30 December 2009

Healthcare Reform: Constitutionality

Stephen Kershnar
The Constitutionality of Health Care Reform
Dunkirk-Fredonia Observer
December 28, 2009

The recent health care reform proposal requires that every American buy federally regulated health insurance or pay a $750 fine. A debate has broken out over whether the proposal is constitutional. Senators John Ensign (R-NV), Jim DeMint (R-SC), and the attorney generals for seven states (Alabama, Colorado, Michigan, North Dakota, South Carolina, Texas, and Washington) have raised the issue of whether its various provisions are constitutional. In 1994, the Congressional Budget Office pointed out that this type of mandate would be the first time that the federal government required people to buy a good or service as a condition to lawfully live in the United States. As a result, it stretches the Constitution near its breaking point.

The Constitution permits the federal government to regulate or prohibit an activity only if it one of the powers listed in Article I Section 8 of the Constitution. One such power is set out in the Commerce Clause and it grants the federal government the power to regulate interstate commerce. The bill’s proponents state that this clause permits the mandate.

The Commerce Clause states that Congress has the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” The power to regulate interstate commerce was intended to prevent states from passing tariffs and other protectionist measures against products made or sold by people in other states. However, in 1942 the Supreme Court in Wickard v. Filburn, 317 U.S. 111 (1942) in effect rewrote this clause. The Court held that it applied to any activity that is part of a larger group of activities that substantially affect interstate commerce. In Wickard, for example, the Supreme Court looked at whether the federal government could set a quota on wheat that a farmer grew and consumed on his own property. The farmer claimed that these activities were not interstate commerce. The Roosevelt-era court held that the federal government could enforce the quota because wheat growing and consumption in general affected interstate commerce, regardless of whether the individual farmer’s wheat did so.

In a recent case, Gonzales v. Raich, 545 U.S. 1 (2005), the Supreme Court considered whether the federal government could prohibit the cultivation and possession of marijuana that was authorized by California state law, used for medical purposes, and neither bought nor sold. The Supreme Court said the Commerce Clause allowed the federal government to do so because marijuana production in general substantially affects the interstate commerce in marijuana.

The issue is in part whether omitting to buy insurance is similar enough to growing and consuming wheat or marijuana. Erwin Chemerinsky, dean of the University of California Irvine School of Law, argues that it is. He notes that the national economy is more closely connected to healthcare coverage than to wheat or marijuana production. For example, in 2007 health care expenditures were $2.2 trillion, $7,421 per person, and 16.2% of the economy (gross domestic product). Chemerinsky argues that the reasoning in the Wickard and Gonzales was not limited to commercial activity and hence it does not matter whether the refusal to buy healthcare insurance is a commercial activity. He points out that the marijuana growing in Gonzales was done for personal medicinal use. Chemerinsky then concludes that because the people who do not buy health insurance affect interstate commerce, the Constitution permits them to be punished or otherwise sanctioned.

Georgetown University law professor Randy Barnett and others argue that under this reasoning, every act or omission would fall under the Commerce Clause because every act or omission in general substantially affects interstate commerce. On this reasoning, for example, the government could punish people who don’t brush their teeth because dental expenditures in general affect interstate commerce. Barnett and company argue that in recent Tenth Amendment cases, U.S. v. Lopez, 514 U.S. 549 (1995) and U.S. v. Morrison, 529 U.S. 198 (2000), the Supreme Court made it clear that the Commerce Clause does not permit federal interference in local non-economic activity. In particular, the Court held that the Commerce Clause did not provide the federal government with a general police power, which is the authority to make laws for public health and safety. Because the healthcare-insurance mandate is an exercise of a general police power, Barnett and company argue that it is unconstitutional. Barnett’s interpretation is more faithful to the Constitution’s language and the founders’ original intent.

President Obama makes a different argument than Chemerinsky, although his argument probably should also be interpreted as a Commerce Clause argument. When asked whether it was constitutional to mandate that every American buy health insurance or get punished, Obama responded that is appropriate in the same way that states may mandate that people buy auto insurance. Writing in the Washington Examiner, Ken Klukowski points out that this shows a disturbing lack of understanding of the Constitution. Auto-insurance mandates occur when states exercise their general police powers, that is, their authority to regulate for public health and safety. Because nothing in the Constitution or Supreme Court decisions grant the federal government an analogous power, Obama’s argument fails. Also, Klukowski points out, everyone is not required to buy auto insurance. They only have to do so if they exercise the privilege of driving on public roads.

