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Sunday, February 27, 2011

Lessons from the Great War

I have finally finished the major draft of my dissertation chapter on World War I. I shall have to revise it extensively (and shorten it.....it's an unwieldy 112 pages), but the hard work of getting the story straight and putting virtual ink to virtual paper is over. The rest is honing my argument, fitting it within historiographical traditions, correcting certain errors of fact and interpretation, supplementing what I have with additional sources, and integrating the chapter in my larger project. But all that is relatively easy.

Now, I can reflect on what I've learned about the First World War. For what it's worth, I don't claim expertise on the war. If anything, the only "expertise" I can claim, involves only anti-monopoly and antitrust agitation against coal dealers in Toronto and Chicago and what the city, state/provincial, and federal governments did about it. The lessons I have taken, however, are both general to the war and specific to my topic:
  • Woodrow Wilson should not have gotten the country into that war. War is, I believe, sometimes justified, but U.S. entry into that conflict was avoidable and, with some qualifications, did the U.S. no good.
  • War is a big waste, and war is disruptive.
  • Government management of the fuel and food supply in what was arguably a command-economy system is wasteful and can last, if at all, only during a short amount of time. Even Canada, which entered the war in August 1914 shortly after Great Britain did, did not really tighten its national control on the economy until after the 1916-1917 winter when it now had to coordinate its war activities with the U.S., which entered in April 1917.
  • For most intents and purposes, coal merchants in the United States considered the Canadian market for coal as an adjunct to American market. When they talked about using the war to expand into "foreign markets," they meant Latin America and Europe (and sometimes Asia), but not Canada.
  • Going through my notes on the war and doing research on it, there is a sense of the perpetuity of war, the sense that "this is all there is and nothing else can be imagined." The U.S. was in the war for "only" 20 months (at least the fighting part of it....peace was not formally declared until 1921 or so), but it seemed to drag on. I as a researcher (who has, by the way, never served in the armed forces, let alone in an armed conflict) knew the war would end in November 1918, and still, I had the sense that it would never cease. I'm not referring to the amount of time it took to write the chapter; but the overall sense of weariness I saw from reading the governmental and newspaper sources. The weariness, perhaps not surprisingly, was more evident in my Canadian sources, for that country had been at war for a much longer amount of time.

Saturday, February 5, 2011

What would success look like?

In my most recent posts, I have tried to assess and address the arguments about the constitutionality of the health insurance mandate, and I must admit a couple things. First, although I do not concede that the mandate is unconstitutional, I admit that in my view, the balance of the argument is tilted in favor against its being constitutional. (I must be clear that by "constitutional," I mean consistent with a good faith reading of the constitution, and not necessarily the case law or the ultimate decision the Supreme Court will hand down.) Second, in what might plausibly be described as a "declaration of closed-mindedness," I favor the mandate regardless, at least insofar as I believe that if it is struck down, the rest of the health insurance reform will be struck down as well, even though I am moving toward supporting an alternative to the mandate to avoid the constitutional problems.

I do so largely on the assumption that the reform might "work" and on the rationalization that in this case, the just ends that I envision for the law exceeds the arguably unconstitutional means used to acquire those ends. I do think it would be a bit facile for me to argue that this is a monumental choice between two competing goods and that in this case, it is clearly obvious that the systemic good of adherence to constitutional limitations on governmental power must give way to the speculative good that the health insurance reform will bring about, providing that it succeed. Simply put, it would be offensive if I were to analogize this particular compromise I make on my principles with, say, opposition to the Fugitive Slave Act of 1850, which, while probably constitutional, was deeply immoral by any standard of morality that I would care to adhere to. (As an aside, there is an argument that that act was unconstitutional because although the constitution allowed the federal government to pass a law about remanding slaves, it put so many impositions--"mandates," if you will--on state-level officials to act and because it denied due process to the "fugitive" slaves.) I write this to disclaim that I am raising the stakes to where they will not go.

