Steve Teles on the decision

Today’s decision is both eminently reasonable and utterly consistent with conservatism.

Steve Teles points out that today’s decision is both eminently reasonable and utterly consistent with conservatism. He doesn’t point out that only one of the five “conservatives” on the Court elected to take the conservative position. It’s an old rule of constitutional law that if there are multiple interpretations of a statute, and one of them would render the statute constitutional, the court should adopt that interpretation. But none of the Chief Justice’s Red Team colleague wanted to pay attention to that rule.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

13 thoughts on “Steve Teles on the decision”

  1. I agree. But that argument requires that we accept a priori that the individual mandate has all of the characteristics of a tax. Which of course it does. Which means that the ACA resulted in a significant tax increase, and that that tax increase is remarkably regressive (The ACA “penalty” is a pittance for someone making $200K per year who decides not to buy insurance while it is a very significant increase in federal taxation for someone making $50K per year who decides not to buy insurance). And of course someone who wants to avoid the stigma of being “penalized” and buys insurance that they otherwise would choose not to buy pays even more.

    The whole point of the ACA was to get more low-risk people into the risk pool. Which means getting them to pay money that they themselves will not receive full benefits for (i.e. the extensive regulations on the services that a qualifying plan must cover). That’s a tax. The ACA raised taxes.

    1. “The whole point of the ACA was to get more low-risk people into the risk pool.”

      …and moderate income people (who get subsidies).
      …and young adults up to age 26 (who are indeed low-risk, but are carried on their parents’ coverage now).
      …and people who are self-employed or unemployed (who get to buy at group rates).
      …and people with pre-existing conditions.

      But, “TAXES!!!!!” seems to be the answer to this (as all things, in certain circles).

    2. I couldn’t possibly disagree with you more strongly on “the whole point” of the law.

      The whole point was to get millions more folks covered by insurance. The problem with trying to get more folks covered, when the coverage is voluntary, is that lots of folks make “gamblers’ decisions,” attempting to game the cost vs. expected value. Sadly, that’s not the way insurance works, except for the VERY rich. For the rest of us, the expected value of insurance is usually negative, simply because the actuaries know their job very well and the insurance companies make some profit. So unless you’re a terrible risk, you probably pay more for your insurance than the expected value.

      But insurance isn’t a game to maximize your return. Rather, it’s a minimax strategy to avoid disastrous loss. And if an individual chooses to game the “bet” by not playing, and then he has a heart attack, the EMT team doesn’t get to ask him for his insurance card before they load him in the meat wagon, and the ER team doesn’t get to ask him for his insurance card before they save his life. So the rest of us end up subsidizing that individual’s “gambling calculation” by paying higher Blue Cross premiums to cover the higher hospital costs necessary to provide subsidized care for the “smart gamblers.”

      The Republicans figured that out in Massachussetts years ago, so they and their insurance company allies pushed to get the “individual mandate” into the state health insurance law that’s worked pretty well. But now that the Dems have come over to that side, it’s no longer politic for the Republicans to say “see, we told you all along.” Instead, they have to scream “Unconstitutional! More taxes! Ruinous to our economy!”

      Funny how politics works, ain’t it?

    3. The PPACA penalty is 2.5% of your AGI (after the phase-in period ends). Neither progressive nor regressive. It’s a flat tax. (There’s a minimum, but if you’re hitting that, your income is so low that you’re probably getting significant subsidies.)

      More importantly, it’s a tax on stupidity, which is why it doesn’t bother me much. As a responsible adult, you should have health insurance. I view the PPACA penalty as something not too different from taxes on cigarettes.

      I am also generally in favor of paying more taxes. Yes, I know that whining about paying the lowest personal income taxes in the developed world is a national sport in America, but personally I like to have bridges that don’t collapse when I drive over them. That doesn’t mean that I’m for a Swedish level of income taxes, but right now we’re starving the country.

      1. I might be wrong about this, but I believe that flat taxes are considered inherently regressive.

        1. A regressive tax is one that has a decreasing marginal tax rate (as income increases). One example would be FICA taxes, which are capped at a certain income and thus are regressive from that point onwards (where the marginal tax rate is zero). Flat taxes have a constant marginal tax rate, so they aren’t regressive (nor progressive).

    4. A sustainable welfare state cannot rely only on taxes on the rich. The middle class must pay too. The Democratic position that only taxes on the rich can go up is cowardly, demagogic and in the long run infeasible.

  2. Well, congratulations on the victory, and for successfully turning Roberts to the dark side. Be sure to send him a welcome card, he’s going to be catching a lot of flack over this, and would probably appreciate the gesture.

    See you dudes after the election.

    1. Roberts is apparently the only guy on the R-team with the cool judgment and plain common sense to take “YES!” for an answer. The R-team — managed by Heritage Foundation plutocrats, not bit players and grassroots rubes — wanted HeritageCare. The beauty part of this decision is that it enshrines the health insurance oligopoly — the core R-team objective — under the ObamaCare label. To paraphrase Disraeli (backwards): “Democratic men and Republican measures”.

      > See you dudes after the election.

      Indeed. You have won big here. Obama and the D-team will break their arms patting themselves on the back while taking victory laps. This will signal the D grassroots to relax. “Hey! Justice has prevailed, we can all stand down.” Meanwhile, the R-team can continue revving up the base with howls of rage over treachery! revenge! etc. etc.

      That’s why Roberts got the Big Job. He’s the ace of the Corporate bench.

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