Sunday, April 1, 2012

Krugman: Anti-Health Reform Justices Embrace Flimsy Arguments

Paul Krugman considers two flawed criticisms of the Affordable Care Act’s individual mandate. The first concerns Supreme Court Justice Antonin Scalia’s facile comparison of health care and broccoli; the second, contradictory stances on taxation and the mandate. Krugman states that “antireform justices” are embracing “any argument, no matter how flimsy, that they can use to kill reform.” Excerpts from “Broccoli and Bad Faith”:

...Let’s start with the already famous exchange in which Justice Antonin Scalia compared the purchase of health insurance to the purchase of broccoli, with the implication that if the government can compel you to do the former, it can also compel you to do the latter. That comparison horrified health care experts all across America because health insurance is nothing like broccoli.

Why? When people choose not to buy broccoli, they don’t make broccoli unavailable to those who want it. But when people don’t buy health insurance until they get sick — which is what happens in the absence of a mandate — the resulting worsening of the risk pool makes insurance more expensive, and often unaffordable, for those who remain. As a result, unregulated health insurance basically doesn’t work, and never has.

There are at least two ways to address this reality — which is, by the way, very much an issue involving interstate commerce, and hence a valid federal concern. One is to tax everyone — healthy and sick alike — and use the money raised to provide health coverage. That’s what Medicare and Medicaid do. The other is to require that everyone buy insurance, while aiding those for whom this is a financial hardship.

Are these fundamentally different approaches? Is requiring that people pay a tax that finances health coverage O.K., while requiring that they purchase insurance is unconstitutional? It’s hard to see why — and it’s not just those of us without legal training who find the distinction strange. Here’s what Charles Fried — who was Ronald Reagan’s solicitor general — said in a recent interview with The Washington Post: “I’ve never understood why regulating by making people go buy something is somehow more intrusive than regulating by making them pay taxes and then giving it to them”...


Michael The Molar Maven said...

Krugman, who, I believe, is not a lawyer, makes a better legal argument than Supreme Court Justice Antonin Scalia.

Jeff Tone said...

Absolutely. Scalia should retire from the Supreme Court and become a legal commentator on Fox. He echoes all the lines: