Ronald Dworkin has an article in the New York Review of Books Blog (a preview of a longer piece to be run in the NYR), which is entitled “Why the Health Care Challenge Is Wrong.” Dworkin’s piece, like so many others of later, argues that there is nothing unconstitutional about the Affordable Care Act, and proceeds to outline his arguments. The problem with Dworkin’s analysis is that he conflates personal opinion, political analysis and legal analysis to wind up with a pastiche of unsupported assertions and declarative sentences that have little or no basis in fact.
Dworkin gets started right away, alleging, like so many other liberals who like the political conception behind the ACA, alleging that it is clearly constitutional.
The political and social stakes are enormous, but the legal issues, most analysts think, are not really controversial: the Constitution’s text, the Supreme Court’s own precedents, and basic constitutional principle seem obviously to require upholding the act. Many legal scholars predicted a 7-2 decision rejecting the challenge. But they apparently misjudged the dedication of the ultra conservative justices, whose questions in the oral argument have now convinced most commentators that on the contrary, in spite of text, precedent and principle, the Court will declare the Act unconstitutional in June, by a 5-4 vote.
Let’s leave aside that the “most analysts think” rhetoric is an unsupported statement. Dworkin’s statements above are bereft of analysis and use adjectival language to make the case that, somehow, Dworkin’s position is sound, while those opposing it are extreme. He sets up the argument as follows: (1) there is no controversy; (2) “many” legal scholars predicted a 7-2 decision (thus implying that it is a clear-cut case in his favor; (3) the only reason why the decision won’t be in Dworkin’s favor is because the justices who may rule against is are “ultra conservative”; and (4) if the justices rule against the ACA it is because “in spite of text, precedent and principle.” These are the arguments of a policy partisan providing a political reason for why his policy may not be upheld, not the analysis of a legal scholar drilling into the issues.
Dworkin’s next argument is that because the ACA is politically desirable, the law should bend to accommodate it.
The prospect of an overruling is frightening. American health care is an unjust and expensive shambles; only a comprehensive national program can even begin to repair it. If the Court does declare the Act unconstitutional, it will have ruled that Congress lacks the power to adopt what it thought the most effective, efficient, fair, and politically viable remedy—not because that national remedy would violate anybody’s rights, or limit anyone’s liberty in ways a state government could not, or would be otherwise unfair, but for the sole reason that in the Court’s opinion the strict and arbitrary language of an antique Constitution denies our national legislature the power to enact the only politically possible national program.
What’s truly frightening is not the prospect that the ACA might be overruled, but that Dworkin advocates trashing the Constitution because it’s getting in his way. The great strength of our Constitution is that it divides authority and prohibits the various centers of power from overreaching or usurping the rights of others. The system is not set up to be efficient (as Dworkin would like). Quite the contrary, the system is set up to be inefficient, to pit power against power and default to a stalemate. This has been a fantastic system, one that has prevented extremism in our government and any one ideology becoming too powerful. For Dworkin, however, who wants his ideology to prevail and squash competing viewpoints, the separation of powers is, as he says, an “antique” notion that interferes with a more efficient government. Since Dworkin is a liberal, I presume he is still in favor of keeping those provisions of the Constitution he likes, such as the right to free speech, protection from unreasonable searches and the right to counsel. However, in a Dworkin world, all of those rights should disappear, as well, if they interfere with the “efficient” operations of government. It is a truly frightening prospect, not least because dictatorships often argue that they can rise above the petty bickering and divisions inherent in a republic and “get things done.”
And what are we to make of this statement: “…not because that national remedy would violate anybody’s rights, or limit anyone’s liberty in ways a state government could not, or would be otherwise unfair, but for the sole reason that in the Court’s opinion…”? Dworkin is a learned man, who taught at Yale Law School. Is he really unable to grasp the concept of separation of powers and the idea that the states have police powers and the federal government does not? Since we know his background, I can only assume he makes this argument because he believes that such a separation should not exist, which is a political thought but not a legal argument. Contrast this with those who oppose the ACA on both political and constitutional grounds. I know of no scholars arguing against the ACA’s individual mandate on the grounds of unconstitutionality that also argue it is impermissible for the states to set up a similar system. These scholars acknowledge that the states have the police power to force individuals into insurance programs even if it is bad policy.
