Discipline and Medicate

by Cliopatria

Or, The Problem of Seeing Like a State, Again

The fantasy of modern government is the fantasy of the standardized subject, held to a standard set of requirements: every person a uniform bolt, every program threaded to achieve a fit. Out of many problems, one solution. An individual mandate, universally implemented, serves a state interest, not the interest of the individuals locked into the mandate.

Look again at what the UCLA law professor Adam Winkler says about the federally implemented individual mandate to compel the transfer of personal capital (and federal subsidies) to private health insurance corporations, with emphasis added:"That Congress lacks the power to require people to buy a product when the national interest demands it would surprise the Founding Fathers."

No discussion is underway in the United States about helping the uninsured. We are having a discussion about institutional powers and burdens, centered on the patron-client partnership between government and corporations. You don't help someone who lacks something by threatening to penalize him if he doesn't buy it:

"I'm so hungry -- will you help me?"

"Sure: buy this sandwich or I'll punch you in the face."

Thanks!

The people being"helped" in this manner can usually figure out the game, and they often respond by declining to play it.

Returning to Winkler's historical comparison, the thing he describes as the nation's first individual mandate was often recognized and resisted as an attempt to serve state interests, not personal or community interests. Many people responded by ignoring the mandate. This was equally true before and after the passage of the federal Militia Act of 1792.

In August of 1789, the adjutant general of the Massachusetts militia received word that an entire isolated community had simply never bothered to present itself for militia duty. Adjutant General William Donnison responded by ordering an investigation, and a brigadier general was dispatched to the area.

In March of 1790 -- seven months later -- Donnison issued a new general order that reflected the investigator's findings. He ordered that"Eleazer Robins, Daniel Morse, Elisha Morse, Solomon Morse, Isaac Pratt, Caleb Atherton, Seth Boyden, Abijah Pratt, Martin Dossane, Jacob Boyden, Jacob Boyd, and the Males of the families of Widow Patten and Widow Pratt, and all other persons residing within the district of Foxborough Corporation" finally present themselves for registration on the militia rolls. (I haven't been able to find out, yet, if it worked.)

An entire small community had simply never bothered to notice their state's nearly universal mandate for white males not specifically exempted to train in the militia. It took the state years to notice, and months to act on the discovery. People who wished to avoid a universal government mandate did so by sitting still and ignoring it, a tactic that worked for many years. See me sitting in quietly this chair? I'm resisting. Catch me.

And so the central government put more words on paper to demand personal obedience to a universal mandate. Men of the age for militia service often ignored their obligations, so new laws told them to meet the requirement that they had ignored under the old laws.

And then: not much. Nearly thirty years later, after the extended operation of the Militia Act of 1792 (and the state laws that put it into local effect), Massachusetts brought Lt. James Butterfield before a court martial for his failure to train his company even once over the course of several years. His defense was that well, yeah.

In a Sept. 10, 1818 letter to his regimental commander, Butterfield wrote that"the men that belong to this Company are allmost all absent, twenty or thirty miles up in the woods a lumbering which renders it impossible to collect more than eight or ten and I am doubtful whether I could collect five in the present situation, not more than half of the company have arms, nor are they able to equip themselves neither is there any Town or Plantation to call on for arms."

Clearly, then, telling everyone who didn't have weapons to arm themselves, and telling everyone who wasn't doing militia duty to do militia duty, worked like a charm. The Militia Act of 1792 caused everyone subject to its mandate to snap to order and serve the state.

Magical thinking.

A few years later, a colonel in northwestern Massachusetts noticed that the entire town of Charlemont simply never bothered to muster for militia training -- and that the local militiamen had elected company officers who promised not to make them. In 1824, Colonel Noah Wells dissolved the Charlemont company, ordered the men of Charlemont to train with the militiamen in the town of Heath -- and then brought an ensign in Heath before a court martial in 1826 on the charge that he had never mustered the men from Charlemont.

Ensign Thomas Mayhew said in his defense that he hadn't mustered the men from his neighboring town because he couldn't identify them; wonderfully, the man identified to him as the company clerk"exhibited no roll of said company and denied any knowledge of the existence of said roll," while a former militia colonel in the town"said he should not dare to give their names because he did not know who were soldiers."

But no worries, because it should be easier with the entire population of a country with 308 million residents.

If you accept the comparison of the individual mandate to transfer capital to insurance companies and the individual mandate to buy arms and serve the military needs of the early United States, you accept the likelihood that the former is a certain policy failure like the latter. The problems of legibility and control are unmistakable.

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Andrew D. Todd - 2/5/2011

The mandate is not essential to ObamaCare. It is just that, without the mandate, or some other compensating arrangement, the insurance companies get taken to the cleaners. The mandate was probably a dumb idea in the first place, and, if only the mandate should be eliminated, the insurance companies will probably use all their influence on both sides of the aisle to do a more sensible fix. A more realistic solution would be lowering the Medicare age to, say, fifty-five, and paying for it out of federal general revenue and/or the federal deficit. As a practical matter of course, people who have serious health issues and are not covered under Medicare tend to be about sixty. Let the insurance companies insure the younger people who are less likely to file claims.

In the course of dealing with issues relating to the patent system, I have become aware of how the federal court system works in practice, especially in terms of "judge shopping." For example, the East District of Texas (*) is notorious for favoring patent-holders, and many of the judges in that court have blatant conflicts-of-interest. The plaintiffs in legal cases seek out federal judges who are likely to agree with them, and get decisions which the are not strictly entitled to, and then the defendants appeal the cases up to the federal appeals courts, where the decisions are often thrown out, primarily because the local favoritism has ceased to operate, or even to the Supreme Court.

