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Thursday, March 29, 2012

An Indecent Federal Proposal: The Second Session in the Obamacare Argument Today

So this will be shorter because frankly I didn’t find this as interesting as the others.  You can read and listen to the argument here.

Almost twenty years ago a movie came out called An Indecent Proposal.  Anyone who was old enough to see an R rated movie at that time is likely to remember it but it’s been long enough that if you are not at least thirty-seven years old, you are far less likely to even know it existed.  It starred Woody Harrelson just when people were taking him seriously as an actor, and Demi Moore when she was a fast rising star, as well as Robert Redford when he was showing signs of age but most women considered him a very handsome man.  For all I know they still do.  Here’s the trailer:

(I love that song from Sade)

So the plot is that Moore and Harrelson are a happily married couple and Redford’s character offers them a million dollars to sleep with Moore.  As one wag put it at the time, millions of women would sleep with Robert Redford for a million dollars.  The only problem is raising the money.

Joking aside, though, as I listened to the second part of the day’s oral arguments, I found myself thinking of that movie.  I mean the provocative question in tht movie is “what would you be willing to do for a million dollars?”  I suppose we would have to adjust that for inflation, but there you go.  Or you might think of that old joke reportedly told by Groucho Marx.  It goes like this (borrowing significantly from this site):

Marx was seated next to an attractive and proper young lady and engaged her in conversation. Suddenly he says, “Would you sleep with me for a million dollars?”  The lady blushed, thinks about it, and said she would.  “Well, would you sleep with me for five dollars?”

“Certainly not!” she said, offended. “Just what kind of woman do you think I am?” 

“Madam, we’ve already established kind of woman you are. Now we’re just haggling over the price.”

So are you unwilling to do certain things no matter how much money is offered?  Or are you just waiting for someone to offer you the correct price?

The issue in this argument is kind of weird, because if the severability argument comes out the right way, it might be rendered moot.  It is also the first time I think Clement had some trouble before the court, but I think it was mainly because the argument is weak.

Basically one part of Obamacare says to states that they have to expand eligibility for Medicaid or else they might lose all Medicaid money.  And this, the states argued, amounted to coercion.

And believe it or not, there was some law backing this up.  In South Dakota v. Dole, the Supreme Court upheld a rule that said that if a state didn’t pass a law setting the drinking age to at least 21, that they would lose some federal transportation money.  Folks, this is why every state in the union has those laws—because of this federal incentive.  And in that case, while upholding this rule, the Supreme Court had this throwaway line:

Our decisions have recognized that in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which "pressure turns into compulsion." Steward Machine Co. v. Davis, supra, at 590.

And yes, I looked up that Steward case, and it didn’t provide much help either.  This is basically the courts saying that at some point it becomes coercion but it is not clear exactly when.  But also this line is what lawyers call obiter dictum or dictum for short.  It means remarks that are not critical to the case, that serve as guidance for the future but are not controlling as precedent.  Still, it is nothing more than competent lawyering to raise that as an issue when representing the states.

And Clement admirably did a pretty good job of outlining how this is a problem.  For instance imagine if the Federal Government taxed 100% of your income and then required you to pay for the necessities of life by getting food stamps and other government payments.  You have no money left for rent, food and clothing, except what the government gives you.  And then further imagine that they conditioned such payments on voting for a specific party.  Well, I think it would be hard to argue that this is not coercion and indeed it is unconstitutional for a number of reasons.

Likewise imagine if the Federal Government taxed 100% of your income and then asked you to pay for the necessities of life by food stamps and other government payments, only this time those government payments are administered through the states, where the states receive federal money for these payments and then in turn the states distribute the money to the people.  Then I think a strong argument could be made that this is a coercive situation—the states would have no choice but to set up this federal program, or else their people would starve.

But we aren’t in anything close to that kind of extreme situation and it’s really hard to know when we have reached that point.  The problem here is a lack of manageable standards.

I think in the end, except for extreme situations like those hypotheticals I just imagined that this is an example of behavior that would have appalled the founders but are still Constitutional.  I say that about several situations that presently exist.  For instance, I say that about all of the territories but Washington, D.C.  When it comes to Porto Rico, to pick a concrete example, we need to fish or cut bait.  That is we need to either have a plan in place that brings the territoriy in as a state in a very short time (no more than five years, in my opinion), or we need to cut the place loose to be an independent nation.  But this perpetual territorial status—really their status as our colony—would have appalled the founders.  It is morally wrong.

But on the other hand, there is nothing in the Constitution that says that we have to end the situation in Porto Rico.  And that is because the founders recognized that there is no way to create a rule for how long a place should be a territory before it becomes a state.  So they depended on our moral compass to figure it out, and thus far we have failed them, in my opinion.

