What Is Truth?

My colleague James Fallows characterizes Garrett Epps' post on the health care mandate lawsuits as follows:

In today's political environment, when so many simple facts are disputed, journalists can feel abashed about stating plainly what is true. With an anticipatory cringe about the angry letters they will receive or the hostile blog posts that will appear, they instead cover themselves by writing, "according to most scientists, the sun rises in the east, although critics say...."

To see "this is true" exposition done with gusto, please read this post today by Atlantic correspondent (and Constitutional-law professor, and novelist, and for the record my long-time friend) Garrett Epps. It's one thing for Stephen Colbert et al to joke about the new age of "truthiness," but it's something different to see a writer lay out, with facts and history, what the truth of an issue is. At this point, I'd often say something like, "Well, judge for yourself." And of course you should. But in this case, if you want to disagree with him, be ready with facts and history too.

This is to me a rather surprising characterization, as I read the same post, and was not blown away by its irrefutable factual basis. It's Garrett Epps' opinion.  An informed opinion to which he is perfectly entitled, but certainly not something that we can characterize as "stating plainly what is true" in the journalistic sense.  It's more like what my evangelical friends mean when they talk about sharing the truth of Christ's death for our salvation.  Of course, they may well be right.  But I still maintain that the Washington Post's front page should not treat this as an established fact.

Let's look at Epps' discussion of why the government is not "forcing you to buy health insurance"

The second answer, which a judge shouldn't give but a Con Law jock like me can, is, "Why ever not?"

I will get to that one later; but first, let's deal with the canard that the Act somehow "penalizes inactivity."

Here's how Judge Henry Hudson put it in his decision in Cuccinelli v. Sebelius: The Act "requires that every United States citizen, other than those falling within specified exceptions, maintain a minimum level of health insurance."

This snappy apothegm is the logical equivalent of saying that the Defense Appropriations Act "requires that every United States citizen, other than those who leave the country, engage in accepting a minimum level of protection by the United States military." The provisions of the Health Care Act provide a benefit. The majority of Americans, who already have health coverage (and seem, by and large, to regard this coverage as worth bargaining for) will simply see improvements in their existing health care benefits, such as an end to lifetime benefit limits and the right to include older adult children on their policies. A significant number of others who are currently uninsured will become eligible for government-funded health insurance.

There will remain a small but significant number of Americans who can afford health care insurance but choose not to buy it. But contrary to the sound bite above, even they are not required to "maintain a minimum level of health insurance." If they wish to keep their uninsured status, they may do so by paying an addition to their income tax bills--ranging from as little as $695 for an individual taxpayer to $2085 for a family of six or more. The claim that the government is "forcing individuals to buy a commercial product" is worse than spin; it is simply false.

This isn't a question of facts or history; it's an argument about what constitutes force.  It's pretty common to say that the government forces me to pay my taxes, even though they have never as yet sent someone to my house to hold a gun to my head, or pin me in a chair while they guide my hand in signing a check.  What I mean is that if I don't pay them, they'll assess penalties and eventually seize the money from my bank accounts.  Similarly, we say that government "forces" businesses to comply with all sorts of regulations, even though what we really mean is that failure to comply will trigger all sorts of financial and legal penalties.

Epps is simply asserting that his view of what constitutes force is the correct one; he doesn't even mount an argument. Then he argues that it is simply ridiculous to say that penalizing people for failing to buy insurance constitutes regulating inactivity:

This brings us to the contention that the act somehow regulates "inactivity." Let's you and I test this proposition: why don't you just remain totally inactive in 2014, when the Act first takes effect.

Quit your job and get rid of your investments. The government will not regulate you. (True, it may offer you government-financed health care; but again, that is a benefit, not a regulation or punishment.)

But if you decide actually to work (I recommend that, by the way), you are not being "inactive." You are taking part in commerce. The Constitution gives Congress plenary authority "to regulate commerce with foreign nations, and among the several States, and with the Indian Tribes."

A system of regulation might easily include requiring you to pay taxes if you choose to burden commerce; willful refusal to maintain adequate health coverage for yourself and your family is such a burden. To claim otherwise doesn't pass the straight-face test.

Conservatives like to prate about "individual responsibility" when it is a question of forcing the poor to work; asking the solvent to pay for themselves seems quite in line with these conservative values.

So you are totally free to not buy health insurance--provided you go entirely off the grid and don't truck, barter, or exchange with anyone else in the country.  If you do, naturally, the government has the right to force . . . oooh, there's that word . . . to strongly-encourage-with-the-help-of-a-penalty you to buy health insurance, or do anything else that the government deems necessary.   Once you have interacted with your fellow citizens in any way, anything else you do becomes a legitimate target of government power.

