, who looks like a whiny, petulant child who refuses to see reason.

MikeR said...

Just read a NYT opinion piece on the Court,
http://www.nytimes.com/2012/04/01/opinion/sunday/the-roberts-court-defines-itself.html?_r=2&hp
My favorite line: "The four moderates on the court have a leftish bent, but they see their role as stewards of the law..."

ed said...

"Can someone tell me if the word "unique" is even in the Constitution?" - AJ Lynch

No idea. But IMO the Constitution would be vastly improved by the repeated inclusion of the word "asshats".

ed said...

"... that you are still necessarily born participating in the education market automatically because it is deemed unseemly to have everybody running around uneducated unable to read the road signs and business signs and menus and so forth ..." - Chip Ahoy

What makes this even more vastly amusing is that 1/2 of high school graduates in Detroit are functionally illiterate.