Likewise when it comes to copyrights, although the Constitution states that copyrights shall only be granted for a limited time, it doesn’t say exactly how long it should be granted.  So we see with the infamous Mickey Mouse copyright extension law that Congress extended the copyright laws for decades after the fact worried that central corporate properties like Mickey Mouse would suddenly become part of the public domain.  And when they come up for renewal again, they might very well renew them again.  But as long as each extension is only for a term of years, I don’t see how it is actually unconstitutional.

I think likewise the founders would be utterly appalled at the way the states have allowed themselves to have their powers bought out.  I have implicitly compared to them to the prostitute that Demi Moore played in An Indecent Proposal.  I suspect the founders, upon seeing this situation, would be less reticent to compare our states to whores.  They have sold off their sovereignty like a cheap piece of costume jewelry.  But unless it is an extreme situation like my hypothetical, I don’t see how it is coercion and thus I don’t see how it can be “unconstitutional.”  I mean not to give away too much about that movie, but Demi Moore’s character does agree to the proposal and spends a night with Redford’s character.  Would Clement argue that his character was raping her—having sex with her under coercion—because he offered her such a huge enticement?  It’s ridiculous.

But it does bolster his idea, thrown out at some point, that if the Federal Government cannot do something directly, maybe it shouldn’t be allowed to do it under the spending power.  Which would be, in our Indecent Proposal metaphor, equivalent to banning prostitution even in Nevada (where the movie takes place).  That makes more sense than calling a consensual act coercive.

And this argument is, I think, the first time I saw Clement having a problem, as you see early on with this exchange with Kagan:

JUSTICE KAGAN: Now, suppose I’m an employer and I see somebody I really like and I want to hire that person. And I say Im going to give you $10 million a year to come work for me. And the person says well, I -- you know, I’ve never been offered anywhere approaching $10 million a year, of course I’m going to say yes to that. Now we would both be agreed that that’s not coercive, right.

MR. CLEMENT: Well, I guess I would want to know where the money came from. And if the money came from –

JUSTICE KAGAN: Wow, wow. I’m offering you $10 million a year to come work for me and you are saying this is anything but a great choice?

So he struggles a lot with that basic thought.  Another highlight is when Scalia gets permission to ask a question.  And he then proceeds to place Clement’s marriage in danger:

JUSTICE SCALIA: Mr. Clement, the Chief has said I can ask this.

CHIEF JUSTICE ROBERTS: He doesn’t always check first.


JUSTICE SCALIA: As I recall your -- your theory, it is that to determine whether something is coercive, you look to only one side, how much you’re threatened with losing or offered to receive. And the other side doesn’t matter.

I don’t think that’s realistic. I mean, I think, you know, the -- the old Jack Benny thing, Your Money Or Your Life, and, you know, he says “I’m thinking, I’m thinking.” It’s -- it’s funny, because it’s no choice. You know? Your life? Again, it’s just money. It’s an easy choice. No coercion, right? I mean -- right?

Now whereas, if -- if the choice were your life or your wife’s, that’s a lot harder. Now, is it -- is it coercive in both situations?

MR. CLEMENT: Well, yes. It is.

(Laughter.) [Aaron: I think he misunderstood the question.  And really the transcript doesn’t do justice to the laughter in the gallery over this exchange—they were uproarious.]


MR. CLEMENT: I would say that.

JUSTICE SCALIA: It’s a tough choice. And -- and –

JUSTICE KENNEDY: I thought you were going to say “this is your money and your life.”


MR. CLEMENT: And well -- it is. But I mean -- I might have missed something, but both of those seem to be coercion.


JUSTICE SCALIA: No, no, no. To say -- to say you’re -- when you say you’re coerced, it means you’ve been -- you’ve been given an offer you can’t refuse. Okay? You can’t refuse your money or your life.

But your life or your wife’s, I could refuse that one.


JUSTICE SOTOMAYOR: He’s not going home

It was nice knowing you, Mr. Clement.

Anyway, next came the Solicitor General Verrilli, who I think was just plain better today.  But when he said that politics alone would prevent the nightmare scenarios, Scalia had this very telling thing to say:

JUSTICE SCALIA: I would have thought there was a serious political strain -- constraint on the individual mandate, too, but that didn’t work. What you call serious political constraints sometimes don’t work.

Which seems to presume that he thinks the mandate is appalling.

And one point raised by one of the conservative justices was that the fact that no one refused federal money was a sign of coercion.  I mean imagine if a rich man offered 30 different women $1 million dollars to sleep with him for one night.  If all 30 women agreed, would that mean he is raping them?  Or that he simply is offering them a good deal—such a good deal that most women would not refuse?

(Although I would guess that most women actually would refuse—that their sense of self-worth is far more valuable to them.  But for purpose of my hypothetical pretend that it is realistic that 30 out of 30 women would agree to it.)

