Photo of the day

From a NYT slideshow on a new museum exhibition on bioluminescent life:

Credit: Hiroko Masuike/The New York Times

The Limiting Principle

Conservative Justices this week kept insisting that unless there was a “Limiting principle” by which we could distinguish how the government could force you to buy health insurance, but no force you to broccoli, than clearly the individual mandate is unconstitutional.   Jon Chait has a really nice piece summarizing many people on the nuttiness of this.   You should read it.  What I’m going to post here, though, is legal scholar par excellence Jack Balkin’s first of three options on the matter:

Hey kids? Are you down in the dumps after Tuesday’s oral argument? Do you want a limiting principle that justifies the individual mandate but doesn’t give Congress unlimited power under the Commerce Clause? Fine. Here are three of them. Pick your favorite.

1. The Moral Hazard/Adverse Selection Principle. Congress can regulate activities that substantially affect commerce. Under the necesary and proper clause, Congress can require people to engage in commerce when necessary to prevent problems of moral hazard or adverse selection created by its regulation of commerce. But if there is no problem of moral hazard or adverse selection, Congress cannot compel commerce.  Courts can choose different standards of review to decide how much they want to defer to Congress’s conclusion. Even under the strictest standard of review the individual mandate passes muster.

Explanation:  The guaranteed issue and community rating rules prevent insurers from discriminating against uninsured people because of preexisting conditions.  These rules create a moral hazard: people will wait until they get sick to buy insurance. (this might be better described as an adverse selection problem)  Congress can require them to buy insurance early to prevent gaming the system. (Actually, it exacerbates an already existing problem in all health insurance, because insureds know more about their health condition than insurers).

Why not broccoli? There is no moral hazard or adverse selection problem created when people refuse to buy broccoli. It’s true that buying and eating broccoli might make you healthier, but people don’t wait until they are sick to buy broccoli. That’s because broccoli is not going to do them much good at that point. In this sense, broccoli doesn’t work like health insurance.

Why not cars? Under this principle, Congress can’t make everyone buy a car in order to help the auto industry. There is no moral hazard or adverse selection problem that Congress is responding to that is caused by people strategically waiting to buy cars. Note, by the way, that if fewer people buy cars, the price of cars might go down, not up, as Justice Scalia thought.

The others two are entirely sensible and logical as well.  If the conservative justices want a limiting principle, it is really not hard.  Being forced to buy health insurance is  dramatically different in so many ways from being forced to buy broccoli.   Seems to me, that Kennedy aside (that’s unclear) they very much don’t want a limiting principle so they can simply get rid of a law that they don’t like.  That’s most certainly not what the Court is there for.


Democracy is generally a good thing.  Direct democracy, not so much.   You know, if a majority of NC likely voters actually opposed gay marriage and civil unions and then voted to Consitutionally ban both, I would think that this is just dumb policy and discriminatory, but hey, I could deal.  What drives me crazy, though, is that a majority of NC likely voters oppose gay marriage but not civil unions, but they appear likely to nonetheless pass an amendment that bans both.   Mark Binker (with Laura Leslie’s photo– they really should do something about that) posts the latest PPP results:

PPP found:

Although our poll finds support for the amendment, it also finds that 51% of voters in the state support some form of legal recognition for gay couples- 26% for marriage and 25% for civil unions- with only 45% completely opposed to any  [emphasis mine]. It may seem inconsistent that a majority supports either gay marriage or civil unions but also supports the amendment that would ban both of them. But what we find is that voters don’t actually know what it does:[emphasis mine]

— Only 31% of voters correctly identify that Amendment 1 bans both gay marriage and civil unions.

— 28% think that it only bans gay marriage.

— 7% think that it actually legalizes gay marriage.

— 34% admit that they don’t know exactly what the amendment does.

So, again, just to be clear… the majority of NC voters appears set to approve an amendment the majority of NC voters disagree with.  Argh indeed.

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