What's a Little Red-Baiting Among Friends?

-- Posted by Neil H. Buchanan

There was an event earlier this week, held at the Urban Institute here in Washington, that captured perfectly what is wrong with "This Town."  The Tax Policy Center (TPC), a policy group jointly supported by the Urban Institute and the Brookings Institution, hosted a discussion on April 15 (announcement with video here) to mark the release of Thomas Piketty's important new book, Capital in the Twenty-First Century.

This was clearly meant to be an Important Event that should be taken seriously in This Town, so it was predictable that the organizers would invite a liberal policy wonk and a conservative policy wonk to chat with Professor Piketty about his book.  TPC Director Len Burman, an economist who is himself a veteran of these dog-and-pony shows, thus hosted Dean Baker of the Center for Economic and Policy Research (The Liberal) and Kevin Hassett of the American Enterprise Institute (The Conservative).  Because Piketty's book is being hailed by liberals, and because Burman has advised Democrats over the years (and TPC is thought to be left of center), one might be forgiven for imagining that Hassett was alone in a hostile environment.

When Hassett spoke, however, he made it clear that this was simply a group of old friends talking shop.  Hassett began by noting that it was Tax Day, suggesting that people at liberal places like the Urban Institute would celebrate that wonderful day by "bringing out the party hats."  Good yucks all around.  We're all pals here.  He even went out of his way to note that Brookings had given him an early break in his career, and he also mentioned that he and his old friend Burman had sometimes thought that they ultimately disagreed merely about a few empirical estimates, rather than anything fundamental about how to approach economics or tax policy.

Sadly, that is essentially true.  As a methodological matter, Hassett and Burman are solidly in the inner circle of orthodox economists who trade places in successive administrations.  The conversation on Tuesday, therefore, was peppered with references to "CES production functions" and various insider references to empirical economics papers, with Hassett accusing Piketty (very politely, of course) of cherry-picking from the statistical literature to support his call for higher wealth taxes.

All of which would have been merely annoying and only too predictable, had it stopped there.  Hassett, however, did not stop there.  He made two further moves that genuinely surprised me, and not in a good way.  First, he made a moral claim in the guise of a technical claim, asserting that the current distribution of consumption in the U.S. is acceptable, given the large amount of government transfer payments that allow after-tax-and-transfer inequality to be less extreme than before-tax-and-transfer inequality.  I should say that I was not surprised that Hassett tried to change the conversation to consumption from income and wealth, because that is a standard move by conservative economists; but I was disappointed that no one called him on it.

The surprising parts of that claim were the blithe assertion that the current distribution is presumptively acceptable, and the idea that we could continue to maintain that distribution with current levels of transfer payments.  No one called him on the former claim, but Piketty effectively (if subtly) responded to the latter claim.  After all, when we talk about the "transfer payments" that supposedly make things acceptable, we are talking mostly about Social Security and Medicare.  Hassett was one of the top economic advisors to the Romney/Ryan campaign in 2012, and he is generally part of the conservative chorus that claims that those transfer programs are unsustainable.  When he said on Tuesday that we can rely on those programs well into the future, so long as they are "funded," he essentially said that the way to keep the current distribution going was to raise taxes to pay for Social Security and Medicare.  When Piketty pointed that out, the audience got the joke.

But it was Hassett's second move that simply blew my mind.  As I have noted before, there is a tendency among too many people on the right to red-bait their opponents, and especially to attack academics as out-of-touch lefties.  This, however, is supposed to the territory of nameless cranks, and the Sarah Palins of the world, not economists at Establishment conservative think-tanks like AEI.  Yet there was Hassett on Tuesday, ending his remarks by invoking the conservative economist Joseph Schumpeter, who, Hassett said, "had great respect for Marx's intellectual accomplishments."  OK, so why are we talking about Marx and Schumpeter?  "So here's the interesting thing, and I found Schumpeter very, very compelling.  Schumpeter and Marx agreed that capitalism was going to destroy itself, but for different reasons."

After a slight digression, Hassett got to the point:

"Schumpeter thought that as we got richer and richer, what was gonna happen would be that all of our kids would go to universities, and when they went to universities, they would be more and more over time, presented with a professoriate that was really anti-capitalist.  ...  He thought that the problem would be that academics would be digging deeper and deeper to try to find flaws in capitalism and would be proselytizing against it all the time."

 At that moment, Hassett's final PowerPoint slide attributed the following to Schumpeter:

"He argued that the academy would become the focal point of opposition to capitalism and would subsequently breed an intellectual elite that would control the media, and ultimately politicians themselves. The academy would reflexively hate capitalism because it is the job of the intellectual to criticize, and because academics detest people who actually accomplish something. Professors would envy the wealthy, and feel themselves more worthy."

