One thought on “Timothy Sandefur at PLF

  1. Thanks for posting this. It’s always nice to hear concise summaries of complex arguments from a knowledgeable person.

    I agree with Sandefur about severability: the fact that a clause wasn’t written into the legislation strongly suggests that government intended for the law to act as a complete set of provisions, removing any one of which causes the bundle to fall apart. From a political pov, I can see the reasons for this. Both sides would use non-severability as leverage to get the bill rejected/sustained (each side thinking that the constitutionality of the mandate is the weakest link). I also like Tim’s treatment of the logic behind the mandate: clearly (to me anyway) the bill was constructed on the premise that young healthy people in fact are compelled to either have insurance or pay a penalty tax for failing to do so.

    That get’s to a larger point about the justification for the bill itself. If, as seems reasonable to assume, the ACA is justified in part on the grounds of eliminating free-riders on a system which compels providers to treat the uninsured, then I can see the merits of the argument. James H borught up a good rebuttal to that in another thread, tho: the compulsion to treat the uninsured – which creates the free-rider problem – is the creation of government itself. That seems ripe for discussion. On the other hand, I think there is a socially imposed obligation on providers – and importantly, not specific individual providers but the collective known as ‘doctors’ – to not let people suffer or die from preventable diseases when they have the ability to treat them independently of whether they have insurance or are on Medicaid. This is a tricky problem, it seems to me, since government passing laws to compel providers to not turn away patients is based on a pretty compelling but also generally shared social interest. In a sense, the collective known as ‘doctors’ are being treated a bit like a utility rather than as individuals with specific inviolable rights. And I hate to say it, but I agree with that characterization to some degree.

    That leads to a final point about it all. Government has a clearly established role to play in creating tax structures which subsidize access to private goods and services. Tim mentioned one argument along those lines that came up in oral arguments: taxes imposed on telephone services to subsidize poor people’s access to phones. The argument got a little strange there, since Verilli seemed to imply that government can compel people to buy phones, but I think that misses the point a bit. The issue isn’t about compelling people to have or not have phones, it’s that government can subsidize access to phones. The relevance in the current debate is that government is not compelling anyone to purchase health insurance, but to impose a tax on those who don’t have it on the premise that (at least this is my understanding of it) 1) people will avail themselves of healthcare – either intentionally or not – if the situation arises, 2) that the free-rider problem is institutionalized and requires an institutional solution (James H’s criticism) and 3) that health care providers and insurance companies are very – if not exactly – like other public utilities in that they provide essential services which can be regulated by law, so government has a justifiable role to play in regulating and shaping how that system actually functions. (I’m not entirely sure about the phrasing of 1-3, but in general I think something like that is in play.)

    So, given that there is no severability, the constitutional question seems to come down to the how the Justices will understand the role of government in a private sector industry which functions to a significant degree as a utility or provider of a public good. I agree with Verilli that the healthcare industry is unique, and maybe sui generis. But I’m also not convinced that the tax for failing to have insurance can be over-ruled on the grounds that it compels any uniquely divergent, or new, action from individuals (like buying private insurance) other than paying taxes. Especially given the above mentioned free rider problems in an industry which is already regulated.

    Of course, I need to finish with a standard disclaimer: I could be wrong about all this.

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