Anyway, at the end Verrilli gave a closing statement about the entire Obamacare litigation.  He said:

There is an important connection, a profound connection between that problem [lack of insurance] and liberty. And I do think it’s important that we not lose sight of that. That in this population of Medicaid eligible people who will receive health care that they cannot now afford under this Medicaid expansion, there will be millions of people with chronic conditions like diabetes and heart disease, and as a result of the health care that they will get, they will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty.

And the same thing will be true for -- for a husband whose wife is diagnosed with breast cancer and who won’t face the prospect of being forced into bankruptcy to try to get care for his wife and face the risk of having to raise his children alone and I can multiply example after example after example.

In a very fundamental way this Medicaid expansion, as well as the provisions we discussed yesterday, secure of the blessings of liberty. And I think that that is important as the Court’s considering these issues that that be kept in mind. The -- the Congress struggled with the issue of how to deal with this profound problem of 40 million people without health care for many years, and it made a judgment, and its judgment is one that is, I think, in conformity with lots of experts thought, was the best complex of options to handle this problem.

His understanding of freedom bears a striking resemblance to Dahlia Lithwick’s in a column only the day before.  I have to wonder if he got the idea from her.

Meanwhile Clement got up for a rebuttal and gave his closing statement on the entire law as well:

Let me just finish by saying I certainly appreciate what the Solicitor General says, that when you support a policy, you think that the policy spreads the blessings of liberty. But I would respectfully suggest that it’s a very funny conception of that forces somebody to purchase an insurance policy whether they want it or not. And it’s a very strange conception of federalism that says that we can simply give the States an offer that they can’t refuse, and through the spending power which is premised on the notion that Congress can do more because it’s voluntary, we can force the States to do whatever we tell them to. That is a direct threat to our federalism.

Of course whenever two people have dueling understandings of the word “freedom” or “liberty” it makes me recall Lincoln’s parable of the Wolf, the Shepherd and the Sheep, offered when addressing a gradual emancipation law in Maryland (I mentioned it in my Patterico days, here):

The world has never had a good definition of the word liberty, and the American people, just now, are much in want of one. We all declare for liberty; but in using the same word we do not all mean the same thing. With some the word liberty may mean for each man to do as he pleases with himself, and the product of his labor; while with others the same word may mean for some men to do as they please with other men, and the product of other men’s labor. Here are two, not only different, but incompatable things, called by the same name—liberty. And it follows that each of the things is, by the respective parties, called by two different and incompatable names—liberty and tyranny.

The shepherd drives the wolf from the sheep’s throat, for which the sheep thanks the shepherd as a liberator, while the wolf denounces him for the same act as the destroyer of liberty, especially as the sheep was a black one. Plainly the sheep and the wolf are not agreed upon a definition of the word liberty; and precisely the same difference prevails to-day among us human creatures, even in the North, and all professing to love liberty. Hence we behold the processes by which thousands are daily passing from under the yoke of bondage, hailed by some as the advance of liberty, and bewailed by others as the destruction of all liberty. Recently, as it seems, the people of Maryland have been doing something to define liberty; and thanks to them that, in what they have done, the wolf’s dictionary, has been repudiated.

This is what they always do, they put golden handcuffs on your wrists and declare you a free man.  They tell you slavery is freedom.  Do not fall for it.

And thankfully, it looks like the Supreme Court will not.


Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.


  1. Well, thoughtful coverage of the Obamacare hearings. Kudos for the effort.

    I'm largely pessimistic about Obamacare's chances. My hopes for Scalia surprising everyone are dashed beyond recognition. I am, truth be told, a TINY bit more optimistic after Day 3. I think Kennedy might be so overwhelmed by the remedy (severability) issue that he might go back and reconsider the constitutionality of the mandate. And I also think Roberts is in play if only because he wants to write an opinion which allows the mandate but sets the limit on the commerce clause (in other words, he wants to answer the "why not broccoli" question).

    You can accuse me of wishful thinking, and I wouldn't disagree.

    But assuming the mandate fails constitutionality, I don't see how Obamacare can be severed. I think you give it back to Congress.

    And that's a shame. Insurance companies will start denying claims for pre-existing conditions; lots of 20-somethings will no longer be on their parents' insurance; and $2 trillion gets added to the debt. It won't be a defeat for Obama so much as a defeat for America. And all because the Supreme Court wants to protect the rights of a small minority of free loaders, whose health care costs will be shouldered by the rest of us responsible enough to get health insurance.

    The silver lining (as I think you predicted, although you don't think it is a "silver lining") is that the failure of Obamacare could very well lead to a single-payer health care system like they have in Canada or elsewhere. That would have been preferable to liberals like me -- Obamacare was a Republican idea and served as a COMPROMISE. But I'm not sure the nation is willing to refight health care again. Not now.

