Saturday, July 09, 2011

George Will's Misguided Silver Bullet Against the ACA

More on this bad argument.

George Will thinks he has expanded the infamous broccoli argument into something more persuasive:
During a recent discussion, “Battle for the Constitution,” on ABCNews’s “This Week,” Will claimed that obesity impacts interstate commerce, and therefore does it not follow that Congress has the constitutional power to require overweight people to join Weight Watchers. Time’s Richard Stengel said he did not know, and Georgetown University professor Eric Dyson said the question is open.
Their responses didn’t satisfy Will, who kept demanding to know whether Congress can force heavy Americans into Weight Watchers. But Will’s spin on on the broccoli law argument did excite the right-wing blogosphere. (Breitbart.TV, “George Will Brilliantly Traps Liberal Panelists With Obamacare Constitutional Challenge.”) Will’s spin is not that new by the way – he has been asking the Weight-Watchers question for some time. See his columns here and here.
While many of us may have the intuition that it's unconstitutional to force American to lose weight, that gut feeling does not come from the reason that the ACA is being attacked as unconstitutional. Remember: the court challenges are primarily based on federalism and the Tenth Amendment of the US Constitution, which states that matters not specifically enumerated as being within Congress's powers are left to the states or the people. The individual mandate of the ACA doesn't fall afoul of the Tenth Amendment because it falls under Congress's power to regulate matters having a substantial effect on interstate commerce (the recent decision by the 5th Circuit was pretty compelling) and, arguably, Congress's power to levy taxes. Even if not purchasing insurance, itself, isn't interstate commerce (i) the Constitution makes no distinction between activity and inactivity and (ii), as Scalia put it in Raich, “where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.”

Maybe Will thinks it's self-evident, but I don't see the problem. Sure, I'll fall right into his ingenious trap: Such a law probably doesn't violate the Tenth Amendment! Someone could probably make the argument that obesity has a substantial effect on interstate commerce and that the Weight Watchers mandate is necessary and proper to effectuate obesity regulations.

But you might still have an intuition that there is something constitutionally fishy about the weight watchers mandate. And you would be right. Your bad feeling is probably coming from the fact that the law might violate notions of substantive due process stemming from the Fifth and Fourteenth Amendments. The American Constitution Society post discusses this, but I want to point out that our intuition goes further than Will wants to take it.

Under Will's and Breitbert's reading, the Constitution invalidates only the federal Weight Watchers mandate. But what about states that force me to lose weight? Isn't that also a violation of my individual liberty to govern myself? You're going to need the Fourteenth Amendment to invalidate that law, not the Tenth. The gut feeling that leads them to think that this is a silver bullet argument comes from something more fundamental than the balance between federal and state power. It comes from our ideas about personal autonomy and decisionmaking. Sure, this same argument could be applied to the individual mandate, but that's not what they're doing. The real debate about the individual mandate has been about federalism, not substantive due process. That's why Romney is able to defend the Massachusetts health bill while attacking the ACA.

This brings me back to the bigger problem with the faux libertarianism of the modern Republican Party. They don't really care about individual liberty per se. The whole states' rights movement could care less if state or local governments infringe on your rights. Will cries these crocodile tears about people being forced into weight watchers and limiting government intrusion in our lives but throws up his hands when it comes to a state forcing the same thing upon unwilling citizens. This is supposed to be some kind of brilliant checkmate for the conservative cause, but it actually shows the limits of the modern GOP's notion of liberty.

1 comment:

Anonymous said...

What a Hypothetical ‘Weight Watchers Law’ Tells Us About Conservative Criticism of the President

When even George F. Will’s normally precisely calibrated compass is off its mark, it is an indication of just how unfounded, if not outlandish, much of the criticism of President Barack Obama has become.

"[H]as the congressional power to regulate interstate commerce been so loosely construed that now Congress can do anything at all -- that there is nothing it cannot do?" Will asked during a panel discussion on the July 2 episode of “This Week” on ABC, in arguing that the individual mandate of the Affordable Healthcare Act is unconstitutional. "Let me ask the three of you [fellow panelists]: Obviously, obesity and its costs affect interstate commerce. Does Congress have the constitutional power to require obese people to sign up for Weight Watchers? If not, why not?"

The hypothetical Weight Watchers law could not pass constitutional muster. It fails the strict scrutiny that the Supreme Court applies to laws that interfere with personal liberties. The new healthcare law does not attempt to regulate individual behaviors or lifestyle choices and it does not discriminate against certain groups. Requiring individuals to maintain sufficient healthcare coverage is both less intrusive into people’s daily lives and more comprehensive in managing the economic harm attributable to a range of unhealthy personal habits like eating, smoking or drinking too much.

Additionally, mandating individual coverage was a reasonable and necessary tradeoff for forbidding insurers from denying policies to those with pre-existing conditions, something Republicans broadly supported when the healthcare debate began. If insurers could not deny coverage to those with pre-existing conditions but individuals were not required to purchase coverage, what logical solution would Republicans have offered to prevent consumers from waiting until suffering illness or injury before taking out a policy?

The legislation’s history shows a restrained and incremental approach rather than an exercise in radical policy-making. The single-payer system favored by the left wing of the Democratic Party was never seriously considered. Early in the process, the administration walked away from the public option, at least in part because of concerns about unintended consequences for the private insurance market.

It’s also instructive to note that any government-administered program designed to compete with or replace private health insurance could have been funded by the imposition of new taxes. Ironically, this more aggressive and costly overhaul of healthcare delivery in the U.S. would have sidestepped the conservatives’ constitutional objection to the individual mandate.

We should not take lightly the importance of guarding against the loss of individual free will in American life – a central tenet of the Republican criticism against the new healthcare law – but neither should we exaggerate the risks involved with compromising some measure of that free will in steering a middle course that imperfectly balances complex considerations.

Among the insurable categories, healthcare is singular in the universality and frequency of its need. This is not the stuff of slippery slopes. It is exceptional by definition.

Louis.Roxin@RealGM.com