Why the Supreme Court will be mistaken if it strikes down the “individual mandate”

June 23rd, 2012

When discussing the constitutionality of the 2010 Affordable Care Act, lawyers, commentators, and Supreme Court Justices have regularly referred to “the uninsured.”  I argue that this is a conceptual and legal error: under a 1986 federal law, every individual already possesses a legally-enforceable right and thus an important kind of insurance. It follows from this that the individual mandate would force nobody to participate in a market in which he or she does not already participate. It thus becomes possible to affirm the constitutionality of the individual mandate, while holding (along with the conservative Justices on the Court) that there are “meaningful limits” to what Congress may or may not do under the Commerce Clause.

A majority of Supreme Court Justices may have already decided that a central provision of the 2010 Affordable Care Act, the individual mandate, is unconstitutional. Indeed, Justice Anthony Kennedy, widely seen as the Court’s “swing vote,” wrote a concurring opinion in 1994 which seems to provide ample theoretical justification for invalidating the individual mandate. But if the Court follows Justice Kennedy’s reasoning and strikes down the individual mandate, it would be in error – for even if Justice Kennedy’s reasoning is sound, the Court would be overlooking the current legal significance of a federal law from 1986.
The 1986 law is relevant because of the way the Affordable Care Act was passed in 2010. When Congress passed this Act, it could have, without constitutional controversy, justified its authority for doing so under the taxing power given to it by the Constitution. In fact, Justice Kennedy, during oral arguments regarding the Act, made exactly this point, noting that Congress could have legitimately used its taxing power to raise revenue and institute a national, single-payer health service. Instead, in the midst of the anti-tax political climate of 2010, Congress opted to justify its passage of the Act by relying on its authority to regulate interstate commerce under the Constitution’s Commerce Clause. But reliance on the Commerce Clause has made the Act constitutionally suspect, for reasons anticipated by Justice Kennedy in 1994.
In a concurring opinion in the 1994 case,
United States v. Lopez, Justice Kennedy explained that the federalism envisioned by the Framers is imperiled when Congressional power under the Commerce Clause is expanded to the point where the “boundaries between the spheres of federal and state authority” become blurred. While Congress should be given “substantial discretion and control” to determine the proper distinction and balance of power between the federal and state governments, the judiciary must intervene when this balance is threatened and must recognize “meaningful limits” on what Congress may do under the Commerce Clause.
If Justice Kennedy’s reasoning is correct, it is easy to see what is constitutionally questionable about the individual mandate. Under the individual mandate, individuals who have not already purchased health care insurance would be required, under pain of penalty, to purchase it, and thus, it seems, would be required to enter into a market in which they do not already participate. If the individual mandate stands, it appears that Congress may force individuals to purchase any number of unwanted products, all in the name of regulating interstate commerce. The individual mandate must be struck down, it seems, if one is to avoid the conclusion that there are no “meaningful limits” on Congress’s power, under the Commerce Clause, to force individuals to enter into commercial activities in which they are not already participating.
But does the individual mandate really force anyone to enter into a market in which he or she does not already participate? The answer is “no,” since a 1986 federal law, the Emergency Medical Treatment and Active Labor Act (EMTALA), already gave every individual a basic form of health care insurance, and thus legally placed every individual within the market to be regulated by the Affordable Care Act. Under EMTALA, Medicare-participating hospitals (which make up the vast majority of all hospitals in the United States) are required to examine and, if necessary, treat “any individual” who comes to the hospital’s emergency room seeking care, regardless of the individual’s legal status or ability to pay. Under EMTALA, there is simply no such thing as “the uninsured.”
While EMTALA’s language focuses on hospitals and their legally-enforceable “duty to treat,” the existence of this duty entails a correlative, legally-enforceable “right to be treated.” One’s possession of basic health care insurance under EMTALA does not depend on one’s having acted affirmatively to acquire it; nor does it depend on one’s wanting to receive or having received any tangible benefit under it. An individual possesses basic health care insurance under EMTALA simply by virtue of the fact that he or she is a living individual who has been granted, as a matter of federal law and not just “social norms,” a legally enforceable right to compel any one of thousands of hospitals in the United States to provide basic medical treatment, when certain conditions are met. No doubt, the range of medical treatments that a hospital must provide under EMTALA is limited. But the possession of insurance is perfectly compatible with the existence of limits on what is or is not covered by such insurance.
In sum: it is possible to affirm the constitutionality of the individual mandate, while at the same time holding that Congress may not, under the Commerce Clause, force any individual into a market in which he or she does not already participate. The individual mandate does not coerce non-participants to begin participating in the market for health care insurance. That act of coercion already took place in 1986, when Congress, pursuant to its taxing power, passed EMTALA and effectively turned every individual into a possessor of basic of health care insurance, whether desired by the individual or not.