Rick Santorum would be proud!  This is the litany of grievances from the extreme right, including all of the claims about "intellectual elites" who "hate capitalism" -- and do so "reflexively" -- because their job is to find fault with people who "actually accomplish something."  There is nothing in Hassett's remarks (and his attributions to Schumpeter) that we have not heard on Fox News or from Limbaugh or Beck.  This is an attack on professors who supposedly think they're better than everyone else, who do nothing but tear things down.  But of course, he said all of this while smiling and being friendly.  So he must be reasonable when he insinuates that Piketty is helping capitalism destroy itself, right?

Hassett was quick to absolve Piketty himself of such insidious intentions, even while red-baiting unnamed people who like Piketty's book:  "I would argue that -- and it's certainly not the case that that is what's going on in this book -- but if you look at some of the discussions of the book, I think that Schumpeter would find that that is an echo of what he thought was going to happen."

So the problem is not Piketty himself, because it is "certainly not the case" that the book under discussion proves that professors accomplish nothing and simply dig deeper and deeper to find flaws in capitalism, or that this an example of proselytizing against capitalism.  Perish the thought!  But "some of the discussions of the book" are eerily similar to what worries Hassett, allowing him to suggest that capitalism will be destroyed by people who take inspiration from Piketty's book.  Piketty might not be anti-capitalist, but he is apparently a fellow traveler or an enabler, aiding and abetting those who are poisoning the minds of our young people.

This was quite a performance.  Inside the walls of a respected Washington think-tank, people sat politely while a supposedly non-extreme conservative policy wonk slandered the professoriate and red-baited those who are engaging in "some of the discussions" of Piketty's book.  Any remaining doubts about whether there is a "reasonable right" in this country dimmed even further on Tuesday.  But in This Town, it is important to smile and applaud, and act like nothing happened.

Political Corruption, Skin In the Game, and Contestability

-- Posted by Neil H. Buchanan

Earlier this week, in a post titled "Government Size and (Non)Corruption," Professor Dorf discussed recent reports that two doctors in Florida: (1) receive the highest Medicare reimbursements in the country, (2) are major contributors to the Democratic Party, and (3) "have turned to the political system in recent years to defend themselves against suspicions that they may have submitted fraudulent or excessive charges to the federal government."

As Professor Dorf suggested, the appearance of a connection between points #2 and #3 would, under a different set of campaign finance laws, actually pose a problem for the doctors.  Looks pretty sleazy, right?  But, in our system, there is simply no need for the doctors to do anything that would rise to a quid pro quo -- which, as Linda Greenhouse recently discussed, is now the only thing that the Supreme Court recognizes as corruption, even in the case of direct political contributions.  (She points out that McCutcheon was another Roberts Special: radically rewriting the law, while pretending that they were merely limiting the reach of precedent.)  Under current law, the Florida doctors can buy as much "access" as they want, gaining sympathetic attention from politicians to deal with their problems.  No bribery is necessary.

Professor Dorf also suggested that a conservative ideologue might try to use the Florida doctors as an example to demonstrate why Big Government is so dangerous: With entitlements like Medicare tossing round so much money, of course people will try to influence government to keep the gravy train rolling.  One implication of this argument, of course, is that such small-government types should fiercely oppose McCutcheon and Citizens United, because the easier it is to prevent money from having any kind of corrupting influence on politics and politicians, the easier it should be to prevent a government of any size from being influenced by people seeking to game the system for their own gain.  In reality, we see no such support from supposed government shrinkers for aggressive campaign finance laws, but logical consistency is hardly their hallmark.

The further issue that Professor Dorf explored, however, is whether there is a connection between the size of the government and the amount of corruption that one sees in the country's political system.  As he notes, the available statistics suggest no such connection.  Countries with large public sectors, especially the welfare states of northern Europe, have low corruption, and countries with small (or essentially no) governments often are open to large amounts of corruption.  Overall, there seems to be no consistent pattern, positive or negative, between government size and corruption.

Moreover, although cultural factors might explain why some countries have low corruption, the suggestion among anti-government conservatives is that government is deeply and inexorably corrupting, so that an expanding government sector tends to sap the moral core of a nation.  But if Denmark and Sweden, for example, can go for more than a half century with very large welfare states and squeaky clean politics, then it becomes much harder to make the "big government destroys society" argument stick.

I would add one further point.  A cousin of the "bigger government leads to more corruption" argument is the claim that "people who do not pay taxes naturally like big government, and people who pay taxes vigilantly prevent government from growing."  If, this argument goes, one does not pay for government, then one would like the government to become bigger, because: (a) even if one is honest, it might be possible to become eligible for a program that a smaller government would not provide, and (b) if one is dishonest, the more government there is, the more possible it is to find something to corrupt.