Obama and the Democrats might try to avoid the Commerce Clause morass and instead argue that this is an instance of the federal power to tax. One problem with this is that dressing up a fine as a tax will not fool anyone. Even if it did, the argument would fail because of the political compromises that have gone into it. As Cato scholars Robert Levy and Michael Cannon point out, such a tax would not be an income tax and thus the mandate couldn’t rest on the Sixteenth Amendment. Nor, they argue, is it an excise tax because it is not based on the value of an insurance policy. It is instead a tax per person (capitation tax) and Article I Section 8 makes it clear that these taxes have to be uniformly applied among the states, which has been interpreted to mean in accordance with their population. The mandate exempts numerous groups (poor and low-income people, religious objectors, incarcerated people, etc.). Because they are not uniformly distributed across the states, this mandate is not uniformly applied and is therefore unconstitutional.

The two best arguments for the constitutionality of the healthcare bill rest on the Commerce Clause and the federal government’s authority to tax. The Commerce Clause issue is a morass because the Supreme Court’s interpretation of the clause has left it unclear whether it applies to all activities that affect interstate commerce or whether it is limited to economic activities that do so. The broader interpretation (all activities) runs head on into Tenth Amendment cases that deny that the federal government may regulate or prohibit local non-economic activity. The taxation argument is a loser because it masquerades a fine as a tax and because as a tax it would still lack required features. How the Supreme Court will treat this mandate is unclear, how it should treat it is clear.

16 December 2009

Obama #4: Debt Monster

Stephen Kershnar
Obama: The Debt-Accelerator
Dunkirk-Fredonia Observer
December 15, 2009

President Barack Obama is well on his way to being a terrible President and a Jimmy-Carter-like stain on nation. It remains to be seen whether his foreign policy will be the embarrassing mess that his economic policy is. This depends on how his decisions to continue the Iraq war and intensify the Afghanistan one turn out. Right now, it’s too early to tell.

According to the BBC, the U.S. budget deficit was $1.4 trillion this year. This is 9.9% of the economy (gross domestic product or GDP). This is the largest deficit since World War II and more than three times larger than the previous deficit record, which under President Bush was $459 billion in 2008. Not only did Obama spend like a meth user (sadly, not my metaphor), but he made it clear that he’ll continue to do so. According to a 2010 Office of Management and Budget report, the deficit will be roughly a $1 trillion per year until 2015.

The debt has also spun out of control. Public debt is the amount of money that the federal government owes to those who hold U.S. debt instruments (for example, some types of bonds). It is not a true measure of debt because the federal government also generates debt by borrowing money from its own trust funds. An example is the Social-Security Trust Fund. The gross debt is the public debt plus trust-fund obligations. According to the Office of Management and Budget, when President Bush left office in 2008,the gross debt was $10.7 trillion or 75% of GDP. It is expected to rise to 100% of GDP by the time Obama finishes his first term in 2012. This is analogous to a person who makes $50,000 a year and has $50,000 in debt. Cato Institute scholar Ted DeHaven estimates that the debt in 2010 will be equal to $81,000 per U.S. household. Our competitor and potential enemy, China, owns roughly 25% of the public debt and continues to keep us afloat.

The spending that accelerated the debt has not worked. Writing for the Heritage Foundation, Jim Robinson points out that in January 2008, the U.S. economy had 4.9% unemployment. That year, he points out, Speaker Nancy Pelosi (D-CA) passed and President Bush signed a $168 billion economic stimulus package and an even more massive $700 Troubled Asset Relief Program (TARP) designed to help the financial markets. By January 2009, he notes, the U.S. economy lost 3.5 million jobs and the unemployment rate was 7.6%. Obama and Pelosi then decided that even more spending was called for. They agreed to an even larger $787 billion dollar stimulus package and other Christmas-like bailouts. By October 2009, the economy had lost another 3.6 million jobs and the unemployment rate was roughly 10%.

