• More on Stuart Butler’s op-ed

    I know Don covered it earlier this morning, but I wanted to get my two cents in as well. Butler tried, yesterday, to explain how his about face on the individual mandate was not a flip-flop. I want to spend a minute getting into his actual arguments so that people won’t be confused:

    First, it was not primarily intended to push people to obtain protection for their own good, but to protect others. Like auto damage liability insurance required in most states, our requirement focused on “catastrophic” costs — so hospitals and taxpayers would not have to foot the bill for the expensive illness or accident of someone who did not buy insurance.

    Let’s be clear. Some have said that the individual mandate is to prevent “free riders”. Others have said it’s to prevent “adverse selection”. Everyone agrees, though, that it’s a precondition to getting the insurance companies to accept guaranteed issue and community ratings.

    But this is moot. Either the idea is unconstitutional, or it’s not. One of the arguments that the government is making in their case to the Supreme Court to support its constitutionality is that the mandate is there to “protect others” and prevent them from “externalizing their costs”. From the brief itself (h/t Kevin):

    In sum, the uninsured as a class presently externalize the risks and costs of much of their health care; the minimum coverage provision will require that they internalize them (or pay a tax penalty).  This is classic economic regulation of economic conduct.


    They also shift present risk to other market participants, which in monetized in the form of higher insurance premiums now, not later, for those with insurance.  The point of obtaining insurance is to internalize risk, which occurs when the insurance is obtained and the premium paid.  Conversely, the failure to obtain insurance externalizes risk, and that externalization occurs at the time the insurance is not obtained.

    So unless Butler agrees with the government’s argument, I’m not sure how this explanation changes his view on the mandate. On to Butler’s next reason:

    Second, we sought to induce people to buy coverage primarily through the carrot of a generous health credit or voucher, financed in part by a fundamental reform of the tax treatment of health coverage, rather than by a stick.

    This is just semantics. As I’ve argued many times, you can do the mandate through a tax or a credit. If it’s a credit, you raise everyone’s taxes and then refund the money to them if they buy insurance. If it’s a tax, you merely make them pay the tax if they don’t buy insurance. The money in the bottom line is the same either way. In both, the government is using the tax code in order to get you to want to buy insurance. Finally:

    And third, in the legislation we helped craft that ultimately became a preferred alternative to ClintonCare, the “mandate” was actually the loss of certain tax breaks for those not choosing to buy coverage, not a legal requirement.

    This is just a blatant appeal to politics. The mandate was acceptable as an alternative to a policy they disliked. Now that this policy is no longer a worry, the mandate is bad. Surely, though, this can’t be the reason it became unconstitutional.

    I completely support the right of an individual to change their mind. That’s why it’s totally ok (ie legal) for you to vote for something one year, and vote against it 20 years later. What you can’t do, though, is support something one year and declare it unconstitutional 20 years later. At least, you can’t do that without a powerfully persuasive legal argument, and an admission that you were supporting something illegal decades earlier. The reasons Butler gives here make sense if you’re arguing that the ACA is no longer your preferred policy, and you want to repeal it or change it. They aren’t very convincing if you’re trying to make the argument that the mandate is unconstitutional.

    • “And third, in the legislation we helped craft that ultimately became a preferred alternative to ClintonCare, the “mandate” was actually the loss of certain tax breaks for those not choosing to buy coverage, not a legal requirement.”

      This graf puzzles me. Exactly what would be the real difference between losing tax breaks and paying a fine? Assume both are legally enforced. Isnt this a distinction without a difference? Strip away any legalese, and you are out X number of dollars, whether it is by paying more tax or paying a fine.


    • Well, but that’s the Republican Party’s position on everything. For years, they supported the individual mandate, cap and trade, Keynesian stimulus, the EITC, etc. (To say nothing of the enthusiastic support for Pres. Bush the GOP offered, while he was expanding federal & executive power, and converting surpluses into deficits, which they now maintain they care about a whole lot).

      Stuart Butler knows that facts don’t matter in our public debate. The Republican Party has abandoned policy preferences and rational argumentation for pure tribalism. So he has to argue against ideas that he formulated and advocated for decades. He’s a Republican, so he has no problem doing it.

    • ==Surely, though, this can’t be the reason it became unconstitutional.==
      For the record, the mandate business was pre-Lopez. Before 1995, nobody thought Congress had any real limits on federal power. The Supreme Court changed that. Ignoring that historical context is silly.

      It’s like someone supporting loose limits on independent election-time corporate expenditures instead of strict limits in the late 90s, but now recognizing (post-Citizens United) that such limits would be unconstitutional. That doesn’t make them a hypocrite. It means that their understanding of the Constitution has changed as the Court has clarified the law.

      • That’s certainly a better talking point than anything Butler put in his column. You should send it along to him.

        ‘Course, I’d imagine that Heritage was making the case even back then that the Court should do something like we saw in Lopez, as that was a goal of conservative commentators for quite a while. It seems more likely that it was simply the consensus then that a mandate would be constitutional even after a ruling like Lopez.

        What’s more, as Aaron’s post indicates, if the Court rules that something that we like is unconstitutional, we tend not to like it; we argue that the Court should change its mind. This has been, for example, the response to Roe v. Wade of folks who want more state restrictions on abortions. If Butler were proposing a policy that he really liked in 1994 that a given reading of a 1995 Court ruling rendered impossible, one would expect him to criticize that ruling, or explain why it didn’t actually affect the policy he formulated.

        That said, yours is a more plausible talking point than the three he actually wrote down in his column.

        • Oh, I’m not sure he’s been entirely consistent. I’m just saying: there’s a historical context that’s being left out (intentionally or unintentionally, I can’t say), which makes the issue a lot more complicated than it may appear at first glance.

          It’s quite possible to support an idea that you believe is constitutional at one point and change your mind on it following subsequent clarification by the Court. I imagine that the people who supported lessening (but not completely repealing) criminal sanctions on sodomy in the 80s and 90s saw the same kind of change.

          And I don’t think it’s quite as black-and-white as you make it seem, either. There are certainly degrees to everything. It is quite possible that he liked structural limits on the federal government more than his individual mandate proposal. If so, and if he truly recognized the incompatibility of his proposal with the Lopez ruling, it would make sense not to criticize the ruling or say that it didn’t affect his proposal. It would all depend on how much he liked his proposal in comparison to how much he liked the other results of the ruling.

          I can’t say that this happened for Butler. I honestly don’t know. I just know that, personally, I tend to view public policy choices through a legal lens. And that lens is always in flux, because the law is always is flux. What made sense as a policy proposal twenty years ago might not make sense today, because the law and our understanding of the law has changed since then. Which is why I think context means so much.

          At the same time, I suspect few will offer this reasoning, because it would admit that, at one point, they believed in a federal government with unlimited power. From a principles standpoint, that is sacrilege.

          From a practical standpoint, however, it may just be that they were trying to use the framework of the day to achieve the same end-goal. A lot of the time, you’re taking baby steps. Maybe this was just a baby step.