Of Mandates and the attitudinal model

My recent excerpt from Dahlia Lithwick linked to a great deconstruction of the argument against the individual mandate by Linda Greenhouse.  Finally read that today.  The very day when all the court experts seem pretty convinced that the conservative majority looks poised to overturn the key element of the health care law.  So, what are they up up to?  Greenhouse:

Journalistic convention requires that when there are two identifiable sides to a story, each side gets its say, in neutral fashion, without the writer’s thumb on the scale. This rule presents a challenge when one side of a controversy obviously lacks merit. But mainstream journalism has learned to navigate those challenges, choosing evolution over “intelligent design,” for example, and treating climate change naysayers as cranks.

Court cases are trickier. It’s one thing to engage in prediction that flows from analysis: which side is most likely to win? It’s quite another to let readers in on the fact that one side’s argument is so manifestly weak that it doesn’t deserve to win. Journalistic accounts of court cases, at least in advance of a definitive ruling, understandably tend to take the safe course and treat the arguments on both sides with equal dignity. So it’s perhaps not surprising that just about half the public apparently believes that the Affordable Care Act’s individual mandate is unconstitutional.

Free of convention, and fresh from reading the main briefs in the case to be argued before the Supreme Court next week, I’m here to tell you: that belief is simply wrong. The constitutional challenge to the law’s requirement for people to buy health insurance — specifically, the argument that the mandate exceeds Congress’s power under the Commerce Clause — is rhetorically powerful but analytically so weak that it dissolves on close inspection. There’s just no there there…

So I want to unpack the challengers’ Commerce Clause argument for what it is: just words.

Basically just one word, in fact: “unprecedented.” Did you know that the individual mandate is unprecedented? You will after you read the brief filed by the redoubtable Paul D. Clement, the former solicitor general, on behalf of the 26 states that filed suit to challenge the law. The brief uses the word “unprecedented” 10 times, by my count — I probably missed some — not counting such other formulations of the same thought as “novel” and “first ever.” O.K., I get it. I’ll even accept it as true: granted that passage of the Affordable Care Act ended decades of deadlock over how to reform the developed world’s most irrational health care system. It should have happened much earlier.

Unprecedented is a description, not an analysis. What’s unprecedented is the singular determination of the Republicans both on Capitol Hill and in the statehouses to deprive President Obama of his major domestic achievement.

There’s plenty more and it’s damn good.  You should definitely read it if you are legally inclined.  Alas, as Lithwick suggested, this may all be political.  Much like Bush v. Gore, we may very well be looking at the ultimate confirmation of the “attitudinal model” of SC decision making.   This model (quite persuasively) argues that SC Justices do not so much follow the law as follow their own opinions/attitudes and then look for precedents/legal reasoning to justify their pre-existing attitudes.  By the time a case makes it to the Court, it’s already complicated and generally not a slam-dunk.  Thus, there’s always going to be arguments on both sides that seem reasonable enough to justify whatever position a Justice wants to take.  Of course, “sounds reasonable enough” and actually following decades of precedent and good old fashioned logic are not the same thing (Citizens United, anyone?).  Again, if you have doubts on how this should be decided legally, just read all of the Greenhouse piece.

Help me!

So, for my latest research I am looking at not just attitudes towards things like Tea Party and Occupy movement, but just how closely people identify with these groups and how that relates to other political attitudes.  Obviously, it would be ideal to have a national representative sample of US adults to study this, but since I cannot afford that, my sample will be anybody I can actually get to complete the on-line study.  We’ll have lots of demographic variables for statistical controls and we (Kyle Saunders and I) are going to focus on relationships between variables, rather than try and make any kind of general population-wide conclusions about any of our measures.   Naturally, the survey is entirely anonymous.

Okay, now that I’ve semi-assured all the social science types among you… help!  It would be great if you take it, but I’m much more interested in you sharing with your own social network (blog, FB, twitter, etc.) if you are so inclined.   We are offering two $25 Amazon gift cards to randomly selected from participants.  If you are inclined to help in any way, the survey link is here.  Thanks!

Broccoli and slippery slopes

I was listening to the NPR story about the Supreme Court and health care yesterday and they played a clip from a health reform opponent who went right to the broccoli argument, i.e, if the government can make you buy health insurance what’s to stop the government making you buy broccoli.  Here’s a thought: the government can make you buy health insurance because it is an entirely necessary part of an overall health care reform law and health care is clearly a vital aspect of interstate commerce.    The government could, in fact, make you buy broccoli (certainly it’s not philosophically far at all from regulating your home-grown farming).  There’s clearly an interstate market for broccoli.  It’s just that it would be really stupid and there’s no logical reason at all for it to do so.  Slippery slope arguments have their value, but I think the over-use in this case helps to show their limits.  There’s all sorts of things that government has the power to do but doesn’t, because they are just plain stupid.  Having an individual mandate for health care doesn’t change that.

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