Consider whether this level of spending was necessary. According to data from the National Bureau of Economic Research and analyzed by economists at New Mexico State University, from 1919-1945, the average recession was 18 months. Post World War II, the average recession was about 10 months. In the past, then, the U.S. economy has climbed out of recessions without spending the government spending us into oblivion. University of Chicago economics professor Casey Mulligan argues that it is not even clear that the economy is in worse shape today than it was as recently as 1980 to 1982.

Running up this much debt for future generations is immoral except when the money is used to purchase something that is more valuable than the debt principal plus the interest rate. Most likely, Obama and company didn’t do this.

The Democrats used some of the money to buy car companies and financial institutions for far more than private buyers wanted to pay for them. They also used some of it to lavish gifts on one of their main benefactors, public employees. According to the USA Today, from December 2007 to the present, the private sector lost 6.3% of its jobs (7.3 million jobs), but the federal government sector gained 9.8% and the state and local government gained 0.2%. During this period the federal workers got hefty raises. When newly hired workers are screened out, federal workers got an 8.7% increase over this period. 19% of them now make more than $100,000. The average federal worker makes more than $30,000 more than the average private sector worker. Defenders of federal workers respond that they are more highly skilled than those who work in the private sector and that they make less than their private-sector counterparts. Still, the differences could hardly be more stark.

The Democrats also shot up federal welfare spending. Welfare spending is means-tested aid to the poor. According to the Heritage Foundation, in his first two years in office Obama will increase federal welfare spending by one-third. When adjusted for inflation, this is two and a half times greater than any previous increase in U.S. history. We now spend 4697 billion per year. If this spending were converted into cash benefits, the money spent would raise the income of all poor families above the poverty line. Needless to say, much of it never reaches the poor.

All this spending doesn’t even take into account, the latest Democratic health care plan to expand the number of people on Medicare. According to the General Accounting Office, Medicare (specifically Medicare Hospital Insurance) is already running a deficit. If you add people to a program already running a deficit, you make the deficit worse.

There is a real wild card in the mix whose effects we haven’t yet seen. Economist Arthur Laffer points out that the fed has increased the money supply (monetary base for econ nerds) at the highest level in half a century. This will cause a tremendous threat of inflation. This wild card is not Obama’s doing, but it might well exacerbate the spending-related damage.

It is hard to see how it is moral to run up the credit card and leave the debt for future generations. This is much like dumping your garbage on your neighbors’ lawns and expecting them to clean up after you. All of this makes political sense, borrowed money can be used to buy votes, but not policy sense. For those who looked at Obama and company’s past carefully, none of this came as a surprise.

When Sarah Palin came out with her new book, “Going Rogue: An American Life,” came out her opponents shrieked that she was unqualified to be President. Fairly typical of the comments were those by New York Times columnist David Brooks who said, “[s]he's a joke. I mean, I just can't take her seriously. We've got serious problems in the country. Barack Obama's trying to handle war. …” That anyone who voted for Obama could rip Palin would be funny, if it weren’t so sad.

10 December 2009

Rape and Evolution VI: Clothing and the chance of rape

Dear Colleagues:

The issue arises as to whether attire affects the frequency of rape. I take no position on the issue. I am not aware of any data that directly addresses this issue.

If there is evidence for the propositions (1) and (2), then this might be thought relevant to whether at the margin clothing might have an effect on rape, although it is probably not strong enough to justify any belief on the topic.

Here are the two propositions.
(1) Many rapists are motivated in part by sex.
(2) In some cases, being scantily clad increases sexual motivation in men.

There is some support for proposition (1) (Many rapists are motivated in part by sex).

a. Most rapists do not have a preference for rape over consensual sex. See Freund et al., “Heterosocial competence of rapists and child molesters: a meta-analysis,” The Journal of Sex Research 40 (2003): 170-178; Baxter et al., “Sexual responses to consenting and forced sex in a large sample of rapists and non-rapists,” Behavior Research and Therapy 24 (1986): 513-520.

b. There are no significant differences between the arousal patterns for male rapists and other males. W. L. Marshall and A. Eccles, “Issues in clinical practice with sex offenders,” Journal of Interpersonal Violence 6 (1991).

c. Male rapists responded more strongly to consensual sex scenarios than to forced sex scenarios. Baxter, “Sexual responses to consenting and forced sex in a large sample of rapists and non-rapists,” 513-520.

d. Young sexually attractive females are raped more often than older, less sexually attractive females. See data on more frequent targeting of fertile-age women.