Of course, if we are talking about "the 47%," that is, the people who do not have net federal income tax liabilities in a given year (although the specific number will vary), then the opportunities to buy politicians are pretty limited.  The point, apparently, is that only people with "skin in the game" will have the proper motivation to diligently prevent the political system from wasting their money.

All the way back in 2008, I argued here on Dorf on Law that the "skin in the game" argument is incoherent, because it ignores the possibility of change.  That is, even if a person really were motivated by nothing other than trying to keep the government from imposing taxes, being currently untaxed does nothing to change that person's motivation.  Even if he is currently paying no taxes at all, and even if he never has paid taxes in the past, he might still be required to do so in the future.  Better to be vigilant!

Similarly, the "bigger government corrupts" argument presumes that the only way to gain advantage from government action is by getting the government to pay taxpayers' money to private interests.  Without favors to be divvied up, there can be no corruption, right?  But this is obviously wrong.  My recent run of posts about the "baseline problem" (see, e.g., here) is built upon the obvious fact that the government sets the rules within which commerce is conducted, and that none of those rules is inherently more "natural" than the others.  If a business (or the would-be founder of a business) can imagine a change in a zoning rule, or a copyright provision, or an environmental remediation requirement, or a labor law, or a tax exemption, or any other legal requirement that stands in the way of more profits, then that business will have reason to try to corrupt the decision makers.

This is, as a logical matter, an application of the idea of "contestability," which is a defense in antitrust cases.  There, the argument is that it does not matter if a business is currently a monopolist, because it might some day find its market contested by a new competitor.  Under this reasoning, the magic of marketplace competition need only happen in the mind of the monopolist, because merely knowing that a misstep could bring on a slew of challengers supposedly keeps the monopolist from exploiting its monopoly position.

There are many well-known (and fatal) weaknesses in the contestability argument in the antitrust context.  In the context of governmment corruption, however, the logic actually works.  No matter how large or small a government, the very nature of setting the rules by which business operates opens up the possibility of gaining advantage by inducing political actors to bestow favors.  Furthermore, because so many possible favors have nothing to do with the size of government, but are simply a matter of choosing one neutral rule that happens to favor Business X over a different neutral rule that happens to favor Business Y, there is no reason to think that motivated corrupters would care about the size of government.  And, as Professor Dorf noted, the data bear out that lack of connection.

Suicide, Speech, and the Constitution

by Sherry F. Colb

My column on Justia's Verdict this week analyzes a Minnesota Supreme Court decision, State v. Melchert-Dinkel, holding that the First Amendment precludes the criminal prosecution of someone for advising or encouraging another person to commit suicide, although the freedom of speech does tolerate a prohibition against someone assisting another in committing suicide, even with words.  The issue arose in a case in which the defendant had reached out to two suicidally depressed people over the Internet by falsifying his identity (as a compassionate female nurse who also planned to commit suicide) and urging the two people to kill themselves by hanging in front of a web-cam, so the defendant/convict could watch.  Ultimately, both of the defendant's targets did kill themselves.

The majority remanded the case to the trial court to clarify whether the conviction of Melchert-Dinkel rested on impermissible grounds (the advising and encouraging of another's suicide) or permissible grounds (the assistance of another's suicide).  A dissent maintained that the statute was necessarily unconstitutional as applied to the defendant, even if he was assisiting a suicide, because his assistance (or encouragement or advising) would have consisted exclusively of speech.

My column takes issue with some of the reasoning in the Minnesota Supreme Court's opinion and ultimately concludes that the majority was wrong.  Towards the end of my discussion, I raise the possibility that the state court might have been wrong not only in striking down the ban on encouraging or advising a suicide but also in upholding the ban on assisting a suicide.  In this post, I would like to say a bit more about that point.

One can potentially assist a person who wishes to commit suicide in a number of ways.  The suicidal individual, for example, might not have access to lethal doses of medications, and the person assisting the suicide (if a medical professional, for instance), could provide those doses to the suicidal individual.  The "assistant" could also explain to the suicidal person who does not know how to commit suicide painlessly that one effective and painless method involves _____ (with the knowledgeable person filling in the blanks).  Yet another manner of assisting could take the form of presence:  someone who very much wanted to commit suicide but was too fearful to do so in isolation might be assisted by a friend or doctor or relative who visits the suicidal person's home and sits with him as he ends his own life.

