Wednesday, November 20, 2013

Three New Publications--and Some Ambivalence About the Affordable Care Act

By Mike Dorf

In addition to highlighting three recent publications of mine, in this post I'll say a few words about my ambivalence about Obamacare.

(1) My latest Verdict column offers the provocative suggestion that some of the apologists for Richie Incognito's bullying/hazing/arguably-criminal-conduct-towards Jonathan Martin rely on a view of character building that the U.S. Supreme Court uncritically accepted in United States v. Virginia, a 1996 landmark sex discrimination case involving the Virginia Military Institute.  I'll have a follow-up blog post on it next week.

(2) A recent issue of the Boston University Law Review includes a somewhat revised version of my review of Jim Fleming and Linda McClain's book, Ordered Liberty.  I previously blogged about the book and my take on it here and here.  A short version of my review then appeared on Balkinization, as did a response by Fleming and McClain.  The BU L Rev also includes a somewhat revised version of their response.  To recap very briefly, I argue that Fleming and McClain include in their book a misguided liberal argument for freedom that parallels the religious "theodicy"--i.e., the idea that evil exists because humans have free will. In their responses, Fleming and McClain say that I misunderstand them to be making a theodicean argument they do not make, but as I note in my BU L Rev essay, I think that is pretty clearly what they wrote in their book--even if it is not what they intended to write.  See, in particular, my footnote 10.  In any event, as I explain in the review, whatever views Fleming and McClain themselves expressed or intended to express with respect to liberal theodicean argument, the argument itself can be found in the work of various liberals, and should be resisted by other liberals (like Fleming, McClain and myself) because it is a bad argument.

(3) The latest issue of the Texas Law Review contains my review of Andrew Koppelman's book, The Tough Luck Constitution.  The book, which I highly recommend to readers, is a concise and punchy recounting of the litigation that challenged the constitutionality of the Affordable Care Act (ACA/Obamacare).  Koppelman argues that "tough luck libertarianism" played a substantial role in shaping the views of the conservative Justices.  I say in my review that tough luck libertarianism played less of a role than Koppelman thinks it did, because, I argue, Koppelman and other liberal constitutional law scholars (including me during the pendency of the litigation) did not take the conservatives' commitment to judicially enforceable federalism sufficiently seriously.  I also explain how it is that the conservative Justices, with the exception of the Chief Justice, apparently failed to appreciate the partisan stakes of the case, even as those very partisan stakes led them to see the case as they did.  I call this phenomenon "nonpartisan framing," using Bush v. Gore as a comparator.

My review is not exactly a mea culpa.  I continue to think that the Court should have upheld the ACA under the Commerce Clause and should have upheld the Medicaid expansion under the Spending Clause.  But I do think I was wrong to have regarded the argument against the ACA insurance mandate's constitutionality as essentially frivolous. In the heat of the battle, I--and other liberal scholars--seem to have forgotten how malleable constitutional doctrine can be.  Put differently, I think the anti-mandate position of CJ Roberts and the four-Justice dissenting opinion in the ACA case was wrong but not more wrong than other doctrines that federalism-minded conservative Justices have invented in recent years, like state sovereign immunity doctrine (or doctrines in other areas tha liberal Justices have invented).

Why am I able to take a more philosophical and detached view of the case now?  After all, the GOP obstructionism that first gave rise to the opposition to the originally-conservative-inspired ACA is very much with us. And with the flawed rollout of the health insurance exchanges potentially jeopardizing the ACA's viability, it might seem that the heat of battle remains quite hot.

The answer is that I don't have much enthusiasm for the ACA.  Yes, I think that Obamacare is better than the status quo ante, but I share the sense of many critics on the left who find it maddening that the failures of the too-heavily-market-based approach of Obamacare is being used to discredit the sort of straightforward government program that our contemporary politics prevented Congress from enacting or the Obama Administration from even considering.  For a fine statement of this critique from the left, see Robert Kuttner's recent piece on HuffPo.

