Politics and Public Opinion, Law and the Constitution

Scalia’s correct: The slippery slope towards compulsory exercise

Justice Scalia made an interesting observation in yesterday’s proceedings: “everybody has to exercise, because there’s no doubt that lack of exercise cause—causes illness, and that causes healthcare costs to go up.” The government’s argument in support of the individual mandate hinges on the claim that there is an interstate market in healthcare. Failure to purchase insurance by some raises costs for other participants in that market. Justice Scalia’s point was that if we accept that premise, what is to stop the government from infringing on freedom in many other ways to avert a similar adverse cost impact on innocent market participants? His intuition is quite correct: In fact, if we accept the government’s argument, then the economic case for government-mandated exercise is actually greater than the case for the individual mandate to purchase insurance! Here’s the proof:

On average, uninsured Americans in 2011 generated $1,078 apiece in uncompensated care losses. With 49.9 million uninsured, this amounted to $53.8 billion last year, a rather hefty sum. Leave aside the fact that the mandate will not apply to everyone (e.g., those qualifying for Medicaid, illegal immigrants) and that careful analysis has shown that the actual amount of uncompensated care that would be averted through a mandate is at best 30% of the total amount of uncompensated care attributable to the uninsured. As the following analysis shows, even if we generously assume that the mandate will eliminate all uncompensated care losses for the uninsured—which it assuredly will not—compulsory exercise will spare innocent market participants an even larger amount.

It turns out that three quarters of the uncompensated care generated by those without coverage is financed by taxpayers, or about $728 per uninsured in 2011. But what about the one quarter of uncompensated care costs not paid by taxpayers? This amounts to $250 per uninsured and purportedly is borne by those with private health insurance. How big is this burden? There’s roughly four privately insured people for every uninsured person in the U.S. (inclusive of those with non-group coverage). Thus, cost-shifting by the uninsured places the following burden on the average person with private insurance: $70 apiece, which is less than $6 a month, or about 20 cents a day. [Note: Justice Ginsburg repeatedly made the erroneous claim that this burden increased private health insurance costs for the average family by more than $1,000; by failing to account for the three quarters of costs borne by taxpayers, her estimate exaggerates the burden on private health insurance premiums by a factor of four. When we account for the actual amount of uncompensated care that would be eliminated through the individual mandate—i.e., 30% of the total—the actual impact is only one-twelfth of the amount she kept misstating].

In short, failure to purchase health insurance affects interstate commerce by raising the cost of private health insurance for everyone else. As the foregoing illustrates, it does do that, by at most a mere 20 cents a day (and only 6 cents a day, accurately calculated). But this is far less than the societal burden posed by those who fail to engage in exercise, which was calculated in 1989 to be 24 cents for every mile that sedentary people do not walk, jog, or run (or about double that amount in today’s dollars). Thus, if we can justify forcing people to purchase insurance to avert their imposing a cost of 20 cents a day on the privately insured, what’s to stop us from forcing people to walk, jog, or run a mile a day to avert their imposing a cost of 50 cents a day on society? If the first is constitutional, then how can the second not be?

I’m no constitutional scholar, but I cannot imagine that the Founders pledged their lives, their fortunes, and their sacred honor to create a government that could compel its citizens to exercise. Such a power would appear to lie far beyond the boundaries of the limited government envisioned by the Framers. If the individual mandate is upheld, Americans will have suffered a loss of liberty from which there will be no turning back. Let us cross our fingers that the Supreme Court does the right thing.

Christopher J. Conover is a research scholar at Duke University’s Center for Health Policy and Inequalities Research, an adjunct scholar at AEI, and affiliated senior scholar at the Mercatus Center at George Mason University. His new book, American Health Economy Illustrated, was released in February 2012 by AEI Press.

8 thoughts on “Scalia’s correct: The slippery slope towards compulsory exercise

  1. As I have not had time to peruse the 95 page document regarding the uninsured, I may be a little sideways on my point. If so, my apologies upfront. Based on information I have seen, the number of uninsured is calculated by listing anyone who has been without insurance coverage for at least one day. This includes people who are changing jobs who may pick up insurance coverage quite quickly but they meet the definition. If in fact, those who are uninsured for lets say over three to six months would be substantially less than 49M.

    If this is so, does not the total $ for uncompensated care commensurately go down as well. If so, then your figure of $.06/day would likewise go down also.

    What is happening is that our government is taking a sledgehammer to a job that would be much better served by a toy plastic hammer. This is about control. Not insurance.

    • Well, technically, the 49.9 million figure purports to represent the number who are uninsured the entire year, but few experts believe this is actually what the Current Population Survey (which is what I cited) measures. There are several large government surveys of the uninsured and the CPS figure is more consistent with other surveys that purport to measure the number who are uninsured on any particular day. See http://www.kaiseredu.org/Tutorials-and-Presentations/Counting-the-Uninsured.aspx

      As shown in Fig. 5 of the tutorial cited, the number of annual uninsured is anywhere from 20 to 50% higher than the average number of uninsured observed on an average day, depending on which survey is used. Likewise, the number of full-year uninsured is anywhere from one half to three-quarters of the number observed at a point in time. You can think of these “point-in-time” uninsured as “full-time-equivalent” uninsured since the number you’d observed on any given day of the year won’t vary that much so long as the underlying risk of being uninsured remains stable. This doesn’t mean that every person uninsured on an average day will in fact remain uninsured for a year. It simply means that any such person who does obtain coverage within less than a year will then be replaced by someone else who may not have been uninsured at the time of the survey but became uninsured later in the year etc.