I don’t have any empirical support for proposition (2) other than anecdotes. The plural of anecdote is not data (sadly, not my line). However, this strikes me as extremely plausible. This is in part an explanation why attractive single women choose to dress in form-fitting or revealing outfits.

If there is such an effect, and this hasn’t been shown, then my guess is that it is small. One study indicated that most rapists did not remember what their victim was wearing.

Note that (1) entails that the feminist thesis (rape is about hatred or control of women and not about sex) is false. It is an interesting question whether there is any recent data that supports the feminist position.

I am not saying that being scantily clad in any way justifies or excuses rape or that in every case, or even most cases, being so dressed will affect a person’s chance to be raped. I also take no position on whether women are required or permitted to dress in any way.

I don’t see this debate about language. Rather, it is about rape. Specifically, what relation it has to evolution and sexual motives.

Thank you for your thoughtful notes,
Steve K

02 December 2009

Obesity and Taxation

Stephen Kershnar
Learn to Love the Obese
Dunkirk-Fredonia Observer
December 1, 2009

Our society is considering a tax on fat-causing food and, perhaps, even on fat people. Daniel Engber writing in www.slate.com summarizes some of the recent movement on this issue. 80% of the states in the U.S. currently tax junk food or soda. In an interview in Men’s Health, President Obama was sympathetic to a federal soda tax. The New York Times and New England Journal of Medicine have recently called for a significant tax on soda. The former calls for a staggering $1.28 per gallon tax in New York. Other writers go further. In the New York Times, David Leonhardt writes sympathetically on the idea of discrimination against the obese. Writing in the Huffington Post, John Ridley calls for a tax on the obese.

The idea behind the soak-the-fat-people campaign is that they are imposing costs on the rest of us. According to New York Times writer Michael Pollan, the U.S. spends $147 billion to treat obesity. 30% of the increase in health-care spending over the past ten years comes from obesity and that it now amounts to roughly a tenth of all health-care spending. According to Ridley, this results in a cost of $1,250 per American household, mostly in taxes and insurance premiums. Obese people shoulder some of these costs. According to a Center for Disease Control study, in 2006 obese people spent 42% more than normal-weight people on medical costs.

Before the U.S. decides to slam fat people, it is worth noting that they already pay a significant price for their weight. Piling on taxes that are aimed directly and indirectly at them adds salt to their wounds.

Consider the economic price they pay. According to a recent paper in the Yale University’s Rudd Center for Food Policy & Obesity, one study found that obese white women (64 lbs. overweight or two standard deviations) suffer a 9% decrease in wages. This is equivalent to the difference of 1.5 years or education or three years of work experience. A second study found that severely obese white women suffer a decrease in wages of 24% when compared to their normal-weight counterparts. Severely obese black women suffered a 14.6% decrease and severely obese white and black men suffered 19.6% and 3.5% respectively.

Consider the social price they pay. According to Engber, obese women are half as likely to attend college as their peers and 20% less likely to get married. Because marriage helps to eliminate poverty, this makes obese women more likely to be poor. Writing in www.slate.com, Steven Landsburg points out that ugly women tend to attract husbands who have less educational achievement and earnings potential than do other women. If ugliness correlates with obesity, and this is not clear, then even when they do get married their choices are worse. Epidemiologist Peter Muennig reports that obese persons report being badly stigmatized. He reports that when one group of formerly obese persons was asked to choose between blindness and obesity, 89% chose blindness. He notes discrimination against them is rampant. There is evidence that parents discriminate against their obese children, doctors against their obese patients, and husbands against their obese wives.

Consider the health price they pay. Engber, citing Muennig, points out the obese are up to twice as likely to die as a normal-weight person. Also, obese women are seven times more likely to suffer significant illness or death and are especially vulnerable to clinical depression.

As a society, the U.S. not only has laws banning discrimination against minorities and women, but also has laws favoring them. Affirmative action laws often result in their being given preferential treatment even when they are less qualified than their competitors. In contrast to women and minorities, fat people get little protection. Only a few cities (for example, San Francisco and Santa Cruz, CA, and Washington, D.C.) and only one state (Michigan) prohibit weight-discrimination. The American Disabilities Act doesn’t protect them because being obese is rarely a disability from a physiological cause.