New D.C. Law Prohibits the Extermination of Rats

January 19th, 2012

A new law in the District of Columbia (”The Wildlife Protection Act of 2010″) prohibits the extermination, and mandates the re-location, of rats and other pests.  When re-locations are performed, pest-control contractors must “make very reasonable effort to preserve family units [that is, rat-family units -- unfortunately, the law does not indicate whether rat-cousins and rat-in-laws are part of the family unit].”  One is tempted to think that this law could have only been passed by:
– District of Columbia manufacturers of non-lethal pest-control devices;
– exterminators licensed to work in Virginia and Maryland, where the rats will be getting re-located;
– the rats themselves.

Armando Galarraga and Paul McCartney: A Study in Contrasts

June 4th, 2010

Just a day before they were treated to the classy pitching performance and sportsmanship of Detroit Tigers pitcher, Armando Galarraga, Americans were witness to a truly classless act from former Beatle, Paul McCartney.  On June 2, in a game against the Cleveland Indians, Gallaraga lost a bid to become only the 21st pitcher in major league history to pitch a perfect game, when with two outs in the ninth inning first base umpire Jim Joyce made a mistake and called the baserunner ’safe’, when he really should have been called ‘out’ (replays clearly showed that Jim Joyce had made a bad call, and Joyce acknowledged as much after seeing the replays).  After realizing his mistake, Joyce admitted ruefully, “I just cost that kid a perfect game.”  With equal poise and class, Gallaraga met with Joyce after the game and issued some comforting words for the distraught umpire: “He probably felt more bad than me.”  And adding a touch of wry humor, Galarraga noted, “Nobody’s  perfect.”  Contrast this classy behavior with that of former Beatle, Paul McCartney, who on June 1 was at the White House to receive the Gershwin Prize for Popular Song, from the Library of Congress.  Upon receiving the award, Sir Paul went out of his way to (a) complement the current President, Barack Obama, and (b) take a cheap shot at Obama’s predecessor, George W. Bush.  In a carefully-delivered quip that was clearly prepared in advance, the former Beatle remarked, out of the blue and apropos of nothing: “After the last eight years, it’s good to have a president who knows what a library is.”  Consider the contrast: Armando Galarraga had just been ROBBED of an honor, but instead of whining or complaining, he went out of his way to rise above the loss and even comfort the umpire who had robbed him.  By contrast, Paul McCartney was being GIVEN an honor, and instead of showing the grace that is customary and expected for such occasions, he went out of his way to introduce a note of petty and mean-spirited snideness.  I’m no big fan of George W. Bush, and I am an absolute lover of the Beatles.  But I cannot help but conclude that Sir Paul made a perfect ass of himself with his irrelevant, nasty comment.  The irony is that George W. Bush has been married for the past thirty-plus years to an intelligent, classy woman who also happens to be a librarian (so of course Bush knows what a library is).  For his part, Paul McCartney showed terrible judgment when he married Heather Mills, who turned out to be one of the nuttiest celebrity-wives the world has seen in recent years; and even with the best lawyers at his service, Sir Paul ended up having to spend over 24 million pounds sterling (about 5% of his net worth) to get himself unhitched from her.

Boniface’s Papal Bull, Benedict’s Papal Bull?

