The Slippery Slope

Submitted by: Mike Spindell, guest blogger

My father had a favorite saying with which was to excoriate me on the many occasions when I had misbehaved. “The Road to Hell is paved with Good Intentions”. He used this to chastise me for some bad behavior, but more importantly to give me guidance of the “slippery-slope” that I was on when I behaved badly. Although it’s been 50 years since his death his words have remained with me even though I’ve aged into a man who’s lived far longer than he had. It’s been my observation that there is truth to this cliche, yet it does represent a form of logic, the “slippery-slope”, which can often also be specious. When I read this New York Times Article: “Slippery-Slope Logic, Applied to Health Care” by Economist Richard H. Thaler, Published: May 12, 2012 , I was again reminded of my Father’s admonitions and began to think about the use of “slippery-slope” logic. As it relates to SCOTUS and health care Mr. Thaler’s critique of the “slippery-slope” logic being applied by Justice Scalia did ring true:

“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.” ”

 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.”

 “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?”

These are excepts from Mr. Thaler’s article. His short column is well worth reading for his examples of the problem with “slippery-slope” logic. My piece though, is neither about health care, nor SCOTUS. I’d like to explore the question of the validity of “slippery-slope” arguments that have been commonly used in public discourse and whether we would be better off as a society if we ignored them.

Religious Fundamentalists in America have long been obsessed with what they define as loose morality leading our country down the “slippery-slope” towards becoming Sodom and Gomorrah. The long history of American Laws passed regarding sexuality all had this theory as their basis and as their justification. I can remember many years ago hearing some politician making the argument that if we legalize homosexuality we will stop producing children and die as a society. Presumably his premise was that legalizing Homosexuality would cause everyone to become Gay, because that was the more attractive and compelling lifestyle. Those who would prohibit the use of birth control are really also expressing the “slippery-slope” attitude that birth control inevitably leads to promiscuity, which will leave us with an immoral society.The arguments made against a social safety net have been in essence arguments that such a “net” will inevitably and indeed has already, made people lazy. The “slippery-slope” has been the lynchpin argument of conservatives and libertarians about the initiation of any government program since it will inevitably lead down the “slippery-slope” towards socialism and/or bankruptcy. Probably one of the great, yet little remarked upon, injustices in our country’s history came in the form of the “Orphan Trains”.  Immigration, westward movement, the Civil War and children born out of wedlock were perceived to be problematic to the country. The idea of public assistance for children, such as the AFDC grants we have today, were perceived at all governmental levels to be destructive to the “work ethic” and would follow the inevitable “slippery-slope” down to the creation of a society with a “lazy” underclass. The mechanism developed and championed by the nascent Children’s Aid Society was the “Orphan Train” :

“Between 1854 and 1929, an estimated 200,000 American children—some orphaned, others abandoned, all in need of families—traveled west by rail in search of new homes in a novel ”placing out” movement.”

“The intent of the program was not adoption as it’s now known but foster care. Families acted from various motives, and not all children who rode orphan trains found happy homes. Some suffered abuse, were treated like hired help or were never fully accepted. Officials knew that placing out was imperfect and did what they could to screen inappropriate families.”

In lieu of establishing a program for assistance of children in need on a localized basis, children were shipped off in trains heading west, stopping at various locations, so that local farmers and industrialists could “adopt” them to work on farms and factories. Thus a “slippery-slope” towards destruction of the “work ethic” and reward for “immorality” was avoided.

The “grand slippery-slope” argument in our politics is of course regarding the role of government. Conservatives and libertarians argue that we must reduce the role of government lest we destroy Capitalism and become Communist Demons. Thus every attempt at improving the lot of the poor, bolstering the middle-class, or even fixing our decaying infrastructure, is railed against as leading us down the “slippery-slope” of Marxist deviltry. Such is his fear that the infamous Grover Norquist wants to shrink government to the size “where it could be drowned in a bathtub”.

