Thursday, March 29, 2012

The Art of Law

I have to say I'm getting pretty fed up with all this talk about the American Health Care Mandate litigation. Like the French presidential election, I wish it was simply over, no matter who wins. The whole thing has ruined my dear Volokh Conspiracy, which used to be such a pleasant place for procrastination back when they still talked about things other than broccoli.

But there's one thing that has fascinated me greatly, over the last few days. Now that the hearings actually took place, the ACA-case became such a big story that even non-lawyers had to start talking about it. And by that I don't simply mean people without law degrees, but rather people who don't usually go anywhere near the law. And what's interesting is that these people have all been saying pretty much the same thing:
We know, or I think we know, that a single-payer system — in which the government collects taxes, and uses the revenue to provide health insurance — would be constitutional. I mean, I don’t think the court is about to strike down Medicare.
Well, ObamaRomneycare is basically a somewhat klutzy way of simulating single-payer. Instead of collecting enough revenue to pay for universal health insurance, it requires that those who can afford it buy the insurance directly, then provides aid — financed with taxes — to those who can’t. The end result is much the same as if the government collected taxes from those under the mandate and bought insurance for them.
Yes, the system is surely less efficient than single-payer, both because it’s more complex and because it introduces another layer of middlemen. That’s what happens when you have to make political compromises. But it is in no sense more interventionist, more tyrannical, than Medicare; it’s just a different way of achieving the same thing.
That was Krugman talking, but others have said essentially the same thing: If we can achieve the result we are now achieving without offending the Constitution, how can the Health Care Mandate possibly be unconstitutional? How can the constitutionality of the mandate depend on whether Congress "said the magic words"?

Now, normally I'd be the first to decry the excessive formalism of American legal thinking. I did it only today on the Volokh Conspiracy in a conversation about a Texas law that outlawed taking people's photograph without their consent for the purpose of someone's sexual arousal. But in this case the argument goes too far. More importantly, it reflects a fundamental misunderstanding about legal reasoning. (Which is why I am fascinated by it despite my loathing for all things ACA.)

In legal reasoning, form matters. It's not just about the result reached, but also about the steps one took to get there. A legal ruling can be overturned on appeal, followed by the lower court holding for the same party again, only to be upheld on the second try. (Cf. last week's Ireland v. Commission in the General Court, where the Court held for Ireland for the second time, despite having its first attempt annulled by the CJEU.) We ask more of our law makers, executive branch officials and judges than merely that they get the result right. They have to follow the right steps as well. Just because a bill was always going to be a slam dunk in the Senate, that doesn't mean that parliament gets to dispense with the vote altogether. Just because an executive agency has wide discretion to take whatever decision it thinks is appropriate, that does not mean it doesn't have to give reasons. And judges can't just do the right thing without explaining what exactly gives them the right to do what they did. Just like courts can't just ignore the statute of limitations just because it seems like the right thing to do, legislatures can't simply enact a law that they have no competence to enact. What they're doing has to match one (or more) of the competences conferred upon them by the Constitution. And under EU law, they even have to say which one at the time of enactment. (The Americans are more flexible in this regard.) Procedure matters, form matters. In legal reasoning, thankfully substance does not reign supreme.

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