April 2nd, 2010

In his Divine Comedy, Dante tells us that Pope Boniface VIII belongs in the eighth circle of hell, the circle reserved for those who commit sins of fraud and treachery.  The particular sin for which Boniface deserves his infernal fate is the sin of simony, i.e., the sin of trading in spiritual goods as if they were temporal goods.  For Dante, Boniface’s sin of simony included not only the literal selling of spiritual goods for temporal goods; it also included Boniface’s wrongful assertion (through his actions, but also through his papal bull of November 18, 1302,  Unam Sanctam) that his authority as supreme leader of the Church also gave him authority as supreme leader of the world.  In light of the newest revelations regarding sexual abuse by priests and administrative cover-up by bishops, one cannot help wondering whether Benedict XVI — like Pope Boniface VIII before him — has been party to a deeply imperfect Church culture which has all-too-often failed to distinguish adequately between  spiritual goods  and temporal goods.  For in recent years, some members of the Church hierarchy have appeared to behave more like members of a Pedophile Protection Syndicate than like members of the Body of Christ (by prioritizing the protection of their own power, reputation, and assets, over the protection of innocent, defenseless children).  Has Cardinal Ratzinger / Pope Benedict been part of the problem, or will he be part of the solution?
Recall: in Spain in 2002, responding to demands that the Church take more seriously the growing allegations of sexual abuse by American priests and cover-up by American bishops,  then-Cardinal Ratzinger declared: “I am personally convinced that the constant presence in the press of the sins of Catholic priests, especially in the United States, is a planned campaign . . . to discredit the church.”  We now know, of course, that the allegations of abuse and cover-up were not merely a “planned campaign to discredit the Church,” but were the heartfelt and honest pleas of innocent victims struggling to be heard.  Cardinal Ratzinger’s 2002 statement not only mis-characterized the pleas of these innocent victims; it also re-victimized the victims insofar as it labeled their pleas as unworthy of a response and — furthermore — as part of an evil plot (”a planned campaign to discredit the church”).  To the many innocent victims of clerical abuse and cover-up, Cardinal Ratzinger’s defiant, dismissive, and accusatory words must have been especially stinging and hurtful.
In his 2010 Palm Sunday address, obliquely addressing renewed questions about the Vatican’s (and his own) handling of clerical abuse and cover-up, Pope Benedict suggested that he would not be intimidated by “the petty gossip of dominant opinion.”  Will the pope’s recent words about “petty gossip” turn out to be as ill-advised as his 2002 words about a “planned campaign to discredit the church”?  I do not know the answer to that question, of course.  I am quite willing to believe (as some have claimed) that the pope is being unfairly targeted by his over-zealous, agenda-driven critics.  But I am also willing to believe that the pope is once again engaging in rhetoric that will do more to suppress and deflect the truth, than to reveal it.  The problem is that faithful, honest, truth-seeking Catholics simply don’t what to believe, when so many important questions remain unanswered.  There is, for example, good reason to believe that in 1980, then-Cardinal Ratzinger (as Archbishop of Munich and Freising) not only received a memo announcing the reassignment of known pedophile priest Peter Hullermann to pastoral duties (including duties that involved work with children), but also oversaw a January 15 meeting in which Fr. Hullermann’s reassignment was discussed (see story in the TimesOnline).  Until now, the pope has allowed Vatican officials and others to say (or strongly imply) that he was not in any way knowledgeable about or responsible for the reassignment of Fr. Hullermann in 1980 (as we now know, Fr. Hullermann went on to abuse many other children, before eventually being tried and convicted by civil authorities in 1986).  Even if the pope is entirely innocent, as his defenders say he is, he would best serve his own interests — as well as the interests of the Church at large — if he were to give a fuller account of what — if anything — he knew of Fr. Hullermann’s reassignment in 1980, and/or why he should not be criticized today for having known nothing, or doing nothing, about that reassignment.  Unfortunately, the pope’s own prior statements and his prior responses to this ongoing crisis have led many fair-minded, reasonable people to begin wondering whether he is really part of the solution or part of the problem.

Niche construction: organisms on the way to self-determination

December 18th, 2009

I’ve just come across a very interesting and compelling book, entitled Niche Construction: The Neglected Process in Evolution.  A web-site on the book can be found here:
Niche construction occurs when organisms modify their own environments through the kinds of activities that they perform (e.g., dam-building, web-spinning, nest-making, etc.).  In modifying their own environments, this book argues, organisms can introduce new natural-selective pressures into their environments; and because of these new natural-selective pressures, organisms can end up (indirectly) bringing about modifications in their own genomic make-up.  In other words, organisms can modify their own environments, and by doing so they can (indirectly) modify themselves, even at the genomic level.  Niche construction thus introduces a kind of feedback-mechanism, or one might even say a certain kind of self-determination, into the process of evolution by natural selection.