Moreover, I have a further reason to keep the entire enterprise of health insurance reform at arm's length. From where I sit, it looks like nobody--not the left, the right or the center--is actually proposing anything that would subsantially improve Americans' health.  Our health care reform politics is almost entirely about how to pay for medical and surgical interventions that mostly have a marginal impact on health.  Obamacare has buried within it a few potential improvements relating to evidence-based medicine and the like.  But the fundamental health problems Americans face are overwhelmingly a product of lifestyle choices involving (lack of) exercise and especially diet--and these are barely touched by Obamacare or anything else on offer.

Thus, for me, the entire constitutional debate about the ACA has always been upside-down.  The infamous broccoli hypothetical was offered as the end of the road of a parade of horribles, when it should have been the grand marshal of a parade of wonderfuls.  I concede that, absent extraordinary circumstances, no government should have the power to force-feed its citizens broccoli or anything else, but our government could do much much more to encourage people to eat more fruits and vegetables and fewer animal products and processed foods.  At the very least, a sensible national health policy would begin by ending the government programs that encourage people to eat unhealthy diets by artificially lowering the price of such foods.

In the end, I care about the ACA partly as a small practical step in the right direction but more as a symbol and political tool: Failure of the ACA would be widely viewed as failure of the Democratic Party, which would have far-reaching implications on all sorts of collateral issues I care about, including environmental regulation, judicial appointments, distributive justice, etc.

21 comments:

Ben Alpers said...

Kuttner, you...and me. The ACA needs to be supported both because it's a marginal imorovement in the status quo ante and because of its metapolicy dimensions but the problems with it are enormous. They reflect both fundamental problems with how we think about health (as you say) and fundamental problems with the way that the dominant strain in the Democratic Party (and the so-called "left") understands policy-making to be principally about focusing on accomplishing the best possible thing in the very immediate shortrun under whatever the current political circumstances are. Over the last half century, the right's success has often been built on a willingness to play a long game that the "left" often refuses to play (or leaves, optimistically, to chance).

As an outside observer of left/liberal legal analytic commentary about the ACA litigation, I was surprised by how many of y'all were blindsided by the Court's taking the anti-ACA federalism arguments seriously. You do a great job, Mike, explaining why you should have taken them more seriously. But why do you think so few of you did?

Michael C. Dorf said...

Ben raises a very good question. My best answer goes like this: Despite over a century of legal realism and extensive empirical evidence that ideology plays a very large role in the decision of Supreme Court cases, most professional lawyers, including legal academics, believe in the integrity/independence of law. Thus, we liberals who looked at the prior case law both failed to realize how our own ideological druthers informed our reading of that body of law and failed to appreciate how the conservatives' ideological druthers would lead them to see the case so differently.

I also agree with you about your take on left/right politics. When Rs were out of power, they developed a coherent (if, in my view, awful) ideology. When Ds were out of power, they determined to move to the right.

Joe said...

There are ways for the government to get involved, but "lifestyle choices" are largely a cultural problem. School lunch programs, e.g., is a major way diet can be affected by governmental regulation. Still, the government cannot force me to exercise, can it?

So, I understand the "eh" feelings as to ACA to a degree, including for the other reasons cited, but find this at least somewhat misguided. Critics, e.g., at times promote some more liberal leaning solutions. But, even at the high point of the Obama presidency with Congress being controlled by Democrats, the balance of power were centrists. So, that wasn't going to happen.

Any solution of the health system is going to start relatively small. The 15A, e.g., was a compromise and even that took years to truly be honored. ACA puts a federal foot in the door of health policy. Once there, it becomes normalized. Big deal.

Also, hundreds of thousands of people already have health care now that they did not before -- specifically those who signed on to Medicaid -- which is far from trivial. But, it seems too many do trivialize it. Just the pre-existing condition change alone would have be important.

