I normally don’t like to attack people personally when it comes to policy arguments. But Jonathan Chait’s piece in New York Magazine is of such low quality that either he is, and I am afraid there is no other way to put this, an idiot or else he is so far to the left that he is no longer capable of making rational arguments. Either way, New York Magazine ought to be ashamed to allow such poor analysis to appear in its pages. You don’t need to have a high bar, but there should at least be a bar.
To begin, Chait says “[t]he case against the Affordable Care Act rests upon stringing together selective use of precedent, wildly obtuse understanding of the facts of the issue, and bizarre hypotheticals.” First of all, I’m not sure how Chait thinks legal cases at the appellate level are normally undertaken, but precedent and hypotheticals are generally two of the major factors which influence legal analysis. One of the primary purposes of an appellate court – and particularly the Supreme Court – taking on a case is to set a precedent that will govern future cases, most or all of which are hypothetical at the time the decision is made, since they will all be decided in the future. Future cases are almost never 100% on point with the governing case, which is why analogies and hypotheticals are used to link those cases to past precedent. For instance, when the Supreme Court just ruled that when the police attached a GPS device to a car without a warrant it violated the owner’s Fourth Amendment right against unreasonable searches and seizures, it analogized to past cases. Justices in that case, as they do in many cases, also asked hypotheticals as a way to get out the main principles that are being argued. Virtually the entire purpose of a Supreme Court case of the Obamacare type is to understand the broad principles, beyond the technicalities of the case at hand, that are at issue and to deliver an opinion which covers those broader principles.
Next, Chait delivers this paragraph of wisdom:
The debate seems to have centered around a “limiting principle.” If you haven’t closely followed the arguments, here is what it means. The challengers have managed to wall off the health-care law from overwhelming precedent that would uphold it by defining the individual as something wholly different from other regulations — a regulation of “inactivity,” as opposed to “activity.” The distinction itself lacks any legal or even intellectual precedent. Having accepted a shaky series of premises, this has led the Court to settle on what it regards as the central issue of the case: If Congress can force you to purchase health insurance, why can’t it make you buy broccoli, or anything at all? (And since this would be bad, then obviously Congress can’t be allowed to make you buy health insurance.)
First of all, just declaring that the distinction between activity and inactivity is meaningless is not an argument. Second, the third sentence in the above paragraph does not even make logical sense. I can’t even comment on the sentence because it isn’t even a coherent thought. Third, Chait is jut plain wrong here; the distinction between activty and inactivity has a long history in jurisprudence and significant meaning. You can look to the law of torts for an easy example. If I see a blind man about to fall off a balcony and all I need to do is say “watch out”, I have no obligation, whatsoever, to give him a warning. I can do absolutely nothing. As for precedent when it comes to the Commerce Clause, Chait is right, there is none, and that is precisely the point. The Federal government has never before tried to regulate inactivity. This point was de facto conceded over and over again during the oral arguments by the government when, instead of trying to argue that it was regulating inactivity, it claimed that it was really regulating future/inevitable activity. If he can’t understand how this would be a momentous change in legal precedent, he shouldn’t be allowed to pick up a pen.
Chait’s next point:
There are many possible ways to solve this objection, if a Justice were so inclined to look for them. Health insurance is inherently different from almost any other product, with inherent problems of cost-shifting and adverse selection. (The economics of this seem to be utterly eluding the conservative justices.) As former Reagan solicitor general Charles Fried argues, the absence of the mandate would have a major impact on already-existing interstate commerce, which cannot be said of broccoli consumption. Or, as Matt Steinglass offers, mandating the purchase of broccoli might be marginally helpful to the goal of containing health care costs — eating broccoli makes you slightly healthier — but it’s certainly not necessary, as an insurance mandate is.
First of all, the fact that health insurance is a unique market is hardly a Constitutional argument. Just because something is unique, it doesn’t mean that all of the sudden the checks, balances and limits set on government power go out the window. Second, the health insurance market is not unique from a legal perspective. Chait links to an economics piece arguing that broccoli, cars and burial insurance are different from health insurance. From an economic perspective, they may or may not be distinguishable from health insurance(I am refraining from debating that issue here), but that has no bearing on whether health insurance is unique as a legal principle. Third, the fact that the absence of the mandate would have a major impact on already existing commerce is a foolish argument because is applies to everything, everywhere at every point in time – every non-decision has an affect on existing commerce and is infinite. Every second I don’t buy a sandwich I, in theory, affect the sandwich market.
After this, the article just descends into Chait’s bread and butter – character attacks and political arguments (conservatives are evil, liberals are great, etc.). I’ll save those for another time – I find him equally foolish on policy, but at least his arguments aren’t opinion trying to masquerade as analysis.