Eugene Volokh's Blog, page 2547
May 26, 2012
The Return of Heckler v. Chaney?
Back in the 1980s, some death penalty abolitionists came up with the clever idea to sue the Food and Drug Administration to force the regulation of drugs used for lethal injection. Because drugs used for lethal injection could not be considered “safe and effective” for this use — at least not as far as the recipient is concerned — the advocates hoped this would force the FDA to ban the use of these drugs for lethal injection. It was a clever strategy but, as they say, it was too clever by half. The case worked its way up to the Supreme Court where, in Heckler v. Chaney, the Supreme Court held the FDA Commissioner’s decision not to initiate enforcement proceedings against the use of these drugs for lethal injection.
The current cocktail used for lethal injection includes two drugs, one of which (sodium thiopental) is not produced in the U.S. and must be imported. This gave some death penalty opponents the idea to try again, this time alleging that the FDA violated federal law by allowing the importation of sodium thiopental without first ensuring it is effective. They sued in federal district court, and won. In Beaty v. Food and Drug Administration, Judge Richard Leon concluded that because the FDA had not approved sodium thiopental for lethal injection the agency was required to prevent its importation.
The fight’s not over, however, as the FDA plans to appeal. Some states, such as California, also appear ready to resist the ruling and are refusing to return their supplies to the FDA, likely due to hope or anticipation that Judge Leon’s opinion will be overturned on appeal.
Enlisting Coase in Defense of the Individual Mandate
“Poor Ronald Coase.” His famous essay. “The Problem of Social Cost” is the most cited law review article of all time, but it’s also the most mis-cited. “My point of view has not in general commanded assent, nor has my argument, for the most part, been understood,” Coase himself wrote in The Firm, the Market, and the Law. As Robert Ellickson observed, “Coase’s name is consistently attached to propositions that he has explicitly repudiated” or that have little to do with what Coase actually wrote.
A recent essay by Kevin Cave and Einer Elhauge provides a handy example of the misuse of Coase’s work. Cave and Elhauge have sought enlist Coase’s seminal essay in support of the constitutionality of the individual mandate. “A dose of Coase,” they argue, shows that “the issue at stake is not individual liberty, but individual responsibility.” In the process they manage to misapply “The Problem of Social Cost” and misrepresent the law they seek to defend.
Cave and Elhauge start with Coase’s observation that “social costs” are reciprocal. So, for example, where there is a conflict between two neighboring uses, as between ranchers and farmers.
In The Problem of Social Cost, Coase invoked the example of a farmer whose crops are trampled by the neighboring rancher’s cattle. Before Coase, it would have been common to view the rancher as the culprit responsible for imposing costs on the blameless farmer. Coase pointed out that no matter which way the legal rights were allocated, one was imposing costs on the other. If the law forces the rancher to keep his cattle fenced in, the farming imposes fence-building costs on the rancher. If the law gives the rancher the right to let his cattle roam free, then the farmer bears the social cost.
So far so good. Then Cave and Elhauge claim health care costs should be seen in the same way.
it is surprising how little role the core Coasian insight had in the Supreme Court’s recent oral argument about the Obamacare mandate. Much of the discussion seemed to take for granted that this mandate encroaches on individual liberty, depriving individuals of the “freedom” not to purchase health insurance.
But as Coase’s analysis makes clear, framing the issue in terms of individual liberty is deeply misleading. When the uninsured get sick and go to the emergency room for care they cannot afford, someone has to pay the costs. If the law gives the uninsured the right not to buy health insurance, then the costs for their emergency care are imposed on the insured, whose payments must cover the hospital’s costs. If the law instead requires the uninsured to buy health insurance, they become personally responsible for the cost of the care they receive.
In other words, the issue is not whether to have a mandate, but rather on whom the mandate should be imposed. If the Supreme Court strikes down Obamacare, we will simply return to the old mandate, which was imposed on the insured rather than on the uninsured. It is not clear why that mandate would be constitutionally preferable to a mandate that everyone pay his or her own way. It surely does not involve any less of an infringement on liberty.