Yet I must ask is a “slippery-slope” argument always ill-founded? I could argue that the initial U.S. assumptions about the “Cold War” led our nation to the point where we have become the “Empire” that our Founding Fathers warned about. Those who objected to our aggressive “Cold War” policies were ridiculed for their fears of the “slippery-slope” towards nuclear destruction, chastened by an opposing “slippery-slope” argument, or simply called Communists. Those initial actions to protect against the threat of communism put us on a “slippery-slope” where our defense budgets have drastically increased, our foreign involvement in wars of choice has become decades, rather than years long and our security agencies are now operating against American citizens. This was all driven by the internal logic of our “Cold Warriors”, with a lot of opportunity for personal profit thrown in and with the threat of a “slippery-slope” that would lead to our country’s destruction. Despite the Reaganite claim that it was their foreign policy that lead to the end of the USSR, the truth was it was the communists own internal problems, rather than a threat from the US and NATO.

However, I remember huddling against the wall in my Elementary School practicing to save myself in the event of nuclear attack. Even at those tender ages I fully understood that huddling in the hall wouldn’t save me if an H-Bomb or two exploded in New York City. These “safety drills” were merely exercises in propaganda, used to convince us that the “Commies”, our implacable foes, would destroy us if we didn’t beat them to it. The entire 11 years fighting in Viet Nam was the result of the famous “slippery slope” gambit of the “domino effect”. Now, thirty-seven years after the Vietnamese beat us, we engage with trade with them. The “Domino Theory’s” false “slippery-slope” logic never took effect.

Are we always then to disparage “slippery-slope” logic? Perhaps there are instances where the “slippery-slope” has validity, but I’m personally hard pressed to come up with them, except in the cases of erosions of our civil liberties. From a civil libertarian view every instance where a book is banned for salacious content; a non-harmful sexual act between consenting adults is prohibited; extra-constitutional tactics to fight purported terrorism are instituted; the rights of a minority are limited; the introduction of religious beliefs into the public sphere is put into effect;  and so on is an embarkation down the “slippery-slope” towards the destruction of our freedom.

The attack of 9/11 led us down the “slippery-slope” of anti-terrorism inexorably towards two wars, police state tactics, the interference of intelligence agencies in our private lives and assassination. Curtailment of civil liberties in almost any form can lead down a “slippery-slope” towards oppression. Perhaps these concluding words from Mr. Thaler, in the above referenced article give some clarity:

“More generally, we would be better off as a society if we could collectively agree to ignore all slippery-slope arguments that aren’t accompanied by evidence that said slope exists. If you are opposed to a policy, state your case based on the merits — not on the imagined risk of what else might happen down the road. The path of that road is so unpredictable that it may even produce a U-turn.”

What do you think?

Submitted by: Mike Spindell, guest blogger

57 thoughts on “The Slippery Slope”

  1. TonyC,
    I don’t know but rumors say that a lot more than the 30 percent, who’ve had insurance for years, but then are sadly surprised when they have a need for using the coverage.

  2. @idealist: Not just equal in quality at half the cost, but universally available as well, so unlike the USA, you don’t have 30% of the adult population facing the risk of complete bankruptcy if they contract a serious illness.

  3. Oddly, Sweden liberalized the ability of private organizations to enter the primary care market here. Don’t have the stats but mine went private some years ago and haven’t noticed the difference.

    Of course, they don’t fill my expectations. In spite of all the senior patients, they don’t have a gerontologist on the staff. But the lab is bought in from outside and fast.
    So it works both ways here. Only one fully private hospital in Stockholm (except for the very old one for the rich).

    They all get paid the same for the same service, and I believe that you pay the same for a doctor visit (more for speciallists) at each clinic/hospital.

    My pacemaker replacement opn with one night in the hospital cost me 12USD, that was a nominal charge for sleeping/eating there. The rest was free.

    Of course we pay a very steeply rising marginal income tax. But overall the medical care is half the cost of yours, and stats say equal in quality.

  4. @CLH: I have also been on both sides of this debate, currently I am on the wealthier side of the divide, but would vote to pay more tax on my income to provide health care for those that do not have it.

