Home > brilliant legal thinking, Government, healthcare, politics > Framing effects and legal thinking

Framing effects and legal thinking

This week is “repeal-Obamacare” week, so I suppose I should comment. Full disclosure: I have a pre-existing condition and I know with certainty (from experience) that I will never be able to buy health insurance on the individual market without major reforms such as the ACA.

So, needless to say, I am a little miffed by the whole thing. What really gets me is that my Tea-Partier parents are waiting on tenterhooks for what they seem to think is the inevitable repeal verdict. With my own future partly riding on not repealing I can’t help but feel a little unloved–or at least less loved than Glenn Beck.

As to the substance, though, I have to say that my respect for proper legal analysis has dropped a rung or ten. I mean, really, does this whole brouhaha revolve around a distinction between regulating activity and regulating inactivity? It seems to me that in the real world ain’t no difference. Are we really on the cusp of enshrining into constitutional law status-quo bias and framing effects?

Let’s take a hypothetical example. Suppose that I wrote into law a “homeowner’s mandate”. Anyone who does not buy a house pays a “penalty”–of course this is terrible policy, but I’ll get back to that. That “penalty” is large enough to partially fund home-buying by reimbursing homeowners for their interest payments (the rest of the money comes out of general revenues). Of course, run through the tax-code, what I’ve just described is the mortgage-interest deduction. Don’t believe me? Let’s conduct a little experiment. Suppose that we observe the tax payments as well as characteristics of many tax payers, but not the the tax code directly. Would I be able to observe a difference between my “homeowner’s mandate” and the mortgage interest deduction? I say no. Moreover, the only reason that individuals might behave differently is through the different frames that they perceive the problem. In the name of almighty Zeus’s skinny jeans, how does that make one unconstitutional but not the other?

As for framing effects, we’ve already crossed that bridge, it seems that yesterday’s arguments revolve around whether the individual mandate is a “tax” or a “penalty” executed through the tax code. Forgive me if I see no difference. If a “penalty” raises revenue, then it is a tax. The AMT (the Alternative Minimum Tax) can be described as a “penalty” rate for anyone who falls under it, but it is a tax. Everyone agrees it is a tax. Today’s ruling means that if it merely been named the “Alternative Minimum Penalty”, then it would be a “penalty” and therefore not a tax. Way to go brilliant legal minds!

I think I’ve come to the conclusion that legal thinking is not ever about reason or even evidence, it is always and everywhere about exploiting cognitive biases. On the bright side (for people like me), if the law is struck down in its entirety I predict that this would re-energize much of the left; on the one hand, the verdict would crystallize the thinking on the left about “conservative judicial activism” (there’s no doubt now that such a thing exists) just as Roe V. Wade did for the right a generation ago and on the other hand, there’s no more rightward policy for healthcare that would reduce costs and provide universal coverage–the next attempt at an HC law would be well leftward of what we get in the ACA (although it might take another generation. Politically, my guess is that a mixture of corporate interests and reactionary politics will be blamed for the defeat of the ACA and combining this perception with the growing 99% movement could prove… explosive. My conclusion is that this could be a “win the battle, lose the war” moment for conservatives. Still, striping the individual mandate would be disastrous in every sense of the word.

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