Where to begin? The reciprocal nature of the conflict between the rancher and farmer arises because the social costs are a consequence of decisions made by both parties. If there are no roaming cattle, no crops get trampled. The same is true if there are no crops. Only if both the rancher and farmer choose their respective courses of action do we have a social cost. In order to see health care costs as reciprocal in the same way we need more than an emergency room visit by an uninsured individual. We also need a requirement that the hospital provide care. Without both pieces, the costs are not reciprocal. That is, we need both the consumption of health care by those unable to pay for it (which, in point of fact, is only a portion of the uninsured) and a requirement that care be provided without regard to ability to pay — and we have both. But what does this have to do with the mandate? Not much. And what does this have to do with the constitutional arguments about the mandate? Even less. Of course the costs of emergency room care can be born either by those who consume such care (through fee-for-service or insurance) or by others, and there are many mechanisms that can be used to achieve either result. Trying to frame the question in Coasean terms does no work toward resolving the underlying legal or policy debate.
Based on their “Coasean” analysis, Cave and Elhauge suggest that the primary purpose and effect of the mandate is to prevent the uninsured from imposing costs on the insured. But this is not so. With or without the mandate, taxpayers will pay for a disproportionate share of emergency room visits. This is because those on Medicaid and Medicare account for the lion’s share of emergency room visits — more than double the proportion of visits by the uninsured. Because the PPACA expands Medicaid coverage, this proportion will only increase — with or without the mandate.
Cave and Elhauge further pretend that imposition of the individual mandate somehow prevents the “insured” from subsidizing the care of others. But this too is false. The point of the mandate is not to reduce public expenditures on emergency room care as much as it is to prevent adverse selection in health insurance markets and force relatively healthy individuals to subsidize insurance for others. In other words, the purpose of the mandate is to offset the predictable consequences of prohibiting medical underwriting (as forthright defenders such as Mark Hall, acknowledge). Insurance companies, in particular, insisted on the mandate to help defray the costs of providing insuring those with preexisting conditions at rates below-expected-cost. So the mandate does precisely what Cave and Elhauge say they are trying to avoid: forcing one group in society be responsible for the health care costs of another. [As an aside, they also try to claim the mandate does not force individuals to buy insurance coverage beyond what they need to avoid imposing costs on others, pointing to high-deductible “bronze” plans, but ignore that even these plans must cover a wide range of services many will never want or need. See Randy's post here.]
But, again, what does any of this have to do with Coase or the questions confronting the Supreme Court? Not much. The reason Coase pointed out that social costs were reciprocal was to show that one could not assume that imposing costs on one party or the other would necessarily increase social welfare. His target was A.C. Pigou, who had argued that the imposition of pollution taxes would maximize the value of production. Coase showed that Pigou was wrong. Specifically, Coase demonstrated that if one assumes transaction costs are zero – as Pigou had – the initial allocation of the entitlement is irrelevant. Coase then went on to show that if one accounts for transaction costs (as Coase urged economists to do) then Pigou’s claim that pollution taxes increase the value of production depends on the particulars of a specific case. In any event, Coase’s aim was to challenge Pigou’s claims about the sorts of policies that would enhance social welfare, not make broader claims about what sorts of policies are desirable, let alone constitutional. Coase’s analysis also has absolutely nothing to say about whether one policy instrument, such as the mandate, is more or less consistent with constitutional constraints than other policy instruments that could produce the same effect, let alone whether a given view of federal power is consistent with the constitutional design. Further, Coase would urge any analysis of this question to engage in a serious comparative analysis that accounts for relevant facts — such as who pays for emergency visits now and how this will actually change under the PPACA and so on — facts of the sort Cave and Elhauge completely ignore.
Coase’s argument was expressly confined to the welfare economics paradigm he was challenging. Yet, as Coase readily acknowledged, most questions of public policy implicate normative questions well beyond what policy is more or less efficient. At the close of his essay Coase explicitly called for the policy debate to be “carried out in broader terms,” recognizing that in such a debate questions of welfare economics would “dissolve into a study of aesthetics and morals.” If Cave and Elhauge want to make the case for the mandate on these terms, all the better, but they should not pretend Coase has anything to do with it, nor claim that “The Problem of Social Cost” somehow shows the mandate is constitutional.
“In the Ukrainian [Parliament] … There Was a Full and Frank Exchange of Views on Language Policy”
Prof. Mark Liberman (Language Log) has all about this “exchange” — in this instance, a literal fistfight rather than a figurative one — all about whether to “elevate the status of Russian to a second language, equal to Ukrainian, in about half the regions of the country, including Kiev.” You have to see the picture, or at least the video (which I’m deliberately withholding so that more people can visit and maybe see what a great site Language Log is).
