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.