In each of these cases, the person who "assists" a suicide makes it easier for someone who wants to kill herself or himself to do so, by providing the means, the necessary information, or the comfort of company. I believe that suicide ought in some cases to be a constitutionally protected option, under controlled circumstances, for someone who no longer wishes to live:  such situations might include that of a person who is in tremendous pain that simply cannot be effectively relieved to the patient's satisfaction or that of a person suffering from an illness that will progressively rob him of memory and movement.  In other words, I believe that the U.S. Supreme Court got it wrong in the case of Washington v. Glucksberg, where it upheld a law prohibiting physician assistance in dying.

If one accepts, as I do, the proposition that the law should not categorically bar doctors from helping a person commit suicide in all circumstances, then one necessarily believes that a suicide is not always (as it so often is) a lawless act in which other people necessarily have no legitimate role to play.  It follows from this view that explaining to a person who wishes to commit suicide how one would go about carrying out the plan is, at least sometimes, the sort of speech that should receive constitutional protection.  That is, speaking in order to inform a person who is contemplating the exercise of a constitutional right about how to go about exercising the right ought itself to be a protected form of speech.

Accordingly, at least in some situations, applying a prohibition against "assisting" a suicide to speech could well be thought to violate the First Amendment.  And even if the two people who killed themselves in the Minnesota case were not among those with a constitutional right to commit suicide, it might still be inappropriate to ban speech explaining how someone would go about killing himself or herself, given the possibility of "chilling" the speech of those legitimately providing useful information to those exercising a constitutional right.  The majority in Melchert-Dinkel should therefore perhaps have struck down, instead of upholding, the section of the Minnesota statute prohibiting assistance of suicide, as applied to speech.

Contrast this with speech that "encourages" or "advises" suicide.  Assume that a particular person is feeling extremely depressed and miserable because he has been sick for a long time, is bed-ridden, and is in almost constant pain and emotional distress.  Assume now that instead of informing him of an effective method for painlessly ending his own life, his friend positively advises or encourages him to do so.  She might, for example, say "You have been feeling dreadful for months now, and you keep saying you wish you were dead, so you really should go ahead and end your life.  You said that you want to, so what are you waiting for?  You want to wait and keep suffering?  Just do it already."  That would represent advising or encouraging a suicide.

While explaining how to go about committing suicide can represent a legitimate and protected form of speech, pressuring someone to commit suicide is something quite different.  Such advocacy, rather than providing helpful information, essentially pushes someone who, by hypothesis, is very vulnerable and has yet to make up his mind, to go ahead and make an irreversible decision.  Pressuring a person to commit suicide, either by "advising" it as a good option or by "encouraging" the person who is reluctant, would seem to represent a form of incitement to imminent violence.  Though a person should have the option of ending his life in some circumstances, in other words, the decision is always so significant that no one other than the person himself should be making that choice.

To provide a very different but potentially useful analogy, many people who regard abortion as a constitutionally protected choice (including me) believed that Rust v. Sullivan was wrongly decided.  The Court in Rust upheld a rule that prohibited doctors receiving Title X (medicaid) funding from providing information about abortion to pregnant patients.  At the same time, however, the very same pro-choice advocates would likely have supported a rule that prohibited doctors from pressuring pregnant women to terminate their pregnancies.  Doctors should not be telling their patients that they should terminate a pregnancy (advice that, unfortunately, I know of some doctors readily giving when genetic testing reveals an anomaly in a fetus), as such advice or encouragement is plainly coercive, particularly for a person in trying and stressful circumstances.

The same is true, of course, for a person contemplating suicide.  For such a person, information is valuable and important in helping them make a choice that truly reflects their wishes.  But pressure is entirely unwelcome.  Someone thinking about killing himself or herself is often going to be suffering tremendously, experiencing great fear and loneliness, and hoping for someone else to make the decision for him or her. Whether that person is an unscrupulous voyeur like Melchert-Dinkel or a compassionate doctor, however, the decision -- if it is permissible at all -- should remain squarely with the patient, with no pressure brought to bear from external sources.  What Melchert-Dinkel did was wrong and nearly inexplicable, and what made it so was that he pushed two people in pain to end their lives for his amusement, not the fact that he explained how one could go about hanging oneself.  In my view, the Minnesota Supreme Court therefore got it exactly backwards.

Government Size and (Non)Corruption

By Michael Dorf

Last week brought news that doctors receiving very large Medicare reimbursements made very large campaign contributions to Democratic campaigns and PACs, and that in turn they may have received special consideration to avoid punishment. I haven't checked out the rightwingoverse reaction to the story, but it wouldn't surprise me if it went something like this: Aha! This sort of thing shows that government-funded health insurance is rife with fraud and therefore people (like those left-wing crazies at Dorf on Law) who argue for Medicare for All would simply drive up the price of health care.

Well, okay, they probably aren't mentioning DoL expressly, but I would be surprised if that's not the general reaction. Here I want to take it seriously.