Vulgarity, Film Ratings, and Context
Prof. Julie Sedivy (Language Log) has a very interesting post about a British film ratings controversy involving a Ken Loach movie that uses the word “cunt.” The film rating people are distinguishing “aggressive” uses of the word from “non-aggressive” uses; a British commentator faults this for being a double standard, and a class-based one at that; Prof. Sedivy responds, I think quite soundly. A very interesting discussion. (What the proper rule of film ratings agencies should be, when it comes to either legally binding or non-legally-binding but nonetheless practically coercive ratings aimed at shielding minors from certain images or words, is a different story.)
Beyond Incivility
Patterico and Aaron Worthing recount sinister legal and personal harassment as a consequence of their blogging. Worthing and his wife reportedly lost their jobs, but Patterico could have been killed. He woke up to an armed SWAT team at his door as someone spoofed his phone and called the police to his house. Even those who’ve disagreed with Patterico on various issues recognize how unconscionable these tactics are.
These incidents appear to be only the latest and most extreme examples of efforts to silence political and ideological opponents by any means necessary. Comments Jim Geraghty:
Notions like “SWATing” feel like a dangerous escalation of already excessive expressions of ideological rage; once the genie is out of the bottle, then every extremist who feels the ends justify the means will use the tactic against those they hope to harass (or worse). The options for police are truly grim; must they become skeptical or wary about 911 calls describing violent situations?
The only real solution is to catch the perpetrators and prosecute them to the fullest extent of the law. If I were a prosecutor, and some malcontent was manipulating my city’s police force to be their own tool for harassment, I’d be hell-bent on finding the persons responsible.
One thing I do not comprehend about either story is the apparent reticence of local authorities. I would think local law enforcement would move heaven and earth to uncover who sicced SWAT on Patterico’s home and it is unconscionable the local authorities in Montgomery County, Maryland would sit by and allow the continued abuse of legal process that has victimized Worthing.
May 25, 2012
“Facebook Message Led to Football Player’s Rape Exoneration”
The Los Angeles Times has the troubling story here. Thanks to Angela Davis for the link.
Federal Judge Strikes Down Denial of Benefits to Same-Sex Partner under DOMA
The San Francisco Chronicle reports:
Congress violated constitutional standards on legalized bigotry when it denied federal benefits from same-sex spouses and excluded domestic partners of state employees from long-term health coverage, a federal judge ruled Thursday.
The decision by U.S. District Judge Claudia Wilken of Oakland was the second by a Bay Area judge this year to strike down the Defense of Marriage Act, the 1996 law withholding more than 1,000 federal benefits – such as joint tax filing, Social Security survivor payments and immigration sponsorship – from gays and lesbians legally married under state law.
Wilken also overturned another 1996 law that denied federal tax benefits to long-term health insurance plans for state employees if they included domestic partners.
Specifically, the court found that Section 3 of DOMA “violates the equal protection rights of . . . same-sex spouses.” The opinion is available here.
Fumento on “Today’s Right-Wing Darlings”
Conservative writer Michael Fumento explains his discomfort with the “extreme right” in Salon. While I think portions of his essay are overstated, I generally agree. Further, like Professor Bainbridge, I found this passage worth repeating:
Civility and respect for order – nay, demand for order – have always been tenets of conservatism. The most prominent work of history’s most prominent conservative, Edmund Burke, was a reaction to the anger and hatred that swept France during the revolution. It would eventually rip the country apart and plunge all of Europe into decades of war. Such is the rotted fruit of mass-produced hate and rage. Burke, not incidentally, was a true Tea Party supporter, risking everything as a member of Parliament to support the rebellion in the United States.
All of today’s right-wing darlings got there by mastering what Burke feared most: screaming “J’accuse! J’accuse!” Turning people against each other. Taking seeds of fear, anger and hatred and planting them to grow a new crop.
That the other side may or may not have done it first is no excuse. If civility and tolerance are virtues — and I believe they are — than one should be civil and tolerant, without regard to what one’s opponents do. More Fumento:
Incivility is hardly the domain of the new right. American society grows ever coarser. But this is cold comfort. Conservative ideology demands civility of conservatives; demands, yes, self-policing. Let others act as they will, bearing evidence of the shallowness of their positions. It also demands respect for official offices, such as the presidency. When our guy is in office, you give him that modicum of respect – and when your guy is in office, we do the same. The other party is to be referred to as “the loyal opposition,” not with words the FCC forbids on the air.
