Unique Markets

During last week’s Supreme Court oral arguments concerning Obamacare, last Tuesday the discussion covered why health insurance would be a unique market and therefore in need of government intervention. So we’ve been discussing this definition at home the last few days. And my son Political Sphere, as an exercise, took the definition for unique market and applied it to yet another “unique” market. Let’s lay some groundwork for the definition first. Page numbers refer to the official transcript.

Verrilli (the government lawyer defending Obamacare) says healthcare insurance unique because it is characterized by the fact that virtually everybody “is either in that market or will be in that market, and the distinguishing feature of that is that they cannot—people cannot generally control when they enter that market or what they need when they enter that market (p. 5).

Justice Roberts answers:

Well, the same, it seems to me, would be true, say, for the market in emergency services: police, fire, ambulance, roadside assistance, whatever.

You don’t know when you’re going to need it; you’re not sure that you will….

So, can the government require you to buy a cell phone because that would facilitate responding when you need emergency services? (pp. 5-6).

Verrilli responds that the difference is that insurance is a market, which isn’t a particularly helpful distinction. So Justice Alito adds another analogy:

Do you think there is a market for burial services?.... Suppose that you and I walked around downtown Washington at lunch hour and we found a couple of healthy young people and we stopped them and said: You know what you’re doing? You are financing your burial services right now because eventually you’re going to die, and somebody is going to have to pay for it, and if you don’t have burial insurance and you haven’t saved money to pay for it, you’re going to shift that cost to somebody else. (pp. 7-8)

Justice Scalia helps refine the definition by asking about food: “Could you define the market—everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli” (p. 13).

Verrilli responds that, while everyone participates, “it is not a market in which your participation is often unpredictable and often involuntary” (p. 13).

A couple of pages down, Verrilli responds overall to these other markets: Verrilli (p. 15-16):

I would have thought that your answer—can the government, in fact, require you to buy cell phones or buy burial that, if we propose comparable situations, if we have, for example, a uniform United States system of paying for every burial such as Medicare Burial, Medicaid Burial, Ship Burial, ERISA Burial and Emergency Burial beside the side of the road, and Congress wanted to rationalize that system, wouldn’t the answer be, yes, of course, they could (pp. 15-16).

So, in sum, the health care market is unique because

·         Everyone participates at some point.

·         Timing of need is not necessarily predictable.

·         There is a primary system of paying for the product/service, which is therefore subject to commerce regulation.

·         There are free-riders who affect the cost for participants in the market.

If healthcare insurance is unique, then it is the only market that meets the criteria, so we wouldn’t have to worry about encroachment of government in other markets. But Verrilli already admitted other markets could be construed to also be unique.

So, here is Political Sphere’s application  of the definition on yet another market: housing.

Does the housing market have free-riders? Absolutely, in more numerous ways than the health care market. You have various versions of squatter laws; you have rent controls limiting price increases on those already renting; you have delinquencies and defaults on mortgages. And laws generally make it a long process to kick out someone that has current residence in a property.

Does almost everyone use it at some point in their life? Again this is an obvious yes, perhaps even more true than health care, because even people who, by choice, live on the streets often lived in a house once.

And because these two items are true, what can be mandated? The payment mechanism for the majority of housing (all housing, not just private residences) is to have a mortgage. So by this argument, if the Congress can mandate that everyone has health insurance to pay for their health care, then it only stands to reason that Congress can mandate everyone have a mortgage to pay for their housing.

Since there are four items on the list, let me add, just to be thorough, that choice about needing shelter can also be somewhat unpredictable, even for the homeless; severe weather makes the need urgent, and weather, while seasonable, can be unpredictable. But since ancient times, shelter has been considered a basic need, up there with air, water, food, and clothing. You can choose to go without for a while, but when the blizzard hits, you might suddenly find camping under open skies untenable.

Unique still means one of a kind, unike all others, right? As Inigio Montoya would say, “You keep using that word. I do not think it means what you think it means.”

Eventually, Justice Kennedy pointed out our mistrust of the “unique market” argument: “And the government tells us that’s because the insurance market is unique. And in the next case, it’ll say the next market is unique” (p. 104).

Of Two Minds

The other night my son Political Sphere was commenting on the oral arguments on Obamacare from that day, and he made an amusing observation, about why he feels sympathy for Solicitor General Donald Verilli, who was tasked with defending the so-called Affordable Care Act:

I have to say, though, I feel for General Verrilli. He has been put in a terrible position. On day one he had to argue that Obamacare was not a tax. On day two, he had to argue that Obamacare was a tax and furthermore that the individual mandate was necessary (or inseparable, non-severable) from the rest of the act. Then, on day three, he was require tos ay that the individual mandate was severable in case it was determined unconstitutional. Meanwhile his opponent showed confidence in his argument and was allowed by his employer to keep a consistent argument throughout all sections of questioning.

It is possible (although I don’t see how) that Verrilli wasn’t bothered by his conflicting tasks. Truth, to some, is relative and malleable. But the flexibility of his “truth” seemed to strike even the liberals on the court as contradictory.

Ben Shapiro, waiting to speak
at King Street Patriots

This difference of how liberal minds work reminded me of something I wanted to share from Monday night’s interview with Ben Shapiro. Again, as I mentioned Wednesday, he was on a book tour, for his new book Prime Time Propaganda, which he did indeed talk about. But this is yet another tangent (these are from my notes, so a paraphrase of Shapiro, not a direct quote):

There is a fundamental distinction between how conservatives and liberals view rights. Conservatives believe rights descend from God, not the state. Liberals believe rights come from the state, so the bigger the state, the more “rights” it gives.

I have known this difference for a long time. But something about how he said it made me feel like I was discovering it for the first time. Liberals have a completely different way of thinking. This means we have essentially no common ground except that we believe we should have rights—whatever they are.

There is something of an innate sense of the right to ownership, found even in toddlers. If something is yours and someone takes it without your consent, you feel righteous indignation—you have been wronged. Liberals can’t win on basic economic issues, because they lose. So they tend to push social issues. And they tend to persuade using emotional stories and images rather than facts or reason. For example, a captioned photo I saw on Facebook yesterday showed a bald woman in a hospital on life support. The caption reads, “No matter how you say ‘Obamacare,’ ‘Let her die’ sounds worse…” [the ellipsis dots are part of the caption, for grammatical reasons unknown].

This is trying to say, if I’m translating correctly, that you either accept “Obamacare,” or the alternative is letting cancer patients die. That, of course, is a false choice, even slanderous. People against Obamacare are not heartless haters, but people who want a more practical way for that woman to pay for her care than having the federal government step in and take over all our health and personal life-and-death choices, which have very little connection to this woman for whom we all feel sympathy. Does my refusal to grant the federal government control of my personal health care choices and the money I spend on them mean I want unknown cancer patients to die? Of course not. But if you’re only listening to emotion, and you see the heart-wrenching image with nothing to counter it, you might believe so.

Oddly, I happened to read an opinion a week or so ago relating to former Vice-President Dick Cheney’s heart transplant. Some pundit was asking the question, was he too old to have been allowed to receive a transplant organ? (The story itself was mostly just informative; it's the title that I take issue with.) Was he worth wasting this scarce resource on at such an age? He’s 71. His first heart attack was some decades ago, at which point he stopped smoking, limited alcohol, exercised, and did the lifestyle changes that allow someone with heart disease to continue on with hope for a long and full life, which he has had so far. In addition, his wait time on the transplant list, 20 months, was some months longer than average. But the liberal media is questioning the wisdom of allowing his transplant; isn't that the job of a death panel--which comes with Obamacare?

My dad had a heart attack at age 69, never had another, but along the way had quintuple bypass surgery—without the help of Obamacare, but with health insurance. He lived to age 91. I would not have given up those last couple of decades with him by choice. He was there for the growing up years of my children. And he was able to live at home with my mother, and continued to be up and around, doing yard work and tasks around the house, up until very near the end. The odds are not in favor of someone his age living so fully for so long. So it is important that the decisions relating to his health were not in the hands of a distant bureaucrat, deciding how to dole out scare resources based not on knowing the person involved, but based on statistics and some cold calculation of  “what is best for society as a whole.”

It is not private health care choices that would ever deprive that cancer patient of the choice for life-saving care. It could only be a bureaucratic takeover that would do something so callous.

Shapiro suggested that, in order to win in the arena of ideas, when we’re dealing with so many who are emotionally persuadable, we need to make fundamental freedom the argument. Whose choice is it: mine or the government’s? On every issue. Point out where government interference always limits personal freedom.

Not everyone wants personal freedom, because it comes with personal responsibility. The liberal argument is, “You don’t deserve to be blamed for bad behavior,” and “I’m going to give you free stuff.” So there will be weak minds that will not see the truth. But among the masses subjected to liberal media images are also many who would choose freedom and its attendant prosperity if that was what they were being shown. Yes, there are two kinds of minds, but we still have a chance to win the ones not yet fully closed.