    One purpose of government is to provide for the common welfare. That includes a national defense, roadways that reduce the costs of transportation which benefits everybody, police that protect everybody, and in my opinion, health care benefits everybody too. Even those that do not require it, due to the domino effects of desperation on the parts of those that do. A healthy society is a more productive society and a more reliable society. Some effects of bad health have catastrophic losses and consequences that could have been cured for a few bucks (like an infection) or prevented for a few bucks (like cervical cancer). I think preventing a catastrophic losses, saving the life of a spouse or child is in society’s best overall interest, both morally and financially.

    It is not “charity” if we all pay for it, and if we DO all pay for it, it would be far cheaper and more fairly distributed. The examples of where that is true abound; some examples are Sweden (9% of GDP), Germany (11% of GDP), versus America (16% of GDP).

    I will also point out that this is not about mandating the salaries of health care professionals in the least: paying them exactly what they earn right now, all of them, the USA could reduce its health care costs by over half, just by eliminating the profits of middlemen along the way.

    I think that is a justifiable takeover of a market, because free markets break down when one party is not really free to walk away, and that is the situation for the vast majority of patients; they are given a false “choice,” it is pay up or suffer a catastrophic loss or death. I do not think hospitals or insurance agencies or pharmaceuticals should be permitted to earn a profit on such false choices.

    I do believe in the free market for the purpose of staffing. All doctors, nurses and other health care professionals should be engaged in their profession by free choice, and the government facilities should pay enough to remain fully staffed. I believe in a medical service much like our military service, judicial service, police forces, firemen, etc. Staffed by volunteers willing to work for the pay and benefits offered, and if we are short-staffed, we increase the incentives. Like Sweden, I believe if private health care facilities can provide service or benefit at a profit, they should be free to do so as well (and Sweden does have private care facilities for those willing to pay for them).

  5. I’m of two minds regarding government provided health care. I’ve written in a previous thread a bit of an antithesis regarding whether providing health care should be a government function at all, outside of narrowly delineated circumstances involving mentally ill, children, and physically handicapped who are incapable of providing for their own health care. I’m still split on the issue. I’ve been on both sides of the debate- wealthy enough to pay huge taxes, that I earned by working nearly 80hrs per week on average (over six figures) and poor enough to not know where my next meal was coming from. I’ve been at a point where I resented all hell out of people reaching into my bank account for money I earned by blood, sweat, and more sweat, without giving me a choice on the issue. I’ve also been at a point where if it were not for the charity of others, I would have died. (And not a bit of help did I receive from the government, BTW). Please understand (those who will undoubtedly begin bashing the crap out of this post) that I have very mixed thoughts on this issue, though I always enjoy feedback, negative and positive alike. I’m an attention whore at heart, and only recently pursuing education in law, so yes, my opinion is generally worth a fart in the air conditioning. Though, if I had to be honest, I’d say I’m not inclined towards it. I don’t like government. I prefer the action of individual charity rather than mandated charity. But given society’s current state, charity would not come near to providing the necessary levels of funding to give everyone minimum levels of preventative and restorative health care. The argument, either for or against government provided health care, is basically a moral and ethical argument, which both sides having very different views on both the role government has to play in society, and the role charity has to play in society, and to what extend either is responsible for the fellow members of their society in a mandated context.


    Scalia’s slippery-slope-broccoli argument isn’t completely fallacious. It wasn’t about the broccoli, broccoli was simply an example commodity. The argument was that the government should not have the ability, by constitutional precedent, to force people into a market not of their choice. (This was the only logical argument against the individual mandate in my opinion. Ethically is something else.)

    The argument that because emergency rooms are required to provide health care regardless of ability to pay, that it creates a taking without compensation is not precedent for being able to force a person into a market by mere means of existence because CHOICE STILL EXISTS. There are two arguments I would make for the constitutionality of requiring ER to provide health care to the uninsured.

    1.) Commerce clause- Healthcare is a commodity and service, and therefore is commerce. (Aside: When are we going to make healthcare a right by constitutional amendment? That would be a bit of a simpler solution, but it won’t happen in the next twenty years at least, IMO) As such, Congress has the ability to force people to provide unfunded care because the provider is NOT FORCED TO OPERATE IN THE FIRST PLACE, nor is there a mandate that anyone create an insurance company at all. Therefore, they have the option of opting out of those markets, either by not providing health care, or not providing insurance, at all.

