Slippery Slopes

The Supreme Court recently heard arguments for and against the mandate in the new health insurance law that was passed in 2010 amid much weeping and gnashing of teeth — and little sanity. Like the camel the law is a creature of compromise. A recent editorial in USA Today about the court’s upcoming decision tells us what the key issue is they will have to decide upon: “Tuesday’s Supreme Court arguments over the ‘individual mandate’ contained in the 2010 health care law came down to one core question: If the government can require you to buy medical insurance, what else could it make you buy?”

This, of course, is the classical “slippery slope” fallacy. One thing invariably leads to another. If the government is allowed to mandate that everyone must have health insurance where will it stop? Cars? Cell phones? Broccoli? I must say, it is a tad disturbing to think that some of the best minds in the country could have made such a mistake in elementary logic, though if we all ate broccoli we would be healthier. The discussion got a bit absurd, apparently, until Justice Ruth Bader Ginsburg pointed out the rationale behind the individual mandate: “The people who don’t participate in (the health insurance) market are making it much more expensive for the people who do,” she observed about 20 minutes into the two-hour debate. The fact the many do not have health insurance yet still require medical attention drives up the costs for everyone else — about $1,000.00 for a typical family policy. Health insurance is not like broccoli, however. It’s quite simple. One can avoid the slippery slope by simply pointing out key differences. One thing does not necessarily lead to another. As the editorial points out, “Where’s the line? As in a famous court decision on pornography, we know it when we see it. Yes to health insurance. No to cars, cellphones and broccoli.”

It will be interesting to see how the court votes on this case when their decision comes down in June. It is expected that, once again, the court will be divided along ideological lines and this raises provocative questions about the supposed impartiality of this court in issues political. To quote the editorial once again, “Another 5-4 decision along ideological lines would taint the court’s credibility. The court would do itself, and the nation, a service by upholding the mandate while defining reasonable limits on what else the government could require.” Indeed so.

The idea in the Founders’ minds was that a court appointed for life would be above political ideology and would actually act in a wise and judicious manner. It has happened in the past with justices appointed by a Republican president who turned out to be rather liberal, or vice versa. Earl Warren jumps to mind. But not recently. The justices appointed of late have kept their political allegiance pretty much intact. Perhaps it is time to revisit the question of how the court is appointed and how long their terms should last. If they were subject to periodic recall, they might be a bit more above petty politics. But the issue of constitutional reform is one that must be put off until a later blog. For the moment, I would simply point out that accepting the notion of a mandate in this case does not start us down a slippery slope to calamity.

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