Tobin vs. Kennedy: grow up, both of you

November 25th, 2009

The skirmish between Providence Bishop Thomas J. Tobin and Rep. Patrick J. Kennedy has grabbed national headlines.  The Congressman has criticized the Church for opposing health-care reforms that would include taxpayer-funded access to abortion.  Furthermore, Kennedy has alleged that Bishop Tobin instructed him not to receive Holy Communion on account of his (Kennedy’s) public stance on abortion.  In response, Tobin claimed that he never instructed or demanded that Kennedy refrain from receiving communion, but only “requested” that Kennedy do so.  While I have no special affection for either of these men, I wanted to make a brief observation about Catholic teaching and the Catholic tradition that Bishop Tobin claims to be defending.  If he believes that traditional Catholic teaching requires Catholic politicians to support the legal prohibition of abortion, then the Bishop would be misunderstanding his own tradition.  In fact, St. Thomas Aquinas (indisputably one of the most important and canonical sources for Catholic ‘natural law’ thinking) argues that all law (including the eternal law, natural law, and human law) exists for the sake of the common good.  Because law exists for the sake of the common good, and not just particular goods, there will be instances in which “rulers rightly tolerate certain evils, lest certain goods be prevented, or even worse evils incurred” (Summa Theologica, II-II, Q. 10, a. 11).  St. Thomas himself gives the example of prostitution: while acknowledging that prostitution is an evil, St. Thomas (referring approvingly to St. Augustine’s argument in De Ordine II, 4) holds that prostitution should not be prohibited by law, since the legal prohibition of prostitution would prevent certain other goods (e.g., the relative good of providing a tolerable and safe outlet for unpreventable, deviant sexual behavior).  Note well: Aquinas’s argument here does not imply in any way that prostitution (or abortion) is morally neutral or morally acceptable.  Indeed, prostitution — as well as the destruction of innocent human life through abortion — are instrinsically evil, according to traditional Catholic teaching.  But while certain practices (such as prostitution and abortion) are intrinsically evil, it does not follow that it is always right, or even prudent, to combat such evils by means of legal prohibitions.  Finally, these observations should not be taken to imply that Rep. Kennedy’s own position is entirely without flaw.  While it is consistent with traditional Catholic (and ‘natural law’) thinking to hold that not all evils (including intrinsic evils) should be prohibited by law, it is probably inconsistent with traditional Catholic (and ‘natural law’) thinking to hold (as Rep. Kennedy seems to hold) that intrinsic evils ought to be supported by the use of public funds.  In spite of their self-assured, righteous grand-standing, both of these men have alot to learn (and, I think, alot of growing up to do) if they want to be good representatives of their own tradition.

Obama’s ‘Slam Dunk’