Dworkin’s next point is equally revealing. He purposefully misreads the Constitution in order to make his political case:
Why is the difference between restricting and requiring activity so important? Not because the language or underlying principles of the Constitution demand that distinction. The Constitution’s architects were guided by a principle that makes the distinction irrelevant: that Congress should be assigned only those powers that could not effectively be reserved to the states. They believed that if the effects of a particular political decision would be felt only or mainly within a particular state, that decision should be made by that state because decisions by state officials would be more sensitive to local needs and local opinion. But if some matter could only sensibly be settled at the national level, like decisions about foreign trade or the terms of trade among citizens of different states, then the principle required that Congress have the power to decide it. That test can be applied without distinction to both negative and affirmative regulation.
In the above paragraph, Dworkin manages not only to misread history, but also the Constitution itself. The purpose behind the Commerce Clause was to prevent states from interfering with the commerce of non-citizens. Congress was worried that Georgia might require citizens from North Carolina doing business in the state to undergo a burden that citizens of Georgia would not bear. It was not the intent of the Founders to simply grant the federal government unfettered power to make whatever regulations it felt like merely because it felt an issue could not be resolved at the state level. Even the examples Dworkin gives reveals the weakness of his position: the ability to regulate both foreign trade and trade amongst the states are specifically mentioned as enumerated powers of the federal government in Article 1, Section 8, Clause 3, they are not residual powers. As for the line in bold above, it is an open and shut case of Constitutional ignorance. I am at a loss as to how Dworkin could possibly write that the Constitution gives powers to the federal government “that could not effectively be reserved to the states.” We have two Constitutional Amendments (Nine and Ten) which clearly, and specifically, grant any powers not delegated to the federal government to the people and the states. This is precisely the opposite of what Dworkin rights. He is alleging that any residual powers not explicitly granted to the states should devolve to Congress. The only way that logic works is if the system were the exact opposite of what the Founders intended and what they embodied in the Constitution.
Time and again in this article Dworkin displays a shocking disregard for the separation of powers and the checks and balance system that the Constitution provides for. Here is another example:
His second argument was even stronger. Every American already has health insurance; the mandate only requires that he pay for his insurance rather than free-loading on those who do pay. A federal statute and several state statutes require hospitals to provide emergency medical care to people who cannot pay for it, and America’s traditions of compassion mean that doctors will not let people die in pain when they can easily save or help them. In practice, this means that the uninsured will go to costly ER facilities when they need medical help. Congress found that health care for uninsured patients cost $43 billion in 2008; these costs were paid, through higher premiums, by those who do buy insurance.
Dworkin is referring to the Emergency Medical Treatment and Active Labor Act (EMTALA), which says that hospitals must treat critical patients regardless of their ability to pay. However, Dworkin fails to mention that EMTALA, which is federal legislation, does not apply to all hospitals. It only applies to hospitals that accept payment from the Department of Health and Human Services and the Centers for Medicare and Medicaid Services, which are federal programs. In practice, nearly every hospital does accept payments from these sources, and thus are subject to federal regulations, but it is their choice to accept such payments (and thus engage in interstate commerce). There are some hospitals who do not accept payments from these sources and thus are not subject to EMTALA. Dworkin has either failed to read the law or is purposefully misleading in his argument. This notion is further reinforced by the fact that Dworkin, yet again, lumps state and federal together, when the division between state and federal power is at the heart of this entire matter. A hospital in New Jersey that does not accept federal payments does not need to follow EMTALA. If New Jersey has an identical law to EMTALA, which applies to all hospitals in New Jersey, there is nothing that the hospital can do to exempt itself from providing emergency care.
