CR-CL Podcast – Episode 8 – The Individual Mandate and Juvenile Constitutional Rights

CR-CL Podcast LogoNoah and Matt jump on the media bandwagon and provide their take on the week’s arguments on the constitutionality of the Affordable Care Act, particularly the individual mandate to purchase health insurance.  Next, they take a look at the issues discussed in CR-CL’s latest colloquium, Roper, Graham, and J.D.B.: Re-Defining Juvenile’s Constitutional Rights.  The articles discussed and a video of the colloquium can be found here.

Some links related to the individual mandate and the health care oral argument:

Complete SCOTUSblog coverage of the week’s argument

The Nation – Obamacare: Not Dead Yet

Charles Fried says there is a “limiting principle”

Noah Feldman – Broccoli-Bungling Defense Hurts Health Care

Jeffrey Toobin says the law will most likely be struck down

Politico – If the law fails, what’s next?

Please email questions, comments, corrections, or suggestions to  Thanks for downloading, and enjoy the show!

Episode 8 – The Individual Mandate and Juvenile Constitutional Rights

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The Harvard Civil Rights-Civil Liberties Law Review (CR-CL) is the nation’s leading progressive law journal. Founded in 1966 as an instrument to advance personal freedoms and human dignities, CR-CL seeks to catalyze progressive thought and dialogue through publishing innovative legal scholarship and from various perspectives and in diverse fields of study.

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  • Since I tend to listen to the CRCL podcast while on the move, I often neglect to keep in mind the interesting issues raised and comment on the shows when I get back to a computer. I know that recognition and feedback is important for projects like this, so I’ll try to do better. For now I’ll say I’ve very much enjoyed the podcast so far 🙂 It’s particularly valuable to have the “devil’s advocate” (from a civil rights perspective) position put forward with such frequency, since the really tough aspects of CRCL issues are often sidelined by campaigners.

    As to this episode, the discussion around participation in the market at around ~29:00 was interesting for me as a citizen of the socialist paradise of Euroland (State of Britain). It strikes me that objecting to being required to have medical insurance on the basis that you’re not going to get sick is just as spurious as objecting to buying car insurance on the basis that they’re never going to have a car accident. Even if one conceived of car insurance as ensuring coverage of the damage done to /other/ people, medical insurance could equally be conceived of as coverage of the costs to society consequent on the political decision that society is not prepared to let an individual suffer alone the potentially crippling consequences of illness or injury.

    The discussion of minor culpability again was adept at covering the main points and counterpoints of that debate, as far as I understand them. I would take slight issue however with the argument that since absolute age boundaries are set for entitlements like the right to drive and to vote it would be therefore inequitable or inconsistent not to apply such absolute boundaries to criminal culpability.

    First, it assumes that the absolute age boundaries for entitlements are in fact appropriate. On the contrary, I’m sure we’ve all met eighteen- or nineteen-year-olds whose low appreciation of risk and general lack of concern of the welfare of those around them should in all conscience make them completely ineligible to drive, for example.

    Secondly, there is an argument that the imposition of criminal penalty should involve a higher degree of scrutiny than the granting of entitlements. Although these are both questions of individual capacity, it’s a matter of choosing ‘sensible defaults’ for each context. In the case of entitlements, it may be appropriate to each person to be given the benefit of the doubt – minute psychological examination of each individual applying for a license is deemed most costly than beneficial. In the case of criminal sanction, society is not best served by disregarding the capacities of the individual defendant. In relation to this I found enlightening the points you mentioned about the differing reformability and deter-ability of young people.

    On the general issue of cognitive capacities, I would commend to you and your listeners a three-part series which ran on BBC Radio 4 on the current interface between neuroscience and social science questions (‘Brain Culture’ with Matthew Taylor: All three episodes – on law, education and behaviour change – are very relevant to the issues discussed in this podcast. I’m not sure if iPlayer will stream outside the UK without complaint but I hope with a little ingenuity you’ll be able to listen to the programmes.

    • Ryan, thank you for the thoughtful comments. We agree that comments from listeners are extremely important to our project, and so we are incredibly appreciative for the feedback and insight.

      Though I agree the argument ultimately fails, I do want to point out the possibility that the argument against buying health insurance could be supported on a self-insurance model, rather than a denial of the possibility of incurring medical costs at all. To extend the analogy you make to car insurance, which I think is a fair one but diverges at the choice to drive (while there is no choice in incurring medical costs), self-insurance can be option for drivers. A quick Google search uncovered the insurance requirements for California. “Proof of financial responsibility” under California law can be satisfied by a DMV authorization letter showing that a driver is a cash depositor or self insured. A cash deposit account would be equivalent to a public insurance option that Obama abandoned in the legislative process. Self-insurance in the health care market would be the determination that at your age and health condition, any medical costs incurred could be covered in full without insurance. As far as I know, an individual cannot self-insure under the ACA, which may be a reasonable option for some people. I think the number of people that could self-insure against a catastrophic injury or diagnosis is small enough to be irrelevant to the legal issue, which is why I think self-insurance is regularly not brought up as a reason to object to the law.

      On the second issue, I never assumed that the age boundaries were factually appropriate in all cases. I recognized that they represent choices for efficient government operation, and that result is that some people without the requisite maturity still get the privileges while younger, but more mature, individuals are denied them. My argument was that the same logic that compels us to define arbitrary boundaries for the distribution of privileges and benefits tends toward equally arbitrary determinations about the imposition of punishment. It’s the same logic that underlay the 26th amendment. If 18-year-olds are mature enough to be drafted, they are mature enough to vote. If 17-year-olds are categorically too immature to vote, they are too immature to be locked away for life or sentenced to death.

      The problem with establishing defaults that can be overridden based on particular scrutiny is the emotional nature of violent crime and the highly technical psychological evidence on which such determinations would have to made. Such scrutiny would constantly expose juries to competing experts, and the likely deciding factor would be the nature of the crime, not the nature of the offender. It is the nature of the offender that militates against the harshest sentences, not the nature of the crime.

      Unfortunately, I don’t think BBC iPlayer works natively in the U.S. Thanks for the tip on that, and I will definitely keep an eye out if the series makes its way across the pond. I’m glad you are enjoying the show and I look forward to more similarly thoughtful comments in the future.


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