      I’m comfortable that 6 cents per day is the most reasonable estimate of the amount of additional premium cost that would be avoided by the average privately insured person for every “average daily” uninsured person who complies with the mandate. Using a sledgehammer to kill a gnat is not a bad analogy to use in assessing this grossly disproportionate policy response.

  2. The slope is slippery in another way: Suppose that not exercising shortens your lifespan, and hence the average lifetime health-care cost. Then to save money, the government could forbid exercising.

    • Exactly. I am guessing I am far from alone in believing that Congress is the last group I would want to be deciding whether or how much to exercise. The Framers strongly believed in the ability of individuals to govern themselves. The whole architecture of the Constitution is premised on this belief. After all, if individuals cannot be trusted to do this, why would we give them the power to elect our president or members of Congress? The freedom to run their own lives is what allowed Americans to create the wealthiest, most powerful nation on earth. Giving goverrnment the power to run their lives is literally the antithesis of what made this country great.

  3. Nice argument, Chris! Without taking any sides on the legal or ethical issues, let me give another example. There is a widespread belief that smoking leads to increased healthcare costs. This suggests that government could BAN smoking, not just the sale of tobacco products, to reduce healthcare costs. There is a contrary argument the other way, namely that smoking reduces healthcare costs by sending smokers to an early grave. If one believes that argument, government could REQUIRE smoking in order to reduce healthcare costs. On smoking, my impression from long-ago readings is that the cost savings and increases largely offset. But the same is not true for alcohol. Looks to me like the government position there could and should be “bring back prohibition.” That might reduce uncompensated care by even more than the law the Congress passed.

    Walt Francis

    • You’re absolutely right. Sedentary behavior assuredly is not the only lifestyle choice that might result in external costs borne by society. Smoking and drinking are other excellent examples, although in fairness, ACA does permit higher premiums to be charged to smokers. But leaving aside that carved-out exception, this is the general problem with collectivizing health spending through community rating.

      You already know this, Walt, but for the edification of other readers, in other experience-rated forms of insurance, such as automobile coverage, there’s less opportunity for shifting costs to others since my risking driving ultimately will be reflected in higher rates that I have to pay for coverage. In contrast, under community rated health insurance, virtually any lifestyle choice I make that results in my health expenses being higher than those making more prudent choices can, in principle, become fodder for government efforts to shape my behavior. And the rationale will always be just the same as being used for the individual mandate: these individuals are costing “us” more, hence we are justified in telling them what to do. I haven’t looked at the numbers, but I’m guessing that obesity, lack of adequate sleep, and maybe even failure to eat green vegetables have similar adverse effects on health expenditures.

      But given the known effects of marriage, church-going etc. on longevity, it’s conceivable one could likewise map a relationship between such behaviors and health spending that likewise could be used to justify all sorts of social engineering that would be odious to the average American. This slope is slippery indeed!

  4. For those unpersuaded by the slippery slope argument, consider this:
    “If We Can Force People to Purchase Health Insurance, then Let’s Force Them to Be Treated Too” American Journal of Law and Medicine, 2012
    FSU College of Law, Public Law Research Paper No. 572
    This article argues that Supreme Court approval of Congressional authority, exercised in the Patient Protection and Affordable Care Act, to require the individual purchase of health insurance on interstate commerce grounds necessarily translates into Congressional power to positively affect interstate commerce by mandating that individuals submit to undergo certain forms of demonstrably cost-effective medical treatment (e.g., influenza vaccination, treatment of depression, and reduction of cardiovascular disease through medication to control blood pressure and cholesterol). The article assumes that the Supreme Court will endorse the public health (“Health care is special”) rationale undergirding the PPACA and extends that rationale to potential federal mandates that individuals submit to medical interventions shown to improve their individual health and society’s well-being. Objections to such federal mandates of medical treatment are noted, but rejected. If Americans do not have a constitutional right to refuse to purchase an individual health insurance policy, then neither do they have a legally enforceable right to refuse specific socially beneficial medical treatments. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2002341

    • The converse may well apply also. You discuss smoking below. If you’re a smoker, they can tell you no coverage. If you’re overweight, same thing. What’s then to stop them if they decide they don’t like people with red hair. We can take this to a level of abusrdity, but I fear that once the levee is breached they will be able to dictate any parameters they desire, with the ability to move the goalposts any time they wish.

      To throw one other factor into the mix, how much of obamacare ties in with Zeke Emmanuel’s treatise on “caring” for the elderly? I have not been able to look into this, only what I’ve read about it.

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