While we read reports about "failures" -- ONE MONTH into the rollout (this is inane and a sign of non-serious debate) -- let us not forget that. Yes, a lot more needs to be done, and efforts are being made to address the other things.

For instance, I hear someone has a book out that promotes a lifestyle that helps improve your health along with other things. Something about may I eat a hamburger.

Joe said...

As to being blindsided, it is notable that other than striking down RFRA as applied to the states, it is hard to cite a recent case where federalism was used to strike down major federal legislation.

To me, that is why I specifically thought ACA would be upheld. I figured it would be somewhat close, even 5-4, but that such a clearly constitutional (I still think so -- I think the opinion poorly reasoned) comprehensive regulation of interstate commerce would be safe.

I also listened to the Gonzalez v. Raich oral arguments. Randy Barnett didn't seem to be taken that seriously there. But, then again, drugs are different, right?

The Dismal Political Economist said...

Mr. Dorf’s ambivalence towards health care reform is well deserved, the legislation does provide many benefits, as Joe has documented, but it is one of the worst designed laws in recent history, and maybe of all time.

And the idea of government operated health insurance exchanges instead of allowing insurance companies to set up enrollment (see the lack of problems in Medicare Supplement and Advantage plan enrollment) could work effectively and efficiently was absurd. Do these people not know how large systems are de-bugged? They are de-bugged by having users operate the system until it crashes, then that problem is fixed, then the system goes on to the next crash, then that problem is fixed, with this process taking place until the system is perfected, if it ever is (see Microsoft, Windows). Anyone who ever worked in Systems Analysis and Design knew what was going to happen here.

But the real problem is that ACA largely preserves a fee for service system that is in direct opposition to the goal of keeping people healthy, an issue Mr. Dorf touches on. How does the medical industry get paid when people are healthy? They don’t. The medical industry gets paid when people are ill, when people are unhealthy, when people have an unhealthy lifestyle and take actions that damage or destroy their health. The medical industry is set up to cure not to prevent. Doctor’s are not trained or educated to keep people healthy, they are trained to treat people when they are unhealthy.

A few, like Robert Lustig who is crusading against child obesity truly care about people and are working to make individuals, particularly children, lead healthier lives despite the fact that this is not in their economic interests. The rest of the industry just takes the money, not because they are bad people but because that is how they make a living. Every dollar of waste in health care is a dollar of income to the health care industry. Until the fee-for-service model is changed to a fixed payment per person for health care, with providers making money by keeping people healthy rather than treating their illnesses neither ACA nor any other reforms will work.

And as for the Supreme Court reaction, how can anyone not realize that most but not all of the time conservatives on this Court vote their personal political preferences, not the law? Mr. Dorf is correct that he and other legal professionals expect the courts to rule on the basis of law independent of political/ideological considerations, but how can one hold such a view in the face of rulings over the past 20 years?

For example, a principle of judicial review is that you do not allow the destructive aspects of a law being challenged to take place until the law is ruled upon, since that would make a victory for those subject to the destruction worthless. The action of the Appeals Court and Justice Scalia in allowing a Texas anti-abortion rights law to go forward, destroying much of the abortion practices in that state before the law is adjudicated is just the latest example of how ideology, in this case opposition to abortion overrules principles. How many more actions will it take before those who study and practice law realize that it is the personal preferences of conservative judges, not legal principles that will prevail most of the time.

Joe said...

Why was the exchange system set up that way? It is helpful for me to know why this "stupidity" was done this way.

Bad legislative choices at times are the product of limited realistic possibilities. For instance, I think the 23rd Amendment is pretty badly worded. There are reasons why it came out that way.

The "a fee for service system" concern is an even larger issue. That very well might be a fair criticism. But, there simply is not the will to end that. It would be a major shift on our capitalist norms for that to occur.

For instance, I have seen some say it would be better if Medicare was expanded. But, doctors still would serve for a fee. That would be their mentality. Medicaid is a problem for many doctors because the coverage doesn't cover what they usually would pay. But, do they use prevention or the like to bring down costs? No, they find other ways to pad bills to get the money.