My first reaction is that this is chiefly a corruption problem, rather than a government spending program. Supreme Court decisions like Citizens United, and now McCutcheon, hold that wealthy individuals and corporations have a First Amendment right to use their wealth to influence government policy--including government policy that enables these individuals and corporations to accumulate greater (or to protect existing) wealth. I don't know whether the doctors discussed in the Times article broke any laws, but if they did, that was probably due to ineptitude rather than necessity: Our system of campaign finance permits just about anything short of an express quid pro quo, so that a well-advised donor can purchase just about all of the influence he or it wants to purchase without breaking the law.

But wait. Some small-government conservatives say that the opportunities for corruption are chiefly a product of big government. According to this argument, if we had merely a watchman state, there would be little to be gained in the way of government contracts or regulation avoidance by bribery, legal or illegal.

Although frequently offered as an axiom, that's actually an empirical claim that we can test rather easily by comparing data about social spending and corruption. And when we do so, it turns out that the claim is false.

Consider that Denmark had the second highest social spending per capita as a fraction of GDP and tied for the lowest level of corruption.  In general, high rates of (public) social spending tend to correspond with low corruption, and vice-versa--although the relation is hardly linear. Culture, politics, and other factors appear to be the main determinants of corruption.

So the data confirm my initial reaction. The corruption story (assuming that's what it is) certainly does not indict single-payer health insurance. The Supreme Court is a more likely suspect.

The Fat Man in the Mirror

By Michael Dorf

The latest issue of the New York Review of Books includes a review by Cass Sunstein of the new book, Would You Kill the Fat Man? The Trolley Probelm and What Your Answer Tells Us About Right and Wrong, by David Edmonds. (Only the very beginning of the review is available for free online. The rest is behind a subscription paywall, so if you're not a NYR subscriber, you'll have to trust me for my description.) The title of the book refers to a famous hypothetical scenario in moral philosophy, a variant of the so-called "trolley problem." In this post, I'll very briefly explain the problem, and then suggest that Sunstein's otherwise fair-minded review omits (express) discussion of an important feature of moral reasoning.

A) In the classic trolley problem, you see a trolley hurtling out of control towards five people tied to the track. You stand by a switch. If you throw the switch, you can divert the trolley to a second track, but there is one person tied to the second track. Do you throw the switch, resulting in the death of the one but the sparing of the five?

B) In the fat-man variant of the trolley problem, you are standing on a footbridge overlooking a track, where you see a trolley hurtling out of control towards five people tied to the track. Next to you is a (very) fat man. If you push him off the footbridge, his mass will block the trolley before it can run over the five. Do you push the fat man, resulting in his death but the sparing of the five?

People have various moral intuitions in the two cases. Act-utilitarians think it morally permissible or even obligatory to throw the switch and to push the fat man, because in both cases, the action leads to a better result: the death of only one, rather than five. Some act/omission deontologists think it morally impermissible to throw the switch or to push the fat man because in each case, they would be deliberately acting in a way that causes a death, rather than merely failing to act to save five lives. Most interestingly, many people (including me) think that it is morally permissible to throw the switch but morally impermissible to push the fat man. The book, the review, and the substantial literature on "trolleyology" explore the reasons for these intuitions (and others regarding still more variants), in order to discern either what morality really entails or, as in Sunstein's case, to question whether this whole method of inquiry is likely to lead to moral truth.

I'll come to what I think Sunstein omits shortly, but first, I should give the standard explanation for what I called the most interesting pair of intuitions--that it's permissible to throw the switch but not to push the fat man. The explanation goes under the heading of a doctrine--originally traceable to Catholic theology but now part of the general philosophical discussion--called "double effect." The doctrine allows that it is sometimes morally permissible to intentionally take an action that has as its aim averting one evil, even though it will also cause some other evil.

Real-world applications of the double-effect doctrine include pain medication that has the side effect of killing the patient (which is distinguished from taking an overdose for the express purpose of suicide), causing "collateral" deaths of civilians in wartime (so long as the use of force targets military combatants and collateral deaths are not disproportionate), and more controversially, abortion.

In trolleyology, throwing the switch is an instance of double effect, because the person who throws the switch intends thereby to divert the train in order to save the five, even though doing so will have the regrettable side-effect of killing the one. Pushing the fat man is not an instance of double effect, because the fat man's death is not a side-effect of saving the five; it is the means of doing so.

As I said, Sunstein's review is generally fair, although he himself appears to be a rule-utilitarian. He thinks that if there is a moral distinction between throwing the switch and pushing the fat man, it is one that has to do with following general rules that, in the aggregate lead to the greatest good for the greatest number, even if, in particular cases, following such rules leads to bad results. Thus, he acknowledges that there is overall utility in following a rule that one should not push people off of bridges into the path of hurtling trolleys, and that perhaps the benefits of following that rule, as a rule, outweigh the costs of occasionally forgoing the greater good of saving trolley passengers.