November 16th, 2009

U.S. Attorney General Eric Holder announced on November 13 that the Obama Administration has decided to try five alleged terrorists (including self-admitted 9/11 mastermind Kahlid Sheikh Mohammed, or KSM) in a federal court in lower Manhattan.  Predictably, Republicans and other conservatives have been severely critical of the decision, while many Democrats and other liberals have been supportive.  What’s been lost in the debate, however, is the extent to which this decision (which I’ll call the ‘KSM decision’) presents a disturbing mirror-image of the 2003 decision by former President George W. Bush to initiate military action in Iraq (which I’ll call the ‘Iraq decision’).  Both the Iraq decision and the KSM decision present (or presented) very high risks, coupled with the possibility of very great rewards.
Though we now know the painful results of the disastrous Iraq decision, one should not overlook the fact that the pre-decision strategizing pointed to the possibility of some real and significant rewards.  If it were well-informed at its inception and successful in its execution, the war effort in Iraq could have led to: (a) the elimination of weapons of mass destruction in Iraq (which, of course, turned out not to exist at all!), (b) the liberation of millions of people from a powerful and ruthless tyrant, and (c) the planting of the seeds of democracy in the middle of an otherwise democracy-unfriendly Middle East.  In a similar vein, we can acknowledge (in potential support of President Obama and A.G. Holder) that the KSM decision might turn out to be a very good decision in the long run.  A federal trial in Manhattan might lead to: (a) the issuance of five well-deserved convictions, (b) a symbolically and diplomatically important demonstration of the transparency and fairness of the American legal system, and (c) a decisive repudiation of the terrorists’ attempts to present themselves to the world as ‘holy warriors’ (an image that they might be able to sustain in military tribunals) rather than as cruel, cold-blooded murderers.  But there are also some significant disadvantages to a federal trial in Manhattan: first and most obviously, the financial costs of conducting the trial, and providing added security throughout the city, could be enormous.  But beyond the question of financial costs, the prospect of a federal trial in Manhattan presents some very real and serious risks, for example: (a) the legal proceedings might lead to acquittal or dismissal (one Obama-supporter said that convictions in the KSM case would be a ’slam dunk’, but that observation is just as ridiculous as the observation — made by Bush-supporters in 2003 — that the case for going to war in Iraq was a ’slam dunk’); (b) the trial in the heart of Manhattan (already a top target for terrorists) might encourage further ‘copy-cat’ terrorist acts at the time of the trial;  (c) the trial might lead to the disclosure of classified military information (in federal court, the defendants will have the right to various kinds of information pertinent to their arrest and detention by the U.S. military); and (d) the trial might in various ways allow the defendants to embarrass the American administration, to spread their venomous and proselytizing messages to other would-be ‘martyrs’,  and to mock the already-victimized families who lost loved ones on 9/11.
My sentiments regarding the KSM decision are similar to the sentiments I had at the time of the Iraq decision: “Mr. President, your decision is puzzling to me.  I admit that you and your advisers are privy to important information that I do not have.  Given my own informational deficit, I dearly hope that you know what you are doing.  But since the stakes are so high, you had better be darn sure that you know what you are doing.  If your decision turns out to be wrong (if in retrospect, when we have further information, we learn that your decision was a reckless one), then I will not be able to forgive you for it.”
At the end of the day, I am worried that the ultimately decisive motives behind these two decisions (by Bush and Obama) may have had more to do with personal image-promotion than with a careful, well-informed concern for the common good and for long-term consequences.  Just as President George W. Bush was inordinately motivated to prove to the world that he is NOT his ‘wimpy’ father (who supposedly failed to ‘finish the job’ in Iraq), so too President Obama may be inordinately motivated to prove that he is NOT George W. Bush, but rather a kinder, gentler, and smarter sort of president, who will be very reluctant to use the military or military tribunals in ‘hard cases’.  But acting for the sake of proving that you will not repeat what you perceive to be someone else’s mistakes, does not guarantee that your own decisions will turn out to be the right ones.

Meat-eating and Global Warming

November 2nd, 2009

In a recent article in the New York Daily News, Princeton philosopher and animal rights advocate Peter Singer proposed that we begin imposing a heavy new tax on the sale of meat.  One justification for such a tax, he argued, was that it would help to reduce meat-consumption and thereby help to reduce our greenhouse gas emissions.  As Singer rightly pointed out, a 2006 study by the United Nations Food and Agriculture Organization showed that livestock are responsible for more greenhouse gas emissions than all forms of transportation combined.  More specifically, the study showed that worldwide livestock farming causes about 18% of human-generated greenhouse gas emissions, while only about 13% of human-generated greenhouse gas emissions were caused by all forms of transportion combined (see this BBC news article for more on this).  Singer’s article was clearly intended to induce his readers into drawing the inference that reducing our meat consumption (through taxation or other means) would make a significant difference in helping to reduce our greenhouse as emissions.  But it would be a mistake to draw such an inference on the basis of Singer’s article.  Singer’s article rightly includes some important facts about livestock farming and global warming, but significantly, it also misleads the reader by omitting some other important facts.  For example, Singer misleads the reader by failing to mention that (a) a very large number of cows raised in non-western countries are not raised to be eaten, but are raised for other purposes such as doing work in fields; and (b) cows being raised in the western world (i.e., North America and Europe) account for only 15% of all cows worldwide; the other 85% are being raised in non-western countries (and a large number of these ‘non-western’ cows are not being raised for meat).  In India, which is home to the largest bovine population in the world, there are 283 million cows that are certainly not being raised as food (by contrast, there are only 34% of that number — roughly 95 million head of cattle — in the United States, according to the U.S. Department of Agriculture).  So in spite of what Singer intends to imply through his article, it appears that a reduction of meat consumption throughout North America and Europe (where only 15% of all cows live) would not make such a huge difference in reducing our overall greenhouse gas emissions.

