The Invisible Tribe

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People who say the Constitution is “living” or “invisible” usually don’t like what it says and don’t have the patience or the votes to amend it.

In February, the New York Times ran a piece by Laurence Tribe entitled "On Health Care, Justice Will Prevail," in which he argues that not only is the individual mandate in the new healthcare law constitutional, but it is both necessary and good. He also delivers what sounds like a series of short pregame pep-talks to the more conservative Supreme Court justices, seemingly trying to finagle them into joining the majority that he confidently predicts will uphold the constitutionality of the mandate.

Laurence Tribe is a professor of constitutional law at Harvard Law School and the Carl M. Loeb Professor at Harvard University. Widely considered to be the foremost current authority on the laws and Constitution of the United States, he has argued 34 cases before the Supreme Court, including Bush v.Gore, arguing for Mr. Gore. Among Tribe's former students and research assistants are Supreme Court Justice Elena Kagan, Chief Justice John Roberts, and President Barack Obama, whom he called “the best student I ever had” (The Concord Monitor, November 14, 2007).

Here I will examine four specific points in Tribe's essay in the Times: (1) an error in word choice, (2) a sentence that misleads through lack of clarity, (3) a conclusion built on a false premise, and (4) an answer that begs a question. The constitutionality of the mandate and its fate in the Court will be addressed only when they touch on these smaller points. The pep-talks will not be examined. The elusiveness of objectivity will be the subject of the conclusion.

The first and second points are in paragraph four:

"Many new provisions in the law, like the ban on discrimination based on pre-existing conditions, are also undeniably permissible. But they would be undermined if healthy or risk-prone individuals could opt out of insurance, which could lead to unacceptably high premiums for those remaining in the pool. For the system to work, all individuals — healthy and sick, risk-prone and risk-averse — must participate to the extent of their economic ability."

The first point is in second sentence, where Tribe asserts that, if “risk-prone individuals could opt out of insurance,” those remaining could be saddled with “unacceptably high premiums.” Using the same formula: If all drunks who ride motorcycles opted out of a health insurance pool, the premium paid by the people who remained would go sky-high.

It is as though Laurence Tribe has stood on a soapbox in Harvard Yard and shouted, albeit in bureaucratese, “The individual mandate is Marxist.”

This is nonsense. Only when risk-averse, not risk-prone, individuals drop out en masse do the premiums for those remaining rise. The wrong word was used. Using the corrected formula, the point that Tribe may have been trying to make can be illustrated with the same hypothetical: all teetotalers who do not ride motorcycles must be made to pay health insurance premiums high enough to cover not just their own modest health-related expenses, but also the astronomical medical bills of drunks on Harleys.

Now it makes sense; that is to say, the revised formula’s effect on the price of premiums makes sense, not the system that doesn’t permit sober people to opt out.

The second point is the wording of the final phrase, “for the system to work, all individuals . . . must participate to the extent of their economic ability.” This is the sort of vague language bureaucrats use to camouflage authoritarian unpleasantness.

If clarity had been the goal, it might have said: “Each person must be compelled to buy health insurance and to pay a price directly proportional to the amount of money he has so that medical care can be provided to each person according to his medical needs.” Sorry, that’s less clear, and too wordy. Try this: “From each according to his ability, to each according to his needs” (Marx, Karl, Critique of the Gotha Program).

If the reader pauses now, and dispassionately compares Tribe’s meaning with Marx’s, he will, if he is honest with himself, conclude that the two are, in fact, the same. It is as though Laurence Tribe has stood on a soapbox in Harvard Yard and shouted, albeit in bureaucratese, “The individual mandate is Marxist,” a term employed here not in any pejorative sense, but in an effort accurately to convey the meaning of the carefully crafted phrase “must participate to the extent of their economic ability.”

To make matters even more jarringly redistributive, equivalent amounts of medical care will not be provided under this steeply progressive pricing scheme. Because good health and wealth are positively correlated, “for the system to work,” those with the most modest medical bills will pay the most for the insurance and those with the most expensive bills will pay little or nothing. Tribe was probably trying to state this truth as plainly as he could without triggering the howls of the anticommunists among us.