    2.) 5th amendment arguments against the ER care requirements are invalid, because due process has been given by the creation of laws that the people had the opportunity to comment on, vote for (by means of electing congressmen), and to repeal by the same methods. As the people have not chosen to do so, the law is valid. Again, there is still the OPTION of not being in those markets in the first place by the providers.

    Therefore I believe that the requirement to provide care in emergency rooms is constitutional by itself and does not create a market or mandate entry into one. As such, it cannot be used as a basis of comparison for constitutionality of the individual mandate. The individual mandate requires, by law, that an individual purchase a product. That requirement is NOT OPTIONAL, as there is a penalty for non compliance. Whether or not that penalty was intentionally created as such is a different argument, and perhaps a better one. Congress should have worded that one better, so that it represented a tax action, or a tax deduction, to render it proof against the supreme court.

    So the slippery slope argument made was that permitting congress to mandate, with a penalty, that people purchase a product, would create precedent that would allow congress to mandate any other entry into a market, including broccoli. In order for a slippery slope argument to be valid, it has to have a logical progression, that decision A materially increases the probability that others will bring about decision B, through logical, legislative, judicial, short steps, single step, or any other mechanism. So slippery slopes can be used as a method of analyzing risk/reward scenarios. In the SCOTUS context, the reward is permitting the individual mandate, the risk is creating precedent giving congress broader powers than what the framers of the constitution permitted.

    Now the other issue. Not one member of the supreme court will vote based on the logic of the arguments. They will vote their political views, and then use their superior linguistic skills to support their position.

  6. “The logic for buying health insurance to cover your catastrophic care is not the same as the logic for eating broccoli (or any other vegetable).

    Except catsup.

  7. Mike,

    I think slippery slope arguments are valid when made in kind. For example, we legalize the purchase of mind altering addictive drugs right now: alcohol and tobacco.

    I am okay with that, but certainly an argument exists that these produce a danger to the consumer and to others, but as a society we are not absolutist, we decide to punish some of those dangers (DWI) as crimes, and others as people assuming their own risks.

    The fact that we treat those mind-altering drugs in that way is actually the strongest argument for proponents of legalizing other mind-altering drugs, such as marijuana or ecstasy. It is an argument in kind: You are allowed to tobacco yourself into lung cancer, drink yourself into liver failure, but you cannot smoke a joint or pop an E?

    It is precisely those arguments that are slowly leading to the decriminalization and eventual legalization of pot.

    Now I applaud that, but for a moment let me play devil’s advocate: If I were a prohibitionist opposed to ALL mind-altering drugs, my slippery slope argument would be entirely valid. If alcohol, tobacco and pot were all illegal (for being mind-altering drugs) then I would be right to make the slippery slope argument that legalizing one of them would eventually lead to legalizing all of them.

    I would be right, because in that case, the same logic applies to all of them, it is hard to think of a reason why either alcohol or tobacco should be legal and marijuana should be illegal.

    Now on the Scalia front, his argument makes no sense. Again, I think the mandate is unconstitutional like Scalia does, so I am playing devil’s advocate on the logic.

    Failing to carry health care insurance directly impacts others. Denying a patient care in the E.R. due to lack of insurance is illegal (rightly so, in my opinion). But care costs money, and the money eventually comes from higher premiums and/or taxes on other citizens.

    Failing to consume broccoli does not impact others. (In fact it was a particular poor choice of vegetables to use as an example; those that hate broccoli usually have a genetic difference [gene is hTAS2R38] from those of us that like it, and the genetic difference may be protective for iodine transport within their physiology.)

    Failing to consume vegetables cannot be shown to create a sufficient level of health risk or financial risk or endangerment to others to match the same level of mandate as health care. In fact, any argument that allows the choice to consume provably dangerous alcohol and tobacco allows us to refrain from eating any food we do not like.