But Sunstein ends on a note of skepticism. The moral intuitions we have, he says, are heuristics that developed in ordinary circumstances. They may be "misfiring" in odd cases like the fat-man problem. Put differently, perhaps the rule that a rule-utilitarian ought really to be following is not "don't push people off of footbridges in front of trolleys" but "don't push people off of footbridges in front of trolleys unless doing so will avert a greater harm." The fat-man problem, in this view, shows that our intuitions do not perfectly map onto the right rule-utilitarian rules.

Yet Sunstein's skeptical account of trolleyology omits any express discussion of what is usually a key feature of deontological reasoning and indeed, of moral reasoning more generally. Deontologists do not typically say that each of our moral intuitions generalizes into a true moral principle. After all, our intuitions sometimes tug in different directions. Thinking about Jim Crow may lead one to think that legal distinctions based on race are wrong, but then thinking about race-based affirmative action in public universities may lead one to modify that principle to say something like race-based legal distinctions that subordinate traditionally disadvantaged minorities are generally wrong, but that ameliorative race-based distinctions are more often acceptable. Or not. One might conclude that color-blindness is the right principle after all.

My point here is not to argue for any particular principle, but to note that trolleyology is not just about exploring our intuitions; it's about trying to find principles that reconcile our intuitions, and then, if that cannot be done, abandoning some of our intuitions in favor of more deeply held ones. It aims at reflective equilibrium, not naked intuitionism. Thus, the title of the post: We want to reflect on the fat man, not simply react to his case.

Sunstein titles his review "How Do We Know What's Moral?", and he implies in it that the method of interrogating our intuitions is not a reliable means of finding out. But he comes up short in two ways: First, his contention that our pre-reflective moral intuitions can be wrong is not an indictment of deontology, because deontology is not committed to the correctness of pre-reflective moral intuitions.

Second, to the extent that Sunstein's argument is more radical--i.e., to the extent that he thinks that our moral intuitions have nothing to do with moral truth but are simply heuristics that conferred survival value on groups of humans--Sunstein undermines not simply deontology but all of morality, including all forms of utilitarianism. After all, the claim that morality consists of maximizing utility is itself an appeal to moral intuition--a kind of meta-heuristic. If the intuition that it is wrong to push the fat man is simply a misfiring of a hard-wired rule that conferred evolutionary advantage, then so is the intuition that it is wrong to abstain from simple actions that could save more lives than they sacrifice.

The reduction of morality to heuristics is a kind of global moral skepticism that swallows all morality, not just deontology. Sunstein's (implicit) argument against double effect and deontology thus throws out the baby with the bathwater. If he really is a moral skeptic, then he would have no moral problem with throwing out a baby, but I don't read him to embrace moral skepticism, except perhaps inadvertently.

Would Single-Payer Have Been Free of Constitutional Challenges? Not likely

-- Posted by Neil H. Buchanan

Yesterday, in my Verdict column and here on Dorf on Law, I argued that now is the time to push for a single-payer national health care plan, one version of which is Medicare for All, which would simply expand the covered population of the popular Medicare program from over-65-year-olds to everyone, regardless of age.

The first-year enrollment numbers in the ACA's new health care exchanges -- the much-touted 7.1 million, which met and exceeded the (somewhat arbitrary) 7 million target -- were significant because that was the last moment at which the system could have simply failed on its own terms.  That is, we have already seen the implementation of certain aspects of the law, such as the (very, very popular) inclusion of children up to age 26 on their parents' policies.  Such features could have been repealed, as a technical matter, without destroying the law itself.

The only question would have been the politics: If Republicans had decided not to "repeal Obamacare," buy instead had tried to repeal certain features of the law, would the public have let them do it?  Almost certainly not.  There is a reason that Republicans continued to talk about the law in the abstract, and focused on things like the "mandate."  They were getting no political traction for undoing the substance of what the law was trying to do.

If the early enrollments had been too low, however, that would have changed everything.  Something like a death spiral would have begun, with insurance companies needing to increase their rates and reduce their offerings, which would have caused some people to drop out and others not to sign up, which would have led to still higher rates, and so on.  We now know that the system reached critical mass.  There are still plenty of things that can go wrong, and plenty of poison pills that the Republicans could try to sneak through.  But this is a "live birth," and the wrangling that will follow is mostly about details.