The conflation of state and federal power in Dworkin’s piece appears again and again. If this were the work of a first year law student, I would assume that he simply had not yet read the Constitution or the history behind it. Coming from Dworkin, it looks like an attempt to break down the separation of powers and to argue that because they are inconvenient, they should be eliminated. This supposition is further reinforced by the following argument from Dworkin:
So we may ask: is there a constitutional limiting principle that would allow Massachusetts to impose that mandate but prevent it from requiring its residents to join health clubs or buy broccoli? There are of course constitutional limits to any power of government. Neither the indirect mandate of taxation nor any more direct mandate may be discriminatory or irrational, neither may deny due process, and each must serve some proper purpose of government. But are there any special limiting principles that would prohibit a state requiring broccoli purchase in a rational and fair way?
No. We are protected from silly state mandates not because the Constitution rules them out but because politics does. No state legislature would dare to make broccoli purchase compulsory unless, for some hard-to-imagine reason, this was plainly the only way to avert some economic catastrophe. The role of democratic politics in protecting citizens against legislative corruption or stupidity does not depend on whether the legislature wants to require or forbid economic activity, however. Voters would be no less outraged by a state legislature’s decision to ban automobiles altogether than by its decision to make them buy electric cars.
If we do not need a limiting constitutional principle to stop a state from outrageous economic legislation, we do not need any such principle to stop the national Congress, within its proper sphere, either. The Court can allow Congress, as it allows Massachusetts, to mandate health insurance without finding a constitutional barrier to a national compulsory broccoli purchase. Politics supplies the appropriate check in both cases. So we must turn to the genuinely important question, the second question I distinguished. What is Congress’s proper sphere of control in health care matters?
What does the above argument amount to? It is nothing less than a call for the abolition of the Constitution and its fundamental purpose of prohibiting overreaching state power. Dworkin is arguing for eliminating those provisions of the Constitution that protect the minority from being discriminated against by the majority. The entire purpose of separating power and spelling out enumerated powers for the federal government is to put limitations on the government, despite the will of a slim majority. We can change the Constitution, but only when it is overwhelming agreed to by the public (2/3 both houses, ¾ sates) that such a change is warranted.
Dworkin seeks to replace that protection with the protection of politics. “No state legislature,” he says, “would dare to make broccoli purchase compulsory unless, for some hard-to-imagine reason, this was plainly the only way to avert some economic catastrophe.” I am going to leave aside the fact that Dworkin references a “state legislature,” which most people (even those opposing the ACA) agree can force broccoli purchases and health insurance mandates and approach this from the federal level, since that is really the concern. How does Dworkin know Congress won’t pass a broccoli mandate? Congress passes lots of stupid pieces of legislation – it does it all of the time. Simply because Dworkin can’t foresee Congress passing a ridiculous law, that does not mean that it won’t.
I am curious to know what Dworkin’s view is on the unfettered power of Congress to dictate non-economic issues in the same way. If Congress were to pass a law banning gay marriage, or a law that says no warrant is needed to arrest a suspected terrorist or a law that prohibits insulting a politician would he defend those laws from attack based on Constitutional objections and instead simply assert that the people can vote a new Congress into office? I highly doubt it.
Dworkin has put down a chalk mark with this article. He is willing to eviscerate the separation of powers and the checks and balances system of our government because he feels it hampers moving the country in a “progressive” direction. He conflates state and federal power over and over, failing to acknowledge that our system of government is a republic comprised of states with police power and a federal government with limited powers. Because his Constitutional arguments are weak, Dworkin falls back on political arguments and dresses them up as legal ones. His arguments regarding the Constitutionality of the ACA amount to nothing more than ‘it is a good idea, therefore it should be legal.” The ACA may be good policy (I’m inclined to believe otherwise), but that cannot be a legal justification for its Constitutionality. If the law is not within the authority of Congress to adopt, no matter how good an idea it may be, it is not valid.