  2. Ken

    I won’t nitpick your analysis too much not because I don’t disagree, but going through the tea leaves is so opinionated, that there isn’t much to say. It’s like arguing who is better, Picasso or Dali. You might feel strongly one way or the other, but its really hard to argue someone is clearly wrong.

    That being said, I don’t think that it is just plain normal psychology to suggest that Kennedy will want to call it constitutional because of the difficulty in severing only part of it out. I think its more likely to make him say “to hell with the whole thing.”

    And I couldn’t let your claim that this will add to the deficit go unanswered. If you will read here you will see that no one, not even Obama, thinks Obamacare is a money saving rule.

    Although to be fair to you, when he was selling it, Obama regularly claimed that this would save us money on the deficit.

    As for pre-existing conditions and the like... sheesh, Ken what do you think insurance means?

    Admittedly we have badly warped this concept, but insurance is something you buy when you don’t have a problem, to deal with when something surprising happens to you. You don’t buy auto accident insurance after you crash into someone and expect them to cover the wreck you just had. You don’t get fire insurance when your house is in cinders (not for that fire, anyway). And once you are dead, your loved ones cannot take out a life insurance policy on you.

    So if you strike down the pre-existing condition rule, it means that insurance companies… will be allowed to sell insurance again.

    I will say something else. The whole plan, like many liberal social welfare schemes, requires a lot of young people to pay for it. That is true of social security, too, and several other things.

    One of the main reasons that SS is going bankrupt is… because our birth rate has fallen off so severely. So it is interesting that the same party who not only support abortion, and loves birth control so much that they believe all women should get it for free, is the one building programs on the premise of a high birth rate.

    And if Obamacare was a republican idea, then how come no republicans voted for it. Indeed, you had to use legislative shenanigans to prevent the election of a republican IN MASSACHUSETTS from deep-sixing the vote.

    Yes, the heritage foundation pushed the idea at one time. But they don’t represent the republican party.

    And as for the hope that democrats will pass what they really want next time, first I doubt anyone will hand power over to them anytime soon. Second, this thing has been so bad for them, I doubt it. They will have to do some very serious rationalization to believe it is anything but electoral suicide.

    And in any case, i certainly am not predicting that outcome.

  3. Aaron - Excellent coverage of the issue.

    I agree with Ken's position above. There's no severability clause. It's beyond the scope of the judge's ability to determine which other provisions of the Act were included as a result of political horsetrading, can stand on their own, or can on their own without doing irreparable damage, let alone what the actual legislative intent was, given the public posturing but secrecy and closed door meetings under which the Act was drafted.

    It seems the only logical step is to give it back to Congress to draft a fresh bill which embodies its legislative intent without a mandate or come up with a new alternative.

    BTW, Kagan's snark about 26 year-olds on the policies of their parents is just BS. It used to be that adding another child to the policy of a parent resulted in a minor cost increase. The situations in which parents are going to add up to 26 year-old children to their policies are now going to include those of adverse selection who cannot get policies on their own, rather than the entire universe of healthy 26 year-olds which Kagan describes. Fail on her part.

    I still hate your commenting system!

  4. >> If you will read here you will see that no one, not even Obama, thinks Obamacare is a money saving rule.

    Your link cites an article which is inaccurate and has been debunked. The CBO numbers discussed in the article relate to new CBO projections regarding the (1) GROSS (not net) cost of (2) one aspect of the Affordable Care Act. In other words, the articles refers to an increased cost of coverage estimates under Obamacare, before revenues and the tax effects take place. Read here for more explanation, or the Reuters report which managed to get it right.

    >> So if you strike down the pre-existing condition rule, it means that insurance companies… will be allowed to sell insurance again.

    You seem to think that having A pre-existing condition means you have all possible pre-existing conditions. Insurance is still insurance whether you have a pre-existing condition or not, since insurance is comrephensive (it covers things that I don't have, but I might someday).

    >> And if Obamacare was a republican idea, then how come no republicans voted for it.

    Because it was OBAMAcare. Just like when they tried to block Obama's plan to cut the business payroll tax (something Republicans would normally be in favor of). They don't want to hand Obama a win of any kind.

    >> Yes, the heritage foundation pushed the idea at one time. But they don’t represent the republican party.

    Wrong again. Republicans actively sponsored health reform legislation which included a mandate. They did it in in 1993, 1994, 2007, and as recently as 2009.

    >> And as for the hope that democrats will pass what they really want next time, first I doubt anyone will hand power over to them anytime soon.

    Like November 2012? Don't hold your breath. If the mandate fails at the Supreme Court level, this will energize the base like you wouldn't believe.

  5. Thank you for the memory of the movie, and I love that song, too. It all really impacted me at the time; mixed emotions. The words sensual and provocative just don't do the film justice. Oh, what was the question?? :) ..CL