The real problem with Obama’s Peace Prize: not its prematurity

October 25th, 2009

Many commentators have claimed that the awarding of the Nobel Peace Prize to President Barack Obama’s was ill-advised, since it was premature.  The commentators have claimed that the award should be given for real achievements, and not just for the President’s hopeful rhetoric.  The problem, the critics say, is that it is still too early to tell whether Obama’s abstract words and sentiments will ever be translated into real accomplishments.  Perhaps the critics are right to say that the Nobel committee ‘jumped the gun’ and acted too early in this respect.  But to my mind, there a deeper problem with the the Nobel committee’s decision. The deeper problem is not that the decision reflects an inappropriate precipitousness; the deeper problem, rather, is that the committee’s decision lags too far behind the times, and fails to demonstrate the future-oriented,  visionary courageousness that a Peace Prize decision ought to demonstrate.    Consider: for many months now, the world community has almost unambiguously endorsed the nobler sentiments expressed by the President’s statements about the need for greater openness, multilateralism, and cooperation in global affairs; through his compelling rhetoric, Barack Obama has already won the world’s attention, affection, and good will.  But a Nobel Peace Prize committee ought to do more than merely lend their rubber-stamp-like approval to the ideas and hopes that the world has already accepted from an American President.  A Nobel Peace Prize committee ought to take risks by calling attention to some deserving person or persons whose peace-building efforts might really benefit from the added attention and endorsement.  Throughout the world today, there are literally hundreds of such deserving individuals who regularly risk their lives for peace, and whose success in such noble efforts is by no means assured.  Sadly, instead looking boldly forward and endorsing a cause that could really use their help, the feckless fellows on the Nobel Peace Prize committee chose merely to endorse the rhetoric that we all already believe in.  The 2009 Nobel Peace Prize decision represents a blown opportunity to make a real difference to the cause of peace in the world, and to re-assure the world community that the Peace Prize itself remains genuinely relevant.

We share 98% of our genetic make-up with chimpanzees

October 3rd, 2009

Biological science tells us that up to 98% of our genetic make-up as human beings is identical to the genetic make-up of chimpanzees.  There seems to be no good reason to dispute this scientific claim (notwithstanding attempts by some fundamentalist thinkers to suggest that we do not share 98% of our genetic make-up with chimpanzees).  But it is worthwhile to note that approximately 60% of our genetic make-up as human beings is identical to the genetic make-up of the fruit fly; and approximately 40% of our genetic make-up as human beings is identical to the genetic make-up of lettuce.  It does not follow, of course, that fruit flies are 60% human, or that lettuce is 40% human; nor does it follow that chimpanzees are 98% human.  Another way of making the point is to say that 100% of our genetic make-up as human beings is identical to the genetic make-up of our gluteus maximus muscle (that’s because almost every cell in the human body — including a typical muscle cell — contains a full copy of the human genome); but of course, it does not follow that a human ass is the same as a human being (though the reverse is very often true, metaphorically-speaking).  What is crucial in determining what a thing is, and why it is what it is, is not just the genetic make-up (what Aristotle would have called the material cause), but rather the formation, the organization, the structuring, and the expression of that genetic make-up (what Aristotle would have called the formal cause).  Two different things can be made out of almost the same — or even exactly the same — constituents or components, and yet nevertheless remain two very different kinds of things.  Consider the fact that 100% of our sub-atomic make-up as human beings is identical to the sub-atomic make-up of a bowling ball; the human being and the bowling ball are made up of the very same sub-atomic constituents: protons, neutrons, and electrons.  It does not follow, however, that a human being and a bowling ball are the same kind of thing; indeed we have good reason — in most cases — to hold that human beings and bowling balls are different kinds of things, and have rather different natures and capacities.