Slippery-Slope Logic vs. Health Care Law

While I'm on the subject of the Times, there was a very silly Op-Ed piece on Sunday, and it's illustrative of one of the key problems in the current American body politic.

Slippery-Slope Logic vs. Health Care Law - Economic View - NYTimes.com

The Times gave its real estate to Richard Thaler, "a professor of economics and behavioral science at the Booth School of Business at the University of Chicago," and he used it to debunk an argument that no one on the right is making.

Thaler starts off by talking about slippery-slope arguments in general, and correctly notes that it can be a form of logical fallacy.

There is a DirecTV ad that humorously illustrates the basic form of the slippery-slope argument. A foreboding announcer intones a list of syllogisms that are enacted on screen: “When your cable company puts you on hold, you get angry. When you get angry, you go blow off steam. When you go blow off steam, accidents happen.” Later, we reach the finale: “You wake up in a roadside ditch. Don’t wake up in a roadside ditch.” Although this ad is intended to be funny, arguments that make no more sense can and do affect public policy. The idea is that while Policy X may be acceptable, it will inevitably lead to the terrible Outcome Y, so it is vital that we prevent Policy X from ever being enacted. The problem is that such arguments are often made without any evidence that doing X makes Y more likely, much less inevitable. What percentage of people who are left on hold on the telephone end up in a roadside ditch?

And that's fine, as far as it goes. He's right - it's very easy to put together a slippery-slope argument that makes assumptions about the likelihood of future possibilities and ends up somewhere very scary, or seductive, or exciting, and has no logical validity. But then he goes ahead and applies the idea to the debate over Obamacare that was recently held at the Supreme Court, accusing those who are opposed to the idea of the individual mandate of using slippery slope arguments that end with Congressional broccoli mandates.

It's true, of course, that many people have argued, or, more accurately, asked, "if Congress can mandate the purchase of health insurance, could they mandate the purchase of broccoli?" But that is not, as he as characterized it, a slippery-slope argument against the mandate. Rather, it was an inquiry into the fundamental constitutional limits of Congressional power.

Consider these now-famous comments about broccoli from Justice Antonin G. Scalia during the oral arguments. “Everybody has to buy food sooner or later, so you define the market as food,” he said. “Therefore, everybody is in the market. Therefore, you can make people buy broccoli.” Showing remarkable restraint, he did not mention anything about ending up in a roadside ditch.

Justice Scalia is arguing that if the court lets Congress create a mandate to buy health insurance, nothing could stop Congress from passing laws requiring everyone to buy broccoli and to join a gym. He and Chief Justice John G. Roberts Jr. were asking the solicitor general to explain what the principle would be to stop the government from going so far. If the law stands, Justice Roberts suggested, “it seems to me that we can’t say there are limitations on what Congress can do under its commerce power.” He added, “Given the significant deference we accord to Congress in this area, all bets are off, and you could regulate that market in any rational way.”

Please stop! The very fact that a slippery slope is being cited as grounds for declaring the law unconstitutional — despite that “significant deference” usually given to laws passed by Congress — tells you all that you need to know about the argument’s validity. Can anyone imagine Congress passing a broccoli mandate law, much less the court allowing it to take effect?

It's difficult to tell whether Thaler does not understand the discussion or is intentionally misrepresenting it, but he is fundamentally mis-characterizing the argument. No one is making a "slippery slope" argument in this case. The slippery-slope argument is of the form "if A happens then B is much more likely to happen, and will almost inevitably lead to C." No one has ever suggested that the individual mandate will make mandatory broccoli purchases likely, so it is not a slippery slope argument. What it is, rather, is an inquiry into the inherent limits of Congressional power, and people suggest a broccoli-mandate not as a likely consequence but as an obviously ludicrous example of something that would not happen but is just as constitutional under the logic of the case being made for the individual mandate. In other words, what we could term the "broccoli argument" is not a slippery slope argument - it's a reductio ad absurdum.

He says that "Justice Scalia is arguing that if the court lets Congress create a mandate to buy health insurance, nothing could stop Congress from passing laws requiring everyone to buy broccoli and to join a gym." On its face, that's a slippery slope argument. But that's not the argument being made. By using the term "nothing" in that statement, he's demonstrating either a lack of understanding or a lack of honesty. There are many things that might stop Congress from passing laws, first among those being the will of the voters that sent them to Washington and will, in the hopes of the members of Congress, keep them there. No one is arguing that "nothing could stop Congress" if the individual mandate is deemed constitutional. What people are arguing is that if the Constitution cannot stop Congress from mandating health insurance coverage, then the Constitution cannot stop Congress from mandating broccoli. That's a far cry from the argument that Thaler has portrayed. In his mockery of the slippery slope argument that no one is making, he's confirming the power and logic of the reduction ad absurdum argument that's actually being made.

So when he plaintively asks, "Can anyone imagine Congress passing a broccoli mandate law," the answer is obviously, "no." So far, so good. Everyone is in agreement. But then he actually touches, and ignores, the relevant question in that same sentence, when he asks, "much less the court allowing it to take effect?" Well, if the court is going to exercise that "significant deference to Congress" that we've spoken of, on what grounds could a court not allow it to take effect if Congress enacted it? And how would those grounds differ from the grounds for not allowing the individual mandate to take effect? The court is supposed to rule on the Constitutional permissibility of the law in question. If you cannot articulate a theory of law in which the law being examined differs in a relevant way from an obviously unconstitutional theoretical law, and no one on the pro-mandate side has successfully done so, then you're conceding that the law being examined is not constitutional.