    So how would the slippery slope actually apply to health care?

    You have to be careful in generalizing the mandate so it doesn’t lose important features. I think a rough first draft of the generalized mandate is that, when people are allowed choices that have the potential to produce financial losses greater than they can actually cover, then those losses would ultimately be covered by others, and in that situation the government has the right to remove the choice from all people and demand we all buy a product that can prevent or minimize such losses, even from a for-profit company.

    So the slippery slope here would be more like liability insurance for cars, or gun owners, or building owners, or flood insurance for water proximity, or full-replacement fire insurance for cooking enthusiasts with a mortgage: After all, the mortgage collateral is the house, if you burn it down trying to deep fry a turkey, your choice has led to the loss of an asset that many could not cover.

    Or, how about requiring fireproof furniture, clothes, furniture and bed linens for smokers? Their houses burn down at a greater rate due to cigarettes starting fires, when people fall asleep or forget cigarettes.

    Or, how about requiring all guns to be in a locked fingerprint-safe when not actually within ten feet of the gun-owner? Or requiring all gun owners to be fingerprinted and with a DNA sample on record with the government, or requiring all gun owners to produce all their weapons once a year and fire them for ballistics match?

    I believe (at around an 80% personal conviction) those might be valid slippery slope arguments Scalia could have used. The question is, to me at least, whether the same logic used to justify one act can be used to justify other acts; that is the essence of a slippery slope argument. I agree it is wildly overused because there are usually very salient differences in the two acts; marrying another reasoning, consenting adult capable of making their own choices is not the same as marrying a child, a dog, or a piece of furniture.

    The logic for buying health insurance to cover your catastrophic care is not the same as the logic for eating broccoli (or any other vegetable).

  8. importanttopics 1, June 9, 2012 at 7:38 pm

    Legitimately or illegitimately, the point is the same. If you can be required to buy one thing for the greater good of society, then you can always be required to buy something else for the greater good of society.
    The public is not a buyer of the ongoing decades of war, while poverty and middle class collapse continues.

    It is a example of illegitimately being sold a bill of goods: war.

    Those wars produce 18 suicides of warriors each day, 12,000 suicide attempts each year, and 6,570 suicides carried out each year.

    Over ten years of wars the suicide rate is ten times more killing than all the enemies have done to soldiers in the wars.

    It is illegitimate, but health care is a legitimate pursuit so if I was forced to choose to stop the wars and start the health care and treatments instead, I could live easier with the health system than with the wars.

    The other nations are doing that already.

  9. Slippery slope which resulted in the Holocaust, WWII, millions of lives lost, cities destroyed, nations flattened. The Reichstag Fire Decree of 1933. After someone set fire to the German Parliament, which they called the Reichstag, President von Hindenberg issued the infamous Reichstag Fire Decree which was aimed, purportedly at going after the perpetrators of the fire, the Communists, and eliminated all civil rights and human rights protections in the Reich. Hermann Goering later (at the Nuremberg Trials) admitted that he set the fire. This is very analogous to the Patriot Act. Slippery slope—for dopes. History repeats itself.

  10. Imagine a situation where Congress created a social medical program which paid for all medical expenses incurred by a federal judge, his family, and does so for his entire life after retirment. Slippery slope. Pretty soon all federal and state employees will want this, then all persons who work, then all persons. Slippery slope. This does exist. We call it ScaliaCare. We cannot expect the Supreme Court to eradicate its own socialist medical care system and stop the slippery slope. We need a Constitutional Amendment which says that each person is on his/her own and there be no federal or state subsidies for anyone’s medical care. We have a system which socializes losses and privatises gains. This is the RepubliCon Way.
    Let us begin the Constitutional Amendment to end ScaliaCare as he knows it. Slippery slope. I am falling and I cant get up! Someone call the police, that Scalia guy is a doggone thief.

  11. I’m not worried about the broccoli. I’m worried about the soylent.

  12. And it can be argued that it’s really for the good of the corporations doing the selling and has nothing to do with the good of the “real” people.