Given his endorsement of the compulsory and redistributive nature of the mandate, however, it is unlikely that Tribe would deny the accuracy of the label “Marxist” or, for that matter, be offended by it. To expect either outcome would insult his intellectual honesty and integrity.

The annoying aspect of this second point is that, by cloaking the mandate’s naked Marxist core in vague language, Tribe may have been trying to strengthen his argument. A strong argument does not need camouflage.

The third point is in the last part of paragraph six, where Tribe neatly summarizes a set of premises and conclusions that is widely held to be true, but isn’t:

"Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab. This conscious choice carries serious economic consequences for the national health care market, which makes it a proper subject for federal regulation."

Consider the case of Mr. A, who has studied the actuarial tables and discovered that the only insurance he would be allowed to buy is priced according to the risk factors of people who almost certainly will have medical expenses many times as costly as his. He has saved enough money so he could afford to buy that insurance, if he wanted to, but he realized that actuarially it would be cheaper for him to pay his own medical bills out of pocket. In fact, he has saved enough money so he could afford to pay even catastrophic medical bills, if it came to that. Mr. A has chosen not to buy the insurance offered because, for him, it is not a good deal. He has chosen to self-insure.

So, while Mr. A did not purchase insurance he could afford, he has not “made a choice to take a free ride on the health care system.” Mr. A can and doespay for emergency room visits in full upon receipt of the bill. Unlike people covered by Medicaid, who really are taking a “free ride,” he has never asked the public or anyone else to pick up the tab, and never will. Mr. A’s “conscious choice” to self-insure carries “serious consequences for the national health care market” only to the extent that the government, having spent itself into a yawning sinkhole of debt, and finding voters reluctant to pay higher taxes, has passed a law that would strongarm Mr. A into picking up the tab not only for himself, as he has been all along, but for others as well.

That Tribe did not take into account those who choose to responsibly self-insure is odd. Surely he knows people who are successful, self-reliant, and self-insured. But whatever his reason, half-truths were used to reach a conclusion that as a result is, at best, 50% nonsense.

Fourth, and finally, in the seventh paragraph, Tribe tries to demonstrate that the constitutionality of the mandate does not depend on the commerce clause:

"Even if the interstate commerce clause did not suffice to uphold mandatory insurance, the even broader power of Congress to impose taxes would surely do so. After all, the individual mandate is enforced through taxation, even if supporters have been reluctant to point that out."

Let’s see. If the commerce clause, even in its broadest interpretation, fails to persuade a majority of the Court that the mandate is constitutional, the fact that the new healthcare law levies a fine on those who fail to comply with the mandate creates an opening. Because the law names the IRS as the collection agent for the fine, that fine takes on the coloration of taxation. Therefore (if therefore is not too strong a word in this line of reasoning), the Court can conclude that the individual mandate is constitutional because Congress is simply exercising its power to tax.

If all Congress has to do to make a law constitutional is to impose a fine for failure to comply and make the IRS the bill collector, then Congress can constitutionally make anyone do anything it wants.

Note that Tribe does not argue that the individual mandate itself is a form of taxation, but that it is “enforced through taxation.” He cannot claim that the mandate is a tax because the money is passed directly from the hands of the private citizen into the maw of the private insurance corporation. The government only oversees this unfunded individual mandate. So Tribe must be content to say that the fine itself is a tax.

Is it really that simple? If all Congress has to do to make a law constitutional is to impose a fine for failure to comply with that law, and make the IRS the bill collector so that the fine can be called a tax, then Congress can constitutionally make anyone do anything it wants by tacking a fine onto not doing it. That can’t be right.

Let us say that a law is passed that compels all obese people to lose a certain portion of their weight annually until a desirable target weight is achieved. Even though the massive weight-loss industry crosses state lines, and eliminating the scourge of obesity would benefit the national economy, an unimaginative Supreme Court stubbornly maintains that the government does not have the power to force people to lose weight. But then it is brought to the Court’s attention that the law imposes a small fine, payable to the IRS, on obese citizens who fail to meet their federally mandated weight-loss targets. Does the Court have no choice but meekly to acquiesce and uphold the law as constitutional?