I am indulging in a political compromise and stand to be called out if in the future similar reasoning is used to support a policy I find objectionable. I do, however, and perhaps this is an attempt to have it both ways, reserve the right to criticize those objectionable policies to the degree in which the spirit of those policies violate the rights and autonomy of others beyond what the health insurance reform will do. In other words, if Congress enacts a law mandating every American to buy a pound of broccoli a week, I willingly submit to be hoisted on my own petard, but if Congress again mandates a peacetime draft, I reserve the right to question its constitutionality.

Still, what do I mean by "success" when it comes to the health insurance reform? To start, I do not think this law is a panacea, and even if it "succeeds" or works well, some people will be negatively affected. Much criticism--and it's a just criticism--is lobbed at President Obama for saying that if you like your health insurance now, you will not have to change it. I offer only in mitigation, and not justification, of Mr. Obama's claim that 1) it is not unheard of for politicians to promise a whole loaf of bread when they know full well they can at best delivery only half a loaf; and 2) the falsity of this particular claim was so painfully obvious that I have a hard time believing any one's mind was swayed, even though at the time I would have preferred he be honest. All this is by way of saying that I will consider the health insurance reform to have been a success if the following positive things happen and the negative things are kept in check:
  • Premiums would be affordable to all who want insurance. Premiums for the very sick who would otherwise be uninsurable or cut off from benefits would be limited to at most a certain portion of their income.
  • The insurance companies somehow find a way to rein in some costs and perhaps move away from the "fee for service" model of reimbursement. (I offer this only as a speculative possibility.)
  • The health insurance exchanges give customers a clear view of what they are purchasing.
  • The negative effects of the bill would be limited to 1) people paying slightly higher premiums and co-pays, but well within range of what is affordable (I realize that "affordable" is a term of art and even paternalistic....what I deem affordable to me may not be affordable to thee); 2) non-urgent services might require longer waiting periods; 3) compensation for doctors remain commensurate enough with the cost of their education (I say this not so much because I don't think doctors can't take care of themselves, but that one possible perverse incentive of this law would be to create a disincentive for people to enter medical school).
The reform will have been a failure if the following happen (there may be others, but these are the potential downsides that I foresee):
  • People simply don't get timely coverage for urgent care (I suppose "urgent" is a term of art).
  • Insurance companies go bankrupt and doctors are unsure of payment.
  • The employer mandates become too onerous and, maybe worse, difficult enough to understand that job growth will be impeded on a huge scale. (I anticipate a decrease in some job growth, but if it is too large, this will be a bad result.)
  • The obvious gaming of the system that will go on might become so severe as to overburden the health insurance industry with costs.
  • The law might entrench the health insurance industry in the government in such a way that any future corrections to the system that will be needed would be impossible to implement.
Again, when I say the health insurance reform is speculative, I do mean that. But I do hope it passes Supreme Court review and I hope that it succeeds.

Toward a limiting test for the health insurance mandate

One of the chief concerns raised about the mandate in the health insurance reform law is the reductio ad absurdum possibilities about where the mandate might lead. The argument is that any logic used to justify the constitutionality of the mandate can be used to justify just about any action by the federal government, and however one interprets the constitution, one must concede that it creates a federal government with limited powers, otherwise, it's not much of a constitution.

This objection is sincere. And those who offer it raise the possibility that if certain constituencies win over a coalition in the Congress and the presidency, a law might be enacted that would mandate behavior that liberalesque people like me would find morally or otherwisely objectionable simply because the mandate would involve articles of interstate commerce or because the federal taxing power would be almost limitless. Here's a list of some of the possibilities I have seen raised:
  • The purchase of broccoli or wheat or other foodstuffs
  • The purchase of guns or other firearms.
  • The purchase of pornography as a marital aid.
  • The imposition of corvee style labor cutting stones in a quarry.
I have listed these, and there may be others, in the rough order ranging from what I see as least to most objectionable, even though I find all, on some level, objectionable.

To answer this objection, it does not suffice to state simply that a coalition in favor of such mandates are unlikely ever to form. Nary a one can foretell what may come.

