My topic this week is again political. I’m going to take a look at the under-reported part of the Supreme Court decision upholding the Affordable Care Act. There was a part of the ACA that was struck down as unconstitutional – the Medicaid expansion. The reasoning was that the expansion was coercive. But let’s start in a more whimsical place:
One of the most entertaining aspects of online role playing games is the need to differentiate between the reality of the game world and the reality of the real world. The typical way to note the difference is with the acronym IRL – In Real Life. So, one dwarf says to his halfling companion: “I have a new crossbow IRL.” The player behind the dwarf avatar isn’t talking about some new in-game item; he means that he recently acquired a real, physical crossbow.
There is a unique privilege and respect paid toward the real world. After all, we must navigate many worlds. Not all of us play fantasy video games, but we often have to distinguish between the world of undifferentiated nature (REALITY) and the world of X, whether that is the world of law, politics, art, or language.
One of the most interesting differences between language and Real Life is vagueness. It is common to partition vagueness into the world of language, where it stays put and cannot cause mischief. It is, after all, very comforting to do so. Vagueness is messy. It resists our best efforts at calculation and disturbs our ability to make sharp dividing lines between the true and the false. And so, the common logician might say, vagueness is a property of words. Propositions are either true or false, but words are clear or unclear – one of the ways a word can be unclear is by being vague. And when a proposition contains vague terms, the usefulness of the proposition (its truth value) is compromised.
But is that correct? What would happen if there are things vague IRL? Perhaps out in the world there are areas where a sharp divide between yes and no isn’t possible. Here’s one: How much anger is appropriate? Aristotle’s argument in the Nicomachean Ethics is that there isn’t a single correct answer to this question. If you have a little more than what is strictly proportional you will be spirited (a good thing), while if you have a little less then you are easygoing (also a good thing). So, what is the right amount? Well, it’s somewhere “in the middle” but no exact middle is given, nor is one even possible. A virtuous amount of anger encompasses a range, not a point. We all have had experiences with too much anger, and with too little. We don’t get confused about the extremes. But the middle is vast. It’s vague IRL.
There are other examples, even in nature – such as the minimum volume of water a thriving goldfish needs. A thriving goldfish can always do with a few hundred fewer molecules of water. But take away enough and the goldfish is cramped. It is not that the exact line between thriving and cramped is unknown. Rather, there is no exact line. There are many other examples of vagueness IRL – the amount of rain (number of raindrops) needed for a good harvest, the number or hairs needed for a beard, the amount of good will needed for a friendship, and so on.
Now back to the Supreme Court.
The majority of the justices (though not the same majority that upheld the individual mandate-tax) believed that the Medicaid expansion crossed the line into coercion, but they gave no exact criteria for coercion. Justice Ginsburg gave a scathing critique of the coercion thesis, saying that without a rule for separating coercion from non-coercion (“without fixing the outermost line”) the coercion thesis introduces inappropriate vagueness (“defy judicial calculation”).
I admit – I identify with her frustration. It will be difficult for congress not to spend coercively if they do not know EXACTLY what constitutes coercion. On the other hand, the majority opinion casts suspicion on all package-deal state/federal partnerships. For example, the congress could use the spending power to pay for everything in a typical state budget (roads, law enforcement, education, everything) and raise taxes accordingly. The states get the money that they would have had to tax for themselves, but in exchange they have to pass various laws that are outside the enumerated powers of the federal government. The states would have no way to tax their citizens (since the citizens are already paying for the federal government to do those things that their state taxes would have supported). The states would have no choice but to take the package – and then federalism would be functionally dead.
Of course, such a scenario would take place very slowly. It would involve a state/federal partnership slowly costing more and more and the state budget becoming more and more dependent on their share of the federal money. Then the federal government could simply threaten to withhold the money and they could dictate policy to the state legislatures. And once that door is open, the federal government acquires all the powers reserved for the states. That would be just like….
Just like the Medicaid expansion.
Unfortunately for lawyers, judges, and legal scholars – coercion is vague IRL. There is no exact dividing line where the package deal becomes an offer the states can’t refuse. Rather than letting the vagueness overshadow the actual coercion (as Ginsburg implies the court should do), Roberts casts the deciding vote to strike the Medicaid expansion, but leaves the precise dividing line to a future decision. Perhaps he can find it in his heart to let something vague in reality remain vague in law as well.