One response is that being obese is a choice and that being a minority or woman is not. The problem is that genetics plays a significant role in determining someone’s weight. One study in the American Journal of Clinical Nutrition found that weight (specifically, body-mass index) is 77% heritable. This is a little misleading, however, because this measures weight relative to same-generation peers and thus includes some environmental factors. Still, it does indicate that weight is significantly heritable and the magnitude of this effect lessens the degree to which someone’s weight is under his control.

A second response is that obese people are discriminated against because consumers, daters, and spouse-seekers prefer thinner people and society should not try to counteract the preferences of a free people. There is evidence for the former claim. Economist Steven Landsburg points out that beautiful people are more likely to be found in occupations where consumer preference plays a larger role, specifically, retail sales, waitressing, etc. However, the same might be true with regard to consumers and race or gender and if consumer preference does not warrant discrimination against women and minorities than neither does it do so for fat people.

What’s more, Engber and epidemiologist Muennig argue that anti-obesity campaigns increase anti-fat bias and that this bias exacerbates the health and discrimination problems obese people face. If this is correct, then the various taxes and insurance and employment penalties will cause fat people increased discrimination, isolation, illness, and death.

On the other hand, subsidizing something produces more of it, taxing it less. If the U.S. subsidizes food production (see the many agricultural subsidies) or prevents employers and insurers from shifting the costs of fat people onto them, then it subsidizes obesity. This will produce more obesity and spread its costs.

The obese already shoulder significant burdens. Piling on seems mean-spirited. On the other hand, failing to tax them in conjunction with other policies (for example, agricultural subsidies) threatens to subsidize obesity, thereby increasing the problem. Balancing these costs and benefits is a Herculean task. A free society doesn’t concern itself with whom employers hire, what people pay for insurance, and what attitudes people have toward their neighbors. However, because we are well on our way to socialized medicine (nearly half of health spending is done by the government) and have become a country of busybodies, the Herculean task is exactly what we’ll need to do.

Rape and Evolution V: Another response to faculty and staff


Thank you for your notes. I said the previous note was my last. I lied.

I thought I’d defend this sentence.

“Whether the most effective way to stop men from acting out on these desires is to strengthen criminal penalties, educational programs that focus on making men aware of these desires and the need to control them, discouraging women from dressing in provocative ways, or other means is in part an empirical question and not one that can be answered by common sense.”

First, what this sentence says and was meant to say is that the best way to discover which ways of combating rape are most effective, or effective at all, is by empirical investigation not by common sense. From this sentence, it does not follow that changing people’s attire affects the frequency of rape. I take no position on this issue. Because I think empirical investigation is the best way to discover the best teaching methods, traffic rules, baseball strategies, and lots of other things, I didn’t think the sentence was controversial. After I wrote it, I thought that one of my philosophy department colleagues might respond by busting my chops for making such a minimal claim.

This just repeats the very helpful comments of my colleague, Leonard Jacuzzo.

Second, even if something were an effective means to prevent rape from happening, it does not follow that it is morally required or permitted. For example, it might be that one way to reduce murder and rape is to increase the frequency of abortion. It does not follow from this claim, and this claim alone, that abortion is morally required or permitted. Here I take no position on the moral or legal status of abortion or whether abortion reduces violent crime.

Third, even if an act were an effective means to prevent a result, it does not follow that a person who omits to do it is blameworthy for the result. Here it is helpful to distinguish who is to blame for a result and what is a prudentially wise thing to do. An act might be prudentially unwise without making the agent responsible for the result. To see the distinction, imagine that a professor, Jones, runs in the middle of the night in downtown Detroit. His colleagues tell him that this is not safe. He responds that if bad guys beat him up, then they are to blame for his injuries. His colleagues would likely agree with him and still tell him that it is not a wise decision to go running in the middle of the night in Detroit. I take no position on whether changing one’s attire is prudentially wise.

In summary, the sentence does not entail that (1) attire affects the frequency of rape, (2) modest attire is morally required or permitted, or (3) victims are in any way to blame for an attack.

Thanks and I hope your semester is finishing well,
Steve K