Nor does it suffice to point out that some version of the first two are already in place: Our tax dollars subsidize the production of certain agricultural products (if not broccoli, then at least wheat or corn). Our federal government already reserves the privilege, and at times of national emergency (even when the emergency was a "cold war" when little if no fighting was done by American soldiers) has exercised the privilege, of forcing young men to carry guns and put their very lives in danger. I would see it as a welcome alternative to be forced to purchase, say, a $1,000 firearm (with a means testing provision for subsidizing the purchase by poorer people) for the defense of the homeland in lieu of forcing people to enter the military. One reason it does not suffice to raise this point is that it could very well be used against the health insurance mandate. One may say "see, the government has already arrogated to itself the right to do these things, and the logic behind the health insurance mandate would only make such power grabs easier and more blatant."

What we (by which I mean those of us who would prefer the mandate to be validated if only because we find it incredible that the rest of the new law would or could stand if the mandate is declared unconstitutional) need is some sort of constitutional test that would allow, say, the health insurance mandate and yet not allow the more egregious extremes to which objectors have pointed. Providing a workable test would, to the extent that it is workable and limiting, answer that particular objection, although I concede it does not answer the overall contention of the opponents of the mandate that it is not a "proper" regulation of commerce, which as I understand it is the principal constitutional objection when it comes to commerce clause grounds. (One has only to read the posts at the Volokh conspiracy on the mandate to see what I mean. Those who oppose the mandate--Messers. Somin, Barnett, and Adler--and those who think it is constitutional under existing precedent--Mr. Kerr--argue on what is considered "proper.")

Here is my stab at the key elements that such a test would have to include in order to be limiting:
  • There should be some assessment of the degree to which the object of regulation affects interstate commerce. I'm already in trouble here. Not only do I not know of any precedent that deals explicitly with "degree" of interstate commerce (the precedents I am aware of involve distinctions either between direct and non-direct effects on such commerce or between "production" and "commerce"--even Wickard v. Fillborn recognizes this latter distinction in theory), simply mandating the purchase of a private product will greatly enhance the degree to which it is involved in interstate commerce. Let's assume, for example, that the purchase of widgets is more or less a local matter, and in order to get one, you have to go to your local widget-smith. If the purchase of widgets is mandated, they will now be sold by a national chain known as "Widgetmart" and therefore make a leap in the portion of the market in widgets that affects interstate commerce. On a more immediate level, most of the items in the reductio ad absurdum are already, to a high degree, commodities in interstate commerce (rocks in a quarry, broccoli, pornography, guns).
  • To overcome, if only partially, the preceding difficulty, I would impose some sort of test comparable to "intermediate scrutiny." The mandate would have to be more than just rationally related to a legitimate, though not necessarily compelling, legislative end (and I am assuming that federal regulation of the insurance industry is per se legitimate as a legislative end), but not so linked as to be the most narrowly tailored and least intrusive means for accomplishing that end (I don't think the mandate could ever survive strict scrutiny.)
  • There ought be no provision in the constitution that forbids the action involved.
I am, in a sense, restating the "M'Culloch test" from John Marshall's 1819 decision:
Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.
Of course, the key point at issue is whether the means, which are admittedly plainly adapted to the end of health insurance reform, are "proper" ("appropriate").

Indeed, after having written the above, I realize that any test I can devise is quite circular and comes out saying "the health insurance industry is unique" in a way that the others are not. Ido think that point 3 would at least avoid the corvee labor because the 13th amendment forbids involuntary servitude (although being compelled to pay a private company for a product is perhaps a form of involuntary servitude as well, and the claim that the IRS is not permitted to use criminal prosecutions to collect the health insurance penalty, if true, does not necessarily allay my fears.)

The best way to address the issue is to legislatively change the mandate and impose some other way of arriving at a similar goal, i.e., providing a way to offset the cost of insuring so many people. (It would be even better to reduce costs all around, something I'm not convinced the reform does in any large-scale or systematic way.) I am coming around to supporting something like an "open enrollment" idea, with exceptions for those who newly find themselves uninsured and with higher premiums that would have to be paid for a limited amount of time by those who wait to buy insurance.