Fumento also suggests this approach can get in the way of meaningful reforms, and I think he has a point here too.
The new right cannot advance a conservative agenda precisely because, other than a few small holdouts like the American Conservative magazine or that battleship that refuses to become a museum, George Will, it is not itself conservative. Pod people are running the show. It has no such capability; no such desire. I find that disturbing for obvious reasons. But, based on my own conversations with liberals, I think – nay, I know – that if more of these allegedly godless, treasonous people understood real conservatism a lot would embrace many conservative positions.
Thus everybody realizes government spending has lost its airbrakes. But while the new right screams the most about big government, it nonetheless supported President George W. Bush as he presided over the largest expansion of government spending since uber-liberal FDR and left us with a massive debt before President Obama was sworn in. Why? Silly rabbit! Because the left opposed him.
It is often said that politics is the art of the possible. The problem with too many politicians is not that they compromise, but that they have no principles to guide them. The American political system is structured to make dramatic change extremely difficult. Major reforms take time, and must often be achieved step by step. Blind ideological rigidity, such as to an anti-tax pledge that would prevent Congress from repealing ethanol subsidies, is no help, and is certainly not conservative. This is not a call for moderation, but for prudence. One can seek dramatic, even revolutionary, changes in the size and scope of government without resort to the tactics Fumento finds so distasteful.
McConnell on “The Liberal Legal Meltdown Over ObamaCare”
In today’s WSJ, Stanford law professor and former federal appellate judge Michael McConnell has an op-ed commenting on the tone and content of much liberal commentary on the individual mandate litigation. It begins:
In apparent panic at the tenor of the Supreme Court argument over the constitutionality of the Affordable Care Act (aka ObamaCare), liberal law professors have exploded with anticipatory denunciations of the court’s conservative justices—claiming that it would be “hypocritical” and “partisan” of them to invalidate legislation passed by Congress when they generally oppose “judicial activism.”
It appears the professors’ idea of sound jurisprudence is that their favored justices are free to invalidate statutes that offend their sensibilities whether or not the words of the Constitution have anything to say on the matter, as in the case of same-sex marriage or partial-birth abortion, and even if the Constitution seems to endorse it, as in capital punishment. But if conservative justices have the temerity to enforce actual limits on government power stated in Article I, Section 8—over liberal dissents—then they are acting as shameless partisans.
It seems unlikely this one-sided definition of “activism” will persuade anyone. Judicial review might be aggressive and it might be deferential, but there cannot be one set of rules for liberal justices and another set for conservatives.
His brief piece goes on to explain how the argument against the mandate is grounded in the bedrock constitutional principle that ours is a federal government of limited and enumerated powers — and that the enumeration of certain powers presupposes powers not enumerated. Opponents have argued that the mandate transgresses the limits of federal power (not, as critics have claimed, that the mandate violates any independent limitation on federal power, such as due process or any enumerated rights). Supporters of the mandate, on the other hand, have failed to offer any principled constitutional theory that would allow for the Court to uphold the mandate without giving Congress a blank check. This failing is what doomed the Gun Free School Zones Act in United States v. Lopez, and it’s what has placed the mandate in jeopardy as well. The Solicitor General and others have tried to explain why health care is “different” but none of these arguments are “grounded in any principle based in constitutional text, history or theory.”
May 24, 2012
The Affordable Care Act and the Rumor Mill
I was puzzled by the sudden spike in coverage earlier this week, both here and elsewhere, on how to spin various possible outcomes of the Affordable Care Act litigation (and how the other side was trying to spin them). It may just be a coincidence, of course, but a story from National Journal made me wonder if it might explain the spike:
Rumors were flying around the Capitol this week that the Supreme Court would decide the health care cases on Thursday. They were wrong.
Hill staffers, Health and Human Services Department employees, and think-tankers were all abuzz on Wednesday with speculation that the Supreme Court of the United States might issue its opinion on the Affordable Care Act case on Thursday, a month sooner than most court-watchers predict. . . .
[Although the rumors were incorrect,] it was tough for people who cared about the case to ignore the rumors entirely, despite their implausibility. And the Court’s press office, which does not comment on cases, was unable to deny it. Many government staffers and reporters were on edge. A survey at Scotusblog’s live blog announcing Thursday’s decisions showed that more than a third of people watching were there only because they thought the health care case would land.
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