  13. Legitimately or illegitimately, the point is the same. If you can be required to buy one thing for the greater good of society, then you can always be required to buy something else for the greater good of society.

  14. Neil Davis 1, June 9, 2012 at 6:50 pm

    I think Scalia’s point was that this is the first federal legislation in history in which American’s are required to actually buy a certain product from private corporations. If the federal government legitimately can make you buy one thing, then it can legitimately make you buy something else as well.
    Hmmm … ascertaining the damage from “If the federal government legitimately can make you buy one thing, then it can legitimately make you buy something else …” probably requires the equal analysis of “If the federal government illegitimately can make you buy one thing, then it can illegitimately make you buy something else …”

    The merits of this social mystery that is being debated turn upon the net or relevant final good it does for the 99% of American society.

    Just sayin’ …

  15. I think Scalia’s point was that this is the first federal legislation in history in which American’s are required to actually buy a certain product from private corporations. If the federal government legitimately can make you buy one thing, then it can legitimately make you buy something else as well. All they have to do is come up with a “good” reason for making you buy it.

    And for those who would argue that the government isn’t requiring people to buy insurance, the text of the law itself says it will assess a “penalty” against anyone who isn’t covered by insurance. The fact that they then attempt to disguise the penalty by enforcing it via the tax code is just political slight of hand, and the Justices noted it as such during the oral arguments.

  16. The “buy broccoli” law would be OK with me if it had an amendment: “And if you do not have the money to buy broccoli, the government will provide you with broccoli.” But you might have to put up with getting more stems and fewer crowns.

    Broccoli story: [It is said that I have a story for everything]:

    A good friend of mine always had severe anxiety disorders, including absolute panic attacks and phobias. She was AFRAID OF FRUIT! Ferkrissake. Anyway, she ended up on the psych ward and they were still not recognizing and treating the anxiety disorder itself because they were off on a “give her ECT” thread because it is financially beneficial to that hospital (Beth Israel in NY) to give lots of ECT treatments. $$$$ talks. (Also, her kids wanted her to get lots of ECT because then they could get control over the money — she’d be unable to deal with it — etc. etc.)

    So she’s in the hospital. I take the Greyhound up to see her on weekends, and spend the day with her in the ward (special permission from staff) and we talk, we have meals together, we walk up and down the halls. One day she starts to talk about the food. She’s outraged that she gets broccoli stems. (She was well to do and did not eat in inferior restaurants, and did not buy “low class” food or frozen vegetables, etc. Everything high class and everything fresh and organic.) She fusses about the broccoli stems.

    Later that day, she is in her bed, in her room, bemoaning the fact that she is a terrible person, in fact, she calls herself “a weapon of mass destruction.” She says she will destroy the world by simply eating her next meal (a persistent delusion of hers).

    She will not take a sip of orange juice because she believes she is guilty of the problems in the world and she is about to destroy it in its entirety. Then she switches to the complaints about the broccoli again.

    I ask, gently, “[name omitted], if you are going to destroy the world, is that a good thing or a bad thing?”

    She admits it is bad.

    I ask, “Then why is it that you deserve the crowns of the broccoli? Perhaps they are right to only give you the stems.”

    She thought for a minute. I actually SAW her ponder this.

    She said, “what are broccoli stems made of?”

    I said, “Broccoli stems are made of broccoli.”

  17. Steve K: “Might they be able to make us buy it, but rather not be able to make us eat it?”

    You can lead a horse to drink, but you can’t make him water!

  18. Whether you take the broccoli argument as literal or as hyperbole, whether you think that such a law could or could not pass, even if you believe there is or isn’t a slippery slope is completely irrelevant.

    Do you feel the constitution allows the federal government to mandate you purchase medical insurance.

    That is the only question. The answer to the broccoli question really has no bearing.

  19. Clarification: in-computer videos work; internet videos don’t

  20. I have a problem I hope someone can help me with. My computer heroes don’t work on Saturday.

    I did a number of updates: AVG, Java, Adobe reader. Anyway, now I can’t watch any videos, even those that I watched before the updates. I did a reboot after the updates (except Adobe reader). Anyone have a clue?

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