(*) The East District is Longview, Marshall, and Tyler, the North District is Dallas, the South District is Houston, and the West District is San Antonio. Thus the East District is a kind of "rotten borough." At least one of the judges has a son, a lawyer who practices before the court, who consistently represents patent interests.

Out of about fifteen federal judges who have been approached in the matter of the mandate, only one, Judge Vinson of Florida, has been prepared to rule against ObamaCare in sufficiently broad terms as to block implementation of the program.

Another federal judge, Judge Hudson of Virgina, has thrown out the mandate, but presumed severability, and left the remainder standing. He has presumably taken the reasonable view that if the legislators had known that he was going to throw out the mandate, they would simply have picked one of several alternative means to pay off the insurance companies. Likewise, one assumes that he has also taken account of the fact that the scene in the House and Senate chambers was a madhouse, with proponents of about ten different alternative and mutually incompatible schemes all screaming at each other. Obviously, under those circumstances, the bill which resulted was bound to be an unholy mess, without the kind of logical consistency which judges value. The thing is that generous majorities of both houses voted for expanding socialized health insurance in a sizable way. They did not vote for the law of the jungle so dear to Reason Magazine. A judge with reservations about particular clauses, such as the mandate, has to take account of the legislators' underlying intention, and either rule ObamaCare unconstitutional per se, in terms of its underlying intentions, or else find a way to shave off its rough edges.

Only about five percent of judges are willing to attack the ideal of social insurance per se. Most judges are old enough to be realists about their personal health, and they know, instinctively, that some kind of system will have to be worked up, and that this system will have to be reasonably equitable. As good jurists, they recognize that a principled root-and-branch attack on ObamaCare must also be a principled root-and-branch attack on Medicare and Social Security. And they are not Libertarians or Randians.

http://www.washingtonmonthly.com/archives/individual/2011_02/027853.php
http://www.upi.com/Top_News/US/2011/02/03/Judge-tosses-healthcare-reform-challenge/UPI-76011296725400/
http://thinkprogress.org/2011/02/04/aca-standing/

Chris Bray - 2/4/2011

Here's Joe Conason at Salon: "If the individual mandate is unconstitutional, how could our first president require every citizen to buy a gun?"

Here's a post from a health care blog comparing the health insurance mandate to the Militia Act of 1792. ("Perhaps the most surprising aspect of the militia mandate is how uncontroversial it was. For instance, although the recently-ratified Bill of Rights was certainly fresh on Congress’ mind, not one of militia reform’s many opponents thought to argue the mandate was a government taking of property for public use.")

Here's an article in Slate examining the frequent use of the Militia Act of 1792 as a comparison to the health insurance mandate. (The writer thinks it's a "pretty flimsy" case.)

Here's a post at an academic group blog examining "The Civic Republican Roots of the Individual Mandate." ("The requirement to join the militia (and purchase arms for the defense of the state) was an aspect of civic republicanism-- the political idea that citizens had a duty to work toward the public good and make sacrifices on behalf of their fellow citizens and the republic (the res publica, or public thing)....
"What is lost in the debate over the individual mandate is that the point of the individual mandate is also civic republican in nature. It requires citizens to make a far less significant but also public-spirited sacrifice on behalf of other Americans who cannot afford health insurance.")

I can go on and on and on. Or you could use Google, and see for yourself. I didn't invent this comparison -- it's frequently used, and I'm suggesting that it's a problematic comparison for someone who wants to suggest that the health insurance mandate represents a kind of requirement that is deeply established in American politics.

You believe that most Americans would reject the political comparison with eighteenth-century militias. Did you notice how many Americans have used that comparison?

Chris Bray - 2/4/2011

I'm sorry, I stopped reading at "you wingers."

Chris Bray - 2/4/2011

So you're rejecting Adam Winkler's comparison, then.

David Silbey - 2/4/2011

"So I would welcome you to work through the comparison"

The connection's up to you. Why does being a mandate guarantee a similar outcome?

Pearl Harbor was a surprise attack. Pearl Harbor was a (strategic) failure. Therefore, surprise attacks are strategic failures.

That's essentially the logic, transposed to make it more obvious, and it doesn't hold together.

Andre Van Mayer - 2/4/2011

If I were called upon to find the political comparison which the largest proportion of Americans would be most likely to reject, that of the federal healthg care law with eighteenth century militias would certainly be in contention.

Ralph M. Hitchens - 2/4/2011

Since we're talking about states, isn't a comparison to the universal auto insurance mandate relevant? The sandwich analogy is facile, & since you wingers have forced the public option off the table (kowtowing to the deep pockets in Hartford CT), a mandate along the lines of what states require for licensed drivers is presumably the next best thing. As with the long-ago milita there are scofflaws who ignore this mandate but the system works, by and large.

Chris Bray - 2/4/2011

BTW, "Things can fit in a category and have entirely different results."

An argument you also apply to Adam Winkler's comparison, no doubt.

Chris Bray - 2/4/2011

So I would welcome you to work through the comparison and show where it breaks down, and where the problems of legibility and enforcement are inapposite.

David Silbey - 2/3/2011

"If you accept the comparison of the individual mandate to transfer capital to insurance companies and the individual mandate to buy arms and serve the military needs of the early United States, you accept the likelihood that the former is a certain policy failure like the latter."

I don't see why. Things can fit in a category and have entirely different results. Nobody would argue (I would hope) that the surprise attack at Normandy was doomed simply because Pearl Harbor was not turning out well for the Japanese.