One fly in that ointment is a case called Halbig v. Sebelius, which was recently argued before the DC Circuit.  There, a Koch-backed legal team is trying to exploit a supposed gap in the statute that purportedly makes it illegal for the government to offer subsidies to people who buy their insurance through exchanges that the federal government has set up.  Because the federal government only sets up exchanges after a state (with a Republican governor) refuses to do so, this case could hang on (among other things) whether the appellate court -- and ultimately the Supremes -- interprets the law such that federally-built exchanges can be deemed surrogate action on behalf of the state governments.  A ruling against the Administration could effectively negate a large number of enrollments, and thus put us back in danger of a death spiral.

Of course, no such challenge could have been possible, had we adopted national single-payer.  This lawsuit, like the other major challenges to the ACA, is possible entirely because the law has so many unnecessary moving parts, which can be challenged from many different angles.  For example, the famed NFIB v. Sebelius case, under which C.J. Roberts allowed the "mandate" under Congress's taxing power, would not have happened had there been no mandate to challenge.  And the mandate itself was necessary to allow a system built around private insurance companies to provide nearly-universal coverage.

Similarly, the Hobby Lobby case, which challenges Congress's authority to order corporations to provide health care with features that upset the corporations' major shareholders (such as the ACA's requirement that all policies provide birth control without a co-pay), has constitutional resonance only because the ACA continues to be built around employer-provided health insurance.  (This historical accident might be the "original sin" of our health care system, because it creates "job lock" and other unnecessary problems.)

It is tempting, therefore, to think that an additional "cost" of going for a half-measure like the ACA, rather than going for national single-payer in 2010, has been that we have been left to deal with these unnecessary nuisance suits.  Medicare is hitting its 50th birthday, and it is not open to Constitutional challenge.  Yes, as some readers discussed in the Comments on my post yesterday, culture wars politics would affect Congress's decisions about what to include in expanded medical coverage.  That would be a matter of pure politics, and some of it might not go well, but it is arguably better to hash that out in Congress rather than through this series of ridiculous lawsuits.

Or so I wanted to think.  Honestly, however, it is hard to imagine that the people who have been pushing these anti-ACA lawsuits would have said, "Oh well, I guess there's nothing we can do about single-payer.  Medicare is bulletproof."  I mean, consider just how absurd the activity/inactivity distinction was -- not just to liberals, but to conservative legal scholars as well -- when it was first raised in NFIB.

If these people could imagine getting five justices to sign onto that incoherent mess, why would they not imagine that other legal doctrines could be invented to declare that, say, Medicare is a violation of property rights, or that payroll taxes are theft?  There is already a strong contingent of people, some of whom were put on the federal bench by George W. Bush, who want to revive the Lochner era's expansive version of freedom of contract.  Why would they not use expanded Medicare as the wedge to push that agenda?

So, even though the economic costs of the ACA, relative to single-payer, are unbelievably high, I no longer think that the parade of bad constitutional challenges was an additional cost of adopting the go-it-slow strategy.  Motivated, well-funded people with friends on high courts will always try to use whatever raw material is available.

Time to Support Single-Payer Health Care, Even if the ACA Is a Success

-- Posted by Neil H. Buchanan

Although I have occasionally mentioned single-payer health care, and done so quite approvingly, I am not sure if I have ever directly and simply said that I support it.  Whether or not I have done it before, I did so quite explicitly today in my Verdict column.  To the extent that I am doing something in that column beyond merely stating the obvious (that I have been in favor of single-payer all along), the timing of the column is probably what matters most, for reasons that I will explain in this post.

The big news in the last few weeks on the health care front has been the surprising success of the Obama Administration in getting more than 7 million people to sign up for coverage on the new health care exchanges.  This is big news, because it undermines the only real plank of the Republicans' 2014 electoral platform.  (Sorry, but "Obama the imperial president" is just not going to fly.)  Seven months before the mid-term elections, the Republicans are finding that their deeply held belief that the Affordable Care Act will surely be a horrible failure is turning out to be wrong.

One way to respond to that news is to argue with the facts.  As they did with unfavorable polls before the 2012 elections, and as they still do with climate science, and as they still do with evolution, Republicans have been denying reality -- frantically claiming that the signups for the ACA have been inflated, or that they are not "new enrollees," or whatever.  Even Jon Stewart, bizarrely, gave Republicans some aid and comfort when he expressed sketpicism that the announced number was 7.1 million, as against a goal of 7 million -- or, as he put it with eyebrow arched, only 1.4% above the target.  It is hard to know why anyone would find it strange or suspicious that people who have achieved a goal made a big push that would get them just over the finish line, but "haters gonna hate," I guess.