Is there a legal philosopher’s stone that transmutes fines into taxes and through this magic transforms otherwise unconstitutional laws into models of constitutional compliance? Or is this an example of a more subtle proposition, “When I use a word, it means just what I choose it to mean, neither more nor less” (Dumpty, Humpty, Through the Looking Glass).

Even if either the mandate or the fine were a tax, the resulting legal axiom still wouldn’t pass the sniff test: “It is taxed, therefore, it is constitutional.” Deep in the penumbra of the Constitution that may not look like nonsense, but here on the sunny side, it certainly does. It sounds like the Red Queen channeling Descartes and Tribe simultaneously.

The fact that the Congress has the constitutional power to tax surely cannot mean that anything it chooses to tax is, as a result, constitutional. The argument begs the question. The fact that a fine is attached to the mandate does not make it constitutional.

The Times piece leaves the impression that Tribe has not given the problem of the individual mandate his full attention, which is understandable, given that his specialty is the law, not medicine, insurance, or economics. Besides, as a tenured professor at Harvard, he probably has essentially free healthcare for life as an untaxed benefit, making any concern that he has about the unfunded mandate entirely academic.

To say that “justice will prevail” if the Court upholds the mandate is easy for Tribe.He will not be asked to sacrifice anything at all, while others, many of more modest means, will be compelled to pay thousands of after-tax dollars per year to cover someone else’s higher risks.

To put this in another way, Laurence Tribe will not be picking up the tab when the Harley goes skittering across the freeway; others will.

And where is the justice in that?

***

In his 2008 book, The Invisible Constitution, Tribe explains the futility of relying on the text of the Constitution to resolve constitutional questions. He tells of what he calls the “dark matter” in the “shadow constitution” and the “ocean of ideas, propositions, recovered memories, and imagined experiences” that comprise the real mass of the “invisible” Constitution, which dwarfs the mere document. (One good review is: The Dark Matter of Our Cherished Document: What you see in the Constitution isn't what you get,Dahlia Lithwick, in Slate,Nov. 17, 2008)

If the written text of the Constitution, and its accompanying case law, which everyone can read and compare notes on, is but the tip of the iceberg, and the real mass is hidden below, in the ocean of collective consciousness, imagination, memory, or even the collective unconscious, then its truths can only be accurately interpreted by initiates specially trained to dive beneath the surface like cormorants to fathom and retrieve its complex meanings. Or, to switch metaphors, perhaps this Constitution is an ethereal entity whose cryptic messages can be divined only by oracles who breathe the heady air found in the realm above the clouds of partisanship and bring down to us the purity of its truths without relying on an old scrap of parchment.

On May 4, 2009, Laurence Tribe wrote a letter to his star pupil, assessing potential nominees to the Supreme Court. In it, he sized up Sonia Sotomayor, then a Court of Appeals judge, advising President Obama that, “Bluntly put, she’s not nearly as smart as she seems to think she is, and her reputation for being something of a bully could well make her liberal impulses backfire and simply add to the fire power of the Roberts/Alito/Scalia/Thomas wing of the Court . . .” Another of his former students, Ed Whalen, posted the letter on the website of the Ethics and Public Policy Center.

 

Perhaps this Constitution is an ethereal entity whose cryptic messages can be divined only by oracles who breathe the heady air found in the realm above the clouds of partisanship.

To interpret this letter, Sonia Sotomayor, who studied law at Yale, not Harvard, might want to take a page from The Invisible Constitution and acknowledge the futility of relying on the rows of tiny symbols strung haphazardly together that constitute the actual text. There is so much more dark matter between the lines and in the murky ocean upon which such a letter floats.

The now Associate Justice Sotomayor may be comforted if she peers into the dark waters and discerns the outline of a psychological defense mechanism, first proposed by Freud, and called projection. A person who uses this tool unconsciously denies his own negative attributes and projects them onto others. This reduces his anxiety by allowing the expression of unconscious fears and desires without letting the conscious mind recognize them as his own.

Some of the people who say that the Constitution is “living” or “invisible” become judges so they can creatively distort the parts they disagree with from the bench. They are judicial activists posing as unbiased judges. Others work from the sidelines to bend and twist those parts so that the Constitution may be forged into a weapon that adds fire power to liberal impulses in the ongoing ideological battle. These are not legal analysts; they are merely political actors striking unconvincing poses of objectivity.




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