This idea--what we might call the "Annualized Activity Doctrine"--does not match what I have been told are the core issues at stake here.  As I understand it, the actual argument in front of the court is whether failing to buy insurance constitutes a decision to undertake another commercial activity--consuming health care services while uninsured--that the state can regulate; there is a secondary argument over whether the penalty could arguably fall under the taxing power.   As far as I know, no one other than Epps is proposing that engaging in commercial activity at any point in the year should render one liable to regulation of any other activities you might choose to initiate--or not--during the rest of the year.  Of course, I am not a constitutional scholar, and Epps is.  But can this really be characterized as something that is simply true, rather than Epps' interpretation?

Certainly, that next section can't be; snide remarks about conservatives aside, surely we can agree that it's an open moral and political question as to whether it's acceptable to respond to moral hazard problems with coercive comprehensive regimes?  Maybe before you answer that, you'll want to contemplate the gnarly moral hazard problems attached to many social insurance schemes.

But this is mixing up normative and positive arguments.  Epps leaps back and forth between the two throughout his post, with the normative points argued much more passionately than the positive questions.  Which is why I was so surprised to see my colleague characterize the post as if it simply addressed the legal question, with facts and history.  It seems to me that Epps himself makes it perfectly clear that ultimately this is an instrumental argument: the problem with the arguments in the court case is that it restricts the power of the government to do things that Garrett Epps thinks it should do.

It's not coincidental that right now Ron Paul laments the Civil Rights Act and that Haley Barbour speaks fondly the segregated South, that anti-immigrant extremists target birthright citizenship, or that right-wingers seek to wreck the Constitution with an old-South style amendment letting states repeal federal laws. A decision to void the Act would furnish a powerful precedent for those who would "restore" a libertarian dreamland that never existed, and that for most of us would quickly become a nightmare.

The great achievement of the Framers--the one they clearly thought most important--was the creation of a national Congress with plenary powers in the spheres assigned to it. Trying to wreck Congress is warring on the Constitution.

That's not to say that Congress can regulate commerce by unconstitutional means. But the prohibitions on means are in the Constitution, not in the fevered brain of Cuccinelli & McCollum. If a new health care act were to restrict free speech, or impose ex post facto laws, or authorize bills of attainder, or deny due process, the courts should certainly step in.

But that's not what is at issue here.

Stripped of spin, the state plaintiffs are arguing that Congress can't use its commerce power to actually regulate commerce. If the courts buy this nonsense, they may fatally damage the power of Congress to manage a modern commercial economy. Repairing that mistake would involve far greater sacrifices than having to pay a tax.

I think you could fairly say from this that it is simply, unequivocally true that Garrett Epps really does not like conservatives, and believes that a modern commercial economy simply cannot be run without the scope of regulation allowed by the post-Lochner court.  I think that it is also simply and unequivocally true that people who agree with Garrett Epps think that the world would be a better place if the social consensus of the majority of academics and the media on this topic could simply be treated as a fact, as well established as the date of the Mayflower landing or the chemical composition of water.  But these opinions aren't facts.  They aren't even usually particularly well argued--whether or not you think that the Social Security system is a good idea, do you really think that modern American commerce couldn't operate without it?*

It's not that I disagree with everything Epps says:  I concur that armchair constitutionalists who think that they can get back to an "original" constitution without judicial interpretation are living in an ahistoric fantasy land; even generally accepted doctrines like "interstate commerce" and "judicial review' were ultimately constricted by judicial interpretation.  But there's a tendency we all have to regard opinions we agree with as something closer to fact than they actually are--and when we are members of a very powerful group that holds similar opinions, we should be especially careful.

That's not to say that we have to respect every marginal argument.  I would love, for example, to see journalists simply refuse to give air time to silly arguments that we can raise revenue in the near term by cutting taxes; this is rather demonstrably untrue, and we should no more entertain these arguments than we would air arguments that you can fly by flapping your arms--both might be true under other circumstances, like zero gravity or 90% marginal tax rates, but neither is true here and now.

But that's a matter of empirical evidence.  And the empirical evidence for Epps' opinions is, so far, somewhat weak.  Judges have allowed the states standing to sue, which--by the logic that gives us the powers of the modern judiciary--would seem to mean that they actually have standing.  One out of four judges has said that the plaintiffs are right: another is expected to.  Of course, those judges are Republican appointees.  But the judges who ruled for the law are Democratic appointees.  Naturally, people tend to think that those who agree with them are just following the law, while the partisan bastards on the other side are egregiously abusing their power.  But I see no reason to say that one side is any worse than the other.  If five Republican appointees on the court rule that the mandate is unconstitutional, then that will be the empirical fact of the matter, however differently you think things should have gone.

Until then, we can continue to argue over what actually constitutes "forcing" someone to do something, whether refusing to buy health insurance is "activity" or "inactivity", and what the rightful scope of federal power should be.  But until the Supreme Court rules, all we'll have will be opinions--there is, as yet, no fact of the matter.

*(Anyone who tells me that it grows the economy by giving senior citizens money to spend has to go back and retake Econ 101, and submit a 5,000 word essay on the economics of transfer payments before they will be readmitted to this blog).