In any event, none of the attacks on the facts are holding up to scrutiny.  And, honestly, even if the enrollments had totaled only 6.9 million -- and do you think that anyone on the right (or on Comedy Central, for that matter) would be saying that it was no big deal to have fallen only 1.4% short? -- the important point was that the enrollments needed simply to be big enough and diverse enough (by age, health status, and so on) to allow the system to be actuarially sound, keeping the private insurance companies from losing money.  And that is the big news.  The 7 million target was the best guess of what it would take to comfortably conclude that "nationalized Romneycare" would succeed.  At this point, we have every reason to believe that it will.  For Republicans, and especially their Senate candidates, that is bad news.  For everyone else, that is a huge step forward.

Short of trying to deny reality, the Republicans only other possible response is to propose an actual alternative to the ACA.  They have never done so, because there is no alternative to the ACA that preserves the private insurance companies AND allows Congress to require those companies to cover people with pre-existing conditions, which is the one goal that nearly everyone agreed upon from the beginning.  As Paul Krugman pointed out on his blog earlier this week, some Republican staffers are finally admitting that there is no conservative alternative to the ACA, because the ACA is the conservative alternative to single-payer national health care.

All of which brings us back to the question of why the timing matters, in terms of endorsing the single-payer "Medicare for All" alternative.  Why now?  It might seem counter-intuitive to argue that Democrats should immediately try to undermine what is arguably their greatest social accomplishment in more than a generation.  Why not let it work for awhile, and see how it goes?  Let us at least enjoy the reality that many people who would have died too soon, or who would have been financially devastated by medical care costs, or both, will see a better future than would have awaited them had the health care system continued on its previous course.  Right?

There is no doubt that things are better now than they were before.  The danger all along, however, was merely a specific example of the classic liberal-versus-radical, incrementalist-or-absolutist conundrum.  Yes, we have improved matters considerably by taking the cautious Obaman approach.  But doing so inevitably becomes (especially for people like Obama's advisors) not an argument to take the next step, but to settle all-but-permanently for less.  (See, e.g., the inadequate fiscal stimulus program of 2009-10.)

Do we really lose much by settling for less, especially if we have achieved the important goal of meaningfully improving people's physical, mental, and financial health?  The answer is yes, we really do lose a lot by waiting to switch to a single-payer system.  Under other circumstances, I might have devoted some time in my Verdict column to rebutting specific arguments against single-payer plans ("You'll have to wait in long lines, just like in Canada!!" and all that), but here is where being a macroeconomist is helpful.

As I pose the question toward the end of my column, do we really want to spend an extra $1 trillion per year, "rising every year in perpetuity" (projected to reach $1.5 trillion in 2023, and continuing to rise), to keep private insurance companies in business?  To put this in perspective, the gross domestic product last year was about $17 trillion, of which we spent almost 18%, or $3 trillion, on health care.  More than one trillion dollars of that was the extra cost for having a non-single-payer system.  The ACA is slightly more expensive overall than the system is replaces -- although it reduces the federal deficit, due to its dedicated taxes -- precisely because it covers more people.  But under either alternative to single-payer, the country throws away about $1 for every $3 it devotes to health care.

Maybe a more vivid way to think about it is this: The "gross state products" of Tennessee, Iowa, Kansas, Minnesota, Missouri, Nebraska, and both Dakotas -- or just the entire economy of Texas -- currently add up to the same extra amount that we needlessly spend on keeping the current duct-tape-and-bailing-wire health care ecosystem afloat.  I know that people on the coasts like to ignore "flyover country," but we actually benefit from their economies!

In some ways, the enormity of the waste in both the pre- and post-ACA private health care systems becomes its own argument not to do anything.  It seems impossible to imagine that one out of every seventeen workers is doing something pointless and unnecessary (and, in many cases, counter-productive).  And it certainly seems too good to be true that we could really save one third of our health care costs.  The fact is, however, that some countries do even better.  For example, the Brits and the Swedes both spend 2% of GDP less than France, which is the basis that I have used for the comparison of the U.S. with the next-most-expensive country.  If anything, the estimate that $1 out of every $3 is wasted is too low.

I note in my column a study by a UMass economist, Gerald Friedman, which forecasts the potential savings going forward of a specific proposal to expand Medicare, H.R. 676.  Importantly, Friedman also devotes a fair amount of effort showing how the expansion could be financed, in a progressive way.  This is important, because the current Medicare system is underfunded only in the sense that the specific tax that is supposed to support the whole system has turned out to be too small, not in the sense that the economy could not afford to support it from general tax revenues.  Too many people have misused the financing projections for the current Medicare system to say that we cannot afford to expand the system to other Americans.

The larger point, however, is that we cannot afford not to do so.  The "third way" types running the show in the White House (and in Hillary Clinton's nascent campaign) will surely counsel caution and prudence, saying that we must wait.  Waiting, however, is hardly a "cautious" move, unless one considers it prudent to waste the equivalent of the output of eight states in the middle of the country.