So, DPE's "other reforms too" comment is true enough, but ambivalence wouldn't be ACA specific there.

Michael C. Dorf said...

The mayo clinic, which is widely regarded as providing some of the best medical care in the country, and cost effectively, pays doctors a salary, rather than on a per service basis. Its model is spreading. Thus, there is some hope along the incentives dimension.

Michael C. Dorf said...

The mayo clinic, which is widely regarded as providing some of the best medical care in the country, and cost effectively, pays doctors a salary, rather than on a per service basis. Its model is spreading. Thus, there is some hope along the incentives dimension.

The Dismal Political Economist said...

Mr. Dorf is correct that there are successful health care systems where the physicians are salaried, and even more encouraging is the acquisition of health insurance operations by medical centers in Boston and Pittsburgh.

Think about how the incentives change if the health insurance is provided by a medical center that has salaried staff and health care facilities to provide the benefits for the insured. The medical center gets a fixed payment (the insurance premium) and their profit is determined not by how many procedures and actions they take, but by how healthy they can keep their insureds and by how much they can prevent health problems. They make money by preventing illness and disease, by getting people healthy and keeping them healthy! Resources shift from treatment to prevention. A win-win for everyone.

A corollary is in the auto industry where some manufacturers provide free preventive maintenance while the car is under factory warranty. They are not doing this out of goodness and kindness, they are trying to prevent major problems that they would have to fix under warranty. And if our auto is not covered by a warranty, each of us are scared to death to take it to the shop because we know it is likely they will not only fix what is wrong, but have a large incentive to fix things that are not wrong and no incentive to keep the car from coming back.

If there is competition for the health insurance premiums the market system will also provide incentives for high quality care since the insureds can take their health care premium dollars elsewhere. A perfect system, no. But much better than the 30,000 treatment codes in Medicare, with a government determined reimbursement for each one. The savings in billings costs and administration alone would produce a substantial reduction in the cost of health care by moving to the type of system Mr. Dorf notes that the Mayo clinic and other providers have.

So this type of reform can be done within a private enterprise system, without government employing doctors and providing health care. And while the health care system is slowly evolving with this model, one of the many tragedies of ACA was that was not used to accelerate and ease this transition. We know what to do, we know how to do it, we just do not have the will or wisdom to do it.

AF said...

"But I do think I was wrong to have regarded the argument against the ACA insurance mandate's constitutionality as essentially frivolous. In the heat of the battle, I--and other liberal scholars--seem to have forgotten how malleable constitutional doctrine can be. Put differently, I think the anti-mandate position of CJ Roberts and the four-Justice dissenting opinion in the ACA case was wrong but not more wrong than other doctrines that federalism-minded conservative Justices have invented in recent years, like state sovereign immunity doctrine (or doctrines in other areas tha liberal Justices have invented).

Why am I able to take a more philosophical and detached view of the case now? . . . The answer is that I don't have much enthusiasm for the ACA."

This is refreshingly candid but confusing. Are you saying: (1) the anti-ACA arguments were non-frivolous in a meaningful sense; (2) given the malleability of constitutional doctrine, there is no meaningful sense in which a constitutional argument can be be considered frivolous or non-frivolous(at least under certain conditions that existed for the ACA challenges); or (3) the difference between a frivolous and a non-frivolous constitutional argument depends on how much enthusiasm you have for the public policy question at issue?

Michael C. Dorf said...

AF: Mostly 1 but as a practical matter for everyone, more than a little of 3.

AF said...

I agree with you on (3).

I'm not sure how meaningful it is to call constitutional arguments that are invented out of whole cloth frivolous or non-frivolous based on whether they are proportionate to past examples of constitutional arguments invented out of whole cloth. Seems like the more analytically sound conclusion is that there are instances where traditional legal criteria play little role in the development of constitutional law and this is one of them.

Paul.K said...

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