Update 2-5-11: When I referenced the cold war above and said "American soldiers did not fighting," I did not mean that they never did any fighting, only that in addition to Korea, Vietnam, and some smaller conflicts, the U.S. still drafted people when the fighting was not going on.

Thursday, February 3, 2011

The mandate and reconciliation

One of the problems I have with the current challenges to the health insurance reform, and in particular the mandate, is that I am, to a large degree, convinced by the arguments of the challengers. I'm no lawyers by any stretch of the imagination, but I cannot find any precedent for the federal government to compel people to buy something from a private provider solely because these people have not chosen to buy such a product. I am also concerned by some of the reductio ad absurdum arguments that even if the "penalty" is a tax that can be rebated upon purchase of insurance, one still cannot "sortir de l'embrras." As Jason Kuzinicki points out, such logic might one day be conceivably used to justify corvee style labor (although one would hope the 13th amendment might prevent such an imposition).

There are counterarguments to these opponents, and I don't find them wholly non-compelling (neither without all the negatives I mightn't use in this sentence): namely, mandating such a purchase is a "proper" exercise of Congress's power to regulate interstate insurance markets, the latter power even most opponents of the reform do not seem to seriously contest. This counterargument makes enough sense to me that I won't concede the unconstitutionality of the mandate, but I must say that I am more convinced by the opponents' claims.

But what I am more convinced of is that the mandate requirement is so inextricably bound with the bulk of the health insurance reform that if it is unconstitutional, the rest of the bill (or most of it, in particular the pricing provisions and bans against lifetime caps and restrictions based on pre-existing conditions) ought to be as well. In other words, Judge Vinson's opinion, which I have actually read (okay, I "skimmed" it), makes more sense to me than Judge Hudson's opinion, which I haven't read but have read summaries of. Both judges find the mandate unconstitutional, but Mr. Vinson would strike down the entire law and Mr. Hudson would strike down only the mandate.

The problem with all this is that I support the health insurance reform and even the mandate, although I would welcome changes that would do away with the mandate in exchange for another policy (an open-enrollment window with higher premiums for those who fail to enroll during that period seems the most doable politically, but something like a public option, or as I have argued for elsewhere, an interim public option, might work, but maybe not, as I'm no expert). I have a hard time, however, justifying its constitutionality even to myself. I do not follow any particular mode of constitutional interpretation--some amalgam of originalism, textualism, and "living constitution" and the kitchen sink appeals to me and makes more sense than strict adherence to one or the other--but I cannot come up ex nihilo with some theory to justify a mandate and defend it to justify Mr. Kuzinicki's specter of corvee labor.

More than my desire for intellectual consistency and overcoming my own [warning!!!! I'm about to use a buzz word] cognitive dissonance, I should say I am a partisan in favor of the bill. I have taken my position and even very early on acknowledged these constitutional difficulties (and others too, see here, here, and here.)

My only real rationalization--I cannot call it a justification--rests on a factual claim not (yet) in evidence, namely, that the mandate and the broader health insurance reform will achieve its goal of making decent health care affordable to almost everyone: the rationalization is that the mandate, for all its constitutional difficulties and for all the dangers that pushing the limits of the constitution imply, does not scare me. If the federal government really embarks on a corvee labor scheme (as opposed to, say, merely trying to draft striking railway workers into the military as Mr. Truman threatened to do when he was president), we have bigger problems than whether the district courts will uphold such a measure. (As an adhominemish aside, I might imagine some of the very opponents of the health insurance mandate writing in the case of a Truman style draft law that "in order to preserve the dignity of labor and railway workers' liberty of contract, we need to approve drafting the entire nation's labor force to guarantee their right to a steady job." But I should be chary of criticizing anyone for a hypothetical in order to deflect my very real-life support of a policy.)

As another, related rationalization, other nations have some version of a mandate, and the walls haven't come tumbling down. But to paraphrase Christopher Marlowe, "that was in another country, and besides, the insurers are all non-profits."